Drones: A Uniformly Bad Law

Anyone who operates a regional or nationwide business knows that coping with a patchwork of state and local laws can be challenging. Fortunately, the states also realize that this can be a problem, and will sometimes cooperate to voluntarily establish a “uniform” law.  For example, in 1952, a group of top legal scholars from the National Conference of Commissioners on Uniform State Laws (NCCUSL) got together and drafted the Uniform Commercial Code.  This code has been adopted (with some variations) in every state, and has greatly improved predictability for business owners.

Over the past five years, most states have enacted laws regarding the use of unmanned aircraft. These laws vary wildly in what they permit and prohibit.  Right now, however, the NCCUSL is working on solving this problem by creating the uniform Tort Law Relating To Drones Act.  As with the Uniform Commercial Code, the NCCUSL hopes that every state will quickly adopt the Act as the basis for its state drone laws.

The draft of the proposed uniform drone tort law, unfortunately, suffers from a serious flaw. The drafters have based the law on concepts of trespass to land.  By way of background, trespass to land and aerial trespass have traditionally been evaluated under different standards.  In cases of trespass to land, the land owner does not normally have to prove damages in order to be able to recover.  The law infers some damage simply by virtue of the act of entering property without permission.  With aerial trespass, the law usually requires proof of some actual injury to support a claim.  This is an outgrowth of the United States Supreme Court’s decision in United States v. Causby, 328 U.S. 256 (1946), where the Court held that the USAAF’s continual operation of bombers over his property at an altitude of 83 feet resulting in noise and vibration of such severity that it was literally killing his flock of chickens, meant that the government had to compensate him for his inability to use his land.

The NCCUSL has decided that the balance of interest in aerial trespass should be abandoned, and that any aerial trespass below 200’ should be treated as a trespass to land, with the right to bring an action without any requirement to prove an actual injury. The 200’ altitude limit is increased by the altitude of any structure.  For example, if there is a building that is 100’ tall, any flight over the building below 300’ AGL would be a per se trespass.

The proposed uniform act also creates the tort of acquiring “images, recordings or physical or electronic impressions using an unmanned aircraft.” Any person who acquires an image “depicting private facts” in a manner that is “highly offensive to a reasonable person” can be sued.  The Act presumes that any image that includes anything that is not visible from ground level outside the person’s property “depicts private facts.”  In addition, any image captured from below 200’ is presumed to be acquired in a “highly offensive manner.”’

While we generally applaud efforts to create uniformity among the states, we only do so when the law itself is good.  In some cases, such as this, all you wind up with is a law that is not just bad, but uniformly bad.  Turning all transits of an aircraft less than 200’ over a structure into a violation, without any requirement to prove actual harm, is an invitation for chaos.  The NCCUSL claims that treating aerial trespass as per se actionable “will likely not engender a rash of new litigation” because people can be trusted to be reasonable. Given the state of public discourse in the county right now, an assumption that people won’t use the law to harass drone operators or try to strong-arm them with a threat of litigation seems unrealistically optimistic.

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