By Stephen M. Rinka, Esq.
The advent of the Unmanned Aerial Vehicle (“UAV”) age is going to bring changes to society in ways that cannot yet be contemplated. As UAV technology continues to develop, their applications will change to the point that they will become integrated in daily living. However, before we get to that stage in UAV integration, there are going to be growing pains between manufacturers, sellers and operators of UAVs and the public.
Currently, a UAV hobbyist has few restrictions when operating a UAV outdoors. The restrictions placed on a hobbyist UAV operator include, not operating a UAV above 400 feet, maintain visual contact with the UAV, fly in accordance with a set of community based guidelines and give notice to any airport that is within 5 miles of where you are operating your UAV. Despite the relatively minor restrictions relating to personal UAV operation, this is scheduled to change once the Federal Aviation Administration releases UAV regulations later this year.
In the meantime, state legislatures have are considering various laws to regulate UAVs. In California, Governor Brown has been presented with Senate Bill SB 142, which would significantly restrict UAV use. Under SB 142, it would be considered a trespass if a UAV operator, either a hobbyist or a commercial operator, operates an “unmanned aircraft or unmanned aircraft system less than 350 feet above ground level within the airspace overlaying the real property” without the property owner’s permission.
Under the proposed law, a property owner’s exclusive domain is, in essence, extended 350 feet into the air. This is significant because the Ninth Circuit Court of Appeals and the United States Supreme Court have indicated that an owner’s airspace rights only extend approximately 100 feet in to the sky. Accordingly, the 350-foot minimum altitude gives, in essence, new “sky rights” to property owners. More significantly, the bill does not address protecting privacy rights, which is the primary reason for this legislation.
This article discusses how SB 142 creates the potential for frivolous lawsuits by granting landowners new ownership rights and how this bill misses the mark on protecting an individual’s privacy rights.
Prior Courts Decisions Have Restricted a Landowner’s “Sky Rights” to Approximately 100 feet.
The most controversial part of SB 142 is the arbitrary 350-foot minimum height that UAV operators must maintain their UAVs in order to avoid being sued for trespass. While California Civil Code §659 provides that an individual’s property rights “include rights to the free or occupied space for an indefinite distance upwards” courts have expressly limited the ability of landowners to control the airspace more than 100 feet above their property.
In Hinman v. Pacific Air Transport, a case decided by the Ninth Circuit Court of Appeals, the Court found that a landowner did not have a right to enjoin commercial aircraft from flying over his Burbank, California property, even at altitudes less than 100 feet above the surface.
The Hinman Court, in denying the landowner’s request to stop an airline from flying over his property, flatly rejected the claim that a landowner has complete control over the sky above his/her property. The Court noted that “[t]his formula ‘from the center of the earth to the sky’ was invented at some remote time in the past when the use of space above land actual or conceivable was confined to narrow limits, and simply meant that the owner of the land could use the overlying space to such an extent as he was able, and that no one could ever interfere with that use.” The Court goes on to note that this formula was never to be taken literally, but was a figurative phrase to express the full and complete ownership of land and the right to whatever superjacent airspace was necessary or convenient to the enjoyment of the land.
The Ninth Circuit Court, appearing to be very prescient about the future of flight, realized that the sky needs to be open for civilization to progress. The Court stated that in applying Civil Code §659, “we cannot shut our eyes to common knowledge, the progress of civilization, or the experience of mankind. A literal construction of [Civil Code §659] will bring about an absurdity. The sky has no definite location. It is that which presents itself to the eye when looking upward; as we approach it, it recedes. There can be no ownership of infinity, nor can equity prevent a supposed violation of an abstract conception.”
Although the Hinman Court clearly rejected any notion that a landowner has infinite domain above his property, the Court recognized that a landowner does have “sky rights.” The Court indicated that landing airplanes that come within a distance of less than 100 feet to the surface of the property owner’s land, may constitute an impairment of his full enjoyment of his property. However, the Court did not find the low flying aircraft to be trespassing over the property, but potentially interfering with the landowner’s enjoyment of land.
This opinion by the Ninth Circuit Court strikes a fair balance between protecting a landowner’s peace and enjoyment of his/her property while also recognizing that as civilization continues to utilize aircraft in daily living, limitations must be placed on the landowner from restricting flight. The Court said it well by stating that “We cannot shut our eyes to the practical result of legal recognition of the asserted claims of [the airline] herein, for it leads to a legal implication to the effect that any use of airspace above the surface owner of land, without his consent would be a trespass either by the operator of an airplane or a radio operator. We will not foist any such chimerical concept of property rights upon the jurisprudence of this country.”
Similarly, the United States Supreme Court has ruled that the public airspace is a public highway” which limits the area above a property owner’s land that he is entitled to control. In United States v. Causby, the landowner claimed that the landing and taking off of military aircraft from an airport adjacent to his property interfered with his enjoyment of his property and caused his chickens to stop laying eggs. The Supreme Court found that aircraft operating 83 feet above his property as they approached for landing or take off interfered with the enjoyment of his property. However, the Court did not construe the flight pattern as a trespass, even though it was under 100 feet. Nevertheless, the Court did recognize that there is a boundary above land at which point the landowner has complete control.
When taking into consideration what previous courts have held, it seems clear that the 350-foot restriction is an unreasonable extension of landowner rights. In deciding on the 350 foot restriction, Senator Hannah-Beth Jackson, the author of SB 142, stated:
Drone technology is exciting and offers great new commercial and recreational opportunities for California. But we need to make clear what the rules are, and avoid situations where people start crossing that line into someone else’s private space. This bill attempts to clear up some of the ambiguity surrounding private property and drone operations by marking the boundary between public “navigable airspace’ and private property.
While a minimum altitude restriction is necessary to protect an individual’s privacy and enjoyment of land, this bill goes beyond what is reasonable to protect an individual’s privacy and contradicts prior court rulings. Before California pushes through this draconian legislation, it needs to take the time to further research the impact of UAV technology on privacy rights.
Interestingly, there is a bill pending (AB 14) that creates an Unmanned Aircraft Systems Task Force, which would research, develop, and formulate a comprehensive policy for unmanned aircraft systems in California. The California legislature should move forward with this bill and allow more time to develop a comprehensive policy that finds a better balance between UAV use and protecting privacy interests.
SB 142 Does Not Address Privacy Concerns.
Senator Jackson has stated that the primary driving force behind SB 142 is to protect the citizenry’s privacy rights. Senator Jackson wrote the following in support of SB 142:
The 350-foot height limit was chosen because to exclude drones that are operated in a manner that invades privacy. While this height limit will not address all potential harms and privacy concerns, the limit represents a good balance between privacy while allowing for zone for operation…..The purpose is set expectations about where unmanned aircraft systems should fly in a way that does not invade privacy or private property rights.
Based on Senator Jackson’s statement, the height restriction is what she deems to be a good balance between protecting privacy while allowing a zone of operation. What is interesting is that even Senator Jackson admits that the 350-foot altitude will not eliminate a UAV operator from invading an individual’s privacy, but merely reduces the risk. It must be presumed that she believes that an individual’s privacy rights are better protected at this altitude because it will be difficult to decipher any videos or photographs of individuals taken at an altitude of 350 feet.
In light of the California Legislature’s stated intent in passing SB 142 is to protect privacy rights, namely to prevent UAV operators from recording individuals on their property, setting a minimum altitude of 350 feet is not the answer. Those operators that are going to use UAVs for nefarious purposes will engage in such activities regardless if the minimum altitude is 350 feet. The individuals who are going to feel the wrath of SB 142 are hobbyists who unknowingly breach the 350 foot floor. Once a couple of UAV hobbyists are sued for violating SB 142, many potential hobbyists will forego purchasing a UAV for fear of being sued.
Considering SB 142 says nothing about recording or photographing individuals in a private setting, SB 142 essentially does nothing to protect privacy. What it really does is open up a whole new area for frivolous lawsuits. However, there is a bill pending in the California Legislature that does address improper videotaping and photographing of individuals. California Assembly Bill AB 856 would make it illegal for a person to knowingly enter into the airspace above the land of another, without permission, in order to take video or photographs of an individual. Accordingly, AB-856 directly addresses the protection of individual privacy rights without subjecting innocent UAV operators to arbitrary height restrictions that can cause them to be hauled into court. This legislation more directly addresses the issue of privacy than SB 142.
SB 142 will not do anything to protect privacy rights, but will unleash a tidal wave of frivolous lawsuits. California’s rush to get legislation passed that grants new rights to landowners while not addressing the capturing of video and photography of individuals in a private setting is bad for the industry and innocent UAV operators. California should move forward with AB 14 and create a task force that allows for broader research into protecting individuals’ privacy without subjecting UAV operators to frivolous lawsuits.
Stephen Rinka is a licensed California attorney who has advised aviation related companies on complex legal issues as well as represented these companies in litigation. Stephen believes that UAVs are the new frontier in personal aviation and UAV operators are going to be subjected to continous new regulations. Stephen provides counsel to those in the UAV arena with questions about regulations and representation in litigation.
 Hinman v. Pacific Air Transport (9th Cir. 1936) 8 F.2d 755.
 Id. at 757.
 Id. at 757.
 Id. at 757.
 Id. at 758.
 Id. at 758-759.
 Id. at 758.
 United States v. Causby (1946) 328 U.S. 256, 261.
 Id. at 267.
 Id. at 265.