There was an interesting confrontation in Seattle this week where a man flew a drone just feet away from a family home. The drone was camera-equipped and the mother called police. Before the man left, he insisted that he had a right to use a private drone to surveil his neighbors. No it is not John Ashcroft’s neighborhood. I wanted to clarify a couple of points before others take to the air for some private snooping.
The man reportedly told the mother that he was not trespassing in the use of a private drone. It is certainly true that the Supreme Court has ruled against private property claims over airspace. The Court rejected the ancient precept of cuius est solum, eius est usque ad caelum et ad inferos (“For whoever owns the soil, it is theirs up to Heaven and down to Hell.”). The ruling in United States v. Causby, 328 U.S. 256 (1946) rejected such absolute claims but noted that there were limits on government interference under the Takings Clause:
We have said that the airspace is a public highway. Yet it is obvious that if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run. The principle is recognized when the law gives a remedy in case overhanging structures are erected on adjoining land. The landowner owns at least as much of the space above the ground as the can occupy or use in connection with the land. . . . The fact that he does not occupy it in a physical sense—by the erection of buildings and the like—is not material. . . . We would not doubt that if the United States erected an elevated railway over respondents’ land at the precise altitude where its planes now fly, there would be a partial taking, even though none of the supports of the structure rested on the land. The reason is that there would be an intrusion so immediate and direct as to subtract from the owner’s full enjoyment of the property and to limit his exploitation of it. While the owner does not in any physical manner occupy that stratum of airspace or make use of it in the conventional sense, he does use it in somewhat the same sense that space left between buildings for the purpose of light and air is used.
This obviously deals with government interference. The intrusion in Seattle dealt with private action. Yet, both the government and private parties are subject to common law protections of privacy, which recognizes that the privacy of a home includes its curtilage or area surrounding the home. This includes government surveillance requiring a warrant.
Under the Second Restatement, citizens may sue for violations of the intrusion upon seclusion:
652B Intrusion Upon Seclusion
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
This would seem to qualify. Any photos taken would also be subject to litigation for the public disclosure of embarrassing private facts. If close enough to a window, it is even possible to argue trespass under a curtilage theory, but the privacy claims are stronger. There are also criminal laws governing harassment and stalking that could be applicable.
In other words, this private drone operator needs to rethink not only his concept of civility but legality in his bizarre form of recreation.