Is Private Airspace Ownership Really Up in the Air?

2015-09-09

Is Private Airspace Ownership Really Up in the Air?
As I write this article, many of my colleagues in the commercial drone industry have focused their attention on the State of California and are anxiously waiting to see if the California Governor will sign or veto SB 142, which recently passed in the California legislature. If signed into law, SB 142 would prohibit drones from flying over private property at an altitude of less than 350 feet without the permission of the property owner. Unfortunately the timing of this legislation has coincided with less than positive events and news for the drone community. For example, the State of California has been plagued by droughts for several years and in 2015 there were several high profile wildfires. During some of the fires there were reports that hobbyists operated small drones in the vicinities of the fires and this type of rogue drone operation prompted officials to ground firefighting aircraft in a few cases. The vast majority of the drone community condemned these flights since they no doubt violated FAA regulations as a result of the temporary flight restrictions (TFR) in place during the fire emergencies. However, the public sentiment in response to these unfortunate events was understandably very negative.

Before I delve into SB 142, I thought it would be useful to share example images taken at different altitudes to demonstrate the capabilities of a very common commercial drone, the DJI Phantom 2 Vision+ with a 14 megapixel camera. The images below were taken at 100, 200 and 300 feet above ground level respectively. These images are unedited and illustrate the detail (or lack of detail) that can be captured at these altitudes.

Even at 100 feet above ground level, the image details are not necessarily great. At 200 feet and beyond, it is difficult to discern between humans and equipment on the ground.

As drone hysteria has unfolded over the past few years, it has remained largely unnoticed that we are in an unprecedented era of aviation safety in the United States, so much so that it seems many people take manned aviation safety for granted now. Very few people outside of the aviation industry understand the complexity of aviation law and regulations, or how the national airspace system (NAS) is regulated and managed. The average person does not have to deal with these types of issues. However, as our society faced what I term a “crises of conflation” with respect to drones, fears emerged that drone technology was somehow in a regulatory vacuum and a general state of lawlessness, where private drone operators could act recklessly with impunity. Thus began the calls for new legislation to address drones at the local and state levels.

As a patchwork of drone legislation popped up across the country, the “crises of conflation” led to very inconsistent state bills that attempted to address a montage of issues including privacy, Fourth Amendment concerns, and even drone “weaponization”. But an important question was largely ignored: what are the legal definitions of private property airspace ownership? In other words, who really “owns” the airspace above private property? Despite the lively debate and political dialogue that surrounded all of the pieces of state legislation, there was never really an open discussion about this issue. This is an important issue, because if we want to address issues such as the expectation of privacy or Fourth Amendment protections, we must first decide what part of the airspace is “private”. By not focusing on this critical issue, legislators and policymakers were distracted from identifying and addressing tangible real harms, since most of the draft legislation was addressing emotional responses to the technology, with no apparent effort to drill down to the fundamental issues involved. This led to a state laws that were mostly either unenforceable, unconstitutional or both.

Uncertainty, especially legal and regulatory uncertainty, leads to the dreaded FUD condition (fear, uncertainty and doubt). FUD is paralyzing and is fertile ground for non-productive and sometimes irrational arguments to take seed and grow. FUD distracts us from solving fundamental problems. The drone community has had an ample dose of FUD.

Having fought on the front lines of the drone advocacy effort at the state and federal levels, I argue that there is no vacuum of laws that apply to drones, but instead I believe that we lack a clear definition – or at least a clear understanding – of private airspace ownership rights in our country. In fact, I believe this lack of a clear definition of private property airspace ownership rights is one of the biggest hurdles we currently face in the commercial drone industry. If we can focus on this issue, many of the other publicly-stated concerns and fears may be alleviated, or at least more easily and practically addressed by policymakers. A specific and clear definition of private airspace ownership will enable the application of the large body of existing laws including trespass and voyeurism laws. We need to address this issue, and we need to get it right.

So how do we define private property airspace ownership in a practical way, and in particular determine consistent boundaries? The courts have addressed airspace issues in the past. Prior to the early part of the twentieth century, the commonly accepted principle of property law was cuius est solum, eius est usque ad coelum et ad inferos, which is latin for “whoever’s is the soil, it is theirs all the way to Heaven and all the way to hell”. This meant that if a person owned the land, they automatically owned the space above the land (in theory to infinity). This concept and principal of “airspace ownership” dated back to the 13th century and worked well. It was not until the advent and spread of manned aviation in the early twentieth century that this principle of property law was challenged. In 1946 the U.S. Supreme Court – in United States vs. Causby – ruled that this ancient doctrine had no legal effect in the modern world. The Court ruled that a landowner in the United States “owns at least as much of the space above the ground as he can occupy or use in connection with the land,” and invasions of that airspace “are in the same category as invasions of the surface.” This is important, because this means that much of the existing body of law that addresses “invasions of the surface” would apply to invasions of the private airspace. But where is the exact boundary between private and public airspace?

The Court in the Causby case found that private landowners owned the airspace up to an altitude of at least 83 feet above ground level, but the issue of the exact boundary remained somewhat ambiguous. Prior to this case, Congress had enacted 49 U.S.C. § 180 and defined “navigable airspace” to be in the public domain, and the definition of “navigable airspace” ranged as low as 500 feet above ground level. Taken in combination, this implies that the boundary for private airspace ownership is somewhere between 83 feet and 500 feet above the ground. Regardless, both Congress and the Supreme Court seemed to agree that the airspace above some minimum altitude was in the public domain.

The next time that the Supreme Court addressed airspace rights over private property in a significant manner was in the late 1980s Supreme Court case of Florida vs. Riley. The case involved the use of a police helicopter where law enforcement officers were hovering over a greenhouse that was situated on private property and noticed marijuana growing inside. The officers obtained a search warrant and confirmed that marijuana was, in fact, being cultivated. The property owner was charged and subsequently challenged the law enforcement’s helicopter flight over the property by arguing that the flight violated his reasonable expectation of privacy as afforded by the Fourth Amendment. The Court disagreed, and ruled that a police helicopter operating at 400 feet above ground level did not require a search warrant.

So, where did that leave the issue of private ownership of airspace? The Riley case could be roughly construed to imply that private ownership of airspace does not extend all the way to 500 feet above the ground, but rather at some height possibly less than 400 feet. Where does that leave the lower altitudes in terms of jurisdiction? Can states regulate these lower altitudes and define the boundaries of private property rights in the airspace? Congress granted exclusive jurisdiction over all navigable airspace to the FAA, and the legal implication is that attempts by states to address the navigable airspace are barred by federal preemption. But does “navigable airspace” have the same meaning in 2015 as it did in 1946, 1958 or even 1989? We still seem to be left with a somewhat ambiguous definition of private property airspace ownership rights that is capped somewhere between 83 feet and 400 feet above ground level.

We have been left in a quandary as to how to address this issue: Should we address this problem primarily from the perspective of an expectation of privacy? If so, how do we define the real harms in order to begin to tackle the issue? For example, with current imaging technology, a manned Cessna 172 flying at 1,000 feet may outperform a small drone flying at 300 feet when it comes to image detail and resolution. And yet the Cessna may go largely ignored at 1000 feet altitudes. I argue that the Cessna – when carrying readily-available sophisticated equipment – is a bigger potential threat to an expectation of privacy. And for the drone, does the difference between 300 feet and 301 feet above the ground make a profound difference in protecting privacy from the air?

A couple of decades ago, I doubt anyone could have predicted the large-scale proliferation of camera-equipped smartphones that now exist. Any event or person at virtually any location around the globe can now be photographed and the images can be instantly uploaded to the internet and shared with a worldwide audience in a matter of seconds. Camera-equipped smartphones can be a profound threat to our expectation of personal privacy. Yet, we carry our smartphones in our pockets everywhere, even into many private places where there is most definitely a “reasonable expectation of privacy”. However, most understand when and where we should use smartphone cameras because existing (and evolving) laws address the “harms”. Yet even with these laws in place, if one performs a news article search using the term “cellphone voyeur” it is likely that many criminal cases will be active at any point in time. There is a real privacy threat with smartphones. However, imagine if we approached smartphones the same way that some currently view drones and that we had to keep our smartphones at least 350 feet away from any other person unless we had their explicit permission. It wouldn’t matter if you used your smartphone or not, just violating proximity rules would be grounds for prosecution. This seems absurd. And yet isn’t this how most of the state-level drone legislation has been approached?

To be clear, I believe we need limits. A reasonable person would agree that a drone operating at eye level without permission on private property would be offensive and unacceptable, and the same argument could be made at 25 feet and 50 feet, etc. But where can we draw the line and find an acceptable altitude from a privacy perspective? The argument for a specific altitude can appear arbitrary in regards to definition if we base it on privacy concepts alone, since we don’t apply that same principle to other similar technologies such as camera-equipped smartphones. Also, since Congress has already granted exclusive jurisdiction to the FAA over all navigable airspace in the United States for reasons of safety, any state or local laws must be able to withstand preemption challenges. Otherwise, expensive legal battles will be virtually guaranteed so it is important that we get this right. I argue that the privacy argument alone will not enable us to work toward identifying reasonable private property airspace definitions, unless we are willing to move back toward the 13th century property law principles and prohibit all overflights at any altitude.

So, maybe the privacy perspective is not necessarily our most expeditious or useful tool when defining private property airspace ownership and rights, especially in light of the ubiquity of digital imaging technology. Perhaps we have more clarity if we approach the question from a safety perspective and examine how the airspace is managed at the lowest levels based on safety. If we look at existing FAA safety regulations, we notice a distinct altitude demarcation at 200 feet above the ground. Objects such as towers and buildings that are below 200 feet in height require no special markings or lights to comply with aviation safety regulations. However, structures that are 200 feet in height and taller do require markings and lights. This 200 feet demarcation is already “hard coded” into existing regulations and is part of our established national approach to airspace navigation and management. So, is 200 feet the private airspace definition that is most appropriate? I argue: Yes, it appears so since there is an existing regulatory framework and argument in place to support a definition of a 200 feet altitude demarcation.

The 200 feet altitude demarcation is further supported by recent FAA authorization approvals, where the six FAA test sites have been granted blanket certificates of authorization (COAs) to operate drones more easily below 200 feet in altitude. The FAA has also granted blanket COAs to any drone operator that possesses an FAA Section 333 Exemption. The safety precedent for a 200 feet altitude demarcation continues to strengthen. Therefore, I argue that by examining the issue from the safety perspective, we have less ambiguity.

Assuming that private airspace ownership is defined at altitudes of 200 feet and below, how would small drones that operate above that altitude impact private property owners? The FAA’s draft Part 107 rules will most likely restrict small drones (those weighing less than 55 pounds) to operating altitudes of 500 feet and below. If we define 200 feet as the demarcation of private property (and airspace) ownership, then that leaves a 300 feet “transit corridor” that would be available to small drones. Companies like Amazon and Google are already proposing business models that are based on commercial operation of small drones between 200 feet and 500 feet above the ground.

But will this altitude definition be acceptable to both the public and the drone industry? The most common argument that I hear against small drone operation is the nefarious small drone that loiters over a private swimming pool, or other private gathering, photographing the people below. In this case, can – and should – we distinguish between a drone at an altitude of 201 feet and a manned helicopter operating at 2,000 feet? Although the drone seems to evoke a stronger emotional reaction, the reality is that if either scenario occurred, the property owners might have grounds for an “invasion of privacy” claim (intrusion upon seclusion), in addition to claims based on harassment, nuisance or related concerns. Thus, the private property owners likely do have legal remedies at their disposal already to address these types of scenarios. This scenario is also litigated and argued quite frequently in cases involving the paparazzi and celebrities (there are additional important First Amendment concerns that I won’t address here).

If we accept 200 feet above the ground as the boundary for private property airspace ownership, we will still face another challenge – enforcement of altitude restrictions. Aside from my professional involvement with drones, I also enjoy model aircraft as a hobby. One of my favorite exercises is to fly one of my own hobby multirotor drones at different altitudes and then ask friends or people who are with me to guess the operating altitude. As the operator, I have the benefit of the telemetry data that is displayed on my controller, so I have a good idea of the altitude (factoring in GPS and sensor errors, of course). What I have found is that very few people are able to accurately guess the altitude based on visual observation. I can operate the drone at 60 to 100 feet in altitude and the altitude guesses may range from 30 feet to 200 feet. Very few people are accurate in judging the altitude of small objects.

Altitude enforcement will be a challenge, which is why I believe it is important that we develop a clear definition of private airspace ownership at the federal level (not state level). Ultimately, I believe technology will solve this problem. Premature state and local laws that restrict altitude will open up unnecessary litigation and legal challenges, especially considering the difficulty in enforcement. Therefore, states should not take action yet. Instead, we must prompt the federal government to move more quickly since the rapid growth of this potentially beneficial innovative technology requires this level of federal preemption to protect and foster healthy interstate commerce. Furthermore, clarity as a result of federal rules and regulations can help prompt the development of innovative safety technology that can assist in compliance of the rules with respect to altitude limits. States are not equipped to tackle this challenge.

People have asked me how I think that technology will help solve the enforcement issue. My response is to look again at cellphone technology. A cellphone is subject to many complex regulations (FCC, etc.). However, the average user does not have to worry about compliance issues such as spectrum usage or transmit power levels. These issues are handled by the cellphone hardware and software. I believe small commercial drones will begin to resemble consumer electronics in terms of compliance and safety. These issues can and will be solved.

Will a 200 feet altitude definition for private property airspace ownership satisfy everyone? The answer is clearly “no”, there will be some that don’t want drones operating at any altitude, just as some people objected to manned aircraft a century ago. But a 200 feet definition of private property airspace ownership can be justified with our existing safety regulatory framework, and it makes good sense. I believe California’s SB 142 may be well-intentioned, but has it wrong.
As I write this article, many of my colleagues in the commercial drone industry have focused their attention on the State of California and are anxiously waiting to see if the California Governor will sign or veto SB 142, which recently passed in the California legislature. If signed into law, SB 142 would prohibit drones from flying over private property at an altitude of less than 350 feet without the permission of the property owner. Unfortunately the timing of this legislation has coincided with less than positive events and news for the drone community. For example, the State of California has been plagued by droughts for several years and in 2015 there were several high profile wildfires. During some of the fires there were reports that hobbyists operated small drones in the vicinities of the fires and this type of rogue drone operation prompted officials to ground firefighting aircraft in a few cases. The vast majority of the drone community condemned these flights since they no doubt violated FAA regulations as a result of the temporary flight restrictions (TFR) in place during the fire emergencies. However, the public sentiment in response to these unfortunate events was understandably very negative.

Before I delve into SB 142, I thought it would be useful to share example images taken at different altitudes to demonstrate the capabilities of a very common commercial drone, the DJI Phantom 2 Vision+ with a 14 megapixel camera. The images below were taken at 100, 200 and 300 feet above ground level respectively. These images are unedited and illustrate the detail (or lack of detail) that can be captured at these altitudes.

Even at 100 feet above ground level, the image details are not necessarily great. At 200 feet and beyond, it is difficult to discern between humans and equipment on the ground.

As drone hysteria has unfolded over the past few years, it has remained largely unnoticed that we are in an unprecedented era of aviation safety in the United States, so much so that it seems many people take manned aviation safety for granted now. Very few people outside of the aviation industry understand the complexity of aviation law and regulations, or how the national airspace system (NAS) is regulated and managed. The average person does not have to deal with these types of issues. However, as our society faced what I term a “crises of conflation” with respect to drones, fears emerged that drone technology was somehow in a regulatory vacuum and a general state of lawlessness, where private drone operators could act recklessly with impunity. Thus began the calls for new legislation to address drones at the local and state levels.

As a patchwork of drone legislation popped up across the country, the “crises of conflation” led to very inconsistent state bills that attempted to address a montage of issues including privacy, Fourth Amendment concerns, and even drone “weaponization”. But an important question was largely ignored: what are the legal definitions of private property airspace ownership? In other words, who really “owns” the airspace above private property? Despite the lively debate and political dialogue that surrounded all of the pieces of state legislation, there was never really an open discussion about this issue. This is an important issue, because if we want to address issues such as the expectation of privacy or Fourth Amendment protections, we must first decide what part of the airspace is “private”. By not focusing on this critical issue, legislators and policymakers were distracted from identifying and addressing tangible real harms, since most of the draft legislation was addressing emotional responses to the technology, with no apparent effort to drill down to the fundamental issues involved. This led to a state laws that were mostly either unenforceable, unconstitutional or both.

Uncertainty, especially legal and regulatory uncertainty, leads to the dreaded FUD condition (fear, uncertainty and doubt). FUD is paralyzing and is fertile ground for non-productive and sometimes irrational arguments to take seed and grow. FUD distracts us from solving fundamental problems. The drone community has had an ample dose of FUD.

Having fought on the front lines of the drone advocacy effort at the state and federal levels, I argue that there is no vacuum of laws that apply to drones, but instead I believe that we lack a clear definition – or at least a clear understanding – of private airspace ownership rights in our country. In fact, I believe this lack of a clear definition of private property airspace ownership rights is one of the biggest hurdles we currently face in the commercial drone industry. If we can focus on this issue, many of the other publicly-stated concerns and fears may be alleviated, or at least more easily and practically addressed by policymakers. A specific and clear definition of private airspace ownership will enable the application of the large body of existing laws including trespass and voyeurism laws. We need to address this issue, and we need to get it right.

So how do we define private property airspace ownership in a practical way, and in particular determine consistent boundaries? The courts have addressed airspace issues in the past. Prior to the early part of the twentieth century, the commonly accepted principle of property law was cuius est solum, eius est usque ad coelum et ad inferos, which is latin for “whoever’s is the soil, it is theirs all the way to Heaven and all the way to hell”. This meant that if a person owned the land, they automatically owned the space above the land (in theory to infinity). This concept and principal of “airspace ownership” dated back to the 13th century and worked well. It was not until the advent and spread of manned aviation in the early twentieth century that this principle of property law was challenged. In 1946 the U.S. Supreme Court – in United States vs. Causby – ruled that this ancient doctrine had no legal effect in the modern world. The Court ruled that a landowner in the United States “owns at least as much of the space above the ground as he can occupy or use in connection with the land,” and invasions of that airspace “are in the same category as invasions of the surface.” This is important, because this means that much of the existing body of law that addresses “invasions of the surface” would apply to invasions of the private airspace. But where is the exact boundary between private and public airspace?

The Court in the Causby case found that private landowners owned the airspace up to an altitude of at least 83 feet above ground level, but the issue of the exact boundary remained somewhat ambiguous. Prior to this case, Congress had enacted 49 U.S.C. § 180 and defined “navigable airspace” to be in the public domain, and the definition of “navigable airspace” ranged as low as 500 feet above ground level. Taken in combination, this implies that the boundary for private airspace ownership is somewhere between 83 feet and 500 feet above the ground. Regardless, both Congress and the Supreme Court seemed to agree that the airspace above some minimum altitude was in the public domain.

The next time that the Supreme Court addressed airspace rights over private property in a significant manner was in the late 1980s Supreme Court case of Florida vs. Riley. The case involved the use of a police helicopter where law enforcement officers were hovering over a greenhouse that was situated on private property and noticed marijuana growing inside. The officers obtained a search warrant and confirmed that marijuana was, in fact, being cultivated. The property owner was charged and subsequently challenged the law enforcement’s helicopter flight over the property by arguing that the flight violated his reasonable expectation of privacy as afforded by the Fourth Amendment. The Court disagreed, and ruled that a police helicopter operating at 400 feet above ground level did not require a search warrant.

So, where did that leave the issue of private ownership of airspace? The Riley case could be roughly construed to imply that private ownership of airspace does not extend all the way to 500 feet above the ground, but rather at some height possibly less than 400 feet. Where does that leave the lower altitudes in terms of jurisdiction? Can states regulate these lower altitudes and define the boundaries of private property rights in the airspace? Congress granted exclusive jurisdiction over all navigable airspace to the FAA, and the legal implication is that attempts by states to address the navigable airspace are barred by federal preemption. But does “navigable airspace” have the same meaning in 2015 as it did in 1946, 1958 or even 1989? We still seem to be left with a somewhat ambiguous definition of private property airspace ownership rights that is capped somewhere between 83 feet and 400 feet above ground level.

We have been left in a quandary as to how to address this issue: Should we address this problem primarily from the perspective of an expectation of privacy? If so, how do we define the real harms in order to begin to tackle the issue? For example, with current imaging technology, a manned Cessna 172 flying at 1,000 feet may outperform a small drone flying at 300 feet when it comes to image detail and resolution. And yet the Cessna may go largely ignored at 1000 feet altitudes. I argue that the Cessna – when carrying readily-available sophisticated equipment – is a bigger potential threat to an expectation of privacy. And for the drone, does the difference between 300 feet and 301 feet above the ground make a profound difference in protecting privacy from the air?

A couple of decades ago, I doubt anyone could have predicted the large-scale proliferation of camera-equipped smartphones that now exist. Any event or person at virtually any location around the globe can now be photographed and the images can be instantly uploaded to the internet and shared with a worldwide audience in a matter of seconds. Camera-equipped smartphones can be a profound threat to our expectation of personal privacy. Yet, we carry our smartphones in our pockets everywhere, even into many private places where there is most definitely a “reasonable expectation of privacy”. However, most understand when and where we should use smartphone cameras because existing (and evolving) laws address the “harms”. Yet even with these laws in place, if one performs a news article search using the term “cellphone voyeur” it is likely that many criminal cases will be active at any point in time. There is a real privacy threat with smartphones. However, imagine if we approached smartphones the same way that some currently view drones and that we had to keep our smartphones at least 350 feet away from any other person unless we had their explicit permission. It wouldn’t matter if you used your smartphone or not, just violating proximity rules would be grounds for prosecution. This seems absurd. And yet isn’t this how most of the state-level drone legislation has been approached?

To be clear, I believe we need limits. A reasonable person would agree that a drone operating at eye level without permission on private property would be offensive and unacceptable, and the same argument could be made at 25 feet and 50 feet, etc. But where can we draw the line and find an acceptable altitude from a privacy perspective? The argument for a specific altitude can appear arbitrary in regards to definition if we base it on privacy concepts alone, since we don’t apply that same principle to other similar technologies such as camera-equipped smartphones. Also, since Congress has already granted exclusive jurisdiction to the FAA over all navigable airspace in the United States for reasons of safety, any state or local laws must be able to withstand preemption challenges. Otherwise, expensive legal battles will be virtually guaranteed so it is important that we get this right. I argue that the privacy argument alone will not enable us to work toward identifying reasonable private property airspace definitions, unless we are willing to move back toward the 13th century property law principles and prohibit all overflights at any altitude.

So, maybe the privacy perspective is not necessarily our most expeditious or useful tool when defining private property airspace ownership and rights, especially in light of the ubiquity of digital imaging technology. Perhaps we have more clarity if we approach the question from a safety perspective and examine how the airspace is managed at the lowest levels based on safety. If we look at existing FAA safety regulations, we notice a distinct altitude demarcation at 200 feet above the ground. Objects such as towers and buildings that are below 200 feet in height require no special markings or lights to comply with aviation safety regulations. However, structures that are 200 feet in height and taller do require markings and lights. This 200 feet demarcation is already “hard coded” into existing regulations and is part of our established national approach to airspace navigation and management. So, is 200 feet the private airspace definition that is most appropriate? I argue: Yes, it appears so since there is an existing regulatory framework and argument in place to support a definition of a 200 feet altitude demarcation.

The 200 feet altitude demarcation is further supported by recent FAA authorization approvals, where the six FAA test sites have been granted blanket certificates of authorization (COAs) to operate drones more easily below 200 feet in altitude. The FAA has also granted blanket COAs to any drone operator that possesses an FAA Section 333 Exemption. The safety precedent for a 200 feet altitude demarcation continues to strengthen. Therefore, I argue that by examining the issue from the safety perspective, we have less ambiguity.

Assuming that private airspace ownership is defined at altitudes of 200 feet and below, how would small drones that operate above that altitude impact private property owners? The FAA’s draft Part 107 rules will most likely restrict small drones (those weighing less than 55 pounds) to operating altitudes of 500 feet and below. If we define 200 feet as the demarcation of private property (and airspace) ownership, then that leaves a 300 feet “transit corridor” that would be available to small drones. Companies like Amazon and Google are already proposing business models that are based on commercial operation of small drones between 200 feet and 500 feet above the ground.

But will this altitude definition be acceptable to both the public and the drone industry? The most common argument that I hear against small drone operation is the nefarious small drone that loiters over a private swimming pool, or other private gathering, photographing the people below. In this case, can – and should – we distinguish between a drone at an altitude of 201 feet and a manned helicopter operating at 2,000 feet? Although the drone seems to evoke a stronger emotional reaction, the reality is that if either scenario occurred, the property owners might have grounds for an “invasion of privacy” claim (intrusion upon seclusion), in addition to claims based on harassment, nuisance or related concerns. Thus, the private property owners likely do have legal remedies at their disposal already to address these types of scenarios. This scenario is also litigated and argued quite frequently in cases involving the paparazzi and celebrities (there are additional important First Amendment concerns that I won’t address here).

If we accept 200 feet above the ground as the boundary for private property airspace ownership, we will still face another challenge – enforcement of altitude restrictions. Aside from my professional involvement with drones, I also enjoy model aircraft as a hobby. One of my favorite exercises is to fly one of my own hobby multirotor drones at different altitudes and then ask friends or people who are with me to guess the operating altitude. As the operator, I have the benefit of the telemetry data that is displayed on my controller, so I have a good idea of the altitude (factoring in GPS and sensor errors, of course). What I have found is that very few people are able to accurately guess the altitude based on visual observation. I can operate the drone at 60 to 100 feet in altitude and the altitude guesses may range from 30 feet to 200 feet. Very few people are accurate in judging the altitude of small objects.

Altitude enforcement will be a challenge, which is why I believe it is important that we develop a clear definition of private airspace ownership at the federal level (not state level). Ultimately, I believe technology will solve this problem. Premature state and local laws that restrict altitude will open up unnecessary litigation and legal challenges, especially considering the difficulty in enforcement. Therefore, states should not take action yet. Instead, we must prompt the federal government to move more quickly since the rapid growth of this potentially beneficial innovative technology requires this level of federal preemption to protect and foster healthy interstate commerce. Furthermore, clarity as a result of federal rules and regulations can help prompt the development of innovative safety technology that can assist in compliance of the rules with respect to altitude limits. States are not equipped to tackle this challenge.

People have asked me how I think that technology will help solve the enforcement issue. My response is to look again at cellphone technology. A cellphone is subject to many complex regulations (FCC, etc.). However, the average user does not have to worry about compliance issues such as spectrum usage or transmit power levels. These issues are handled by the cellphone hardware and software. I believe small commercial drones will begin to resemble consumer electronics in terms of compliance and safety. These issues can and will be solved.

Will a 200 feet altitude definition for private property airspace ownership satisfy everyone? The answer is clearly “no”, there will be some that don’t want drones operating at any altitude, just as some people objected to manned aircraft a century ago. But a 200 feet definition of private property airspace ownership can be justified with our existing safety regulatory framework, and it makes good sense. I believe California’s SB 142 may be well-intentioned, but has it wrong.



13 Takeaways from The White House Workshop

2016-08-08
13 Takeaways from The White House Workshop
The White House launched a new effort Tuesday to help increase the use of drones and showcased how government agencies have become a proving ground for a wide array of new drone concepts and technologies.

New Report: Drones in Public Safety and First Responder Operations

2016-07-24
New Report: Drones in Public Safety and First Responder Operations
It may not seem like it, but drones are still in their infancy and only proving themselves through the rigorous testing done privately, commercially, and by state and federal government agencies. Despite the tangible benefits that drones can provide, the public has mixed sentiments about their use by law enforcement, firefighting, and search & rescue operations.

Drone World Expo  Exclusive Interviews  Mark Bathrick

2016-07-14
Drone World Expo Exclusive Interviews Mark Bathrick
We wanted to find out more about the team behind Drone World Expo – what makes them tick, what motivates them and what are the secrets behind the success of the event. We interviewed Advisory Board member Mark L. Bathrick who directs a nationwide aviation services business for the U.S Department of the Interior (DOI) overseeing the safe operation of over 1,200 contracted and government-owned manned and unmanned aircraft across a wide range of business applications.

Rwanda Readies Life-Saving Drone Delivery System

2016-07-03
Rwanda Readies Life-Saving Drone Delivery System
This summer, small autonomous airplanes will begin carrying life-saving blood to 20 hospitals and healthcare centers across Western Rwanda, Africa, in one of the first-of-its-kind drone-based delivery demonstrations.

Tree-Planting Drones

2016-06-28
Tree-Planting Drones
Beaverton, Oregon-based drone startup DroneSeed created a drone with a device that fires seeds into the ground using compressed air in an effort to reforest the Pacific Northwest, and eventually forests around the world.

FAA Finalizes Rules for Small Unmanned Aircraft Systems

2016-06-21
FAA Finalizes Rules for Small Unmanned Aircraft Systems
Today, the Department of Transportation’s Federal Aviation Administration has finalized the firstoperational rules for routine commercial use of small unmanned aircraft systems (UAS or “drones”), opening pathways towards fully integrating UAS into the nations airspace. These new regulations work to harness new innovations safely, to spur job growth, advance critical scientific research and save lives.

Embry-Riddle Consumer Guide to sUAS for Novices

2016-06-17
Embry-Riddle Consumer Guide to sUAS for Novices
A research team at Embry-Riddle Aeronautical University’s Worldwide Campus has created the first-ever comprehensive consumer guide to small unmanned aircraft systems (sUAS) for novice users–those individuals interested in purchasing their first small remote controlled or autonomous multi-rotor flying aircraft.

DroneDeploy Users Map 3,000,000 Acres

2016-06-09
DroneDeploy Users Map 3,000,000 Acres
At the Drones Data X Conference in San Francisco, Mike Winn, co-founder and CEO of DroneDeploy, announced in his keynote that our users had achieved a new industry milestone: 3,000,000 drone mapped acres across 120 countries.

Companies Team for UAS Inspection of Wind Turbines

2016-06-01
Companies Team for UAS Inspection of Wind Turbines
Two companies involved in aerial wind inspection services, HUVRdata, based in Austin, TX and EdgeData based in Grand Forks, ND, announced a collaboration to deliver a suite of wind industry data intelligence tools and credential processes to optimize the use of this technology within the wind industry.

DARPA Demo Day at the Pentagon

2016-05-15
DARPA Demo Day at the Pentagon
The Defense Advanced Research Projects Agency yesterday hosted DARPA Demo Day 2016 at the Pentagon, giving the Defense Department community an up-close look at the agency’s portfolio of innovative technologies and military systems.


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