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.



UCAS-D is on track with X-47B

2011-02-19
UCAS-D is on track with X-47B
February 4, 2011The Northrop Grumman-built U.S. Navy X-47B Unmanned Combat Air System Demonstration (UCAS-D) aircraft successfully completed its historic first flight at Edwards Air Force Base, Calif.

Unblinking eye in the sky

2011-02-18
Unblinking eye in the sky
The next generation surveillance package for the Air Force's MQ-9 Reaper drones, named for Medusa's stony glare, will provide an unprecedentedly broad view of the battlefield spanning time and space

Sikorskys Optionally Piloted Black Hawk

2011-02-18
Sikorskys Optionally Piloted Black Hawk
The crew, at the end of their duty time, switch the helicopter to unmanned mode and disembark. The Black Hawk searches for and connects to the nearest ground control station, accepts the preprogrammed mission and takes off to find and pick up its first load.

China Developing Armed/Recon UAVs

2011-02-18
China Developing Armed/Recon UAVs
China is ramping up production of unmanned aerial vehicles in an apparent bid to catch up with the U.S. and Israel in developing technology that is considered the future of military aviation.
Western defense officials and experts were surprised to see more than 25 different Chinese models of the unmanned aircraft

Cargo UAS services contract

2011-02-18
Cargo UAS services contract
On 3rd December 2010 the Navy announced the award of two fixed-price contracts to Boeing/Frontier Systems (A160T Hummingbird UAV ) and Lockheed Martin (K-Max UAV) for Cargo Unmanned Aircraft System services for $29.9 and $45.8 million respectively.

Fly like a helicopter and evacuate wounded soldiers in its hull from any terrain

2011-02-14
Fly like a helicopter and evacuate wounded soldiers in its hull from any terrain
The Israel Air Force and IDF Medical Corps are working to secure funding within the militarys upcoming multi-year plan for a revolutionary unmanned aerial vehicle that can fly like a helicopter and evacuate wounded soldiers in its hull from any terrain.

Beneath Antarctica  robot submarine to be the first to learn a secret

2011-02-14
Beneath Antarctica robot submarine to be the first to learn a secret
Missions destination - the Ross Ice Shelf, which juts out from Western Antarctica. Scientists expect a never-before-seen view of melting and other conditions in the pocket of ocean below the ice shelf, where the warming seawater is eating away at the ice.

The X-37B Orbital Test Vehicle

2011-02-14
The X-37B Orbital Test Vehicle
The X-37B space drone is robotic winged spacecraft that looks in many ways like a miniature space shuttle.

Global Observer unmanned aircraft system successfully completed its first flight

2011-01-22
Global Observer unmanned aircraft system successfully completed its first flight
The Global Observer unmanned aircraft system successfully completed its first flight powered by the aircraft's hydrogen-fueled propulsion system at Edwards AFB CA (SPX) on Jan. 6.


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