So You Want To Fly a Drone: Drones and the Law

The development of low-cost, high-quality drones together with lightweight, high-quality digital cameras offers emergency responders and fire buffs a tremendous opportunity to gain previously impossible perspectives of emergency incidents. A number of...


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The development of low-cost, high-quality drones together with lightweight, high-quality digital cameras offers emergency responders and fire buffs a tremendous opportunity to gain previously impossible perspectives of emergency incidents. A number of laws and legal theories apply to drones, including trespass law, invasion of privacy and negligence. In addition, federal, state and local laws govern to varying degrees the operation of drones.

 

What is a drone?

One of the initial challenges we face is agreeing upon a definition of a drone. Essentially, we are talking about an unmanned remotely controlled aircraft. The Federal Aviation Administration (FAA) has settled upon the term unmanned aircraft system (UAS), which acknowledges that drones include not only an aircraft, but a piloting control device and a method of communications between the two…well…most of the time. There are UAVs that are capable of being operated completely robotically through software without external guidance. Do you start to see the complexity of the problem?

The FAA definition includes larger aircraft such as the military’s Predator drone, as well as smaller recreational craft that FAA regulations refer to as “model aircraft.” The law applicable to drones is evolving as it struggles to keep pace with the technology.

1. Trespass law

The origins of Anglo-American property law predate manned aircraft, let alone unmanned drones. The development and proliferation of aircraft in the early 1900s caused a number of previously established legal principles to be reconsidered. At one time, a property owner was said to own the air over the property “up to the moon.” Someone who threw a rock or shot a bullet across another’s property committed a trespass. In essence a trespass is an unlawful intrusion upon the property of another without permission or justification. Trespassing is a crime and can be grounds for a civil suit.

As trespass law evolved, a principle developed that before a trespasser can be found guilty of the crime of trespassing, the trespasser must first be aware that the owner of real estate does not want him on the property. This may occur after a person is told by the owner to leave, but may also occur when the owner erects fences or posts “no trespassing” signs.

On the civil side, the law is a bit more complicated. A trespasser who causes actual damage to another’s property is strictly liable for all damages. For example, if A comes upon B’s land without permission and damages his lawn, A will be liable to B for the damages. The liability is strict, meaning that even if A was not negligent, A would still be liable for actual damages.

When a trespasser comes upon the property of another knowing the owner objects, the trespasser can also be liable to the owner for civil damages even in the absence of actual damage. In other words, if A trespasses on B’s property after B tells him he is not welcome, A could be liable for damages to B. The extent of the damages would be up to the jury, but B does not have to prove that A’s trespass resulted in actual damages.

OK, great, but how does this relate to drones? A drone flyer whose aircraft flies onto someone’s property without permission would find him/herself strictly liable for any damages that occur. This means that even if the flyer was totally blameless for the damage (a bird strike causes a drone to crash through a window), the drone operator would be liable. In addition, if the flyer knows that the property owner objects to the drone entering the airspace over his land, the flyer could be charged criminally and be liable for civil damages even in the absence of any actual harm to the property.

2. Negligence

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