When Does a Drone’s Flight Become Trespassing? The Legalities of Drones Over Private Properties

Picture of Ben Shaw-Parker, Ph.D.

Ben Shaw-Parker, Ph.D.

Drones have become increasingly popular for both recreational and professional purposes. Drones have revolutionised various industries, from capturing breathtaking aerial shots to delivering packages.

However, with this rise in popularity comes myriad legal concerns, primarily regarding privacy and property rights.

One of the most debated questions is whether flying a drone over someone’s property is trespassing and are drones overstepping property boundaries?

Historical Perspective on Trespassing

When Does a Drone’s Flight Become Trespassing? Traditionally, trespassing is defined as entering another person’s property without permission. In ancient times, trespassing was straightforward – if you set foot on someone’s land without consent, you were trespassing.

However, the introduction of aircraft in the 20th century complicated matters. How high above a property does airspace begin? And who owns that airspace?

Is Flying A Drone Over Someone’s Property Trespassing - tort law blog - trespass
When Does a Drone’s Flight Become Trespassing? The Legalities of Drones Over Private Properties

In the U.S., the landmark case United States v Causby (1946) shed some light on this issue. The court ruled that homeowners own the airspace up to 83 feet above their property.

Anything above this is considered public airspace. However, this case was in the context of traditional aircraft, not drones.

Drones: Is Flying a Drone Over Someone’s Property Trespassing?

Drones, also known as Unmanned Aerial Vehicles (UAVs), operate at much lower altitudes than traditional aircraft. This brings them into the grey area between private property and public airspace.

Several factors need to be considered to establish whether flying a drone over someone’s property is trespassing:

  • Privacy Concerns: Drones equipped with cameras can easily invade the privacy of individuals, leading to potential harassment or voyeurism claims.
  • Safety Issues: Drones can pose safety risks if they malfunction or are used negligently, potentially causing property damage or injury.
  • Noise and Nuisance: Constant drone flights over a property can be disturbing and annoying to residents.

Legal Standpoint about Whether Flying a Drone Over Someone’s Property is Trespassing

When Does a Drone’s Flight Become Trespassing in the US?

In the U.S., the Federal Aviation Administration (FAA) regulates drone use. While the FAA provides guidelines for safe drone operations, it doesn’t specifically address the issue of trespassing. This has led states and local governments to fill the void.

For instance, some states have passed laws that consider drone flights over private property without consent as trespassing, especially if they interfere with the owner’s use and enjoyment of their land.

Others focus on privacy, making it illegal to capture images or videos of private property without consent.

The National Conference of State Legislatures (NCSL) provides an overview of the current landscape of unmanned aircraft system (UAS) laws across various states. Here are some examples of states that have enacted laws related to drones and privacy:

  • Mississippi: The state introduced the Mississippi Unmanned Aircraft Systems Protection Act 2021. This act specifies that it’s an offence to use drones to conduct surveillance, collect information, or record critical infrastructure or correctional facilities without prior written consent from the owner or their designee.
  • South Dakota: Legislation in South Dakota prohibits individuals from landing a drone on a landowner’s real property or waters without the landowner’s consent. It also forbids using drones to photograph, record, or observe another person in a private place where they have a reasonable expectation of privacy. However, there are exceptions for law enforcement, emergency management workers, businesses, or other government purposes that unintentionally capture images in private places.
  • Florida: The state allows law enforcement agencies to use drones to gain an aerial perspective of a crowd of 50 or more persons. However, the policies must address the storage, retention, and release of images or videos captured by the drone, ensuring the personal safety and constitutional protections of those being observed.
  • Texas: Texas has specific laws regarding the use of drones by law enforcement agencies. For instance, each agency that uses or intends to use a drone for law enforcement purposes must adopt a written policy regarding the agency’s use of force by means of a drone.

Is Flying a Drone Over Someone’s Property Trespassing in the UK?

In the UK, the Civil Aviation Authority (CAA) states that drones should not be flown within 50 meters of a person, vehicle, or building not owned by the operator. This indirectly addresses the trespassing issue.

The 50-meter rule indirectly addresses concerns about privacy invasion. By maintaining this distance, the CAA ensures that individuals are less likely to be filmed or photographed without consent.

The 50-meter guideline exceeds safety precautions and aligns with the UK’s robust privacy regulations.

While the CAA primarily focuses on aviation safety, the 50-meter rule indirectly touches on the age-old legal principle of trespassing – see Bernstein v Skyviews & General Ltd (1978)

Traditionally, trespassing concerns the unlawful entry onto another’s land. In the context of drones, this becomes a vertical concern.

The airspace above one’s property can be seen as an extension of the property itself. By setting a clear boundary, the CAA provides a guideline that helps drone operators avoid potential trespassing disputes.”

Thus, flying a drone over someone’s property may be seen as trespassing and might be interpreted as violating the Human Rights Act 1998, which upholds the right to privacy and family life.

Read article: How to Start a Business in France: A Guide for Entrepreneurs

Practitioner’s Perspective about Whether Flying a Drone Over Someone’s Property is Trespassing

From a practitioner’s viewpoint, drone trespassing is not just about legalities but also ethics. Drone operators, whether hobbyists or professionals, should respect the privacy and property of others. Here are some best practices:

  • Seek Permission: If you intend to fly over private property, seek the owner’s permission. It’s not just courteous but can also prevent potential legal disputes.
  • Stay Informed: Laws and regulations can vary by jurisdiction. Stay updated with local, state, and federal laws regarding drone flights.
  • Fly Responsibly: Avoid flying over private properties, especially residential areas, unless necessary. Always prioritize safety and privacy.

Conclusion: When Does a Drone’s Flight Become Trespassing?

Whether flying a drone over someone’s property is considered trespassing has no one-size-fits-all answer.

It largely depends on local laws and regulations. However, the debate underscores the broader challenges posed by rapid technological advancements.

As drones become even more integrated into our daily lives, laws must evolve in tandem, balancing the rights of drone operators with those of property owners.

Until then, the golden rule for drone enthusiasts remains: “Fly with respect and responsibility.”

Picture of Ben Shaw-Parker, Ph.D.

Ben Shaw-Parker, Ph.D.

Ben is a university law professor. He has an LLM in Public International Law and a Doctorate in Humanitarian Law. Ben's specialty is in the area of Human Rights, Crime Law, Socio-legal Studies, Common Law, Comparative Law, Public Law and Environmental Law. He has contributed to several law journals.

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