Note: This post is not a substitute for legal advice.
Drones will eventually not have just military uses. Amazon’s CEO, Jeff Bezos, discussed on 60 Minutes earlier this year how Amazon is looking to drones to deliver purchases. UPS also sees a future in package delivery using drones. Drones also have potential uses in agriculture as well. A corn or soybean producer could utilize drones to monitor a field checking for bugs, disease, and other pests more efficiently compared to traditional methods. Livestock producers could check their stock more efficiently. Drones could potential save producers time, money, and allow them to quickly react to an outbreak before it is too late. But the use of drones will spark some privacy concerns. I often hear “Well if we can use drones then that means (fill in the blank) group can use drones to monitor us.”
Many of you probably wonder what protections you have against an unwanted drone flying over your farm. Two existing common law protections may help. First is trespass, or entering an owner’s property without permission. Under common law theories of property ownership, you owned land from the center of the earth to the heavens. But as the use of airplanes become more prevalent in the mid-20th century, courts severely limited the idea of owning land to the heavens to only that airspace below “navigable airspace” or the airspace above the minimum altitudes set by the Federal Aviation Administration (FAA). Maryland has found that superjacent airspace is a right you enjoy as a property owner (Stansbury v. MDR Development, LLC), but has not looked at this right in relationship to the use of drones. At this point, it is unclear how a court would apply a claim of trespass to an unwanted drone flying over your property.
The next theory would be nuisance, an unlawful interference with your use and enjoyment of an owner’s property. A drone could potentially be noisy, frighten livestock, frighten young children, and be an annoyance to the landowner. A review of Maryland decisions found a focus on nuisances caused from airports and not individual planes. Currently, there is little case law anywhere to guide us in determining if flying drones over your property would be considered a nuisance.
Nine states, Florida, Idaho, Montana, Oregon, Tennessee, Virginia, North Carolina, Illinois, and Texas have passed legislation that would restrict drone use or update privacy laws for drone uses. In states with restrictions, Maryland is not one of those states, private drone pilots would first be required to first get permission from the landowner before flying over. To read more about these legal restrictions, click here.
These 9 states also clearly define that law enforcement officials would have to get a warrant before flying a drone over a landowner’s property. Previous U.S. Supreme Court rulings have held the following to not be Fourth Amendment searches (meaning law enforcement does not need to secure a warrant before conducting the search): police could look in a backyard from 1000 feet using a powerful camera (California v. Ciraolo) and a helicopter flying 400 feet above the property and not violating any law (Florida v. Riley). Setting this requirement clearly defines when law enforcement would need to show probable cause in order to secure a warrant before flying a drone over a landowner’s property. In Maryland, HB0847 would have required law enforcement to secure a warrant before using a drone to monitor private property, but this bill received an unfavorable report from House Judiciary Committee.
As you can see the law rarely keeps up with technology. Courts often struggle when applying existing laws and previous rulings to modern technology. State legislatures can jump in and clearly define some of the rules to help guide courts in how to handle new technology. Drones do have the potential to benefit producers down the road (through crop and livestock monitoring), but as many of you know they do present new challenges as the other groups begin to also use drones.
For more on drones in agriculture, see Legal Ease: Drones and the Law,