Since late last year, thousands of residents in New Jersey, New York, and other Northeast states have reported seeing an influx of drones in the skies. At the time, then-President-Elect Trump suggested that the government provide information about the mysterious sightings or “[o]therwise, shoot them down.” The Trump Administration has since said that the Federal Aviation Administration (FAA) authorized some flights, while others were flown by hobbyists for recreational purposes. But the drone issues are just beginning. In January, the FAA lifted its temporary drone flight restrictions in parts of the tri-state area, leading to an uptick in unmanned aircraft hovering over buildings and homes.
The increase in drone sightings, coupled with President Trump’s “shoot them down” encouragement, has renewed discussions about the rules governing drone takedowns. As a purely legal matter, it is illegal for residents to shoot down a drone. However, it is worth considering why many people believe, almost instinctively, that they have a right to take action, especially when drones are hovering above their property.
In the early 17th century, Sir Edward Coke popularized the belief that a man’s home is his “castle,” and American law has developed around this notion of greater security and privacy in the home.
Residents expect to have a certain level of control around their house, since this area is mainly a private domain. But under the law, rights to ownership and privacy have limits. Unlike a police officer attaching a recording device to a person’s front door or an intruder physically entering someone’s dwelling, drones—largely remaining in public airspace—do not present the same invasion of protected liberty rights. While drones, often equipped with high-resolution cameras, may present unique digital privacy concerns, the property issues echo a similar debate from the 20th century.
The question of “who owns the skies” was settled, at least in part, decades ago during the commercial flight boom. Though airplane flights have no direct impact on the land below, barring accidents resulting in property damage, the rise of commercial air travel presented a novel challenge to the belief that landowners have the right to exclusive use of their property—up to and including the vertical airspace over their homes. This idea was encompassed by the “ad coelum” doctrine: he who owns the soil also owns everything above and below it.
Ad coelum, as applied to airspace, was rejected in the 1936 case Hinman v. Pacific Air Transport. In this seminal case, a federal court considered whether property owners could have a legal claim to the airspace above their land. The court held that when an aircraft is passing over the property but has no impact on the ground, it is not a trespass because it does not interfere with the landowner’s possession. In other words, if the landowner cannot reasonably use the airspace, they have no ownership claim.
Many saw a conflict between private property rights and aviation, and said economic considerations simply took priority over the landowner’s right to exclusion. However, others like Murray Rothbard have argued that ad coelum, applied literally, is not a legitimate property right because it goes beyond the classical liberal homestead principle. Rejecting ad coelum is right, he argues, because it’s a flawed doctrine, not because economic considerations should take precedence over property rights.
Against this legal backdrop, the drone debate has greater significance. While widespread drone use is a relatively new phenomenon, it raises issues of privacy and property use that are directly informed by the past. As such, it should be conceptually understood in light of Hinman and other commercial flight cases that define the nuanced dimensions of property rights and airspace. According to precedent, there is nothing wrong with an aircraft that simply flies above one’s home, but there is a problem if that aircraft causes harm to the property or interferes with the owner’s quiet enjoyment of the land. This may be relevant to situations where a drone does more damage than simply passing over a person’s house.
Ultimately, while the “shoot them down” mentality is legally indefensible, it turns the debate towards important questions about property rights and the age-old problems that often emerge with the advent of new technologies.
