Can Activist Groups Use Drones to Spy on Farmers?
May 07, 2013
The short answer to this question is likely a qualified "yes."
Unmanned aircraft’s use in warfare has been the subject of international debate for the past few years as our military increasingly relies on drones to target al-Qaeda and associated groups. Libertarians and privacy activists have raised concerns over law enforcement’s use of drones domestically. Now, some in agriculture are concerned that drones will be used by activists groups to harass farmers and ranchers.
It does not require a substantial logical leap to believe that activist groups may use drones to spy on animal operations in hopes of finding environmental violations. PETA recently announced that it intends to deploy a fleet of drones to monitor hunters to spot poachers and wildlife violations. Given the potential annoyance that activist drones could cause producers, I have received several inquiries as to whether farmers have any legal protections against drones snooping on their operation.
There is often a lag between the commercialization of a new technology and laws designed to address and regulate that technology. For example, Congress is still struggling to address a broad array of issues related to internet commerce. Drones are no exception. Some states have adopted laws that limit or outlaw state and local police’s use of drones in law enforcement activities. However, private use of drones is lightly regulated. The small drones contemplated by PETA are considered model aircraft by the FAA. According to FAA regulations, these drones are legal to operate so long as they are flown in the line of sight of the operator, fly lower than 400 feet, and avoid aircraft and flight patterns.
At this time, there are only two common legal protections in place to prevent harassment from drones: trespass and nuisance. Trespass occurs when someone invades, or in the case of drones, causes something to invade property that a landowner exclusively controls. Trespass is easy to prove when, for instance, your neighbor’s cows escape their fence and trample your crop. Trespass is much harder to prove when it involves an invasion of airspace. A low-flying drone could potentially result in a trespass; however the drone would have to interfere with airspace that the farmer actually controls – such as below a roofline.
Nuisance claims can also be filed against activists groups if drone activity leads to a "substantial and unreasonable interference" with the "quiet use and enjoyment" of your property. Drones can be noisy, frighten livestock, and annoy landowners. There is a possibility that a drone could be deemed a nuisance if there is proof of damages in the form of reduced agricultural production, decreased property value or the landowner’s stress from constant surveillance by overzealous activists.
With limited options to regulate the private usage of drones, there may be calls for additional state laws designed to curb private usage of unmanned aircraft. However, we in agriculture should be cautious about cutting off our nose to spite our face. While activists may be able to add drones to their bag of tricks to harass agriculture, drones also present a great opportunity for farms and ranches. Drones are already being used for crop monitoring, weed scouting, and precision agriculture. We are not far from the day when drones can be used to "ride fence" and assist in monitoring animal health.
It will be a while before we fully understand the role that drone technology will play in both agriculture and activist’s efforts against agriculture. If they do play a substantial role, I imagine the law related to drones will evolve. In the meantime, if you have a problem with activist drones monitoring your operation, you should consult your attorney for legal advice.
John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA. John focuses his practice on agricultural and environmental law. He occasionally tweets at @DCAgLawyer. This column is not a substitute for legal advice.