Legal Ease: Drones and the Law

February 11, 2014 07:35 PM
John Dillard

Much talk has circulated about the growing role that unmanned aircraft systems, commonly known as drones, will have on our daily lives in the future. These aircraft have been deployed in Iraq and Afghanistan and are effective at conducting surveillance and targeting enemies. Drones are also in use here at home to monitor borders for illegal immigrants.

As technology improves and costs fall, the potential for drone applications seems limitless. For instance,’s CEO, Jeff Bezos, told "60 Minutes" about the company’s bold plan to make some home deliveries using drones. FedEx and UPS are also exper­imenting with the idea to replace some of their delivery fleets. The Association for Unmanned Vehicle Systems estimates that drone technology will create 100,000 jobs and $82 billion in economic activity in the coming years.

Agriculture is an industry that is ripe with opportunities to apply drone technology. Drones are already employed in precision agriculture and crop scouting. They are poised to be a great force-multiplier that can help farmers more effi­ciently allocate resources and time. The drones of the future could be programmed to check irrigation equip­ment, monitor herd health or even "ride fence," saving farmers and ranchers countless hours.

However, there is one major obstacle blocking the movement toward using unmanned aircraft technology. Most drones are currently illegal. That’s right—illegal.

Regulations lag technology. The Federal Aviation Administration (FAA) acknowledges that small drones exist. It has issued regulations and guidance permitting the use of these drones in some circumstances. For example, FAA allows model plane hobbyists to operate remote-controlled airplanes and helicopters, so long as their use is strictly recreational. Also, the agency has issued experimental certificates for small unmanned aircraft to facilitate research and development in drone technology.

However, current regulations do not authorize the use of drones for commercial purposes, including agriculture. While many commercial drones are operated under the belief that they fall into the hobbyist category, FAA has explicitly stated that any use of drones for commercial purposes, such as crop scouting, fails to qualify as a hobbyist activity.

Congress has required FAA to develop regulations to integrate commercial drones into the national airspace by 2015. The agency has begun to take major steps toward putting the necessary regulations in place. It is currently focusing on safety issues, such as avoiding collisions with other aircraft, building in redundancies in case a drone loses contact with its pilot and ensuring that drones do not pose a danger to people or property on the ground.

Once FAA puts workable regulations in place, we should start to see great leaps in technology that might be reminiscent of something from "The Jetsons." Drones might prove to be a game-changer in our lifetime.

Privacy concerns. While drones present many opportunities, the prospect of drones in activists’ hands raises concerns. One common question I receive is whether landowners have protection against drones snooping on their property. Like any good lawyer, my response is, "It depends."

There are two common law legal protections that are available to prevent harassment from drones: trespass and nuisance. The law is not abundantly clear on where a landowner’s exclusive control of airspace ends and the public airspace begins. Modern interpretations of property law hold that property owners’ airspace rights extend to as much of the space above the ground that is occupied or used in connection with the land.

Nuisance claims can also be filed against drone operators if their activity leads to a "substantial and unreasonable interference" with the use of your property. Drones can be noisy, frighten livestock and annoy landowners, thereby creating a nuisance and reducing property value. 

Just like FAA, the area of law regarding the privacy of landowners that are affected by drones will also need to evolve to keep pace with the changes in technology.

No stranger to dirty boots, John Dillard, an attorney with OFW Law, focuses his practice on agricultural and environmental litigation. Contact John:



Twitter: @DCAgLawyer

Disclaimer: This column is not a substitute for legal advice.

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