Drones and Legal Dilemma

drone hovering with pilot in background
Foresight. That is what effective policymaking is all about. A lawmaker must foresee as many implications as she can so 10 steps into her legislative journey she will not stumble over the footprint she left with her first step. 
 
The same is true of a judge. Yes, judges interpret existing law, but they also effectively create law—and thus policy—by filling in gaps. This is especially true if a lawmaker failed to appreciate the implications of her own law and is often the case when technological innovations create novel challenges, such as a drone equipped with a thermal imaging device hovering outside your window. In these situations, the challenge a judge faces is greater if there is not a sufficiently developed legal infrastructure to regulate the use of the technology. This is particularly true of drones. 
 
While there are many laws and regulations that govern the operation of aircrafts, not all drone usage is regulated, even though case law has found drones to be “aircrafts.”  Congress delegated drone regulation to the Federal Aviation Administration (FAA) a few years ago, but the regulatory landscape is still no match for the use of drones, especially the small ones. For example, a small drone can fall off the sky in a park and injure a child, but technically and legally, there might be limited options to prevent it from happening again, especially if the drone was not operated recklessly and given the current state of the law. 
 
While the FAA is still drafting its regulations for drone use, cases have already been brought to courts for incidents involving drones. This can create quite a pickle for judges. Imagine, for example, that you are lying down on a summer day by your pool when a neighbor’s small drone equipped with a camera passes by in the sky over your head, and before you can process what you just saw long enough to see the implications for your privacy, you see yet another one passing by leaving you to wonder if you smiled in time for the picture that it could have possibly taken from high up. Let’s assume you got upset and sued to stop drones from flying into your airspace and taking pictures of your yard. 
 
At this point, you must be congratulated for managing to put a judge into quite a dilemma. On the one hand, the flight might seem to be intruding into what you thought was your private environment. However, the airspace above your yard is not necessarily your property. The Supreme Court ruled in 1946 that an owner does not own the airspace above his property to the “periphery of universe” but that if a flight happens at a very low altitude with high frequency in a way that intervenes with the owner’s use and enjoyment of his property, then the owner might have a standing to bring a suit against the aircraft operation. 
 
While that case differentiated the navigable public airspace from the very low altitude airspace, the debate over where the former ends—if at all—and non-navigable airspace begins is still unresolved. The federal government claims the entire airspace, preventing a property owner to call any of it “his own,” while states challenge this notion. This is one reason why ruling on your hypothetical drone case can be complicated.  
 
Now, what if that drone belonged to the police? While the Fourth Amendment protects you from an unreasonable search, the protection may not be as broad as you might think. For example, case law allows law enforcement agents to take pictures of what can be seen by the naked eye from a passing aircraft without a warrant;  an aircraft flying 400 feet above you can take pictures without violating your privacy.  Case law also establishes that there can be no reasonable expectation of privacy if something is exposed to the public eye.   While you may think that you have protected yourself from public exposure by fencing your yard, did you not feel exposed under the blue sky in an age where drones, planes, helicopters, and satellites for that matter can and do pass over your head? 
 
The right to privacy is also related to “whether an individual has exhibited an actual expectation of privacy” and whether that expectation is recognized by society as reasonable.   Well, clearly you seem to have exhibited an actual expectation of privacy if you brought your hypothetical case to the court. But with drone travel and delivery on the verge of being integrated into daily life, what can a judge deem as reasonable? 
 
Perhaps what is reasonable as of now? But that just makes a footprint, a precedent, to stumble on when “reasonable” is deemed different than what it is today. The notion of privacy has evolved a lot since the nation’s founding and technology is rapidly changing what is exposed to the public eye. So, what is a reasonable expectation of privacy? In the 1770s, perhaps no one envisioned flight over one’s property and public exposure from above, but now what one can see with naked eye from a helicopter is no violation of privacy. This makes one wonder how helpful an originalist approach to privacy might be in an era of taxi-drones. Do you feel the tension?
 
Riley v. California captures this elasticity of the notion of privacy well. Writing for the court, Chief Justice Roberts held that the “pervasive and insistent” use of cellphones has practically made them an extension of the human body, thus protecting them from a warrantless search and seizure in most circumstances. If this case were brought decades ago, when cell phone use was far less “pervasive and insistent,” the ruling would likely have been different. 
 
So, back to square one: how do we not stumble? What do we do with our privacy and our neighbor’s private-property-equipped-with-camera? It is actually not hard to imagine the judge as she scratches her head, sighs deeply, and thinks—with some reasonable expectation of privacy, of course—that “why in the world couldn’t I just be into something simpler?” And while you would be impatient for the FAA to come up with a rule that would not allow a drone to pass over your backyard, I am impatient for the FAA to come up with rules to help out the stuck-in-dilemma judge in my head.