January 30, 2016

"I see little difference between a drone hovering near my window, and someone standing across the street with a pair of binoculars."

"Both can peer into my office. But I may be in the minority here. When I mentioned it to my wife, she was outraged by the intrusion and briefly contemplated buying a shotgun, should my neighbor’s drone reappear near our bedroom window. Unlike binoculars, she argued, a drone can actually enter your property and see from more invasive vantage points...."

From a NYT column (in the "Style" section for some reason), "When Your Neighbor’s Drone Pays an Unwelcome Visit." The author, Nick Bilton, refers to a recent Kentucky case in which a judge dismissed charges against a man who shot down a drone that came into his property where his 16-year-old daughter was sunbathing.

Bilton takes a stab at the legal issues, but doesn't get very far. Can you destroy someone else's property when it trespasses into the air above your land? I wrote the question that way to exclude the distinct issue of discharging a firearm. Assume you have a device that catches the drone and you smash it with a hammer or drive your car over it. What if you just capture it and sequester it (or call the police)?

Here's another NYT article about a bill in Congress aimed at regulating drones:
Hobby groups are trying to peel back recreational registration rules, while airline pilots are pushing for more mandates that drone makers like DJI and GoPro put safety technology on machines. Amazon and Google, which want to use drones for delivery, are asking permission to test their technology....
Here's a CNN article from last fall: "Is it OK to shoot down a drone over your backyard?"
[Lawprof Michael Froomkin]... argues that self-defense should be permissible against drones simply because you don't know their capabilities....
And here's an article in The Atlantic: "If I Fly a UAV Over My Neighbor's House, Is It Trespassing?":
Drones -- as flying, seeing objects -- scramble our 2D sense of property boundaries....

"This idea of a reasonable expectation of privacy has always been accepted as the standard and the interface of that privacy right and emerging UAV technology is fascinating," [said aviation lawyer Timothy Ravich]. "There is not an answer. The best we can do is arrive at laws and practices of the then-existing sensibilities of the population."
Ravich said that in 2012, when "the then-existing sensibilities of the population" were whatever existed then. Who knows what the now-existing sensibilities of the population are? Wait a few more years and there won't be any at all.

AND: Those who, like Nick Bilton's wife, care about privacy, tend to appear late in the time line. First come the tech fans with their toys and devices, figuring out new things to do, becoming interested and invested. It's hard for the privacy people even to understand what's going on, let alone jump into the regulatory process and make themselves heard. That's why I cringe at the Ravich's "then-existing sensibilities of the population"... and why, I think, we're seeing the defenders of privacy going for a self-help, self-defense approach.

IN THE COMMENTS: robother said:
I'm always struck by the geeky proposition that because it's a new, cool technology using wifi or the internet, that makes it different, automatically exempt from prior legal categories. Uber isn't gypsy cabs because...it's an app!

Drones are cool tech-toys, so using them to take pictures of neighbors sunbathing in their backyards or taking showers isn't the same as a peeping tom.

Downloading free music from an app isn't the same as stealing a CD from a music store because... The Internet! 

45 comments:

rhhardin said...

Airplanes can overfly your property because you benefit from the law yourself. You come out ahead on the regulation.

Not so with drones.

The air above Penn Station came up in court and got decided one way or another, I forget.

Bob Ellison said...

I just send Flobby, my house elf, over to the neighbors' windows with a camera. He does sneak in sometimes and take jewelry, but I return it via UPS from an untraceable sending address.

D. said...

"If I Fly a UAV Over My Neighbor's House, Is It Trespassing?":

below 500 feet yes it is called "air rights"

https://en.wikipedia.org/wiki/Air_rights

coupe said...

I'll just propose that if the aircraft is below roof height, and is not registered or licensed, that it is criminal act, and the victims rights outweigh the criminals.

Jim said...

Companies are making ammunition for shotguns designed to take down drones. Can't wait for the first series of anti drone drones. And the soon to be announced home defense systems guaranteed to protect your home from drones.

dbp said...

I propose a simple rule of thumb: If a drone is out of shotgun range, it is high enough to not be trespassing.

tim maguire said...

I recall from tort class that if I throw a baseball over someone else's property, then that is a tresspass. I don't see how drones present any novel problems. At least at the level of hovering outside my window or over my daughter. At some point the drone becomes more like a plane, flying over at hundreds of feet, but somwehere in between the two, a reasonable person standard can be established if one isn't already.

Bob Ellison said...

Imagine Picadrone!

It's a small device that you attach to your computer. When you see a drone at your window, you activate Picadrone. It descrambles the incoming drone signal and sends out overwhelming signals to make it fly full-tilt into a tree trunk.

Highly illegal, of course. But begun, have the drone wars.

tim in vermont said...

If you damage a drone flying over your property and get arrested, just demand a jury trial. You will be fine. There is not a huge amount of sympathy for assholes who get their tools of assholery destroyed.

tds said...

There's a nudist beach in Warsaw, and it is very popular with drones even in our times of easy access to Internet porn.

Original Mike said...

"Can you destroy someone else's property when it trespasses into the air above your land?"

I'm surprised this is even considered a question.

Original Mike said...

"But begun, have the drone wars."

I believe that's: "But begun, the drone wars have."

traditionalguy said...

What is Trespass but the crossing of another's boundaries. So drones are big time trespassers.

clint said...

Privacy law is weird.

There was a Law and Order episode, way back when, in which a building superintendent installed wifi cameras in the showers of female tenants. Everyone agreed that he was a sleaze bag and they wanted to get him -- but they couldn't find a law he'd violated. He'd done it as part of repairing the shower -- so there was no trespass, and he had permission to modify the showers. It was video only, so it didn't violate any eavesdropping or wiretapping statutes. And so on.

For the drones -- the trespass seems clear. But I don't see that the law allows us to shoot down trespassing objects or people. If kids are cutting through your yard on their way home from school, you get to yell, "Stay off my grass!" You don't get to throw paint-filled water balloons at them to do property damage to the trespassing clothes and backpacks.

buwaya puti said...

A shotgun isn't ideal in a suburban setting.
An air rifle is much quieter. I recommend one with a bit of velocity, for penetration of fuselages, and a scope for accurate shot placement. A pellet gun, not bb, and .177 may be better than .22 for this sort of thing.
There are some cheap outfits from Gamo that seem like just the thing.

buwaya puti said...

And there are many very nice air rifles available through the professors Amazon link. No firearms laws.

James Pawlak said...

Now, what will the Law do when some monster attaches an explosive device or some home-made nerve gas to one of those over-sized insects?

Shouting Thomas said...

Interestingly, in retirement I still work a little.

One of my clients is a guy who primarily does drone photography at live rock concerts, and I mean at big stages. I do some video editing and FX and titling for him.

He was arrested and tried on Peeping Tom charges for flying his drone camera near a hospital. He was acquitted.

I'm currently writing and recording some background music for his promo reel in an attempt to extend his biz to corporate work. He's really very good at what he does.

Note to the idiot, A Reasonable Man, who thought that my status as a professional musician was based on playing in a cover band. That's the only thing you know about that I do, stupid. In fact, before I retired I worked as a musician and composer in half a dozen different arenas and capacities.

AReasonableMan said...

Let it go, brother, Let it go.

Big Mike said...

@coupe, I have skylights in my house, including one in the bathroom. "Below roof height" doesn't work for me. With modern camera technology 500 feet above ground level just barely works for our family.

Drones can already carry very dangerous weaponry, as you can see in this YouTube video*. So we are overdue for regulating what can and cannot be put on drones.

Where they can be flown is also overdue for a look. Not just overflying your neighbor's sunbathing daughter, but a collision between a drone and a passenger jet will be destructive for the drone but probably fatal for the passengers and crew.
___________________
* FPSRussia, with his fake Russian accent, is a hoot, however his videos are not for the sort of people who faint at the thought of a .22 caliber pistol. Not when he demonstrates a 40 mm machine gun or pulls up to a White Castle in an armored vehicle! Pity he isn't wearing his "I Piss Excellence" T-shirt in this video.

rhhardin said...

The safe way to stop an old model aircraft engine is to throw a handkerchief into the propeller.

Virgil Hilts said...

I have always wanted to research in depth (but no client would pay me to do it) what rights one has (as a bird lover) with respect to a neighbor's cat who climbs over your high fence (or digs under it) to pounce and kill the beautiful birds that are at your bird feeder, after you have repeatedly complained about the cat to your neighbor.
I know that you cannot kill the cat in a manner that would be "painful and cruel" - but are you allowed to dispose of the cat that is killing your animal invitees. You could kill the neighbor's dog if it was trying to kill your cat (I think).
I like cats and this is just a hypo. Any way, I think this is a weirdly undeveloped area of the law that varies state by state, and that similar unresolved issues probably apply to a neighbor's drone that intentionally or unintentionally flies into your air space.

gspencer said...

"Can you destroy someone else's property when it trespasses into the air above your land?"

Didn't Turkey do just that to a wandering Russian war jet?

Didn't Russia do just that to a wandering Korean passenger jet KAL007 in 1983?

Lots of other examples could be given.

The answer is YES.

Phil 3:14 said...

ST has bone fides!

(or skills, as Napoleon Dynamite would say.)

robother said...

I'm always struck by the geeky proposition that because its a new, cool technology using wifi or the internet, that makes it different, automatically exempt from prior legal categories. Uber isn't gypsy cabs because...its an app!

Drones are cool tech-toys, so using them to take pictures of neighbors sunbathing in their backyards or taking showers isn't the same as a peeping tom.

Downloading free music from an app isn't the same as stealing a CD from a music store because... The Internet!

traditionalguy said...

A great man once said, "Without borders we do not have a country."

Without property ownership we do not have anything.

madAsHell said...

There's a nudist beach in Warsaw

Show me a nudist beach, and I'll show you a bunch of people that should NEVER take their clothes off.

Bob Boyd said...

This is potentially a new sport, pitting shooters against drone pilots.
So you have a nude sunbather surrounded a six foot high fence that's, say, 50' by 50'. The shooter's job is to defend the sunbather's privacy. The drone pilot's goal is to get some half way decent footage of the sunbather without getting shot down.

The Cracker Emcee said...

Buwaya,

A .22 CB Short from a bolt-action rifle is even quieter than a pellet gun and just as capable. Backdrop concerns probably rule out any kind of shooting at drones in a suburban setting, though.

The Cracker Emcee said...

Quieter yet would be a flu-flu arrow with a bunny-buster attached. Of course, that would require more skill than the average householder possesses. Nevertheless, adolescent boys being who they are, it's not difficult to see a time when there would be more laws protecting the passage of drones, than laws allowing their destruction.

The Cracker Emcee said...

And the Internet being what it is, there'll be websites and forums dedicated to "Drone Aces" a punk-like subculture exploring the ways and means of taking down drones.

ken in tx said...

How about splattering one with a paintball gun?

Bob Ellison said...

A glue gun with a really long sprayer could work. Like those hornet-nest spray cans.

It doesn't take much to make a quadcopter unstable. A rock can do it.

n.n said...

Second Amendment right to self-defense... of life, property, and privacy.

Do they Occupy private or public spaces?

PC tolerates the former before the latter, but characteristically selected by class diversity criteria.

james said...

The state could sell hunting licenses.

Gabriel said...

Does everything have to be criminal or regulated? Why can't drone overflying be a tort?

@robother:I'm always struck by the geeky proposition that because its a new, cool technology using wifi or the internet, that makes it different, automatically exempt from prior legal categories.

There are geeks who may argue that way, but a sounder argument is, that new technology can change the cost/benefit analysis in such a way as to make the laws no longer worth enforcing in the way they were previously. Either because the illegal application confers an enormous benefit, or because enforcing the law would be too costly.

When that's the case, large numbers of people will flout the law and it will be difficult to stop them, so what ought we to do as a society to come to terms with it?

Gabriel said...

I think the common law for bees would be good to apply to drones:

That bees are wild by nature; therefore, tho they swarm upon your tree they are not yours until you have hived them, any more than the birds that have their nests in your trees or the rabbits that run wild thru your fields. But when they have been hived by you they are your property the same as any other wild animal that you may have reduced to possession. Animals that are wild by nature and have been captured by you, should they escape, you still have a right in them if you follow them with the idea of recovery. A swarm of bees that has left your hive continues to be yours so long as you can keep them in sight and under any probability of recovery.

So if a drone overflys your property, and its operator is not in sight, if you gain physical or remote control over it, it becomes your drone.

Then drone operators would have a motive to self-regulate and we don't need to expand Leviathan one more time.

Douglas said...

I'm wondering, are shoulder fired anti-aircraft missiles legal in the US? Is anyone making a small version appropriate for targeting drones yet? I can't think of any reason, none at all, why drone operators should have an expectation of safety when they are flying over my property, unless they are flying high enough to be safe from shotguns and missiles.

Seaplanes taking off from Moosehead Lake fly over my house there all summer long and I don't get bent out of shape about it even if they are looking down at us on the dock. We wave back. The key difference is that they don't hover. If they were hovering overhead, I'd be pretty pissed off. So if a drone transits my property at 150 mph, I don't care, but if it's hovering, or loitering, it's a target.

Ken Mitchell said...

I think the difference is in what we used to call "innocent passage" in the Law of the Sea negotiations. You can sail through national waters if you follow the most direct path back into international waters on the other side of the strait.

Similarly, there's a difference between a drone who flies over my yard at 200 ft altitude on its way to someplace else and proceeds on its way, and a drone that flies over my yard at 25 feet and then hovers. If a drone starts to hover low over my yard, I have a pretty good chance of catching it with an edge-weighted net, and then it's MINE. (A drone that low over my yard would probably have already run into some trees, but that's a different hazard.)

stlcdr said...

Dones - real drones, UAVs - that have bombs, missiles and rockets designed to kill people in-extremis, must also be taken into account to see where our attitudes towards these things are.

While a manned vehicle, armed with the same tools, killing becomes a personal (sic) affair (yes, not up-close and personal such as with small arms or a knife) but it is a person pushing a button within range of that terrorist hideout, warehouse, militia encampment, mosque, or market street.

With a drone, one may say that it is equivalent, but we do not put a pilot in any harms way. This is true, but we also distance ourselves from the killing. While a drone is remotely piloted, it must a nameless face to the killing. Destroy a school? Oops, my bad, can we have our drone back please?

We have the same attitudes with these drones. Yes, we are not killing, but separating ourselves from the crime that it may be, so we cannot be guilty of it.

stlcdr said...

Blogger Virgil Hilts said...
...with respect to a neighbor's cat ...

1/30/16, 9:43 AM


I just have this funny picture of a cat climbing over a fence then hovering a foot or so off the ground as it stalks the birds...

Nichevo said...

Shotgun firing a net

Insufficiently Sensitive said...

she was outraged by the intrusion and briefly contemplated buying a shotgun, should my neighbor’s drone reappear near our bedroom window.

Absolutely the shotgun. If you want to pilot your geeky flying target within range of the house, it's absolutely fair game. To make it fairer, that's within range of low-base number 8 shot shells, not buckshot nor punt guns.

Carl the Groundskeeper said...

You know there is a low tech solution to this high tech problem.

It is called a garden hose with a spray nozzle on it. Said hose can blow the hobby drone from the sky, short its electronics. Plus, you can say you were just washing the windows on your second floor.

Peter said...

"Downloading free music from an app isn't the same as stealing a CD from a music store because... The Internet!"

It's not the same because CDs are rivalrous goods, and downloads are not. That is, if you steal a CD the store you stole it from has one fewer CD to sell. The equivalence would be between "downloading free music" vs. copying a friend's (or a public library's) CD (assuming you returned the CD and did not damage it).


In any case, how long will it be before civilian drones are effectively weaponized? Sure, you can shoot at them, BUT, what if they shoot back?