Academic journal article Current Politics and Economics of the United States, Canada and Mexico

Integration of Drones into Domestic Airspace: Selected Legal Issues*

Academic journal article Current Politics and Economics of the United States, Canada and Mexico

Integration of Drones into Domestic Airspace: Selected Legal Issues*

Article excerpt

INTRODUCTION

The integration of drones into U.S. skies is expected by many to yield significant commercial and societal benefits.1 Drones could be employed to inspect pipelines, survey crops, and monitor weather.2 One newspaper has already used a drone to survey storm damage, 3 and real estate agents have used them to survey property.4 In short, the extent of their potential domestic application is bound only by human ingenuity.

In an effort to accelerate this introduction, in the FAA Modernization and Reform Act of 2012, Congress tasked the Federal Aviation Administration (FAA) with safely integrating drones into the national airspace system by September 2015.5 Likewise, sensing the opportunities that unmanned flight portend, lobbying groups and drone manufacturers have joined the chorus of those seeking a more rapid expansion of drones in the domestic market.6

Yet, the full-scale introduction of drones into U.S. skies will inevitably generate a host of legal issues. This report will explore some of those issues. To begin, this report will describe the regulatory framework for permitting the use of unmanned vehicles and the potential rulemaking that will occur over the next few years. Next, it will discuss theories of takings and property torts as they relate to drone flights over or near private property. It will then discuss the privacy interests implicated by drone surveillance conducted by private actors and the potential countervailing First Amendment rights to gather and receive news. Finally, this report will explore possible congressional responses to these privacy concerns and identify additional potential legal issues.

DEVELOPMENT OF AVIATION LAW AND REGULATIONS

The predominant theory of airspace rights applied before the advent of aviation derived from the Roman Law maxim cujus est solum ejus est usque ad coelum, meaning whoever owns the land possesses all the space above the land extending upwards into the heavens.7 This maxim was adopted into English common law and eventually made its way into American common law.8 At the advent of commercial aviation, Congress enacted the Air Commerce Act of 19269 and later the 1938 Civil Aeronautics Act.10 These laws included provisions stating that -to the exclusion of all foreign nations, [the United States has] complete sovereignty of the airspace" over the country.11 Additionally, Congress declared a -public right of freedom of transit in air commerce through the navigable airspace of the United States."12 This right to travel in navigable airspace came into conflict with the common law idea that each landowner also owned the airspace above the surface in perpetuity. If the common law idea was followed faithfully, there could be no right to travel in navigable airspace without constantly trespassing in private property owners' airspace. This conflict was directly addressed by the Supreme Court in United States v. Causby, discussed extensively below.

With the passage of the Federal Aviation Act in 1958,13 the administrator of the FAA was given -full responsibility and authority for the advancement and promulgation of civil aeronautics generally "14 This centralization of responsibility and creation of a uniform set of rules recognized that -aviation is unique among transportation industries in its relation to the federal government-it is the only one whose operations are conducted almost wholly within federal jurisdiction.... "15 The FAA continues to set uniform rules for the operation of aircraft in the national airspace. In the FAA Modernization and Reform Act of 2012, Congress instructed the FAA to -develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system."16 These regulations must provide for this integration -as soon as practicable, but not later than September 30, 2015."17

Current FAA Regulations of Navigable Airspace

Fixed-Wing Aircraft

FAA regulations define the minimum safe operating altitudes for different kinds of aircraft. …

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