Academic journal article Boston University Law Review

Airspace in an Age of Drones

Academic journal article Boston University Law Review

Airspace in an Age of Drones

Article excerpt

The growing interest in domestic drones is drawing new attention to unresolved questions regarding the scope of landowners' rights in the airspace above their land. Domestic drones are small, unmanned aircraft capable of delivering packages or capturing photos. Existing aerial trespass and takings laws, which were formulated prior to the advent of modern drone technologies, are ill-equipped to handle conflicts between domestic drone operators and landowners. To establish claims under these laws, landowners generally must prove that an aircraft flew within the nebulous "immediate reaches" of the airspace above their parcels and substantially interfered with their use and enjoyment of their land. The indefinite nature of landowner airspace rights under these rules is already generating confusion and controversy, hindering growth in the fledgling domestic drone industry. This Article applies basic principles of microeconomics and property theory to analyze the complex new property law issues presented by drone technologies. This Article ultimately advocates for legislation giving landowners strict rights to exclude aircraft from a clearly defined column of low-altitude airspace directly above their parcels. Such legislation would clarify landowners ' entitlements in low-altitude airspace and thereby promote more efficient governance of this increasingly valuable resource as drones become ever more common in domestic skies.


For the first time since the Wright brothers ushered in the era of human flight at Kitty Hawk more than a century ago, the most groundbreaking aviation technologies of the day do not involve human flight at all. Instead, they involve aircraft purposely designed to fly without people on board- sophisticated unmanned aerial vehicles commonly known as "drones."1 For a fraction of the cost of an airplane or helicopter, drones can fly through treacherous areas without endangering human lives, soar past traffic jams to make urgent deliveries, and provide valuable birds-eye views of happenings below.

Although drones have been around for decades,2 recent advancements in drone technologies are fueling an unprecedented level of interest in these futuristic devices. A wide and growing array of ever-more-sophisticated drones is now readily available for purchase at hobby stores and on the Internet. Many of these drones sell for just a few hundred dollars and can effortlessly be controlled from ordinary smartphones.3 Seemingly overnight, a domestic drones market that once catered primarily to weekend hobbyists is attracting journalists, real estate agents, wedding photographers, law enforcement agencies, and even delivery companies.

Unfortunately, the United States seems ill-prepared for the complex legal questions and regulatory challenges that this massive flock of new domestic drones will bring. Within the United States, there are already reports of civilian drones crashing into buildings,4 having hazardously close encounters with helicopters,5 peeping into residential windows,6 and being intentionally shot down.7 Anticipating the potential benefits and difficulties associated with the emergent domestic drone market, Congress enacted legislation in 2012 instructing the Federal Aviation Administration ("FAA") to adopt regulations by September 2015 to facilitate the smooth integration of "civil unmanned aircraft systems" into U.S. airspace.8 However, it appears increasingly doubtful that the FAA will meet that deadline.9 And in the meantime, the agency is attempting to enforce a controversial moratorium on most commercial drone use.10

To date, most of the scholarly* 11 and legislative12 activity relating to domestic drones has centered on the devices' potential impact on privacy rights and criminal evidence gathering. Regrettably, legal academicians and policymakers have devoted far less attention to an unsettled property law question that underlies these and many other domestic drone issues: Up to what height do surface owners hold strict rights to exclude flying objects from physically invading the airspace above their land? …

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