TRESPASS, NUISANCE AND PRIVACY: MORE QUESTIONS THAN ANSWERS? BY: JEFFREY K. PHILLIPS Ph: 859-219-8210 [email protected] http://www.steptoe-johnson.com VI. Trespass, Nuisance and Privacy: More Questions Than Answers? The case of John David Boggs v. William H. Merideth, 3:16-cv-6 (W.D.Ky. at Louisville), was poised to examine the circumstances under which an unmanned aerial vehicle1 (“UAV”) commits a trespass or invades someone’s privacy. The colorful facts of the case showed that the daughters of William “Drone Slayer” Merideth were sunbathing on their back porch.2 They reported to Merideth that a drone was flying near them. Merideth and his neighbors said the drone hovered over their properties, as low as 10 feet off the ground. The drone’s owner claimed the UAV was more than 200 feet in the air and was being used to photograph a friend’s home.3 According to Merideth, when the drone traveled over the six foot privacy fence surrounding his property, Merideth blasted the drone out of the sky with a shotgun. Police arrested Merideth and charged him with criminal mischief and wanton endangerment. A judge subsequently dismissed the criminal charges,4 purportedly stating that the action of the drone was an invasion of privacy giving Merideth “the right to shoot this drone.”5 The John David Boggs civil lawsuit arose from these events, with Boggs, the owner of the UAV, proclaiming the incident with Merideth “set the stage for a conflict between state- based claims of trespass to property, invasion of privacy, and trespass to chattels and long standing exclusive federal jurisdiction over the national airspace and the protection of air safety.”6 1 UAV and drone will be used interchangeably in this paper. UAS means “unmanned aircraft systems.” 2 See www.wdrb.com/story/29650818/hillview-man-arrested-for-shooting-down-drone-cites-right-to-privacy 3 See www.wdrb.com/story/ 29670583/update-drone-owner-disputes-suspects-claims-produces-video-claiming-to- show-flight-path 4 Commonwealth v. William Merideth, Bullitt County, KY #15-F-473 (Oct. 26, 2015) 5 www.theverge.com/2015/10/28/9625468/drone-slayer-Kentucky-cleared-charges 6 Boggs v. Merideth, 3:16-cv-6 (W.D.Ky. at Louisville), Complaint for Declaratory Judgment and Damages, page 1. 1 The Complaint in Boggs sought a declaration by the federal judge that (1) a drone is an “aircraft” according to federal law; (2) a drone operating in Class G airspace is operating in “navigable airspace” within the exclusive jurisdiction of the United States; (3) Boggs was not operating the drone within Merideth’s property; (4) Boggs did not violate Merideth’s reasonable expectation of privacy; and (5) a property owner cannot shoot a drone operating in navigable airspace. Unfortunately, the Boggs Court recently refused to directly address these issues. On March 21, 2017, Judge Thomas Russell dismissed the case, holding that it was a garden variety state tort case which did not raise any significant federal issues.7 According to the judge, FAA regulations “would constitute ancillary issues in this case, in which the heart of Boggs’ claim is one for damage to his unmanned aircraft under Kentucky state law.”8 Given that recent case law has not definitively drawn the line that divides trespass, nuisance and privacy from the right to use the sky to operate UAV,9 it may be worthwhile to examine a United States Supreme Court case decided over seven decades ago. While that litigation involved government action and federal constitutional principles, the nation’s highest court’s statements about aircraft and property owner’s rights are instructive. In United States v. Causby, 328 U.S. 256 (1946), government airplanes frequently flew over the Causby home and chicken farm. The planes passed 67 feet above the house, 63 feet above the barn and 18 feet above the highest tree. Startled chickens died when they smashed into the barn scrambling away from the planes. The noise and glare from the planes also deprived the Causbys of sleep. Consequently, the Causby family filed a lawsuit contending their property was taken in violation of the U.S. Constitution. 7 Boggs v. Merideth, 2017 WL 1088093, page 4 (W.D. Ky. 2017). 8 Id., at page 10. 9 Some state legislatives have weighed in on this issue. Oregon, for instance, says the “Attorney General, on behalf of the state of Oregon, may bring an action or claim for relief alleging nuisance or trespass arising from the operation of an unmanned aircraft system in the airspace over this state.” O.R.S § 837.380(6). 2 The government fought the claim arguing that it had complete and exclusive sovereignty in the air space and had a public right of freedom of transit in air commerce. Id., at 260. Since the flights were within minimum safe altitudes and no physical invasion of the Causbys’ property occurred, the government maintained there was no unconstitutional taking. The Supreme Court acknowledged that “the air space is a public highway,” yet said “if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere.” Id., at 264. The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land. The fact that he does not occupy it in a physical sense – by the erection of buildings and the like – is not material. As we have said, the flight of airplanes which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it. The super-adjacent air space at this lower altitude is so close to the land that continuous invasions of it affect the use of the surface of land itself. We think that the landowner, as an incident his ownership, has a claim to it and that invasions of it are in the same category as invasions of the surface. Id., at 265. (citations omitted). While the Causby Court recognized that a property owners’ rights extended beyond the land itself, a concrete demarcation between a property owner’s right to peaceably enjoy the land and someone else’s right to use air space was not established. “The airspace, apart from the immediate reaches above the land, is part of the public domain. We need not determine at this time what those precise limits are. Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.” Id. at 268. Like the Causby case, federal statutes and regulations do not clearly identify when UAV commit a trespass or invade a property owner’s privacy rights. A “citizen of the United States 3 has a public right of transit through the navigable airspace.”10 “Navigable airspace” means airspace above the minimum altitudes of flight prescribed by Federal Aviation Administration (FAA) regulations, including airspace needed to ensure safety in the takeoff and landing of aircraft.11 For example, Class G airspace is from the land’s surface up to 1,200 feet above ground level.12 UAV regularly operate in Class G airspace.13 Notably, FAA regulations provide that no person may operate an aircraft14 in a careless or reckless manner so as to endanger the life or property of another.15 An owner or operator of aircraft “is liable for personal injury, death or property loss or damage on land or water only when a civil aircraft…is in the actual possession or control of the lessor, owner or secured party, and the personal injury, death or property loss or damage occurs because of (1) the aircraft…or (2) the flight of, or an object falling from, the aircraft….”16 No federal law suggests, however, what constitutes a trespass, nuisance or invasion of privacy because of the flight of UAV.17 The FAA simply warns that “operators should be aware that state and local authorities may enact privacy-related laws specific to UAS operations.”18 Very few state legislatures have filled in the gaps to define a trespass, nuisance or privacy invasion claim against a drone operator. As presented in Section VII of this paper, California 10 49 U.S.C. § 40103(a)(2). 11 49 U.S.C. § 40101 and § 44101. 12 14 C.F.R. § 91.155. 13 The maximum permissible altitude for UAV is 400 feet above ground level. 14 C.F.R. § 107. 14 Drones are considered “aircraft” that are within the jurisdiction of the FAA. See Huerta v. Pirker, NTSB Docket CP-217, NTSB Order No. EA-5730 (Nov. 18, 2014). 15 14 C.F.R. § 91.13. 16 49 U.S.C. § 44112(b). 17 The National Telecommunications & Information Administration drafted in 2016 “Voluntary Best Practices for UAS Privacy, Transparency, and Accountability,” but these practices are expressly “not meant to create a legal standard of care by which the activities of any particular UAS operator should be judged.” www.ntia.doc.gov/files/ntia/publications. In any event, these best practices acknowledge that “privacy is hard to define, but it is important. There is a balance between your rights as a drone user and other people’s rights to privacy. The balance isn’t easy to find.” Id., at page 8. 18 Advisory Circular No.: 107-2, Section 1.1.3 (2016). 4 created a statutory cause of action when a UAV recording is made of a person on private property even without a “physical trespass” onto the property.