By Michael Filbin

Over the past several years, drones have emerged as one of the most iconic topics in technology. While it is true that drones have been around for nearly a century in the military, it wasn’t until recently that the drone market exploded in growth and became widely available for civilian use. This growth is largely attributed to advancements being made in technology which continue to make drones cheaper, more accessible, and easier to operate. It is estimated that the commercial drone market will continue to grow at a compound annual growth rate of 19% by 2020.

As the popularity of drones and their technology continues to rise, so do the problems and issues in the legal community. The most prominent is the issue regarding privacy and trespass laws. Ultimately, privacy and trespass laws were drafted during a time when drones were not a factor or consideration of the legislators, as a result, they are not helpful in setting guidelines and parameters for drone usage. Countless law suits are being filed across the country seeking clarification and insight, but the courts have yet to provide us with an answer. There is no doubt that drones are positively impacting our society in a number of ways, and the sky is truly the limit as technology continues to advance. But, do these benefits outweigh certain individuals constitutional right of privacy?

The main issue I see with drones today, is their ability to fly over one’s property incognito and take high definition quality photos without one knowing what is happening. Now I understand that not everyone is doing that, but how is one to determine that when they see a drone flying above their property? A long-standing property principle is that property owners have a right to exclude others from their property, and a right to quiet enjoyment of their land—the tort trespass to land protects those interests. Having an unknown drone fly into your backyard documenting your private life, certainly intrudes on one’s land and disrupts one’s quiet enjoyment of their land. Obviously, because drones deal with air space rights, the boundaries of where one’s property extends to is not as clear cut as in traditional trespass cases. According to previous case law in our country, one owns the air rights above your property to the amount that you could practically use. In this instance, I would argue that one owns up to the limit where the drones could take surveillance pictures. As technology continues to advance, the range in which a drone could take pictures will unquestionably be a problem.

Typically, in private nuisance cases, courts look to the balancing of utilities doctrine, which essentially states that “landowners must tolerate inconveniences and annoyances for the benefit of industrial and technological advances, and only if the harm to the plaintiff outweighs the social utility of the defendant’s activity will an injunction issue…” (Burk, Snoe, 2016). As previously mentioned, the benefits that come along with advancements in drone technology are great. For example, drones are doing work now, that originally would have required placing a worker in a dangerous situation. Additionally, drones have been used to provide medical assistance. On top of that, it is estimated that by 2025 the commercial drone market will have created an additional 100,000 jobs. Because of this, I recognize the detrimental effect that laws restricting drone use could have. At the same time, we cannot allow the use of drones to go unchecked, and ignore the inherent privacy rights of the people.

In conclusion, I strongly believe that the courts must make a ruling on drone use that strikes the balance between societal benefits and individuals privacy rights. Perhaps courts could restrict the areas in which drones may be flown, or restrict the altitude in which a drone could fly overhead residences. Regardless of how the courts eventually decide, it will be interesting to see what they come up with.

Student Bio: Michael Filbin. Second year law student at Suffolk University Law School, from Westwood, MA.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

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