Integration of Drones into Domestic Airspace: Selected Legal Issues
Released: 2013-04-04T00:00:00

Summary:
Under the FAA Modernization and Reform Act of 2012, P.L. 112-95, Congress has tasked the Federal Aviation Administration (FAA) with integrating unmanned aircraft systems (UASs), sometimes referred to as unmanned aerial vehicles (UAVs) or drones, into the national airspace system by September 2015. Although the text of this act places safety as a predominant concern, it fails to address significant, and up to this point, largely unanswered legal questions.
For instance, several legal interests are implicated by drone flight over or near private property. Might such a flight constitute a trespass? A nuisance? If conducted by the government, a constitutional taking? In the past, the Latin maxim cujus est solum ejus est usque ad coelum (for whoever owns the soil owns to the heavens) was sufficient to resolve many of these types of questions, but the proliferation of air flight in the 20th century has made this proposition untenable. Instead, modern jurisprudence concerning air travel is significantly more nuanced, and often more confusing. Some courts have relied on the federal definition of "navigable airspace" to determine which flights could constitute a trespass. Others employ a nuisance theory to ask whether an overhead flight causes a substantial impairment of the use and enjoyment of one's property. Additionally, courts have struggled to determine when a government-operated overhead flight constitutes a taking under the Fifth and Fourteenth Amendments.
With the ability to house surveillance sensors such as high-powered cameras and thermal-imaging devices, some argue that drone surveillance poses a significant threat to the privacy of American citizens. Because the Fourth Amendment's prohibition against unreasonable searches and seizures applies only to acts by government officials, surveillance by private actors such as the paparazzi, a commercial enterprise, or one's neighbor is instead regulated, if at all, by state and federal statutes and judicial decisions. Yet, however strong this interest in privacy may be, there are instances where the public's First Amendment rights to gather and receive news might outweigh an individual's interest in being let alone.
Additionally, there are a host of related legal issues that may arise with this introduction of drones in U.S. skies. These include whether a property owner may protect his property from a trespassing drone; how stalking, harassment, and other criminal laws should be applied to acts committed with the use of drones; and to what extent federal aviation law could preempt future state law.
Because drone use will occur largely in federal airspace, Congress has the authority or can permit various federal agencies to set federal policy on drone use in American skies. This may include the appropriate level of individual privacy protection, the balancing of property interests with the economic needs of private entities, and the appropriate safety standards required.

subsections: section_title: Introduction
paragraphs: The integration of drones into U.S. skies is expected by many to yield significant commercial and societal benefits. Drones could be employed to inspect pipelines, survey crops, and monitor the weather. One newspaper has already used a drone to survey storm damage, and real estate agents have used them to survey property. 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. 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.
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, discuss how the FAA has approached these concerns, and identify additional potential legal issues.
section_title: Development of Aviation Law and Regulations
paragraphs: 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. This maxim was adopted into English common law and eventually made its way into American common law. At the advent of commercial aviation, Congress enacted the Air Commerce Act of 1926 and later the 1938 Civil Aeronautics Act. 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. Additionally, Congress declared a "public right of freedom of transit in air commerce through the navigable airspace of the United States." This right to travel in navigable airspace came into conflict with the common law idea that each landowner owned the airspace above the surface in perpetuity. If the common law idea was to be 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, the administrator of the FAA was given "full responsibility and authority for the advancement and promulgation of civil aeronautics generally.... " 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.... " 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 (FMRA), Congress instructed the FAA to "develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system." These regulations must provide for this integration "as soon as practicable, but not later than September 30, 2015."
subsections: section_title: Current FAA Regulations of Navigable Airspace
subsections: section_title: Fixed-Wing Aircraft
paragraphs: FAA regulations define the minimum safe operating altitudes for different kinds of aircraft. Generally, outside of takeoff and landing, fixed-wing aircraft must be operated at an altitude that allows the aircraft to conduct an emergency landing "without undue hazard to persons or property on the surface." In a congested area, the aircraft must operate at least "1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft." The minimum safe operating altitude over non-congested areas is "500 feet above the surface." Over open water or sparsely populated areas, aircraft "may not be operated closer than 500 feet to any person, vessel, vehicle, or structure." Navigable airspace is defined in statute as the airspace above the minimum safe operating altitudes, including airspace needed for safe takeoff and landing.
section_title: Helicopters
paragraphs: While a fixed-wing aircraft is subject to specific minimum safe operating altitudes based on where it is flying, regulation of helicopter minimum altitudes is less rigid. According to FAA regulations, a helicopter may fly below the minimum safe altitudes prescribed for fixed-wing aircraft if it is operated "without hazard to person or property on the surface." Therefore, arguably a helicopter may be lawfully operated outside the zone defined in statute as navigable airspace.
section_title: Drones
paragraphs: The FAA does not currently regulate safe minimum operating altitudes for drones as it does for other kinds of aircraft. Defining navigable airspace for drone operation may be one way that the FAA responds to Congress's instruction, in FMRA, to write rules integrating civil drones into the national airspace, which is discussed in more detail below. One possibility is for the FAA to create different classes of drones based on their size and capabilities. Larger drones that physically resemble fixed-wing aircraft could be subject to similar safe minimum operating altitude requirements whereas smaller drones could be regulated similar to helicopters.
section_title: Current FAA Regulation of Drones
paragraphs: In 2007, the FAA issued a policy notice stating that "no person may operate a UAS in the National Airspace without specific authority." Therefore, currently all drone operators who do not fall within the recreational use exemption discussed below must apply directly to the FAA for permission to fly.
subsections: section_title: Public and Civil Operators
paragraphs: Drones operated by federal, state, or local agencies must obtain a certificate of authorization or waiver (COA) from the FAA. After receiving COA applications, the FAA conducts a comprehensive operational and technical review of the drone and can place limits on its operation in order to ensure its safe use in airspace. In response to a directive in FMRA, the FAA recently streamlined the process for obtaining COAs, making it easier to apply on their website. It also employs expedited procedures allowing grants for temporary COAs if needed for time-sensitive missions.
Civil operators, or private commercial operators, must receive a special airworthiness certificate in the experimental category in order to operate. These certificates have been issued on a limited basis for flight tests, demonstrations, and training. Presently, there is no other method of obtaining FAA approval to fly drones for commercial purposes. It appears these restrictions will be loosened in the coming years, since the FAA has been instructed to issue a rulemaking that will lead to the phased-in integration of civilian unmanned aircraft into national airspace.
section_title: Recreational Users
paragraphs: The FAA encourages recreational users of model aircraft, which certain types of drones could fall under, to follow a 1981 advisory circular. Under the circular, users are instructed to fly a sufficient distance from populated areas and away from noise-sensitive areas like parks, schools, hospitals, or churches. Additionally, users should not fly in the vicinity of full-scale aircraft or more than 400 feet above the surface. When flying within three miles of an airport, users should notify the air traffic control tower, airport operator, or flight service station. Compliance with these guidelines is voluntary.
section_title: Future FAA Regulation of Drones
paragraphs: FMRA instructs the FAA to integrate civil unmanned aircraft systems into the national airspace by the end of FY2015 and implement new standards for public drone operators. This law included provisions describing the comprehensive plan and rulemaking the agency must create to address different aspects of integrating civil drones, restricting the FAA's ability to regulate "model aircraft," and requiring the creation of drone test sites.
subsections: section_title: Civil Operators
paragraphs: The statute instructs the FAA to create a "comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace" and submit the plan to Congress within one year of enactment. The statute contains a non-exhaustive list of elements that the plan must address, including predictions on how future rulemaking will address the certification process for drones; drone sense and avoid capabilities; and establishing operator or pilot standards, including a licensing and registration system. The plan must also include a timeline for a phased-in approach to integration and ways to ensure the safe operation of civil drones with publicly operated drones in the airspace. The FAA has not yet submitted this comprehensive plan to Congress. 
FMRA also directs the FAA to promulgate a series of rules, including rules governing the civil operation of small drones in the national airspace and rules implementing the comprehensive plan described above. Additionally, the FAA must update its 2007 policy statement that established the current scheme of drone authorizations.
section_title: Public Operators
paragraphs: As noted above, the FAA has already implemented a streamlined process for public operators to obtain COAs. In addition to this streamlining, FMRA instructs the FAA to "develop and implement operations and certification requirements for the operation of public unmanned aircraft systems in the national airspace." Similar to the provisions governing civil users, these standards must be in place by the end of 2015. 
section_title: Recreational Users
paragraphs: In FMRA, the FAA was prohibited from promulgating rules regarding certain kinds of model aircraft flown for hobby or recreational use. This prohibition applies if the model aircraft is less than 55 pounds, does not interfere with any manned aircraft, and is flown in accordance with a community-based set of safety guidelines. Additionally, the aircraft must be flown within the line of sight of the operator and be used solely for hobby or recreational purposes. If flown within five miles of an airport, the operator of the model aircraft must notify both the airport operator and air traffic control tower. While the FAA is prohibited from writing rules or regulations governing these aircraft, it is not prohibited from pursuing enforcement actions "against persons operating model aircraft who endanger the safety of the national airspace system."
section_title: Test Ranges
paragraphs: As part of its efforts to integrate drones into the national airspace, FMRA also directed the FAA to establish six test ranges that will serve as integration pilot projects. As part of the test range program, the FAA must designate airspace for the operation of both manned and unmanned flights, develop certification and air traffic standards for drones at the test ranges, and coordinate with both NASA and the Department of Defense during development. The test ranges should address both civil and public drone operations. 
In February 2013, the FAA published a notice in the Federal Register announcing the process for selection of the sites. In its words, "The overall purpose of this test site program is to develop a body of data and operational experiences to inform integration and the safe operation of these aircraft in the National Airspace System." As directed in the statute, factors for site selection include geographic and climactic diversity and a consideration of the location of the ground infrastructure needed to support the sites. Additionally, in the notice the FAA announced privacy requirements that will be applicable to operations at test sites. These provisions are discussed in more detail below.
The FAA received 50 applications spread across 37 states and is in the process of making its test range site selections.
section_title: Airspace and Property Rights
paragraphs: Since the popularization of aviation, courts have had to balance the need for unobstructed air travel and commerce with the rights of private property owners. The foundational case in explaining airspace ownership rights is United States v. Causby . 
subsections: section_title: United States v. Causby
paragraphs: In United States v. Causby , the Supreme Court directly confronted the question of who owns the airspace above private property. The plaintiffs filed suit against the U.S. government arguing that flights of military planes over their property constituted a violation of the Fifth Amendment Takings Clause, which states that private property shall not "be taken for public use, without just compensation." Generally, takings suits can only be filed against the government when a government actor, as opposed to a private party, causes the alleged harm.
Causby owned a chicken farm outside of Greensboro, North Carolina, that was located near an airport regularly used by the military. The proximity of the airport and the configuration of the farm's structures led the military planes to pass over the property at 83 feet above the surface, which was only 67 feet above the house, 63 feet above the barn, and 18 feet above the tallest tree. While this take-off and landing pattern was conducted according to the Civil Aeronautics Authority guidelines, the planes caused "startling" noises and bright glare at night. 
As the Court explained, "as a result of the noise, respondents had to give up their chicken business. As many as six to ten of their chickens were killed in one day by flying into the walls from fright. The total chickens lost in this manner was about 150.... The result was the destruction of the use of the property as a commercial chicken farm." The Court had to determine whether this loss of property constituted a taking without just compensation.
At the outset, the Court directly rejected the common law conception of airspace ownership: "It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe— Cujus solum ejus est usque ad coelum. But that doctrine has no place in the modern world." The Court noted that Congress had previously declared a public right of transit in air commerce in navigable airspace and national sovereignty in the airspace. These statutes could not be reconciled with the common law doctrine without subjecting aircraft operators to countless trespass suits. In the Court's words, "common sense revolts at the idea."
Even though it rejected the idea that the Causbys held complete ownership of the air up to the heavens, the Court still had to determine if they owned any portion of the space in which the planes flew such that a takings could occur. The government argued that flights within navigable airspace that do not physically invade the surface cannot lead to a taking. It also argued that the landowner does not own any airspace adjacent to the surface "which he has not subjected to possession by the erection of structures or other occupancy." 
The Court did not adopt this reasoning, finding instead that "the landowner owns at least as much 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 building and the like—is not material." Therefore, it found that the landowner owns the airspace in the immediate reaches of the surface necessary to use and enjoy the land and invasions of this space "are in the same category as invasions of the surface." Above these immediate reaches, the airspace is part of the public domain, but the Court declined to draw a clear line. The Court also noted that the government's argument regarding the impossibility of a taking based on flights in navigable airspace was inapplicable in this case because the flights over Causby's land were not within navigable airspace. At the time, federal law defined navigable airspace as the space above the minimum safe flying altitudes for specific areas, but did not include the space needed to take off and land. Even though these flights were not within navigable airspace, the Court seemed to suggest that if they were, the inquiry would not immediately end. Instead, the Court would then have to determine if the regulation itself, defining the navigable airspace, was valid.
Ultimately, in the context of a taking claim, the Court concluded that "flights over private land are not a taking, unless they are so low and so frequent to be a direct and immediate interference with the enjoyment and use of the land." With regard to the Causbys' chicken farm, the Court concluded that the military flights had imposed a servitude upon the land, similar to an easement, based on the interference with the use and enjoyment of their property. Although the land did not lose all its economic value, the lower court's findings clearly established the flights led directly to a diminution in the value of the property, since it could no longer be used for its primary purpose as a chicken farm. 
section_title: Post-Causby Theories of Airspace Ownership
paragraphs: Causby clearly abandoned the ancient idea that private landowners each owned their vertical slice of the airspace above the surface in perpetuity as incompatible with modern life. The case set up three factors to examine in a takings claim that courts still utilize today: (1) whether the planes flew directly over the plaintiff's land; (2) the altitude and frequency of the flights; and (3) whether the flights directly and immediately interfered with the plaintiff's use and enjoyment of the surface land.
However, it left many questions unanswered. Where is the dividing line between the "immediate reaches" of the surface and public domain airspace? Can navigable airspace intersect with the "immediate reaches" belonging to the private property? Can aircraft flying wholly within navigable airspace, as defined by federal law, ever lead to a successful takings claim? How does one assess claims based on lawfully operated aircraft, such as helicopters, flying below navigable airspace?
Subsequent cases have been brought using many different legal claims, including trespass and nuisance, as discussed below, and various ways of describing the resulting injury. Claims could include an "inverse condemnation," another way of describing a taking, or the establishment of an avigation, air, or flying easement. While these legal claims may have different names, it appears that courts use Causby as the starting point for analyzing all property-based challenges to intrusions upon airspace. Several different interpretations of Causby have emerged in the attempt to articulate an airspace ownership standard, a few of which are described here. 
Following Causby , several lower courts employed a fixed-height theory and interpreted the decision as creating two distinct categories of airspace. On the one hand, the stratum of airspace that was defined in federal law as "navigable airspace" was always a part of the public domain. Therefore, flights in this navigable airspace could not lead to a successful property-right based action like a takings or trespass claim because the property owner never owned the airspace in the public domain. On the other hand, the airspace below what is defined as navigable airspace could be "owned" by the surface owner and, therefore, intrusions upon it could lead to a successful takings or property tort claim. Since this fixed-height theory of airspace ownership relies heavily on the definition of navigable airspace, the expansion of the federal definition of "navigable airspace" to include the airspace needed to take-off and land greatly impacts what airspace a property owner could claim. 
This strict separation between navigable airspace and the airspace a landowner can claim seems to have been disavowed by the Supreme Court. First, in dicta in Braniff Airways v. Nebraska State Board of Equalization & Assessment , a case primarily dealing with the question of federal preemption of state airline regulations, the Court left open the possibility of a taking based on flights occurring in navigable airspace. It summarized Causby as holding "that the owner of land might recover for a taking by national use of navigable air space resulting in destruction in whole or in part of the usefulness of the land property." Next, in Griggs v. Allegheny County the Supreme Court found that the low flight of planes over the plaintiff's property, taking off from and landing at a nearby airport's newly constructed runway, constituted a taking that had to be compensated under the Fifth Amendment. The noise and fear of a plane crash caused by the low overhead flights made the property "'undesirable and unbearable'" for residential use, making it impossible for people in the house to converse or sleep. The Court reached this conclusion that a taking occurred based on this injury, despite the fact that the flights were operated properly under federal regulations and never flew outside of navigable airspace. Despite this holding, some lower courts have continued to lend credence to a fixed-height ownership theory as a reasonable interpretation of Causby .
Another interpretation of Causby essentially creates a presumption of a non-taking when overhead flights occur in navigable airspace. This presumption would recognize the importance of unimpeded travel of air commerce and that Congress placed navigable airspace in the public domain. However, the presumption could be rebutted by evidence that the flights, while in navigable airspace, interfered with the owner's use and enjoyment of the surface enough to justify compensation. As one court reasoned, "as the height of the overflight increases... the Government's interest in maintaining sovereignty becomes weightier while the landowner's interest diminishes, so that the damage showing required increases in a continuum toward showing absolute destruction of all uses of the property."
Finally, some courts have concluded that the altitude of the overhead flight has no determinative impact on whether a taking has occurred. One federal court noted that the government's liability for a taking is not impacted "merely because the flights of Government aircraft are in what Congress has declared to be navigable airspace and subject to its regulation." Under this approach, "although the navigable airspace has been declared to be in the public domain, 'regardless of any congressional limitations, the land owner, as an incident to his ownership, has a claim to the superjacent airspace to the extent that a reasonable use of his land involves such space.'" Under this theory, the court would only need to examine the effect of the overhead flights on the use and enjoyment of the land, and would not need to determine if the flight occurred in navigable airspace. 
While the definition of navigable airspace impacts each theory differently, it is clear that under each interpretation a showing of interference with the use and enjoyment of property is required. Cases have clearly established that overhead flights leading to impairment of the owner's livelihood or that cause physical damage qualify as an interference with use and enjoyment of property. Additionally, flights that cause the surface to become impractical for its intended use by the current owner also satisfy the use and enjoyment requirement. For example, in Griggs , the noise, vibration, and fear of damage caused by overhead flights made it impossible for the plaintiffs to converse with others or sleep within their house, leading to their retreat from the property, which had become "undesirable and unbearable for their residential use." Some courts have recognized a reduction in the potential resale value of the property as an interference with its use and enjoyment, even if the property continues to be suitable for the purposes for which it is currently used. One court explained: "Enjoyment of property at common law contemplated the entire bundle of rights and privileges that attached to the ownership of land.... Owners of fee simple estates ... clearly enjoy not only the right to put their land to a particular present use, but also to hold the land for investment and appreciation.... " However, other courts have rejected the idea that restrictions on uses by future inhabitants, without showing loss of property value, are relevant to a determination of the owner's own use and enjoyment of the property. 
section_title: Trespass and Nuisance Claims Against Private Actors
paragraphs: Although Causby arose from a Fifth Amendment takings claim, its articulation of airspace ownership standards is also often used in determining state law tort claims such as trespass and nuisance. These state law tort claims could be used to establish liability for overhead flights operated by private actors, where a lack of government involvement precludes a takings claim. Generally, the tort of trespass is any physical intrusion upon property owned by another. However, unlike with surface trespass claims, simply proving that an object or person was physically present in the airspace vertically above the landowner's property is generally not enough to establish a trespass in airspace. Since Causby struck down the common law idea of ad coelum , landowners generally do not have an absolute possessory right to the airspace above the surface into perpetuity. Instead, airspace trespass claims are often assessed using the same requirements laid out in the Causby takings claim. Arguably, these standards are used in property tort claims because there can be no trespass in airspace unless the property owner has some possessory right to the airspace, which was the same question at issue in Causby . 
To allege an actionable trespass to airspace, the property owner must not only prove that the interference occurred within the immediate reaches of the land, or the airspace that the owner can possess under Causby , but also that its presence interferes with the actual use of his land. As one court explained, "a property owner owns only as much air space above his property as he can practicable use. And to constitute an actionable trespass, an intrusion has to be such as to subtract from the owner's use of the property." This standard for airspace trespass was also adopted by the Restatement (Second) of Torts. 
Nuisance is a state law tort claim that is not based on possessory rights to property, like trespass, but is rooted in the right to use and enjoy land. Trespass and nuisance claims arising from airspace use are quite similar, since trespass to airspace claims generally require a showing that the object in airspace interfered with use and enjoyment of land. However, unlike trespass, nuisance claims do not require a showing that the interference actually occupied the owner's airspace. Instead, a nuisance claim can succeed even if the interference flew over adjoining lands and never directly over the plaintiff's land, as long as the flight constitutes a substantial and unreasonable interference with the use and enjoyment of the land. 
section_title: Potential Liability Arising from Civilian Drone Use
paragraphs: The integration of drones into domestic airspace will raise novel questions of how to apply existing airspace ownership law to this new technology. How courts may apply the various interpretations of Causby , discussed above, to drones will likely be greatly impacted by the FAA's definition of navigable airspace for drones. 
The potential for successful takings, trespass, or nuisance claims from drone use will also be impacted by the physical characteristics of the drone, especially given that current case law heavily emphasizes the impact of the flight on use and enjoyment of the surface property. Several characteristics of drones may make their operation in airspace less likely to lead to liability for drone operators than for aircraft operators. First, the noise attributed to drone use may be significantly less than noise created by helicopters or planes powered by jet engines. Second, drones commonly used for civilian purposes could be much smaller than common aircraft used today. This decreased size is likely to lead to fewer physical impacts upon surface land such as vibration and dust, which are common complaints arising from overhead aircraft and helicopter flights. Finally, it is unknown at this time how most drones will be deployed into flight. Will drone "airports" be used to launch the aircraft or will they take off and land primarily from individual property? If drone use remains decentralized and is not organized around an "airport," then drones are less likely to fly repeatedly over the same piece of property, creating fewer potential takings, trespass, or nuisance claims. Additionally, the majority of drones are more likely to operate like helicopters, taking off and landing vertically, than like traditional fixed-wing aircraft. This method of takeoff reduces the amount of surface the aircraft would have to fly over before reaching its desired flying altitude, minimizing the potential number of property owners alleging physical invasion of the immediate reaches of their surface property. 
Alternatively, the potential ability for drones to fly safely at much lower altitudes than fixed-wing aircraft or helicopters could lead to a larger number of property-based claims. Low-flying drones are more likely to invade the immediate reaches of the surface property, thus satisfying part of the requirement for a takings or trespass claim.
section_title: Privacy
paragraphs: Perhaps the most contentious issue concerning the introduction of drones into U.S. airspace is the threat that this technology will be used to spy on American citizens. With the ability to house high-powered cameras, infrared sensors, facial recognition technology, and license plate readers, some argue that drones present a substantial privacy risk. Undoubtedly, the government's use of drones for domestic surveillance operations implicates the Fourth Amendment and other applicable laws. In like manner, privacy advocates have warned that private actors might use drones in a way that could infringe upon fundamental privacy rights. This section will focus on the privacy issues associated with the use of drones by private, non-governmental actors. It will provide a general history of privacy law in the United States and survey the various privacy torts, including intrusion upon seclusion, the privacy tort most applicable to drone surveillance. It will then explore the First Amendment right to gather news. Application of these theories to drone surveillance will be discussed in the section titled " Congressional Response ."
subsections: section_title: Early Privacy Jurisprudence
paragraphs: Although early Anglo-Saxon law lacked express privacy protections, property law and trespass theories served as proxy for the protection of individual privacy. Lord Coke pronounced in 1605 that "the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence, as for his respose[.]" This proposition that individuals are entitled to privacy while in their homes crossed the Atlantic with the colonists and appeared prominently in early revolutionary thinking. In one early American common law decision, the court noted that "[t]he law is clearly settled, that an officer cannot justify the breaking open an outward door or window, in order to execute process in a civil suit; if he doth, he is a trespasser." In cases lacking physical trespass, prosecutors relied on an eavesdropping theory, which protected the privacy of individuals' conversations while in their home. 
These century-old theories of trespass and eavesdropping, however, failed to keep up with a rapidly changing society fueled by advancing technologies. As with today's celebrity-obsessed society, late-19 th century society experienced the birth and spread of "yellow journalism," a new media aimed at emphasizing the "curious, dramatic, and unusual, providing readers a 'palliative of sin, sex, and violence.'" Faster presses and instantaneous photography enabled journalists to exploit and spread gossip. Louis D. Brandeis (then a private attorney) and Samuel Warren were bothered with the press's constant intrusions into the private affairs of prominent Bostonians. In 1890, they published a seminal law review article formulating a new legal theorythe right to be let alone. Brandeis and Warren understood that existing tort doctrines such as trespass and libel were insufficient to protect privacy rights, as "only a part of the pain, pleasure, and profit of life lay in physical things." They noted that this new right to privacy derived not from "the principle of private property, but that of an inviolate personality." The authors observed that "instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops.'" Although this new theory had its detractors, it found its way into the common law of several states. 
section_title: Privacy Torts
paragraphs: In 1939, the First Restatement of Torts (a set of model rules intended for adoption by the states) created a general tort for invasion of privacy. By 1940, a minority of states had adopted some right of privacy either by statute or judicial decision, and six states had expressly refused to adopt such a right. Twenty years later, Dean William Prosser surveyed the case law surrounding this right and concluded that the right to privacy entailed four distinct (yet, sometimes overlapping) rights: (1) intrusion upon seclusion; (2) public disclosure of private facts; (3) publicity which puts the target in a false light; and (4) appropriation of one's likeness. These four categories were incorporated into the Restatement (Second) of Torts. 
Section 652B of the Restatement (Second) of Torts creates a cause of action for intrusion upon seclusion, the privacy tort most likely to apply to drone surveillance. It has been adopted either by common law or statute in an overwhelming majority of the states. Section 652B provides: "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." Courts have developed a set of rules for applying Section 652B. First, it requires an objective person standard, testing whether a person of "ordinary sensibilities" would be offended by the alleged invasion. Thus, someone with an idiosyncratic sensitivitysay, an aversion to camerascould not satisfy this standard by simply having his photograph taken. Likewise, the intrusion must not only be offensive, but " highly offensive," or as one court put it, "outrageously unreasonable conduct." Generally, a single incident will not suffice; instead, the intrusion must be "repeated with such persistence and frequency as to amount to a course of hounding" and "becomes a burden to his existence.... " However, in a few cases a single intrusion was adequate. The invasion of privacy must been intentional, meaning the defendant must desire that the intrusion would occur, or as with other torts, knew with a substantial certainty that such an invasion would result from his actions. An accidental intrusion is not actionable. Finally, in some states, the intrusion must cause mental suffering, shame, or humiliation to permit recovery.
A review of the case law demonstrates that the location of the target of the surveillance is, in many cases, determinative of whether someone has a viable claim for intrusion upon seclusion. For the most part, conducting surveillance of a person while within the confines of his home will constitute an intrusion upon seclusion. The illustrations to Section 652B offer an example of a private detective who photographs an individual while in his home with a telescopic camera as a viable claim. Likewise, as one court observed, "when a picture is taken of a plaintiff while he is in the privacy of his home, ... the taking of the picture may be considered an intrusion into the plaintiff's privacy just as eavesdropping or looking into his upstairs windows with binoculars are considered an invasion of his privacy." 
The likelihood of a successful claim is diminished if the surveillance is conducted in a public place. The comments to Section 652B explain that there is generally no liability for photographing or observing a person while in public "since he is not then in seclusion, and his appearance is public and open to the public eye." Likewise, Prosser observed:
On the public street, or in any other public place, the plaintiff has no right to be alone, and it is no invasion of his privacy to do no more than follow him about. Neither is it such an invasion to take a photograph in such a place, since this amounts to nothing more than making a record, not differing essentially from a full written description, of a public sight which anyone present would be free to see. 
The case law also supports this proposition. The Alabama Supreme Court dismissed a claim of wrongful intrusion against operators of a race track who photographed the plaintiffs while they were in the "winner's circle" at the track. Similarly, a federal district court dismissed a claim by a husband and wife who had been photographed by Forbes Magazine while waiting in line at the Miami International Airport as it was taken in "a place open to the general public." Likewise, a Vietnam veteran lost a claim for invasion of privacy based on photographs that depicted him and other soldiers during a combat mission in Vietnamagain, a public setting. Other examples include the recording of license plate numbers of cars parked in a public parking lot and photographing a person while walking on a public sidewalk.
Indeed, even plaintiffs who were videotaped or photographed while on their own property have generally been unsuccessful in their privacy claims so long as they could be viewed from a public vantage point. Rejecting one plaintiff's claim for intrusion upon seclusion, the Supreme Court of Oregon held that even though the investigators trespassed on the plaintiff's property to film him, the investigation did not "constitute an unreasonable surveillance 'highly offensive to a reasonable man[,]'" as the plaintiff could have been viewed from the road by his neighbors or passersby. In another case, the wife of a prominent Puerto Rican politician sought damages from a newspaper for invasion of privacy allegedly committed when an agent of the newspaper photographed her house as part of a news story about her husband. The court dismissed her claim as the photographers were not "unreasonably intrusive," and the photographs depicted only the outside of the home and no persons were photographed. Similarly, in one case a couple sued a cell phone company for intrusion upon seclusion when the company's workers looked onto their property each time they serviced a nearby cell tower. The court rejected their claim, holding that "[t]he mere fact that maintenance workers come to an adjoining property as part of their work and look over into the adjoining yard is legally insufficient evidence of highly offensive conduct." There are many other examples. 
However, there have been some successful claims for intrusion upon seclusion involving surveillance conducted in public. The comments to Section 652B explain: "Even in a public place, however, there may be some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze, and there may still be invasion of privacy when there is intrusion upon these matters." One of the most famous cases concerning this "public gaze" theory involved a suit for invasion of privacy against a newspaper when it published a picture of the plaintiff with her dress blown up as she was leaving a fun house at a county fair. In upholding the plaintiff's claim, the court observed: "To hold that one who is involuntarily and instantaneously enmeshed in an embarrassing pose forfeits her right of privacy merely because she happened at the moment to be part of a public scene would be illogical, wrong, and unjust." In Huskey v. National Broadcasting Co. Inc. , a prisoner sued NBC, a television broadcasting company, alleging that by filming him without consent while he was working out in the exercise yard at the prison, NBC invaded his privacy. NBC countered that depictions of persons in a "publicly visible area" could not support the claim for invasion of seclusion. Ultimately, the court permitted the prisoner's claim to go forward, observing that "[o]f course [the prisoner] could be seen by guards, prison personnel and inmates, and obviously he was in fact seen by NBC's camera operator. But the mere fact a person can be seen by others does not mean that person cannot legally be 'secluded.'" Although relief is available for certain cases of public surveillance, recovery seems to be the exception rather than the norm.
section_title: First Amendment and Newsgathering Activities
paragraphs: Based on the foregoing discussion, safeguarding privacy from intrusive drone surveillance is clearly an important societal interest. However, this interest must be weighed against the public's countervailing concern in securing the free flow of information that inevitably feeds the "free trade of ideas." Unmanned aircraft can improve the press and the public's ability to gather news: they can operate in dangerous areas without putting a human operator at risk of danger; can carry sophisticated surveillance technology; can fly in areas not currently accessible by traditional aircraft; and can stay in flight for long durations. However, challenges arise in attempting to find an appropriate balance between this interest in newsgathering and the competing privacy interests at stake.
The First Amendment to the United States Constitution provides that "Congress shall make no law ... abridging the freedom of speech, or of the press.... " The Court has construed this phrase to cover not only traditional forms of speech, such as political speeches or polemical articles, but also conduct that is "necessary for, or integrally tied to, acts of expression," such as distribution of political literature or door-to-door solicitation. Additionally, the Court has pulled within the First Amendment's protection other conduct that is not expressive in itself, but is "necessary to accord full meaning and substance to those guarantees." For example, the Court has said that the public is entitled to a "right to receive news" as a correlative of the right to free expression. 
Like this right to receive news, the Court has intimated in a series of cases beginning in the 1960s that the public and the press may be entitled to a right to gather news under the First Amendment. Initially, in Zemel v. Rus k , the Court observed that the right "to speak and publish does not carry with it the unrestrained right to gather information."   The Court's reluctance to extend this right may have signaled its concern that an unconditional newsgathering right could subsume almost any government regulation that places a slight restriction on the ability to gather news. However, several years later the Court indicated in Branzburg v. Hayes that although laws of general applicability apply equally to the press as to the general public, that "[n]ews gathering is not without its First Amendment protections,"  and that "without some protection for seeking out the news, freedom of the press could be eviscerated." The Court, however, failed to clearly delineate the parameters of such a protection. In the Court's most recent case, Cohen v. Cowles Media Co. , the Court adhered to the "well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news." The Court noted that it is "beyond dispute 'that the publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights of others.'" 
The lower federal courts have explored this right to gather news in the context of photographing or video recording. In Dietemann v. Tim e, Inc. the Ninth Circuit Court of Appeals explored the extent to which reporters could use surreptitious means to carry out their newsgathering. There, defendants Time Life sent undercover reporters to a man's house where he claimed to use minerals and other materials to heal the sick. The reporters used a hidden camera to take pictures of the man, and a hidden microphone to transmit the conversation to other operatives. The defendants claimed that the First Amendment's right to freedom of the press shielded its newsgathering activities. In rejecting this claim, the court observed that although an individual accepts the risk when inviting a person into his home that the visitor may repeat the conversation to a third party, "he does not and should not be required to take the risk that what is heard and seen will be transmitted by photograph or recording, or in our modern world, in full living color and hi-fi to the public at large or to any segment of it that the visitor may select." The court held that "hidden mechanical contrivances" are not indispensable tools of investigative reporting, and that the "First Amendment has never been construed to accord newsman immunity from torts or crimes committed during the course of newsgathering." In Galella v. Onassis , Galella, a self-proclaimed "paparazzo," constantly followed around, harassed, and photographed Jacqueline Kennedy Onassis and her children. As part of an ongoing lawsuit, Onassis sued Galella for, inter alia , invasion of her and her family's privacy. Galella argued that he was entitled to the absolute "wall of immunity" that protects newsmen under the First Amendment. The Second Circuit Court of Appeals quickly rejected this absolutist position: "There is no such scope to the First Amendment right. Crimes and torts committed in news gathering are not protected. There is no threat to a free press in requiring its agents to act within the law." By contrast, the Seventh Circuit in Desnick v. American Broadcast Companies, Inc. held that surreptitious recording was not a privacy invasion because the target of the surveillance was a party to the conversation, thereby vitiating any claim to privacy in those conversations.
section_title: Congressional Response
paragraphs: If Congress chooses to act, it could create privacy protections to protect individuals from intrusive drone surveillance conducted by private actors. Such proposals would be considered in the context of the First Amendment rights to gather and receive news. Several bills have been introduced in the 113 th Congress that would regulate the private use of drones. Additionally, there are other measures Congress could adopt.
subsections: section_title: Drone Aircraft Privacy and Transparency Act of 2013 (H.R. 1262)
paragraphs: In the 113 th Congress, Representative Ed Markey introduced the Drone Aircraft Privacy and Transparency Act of 2013 ( H.R. 1262 ). This bill would amend FMRA to create a comprehensive scheme to regulate the private use of drones, including data collection requirements and enforcement mechanisms. First, this bill would require the Secretary of Transportation, with input from the Secretary of Commerce, the Chairman of the Federal Trade Commission, and the Chief Privacy Officer of the Department of Homeland Security, to study any potential threats to privacy protections posed by the introduction of drones in the national airspace. Next, the bill would prohibit the FAA from issuing a license to operate a drone unless the application for such use included a "data collection statement." This statement would require the following items: a list of individuals who would have the authority to operate the drone; the location in which the drone will be used; the maximum period it will be used; and whether the drone would be collecting information about individuals. If the drone will be used to collect personal information, the statement must include the circumstances in which such information will be used; the kinds of information collected and the conclusions drawn from it; the type of data minimization procedures to be employed; whether the information will be sold, and if so, under what circumstances; how long the information would be stored; and procedures for destroying irrelevant data. The statement must also include information about the possible impact on privacy protections posed by the operation under that license and steps to be taken to mitigate this impact. Additionally, the statement must include the contact information of the drone operator; a process for determining what information has been collected about an individual; and a process for challenging the accuracy of such data. Finally, the FAA would be required to post the data collection statement on the Internet. 
H.R. 1262 includes several enforcement mechanisms. First, the FAA may revoke any license of a user that does not comply with these requirements. The Federal Trade Commission would have the primary authority to enforce the data collection requirements just stated. Additionally, the Attorney General of each state, or an official or agency of a state, is empowered to file a civil suit if there is reason to believe that the privacy interests of residents of that state have been threatened or adversely affected. H.R. 1262 would also create a private right of action for a person injured by a violation of this legislation.
section_title: Preserving American Privacy Act of 2013 (H.R. 637)
paragraphs: Representative Poe introduced the Preserving American Act of 2013 ( H.R. 637 ) which would prohibit the use of drones to capture images in a manner highly offensive to a reasonable person where the person is engaging in a personal or familial activity under circumstances in which the individual has a reasonable expectation of privacy, regardless of whether there is a physical trespass.
section_title: Other Proposals
paragraphs: Additionally, Congress could create a cause of action for surveillance conducted by drones similar to the intrusion upon seclusion tort provided under Restatement Section 652B. How would a court assess whether drone surveillance violated this type of tort? First, generally speaking, the location of the search would be determinative of whether a person is entitled to an expectation of privacy. Although courts have posited that the common law, like the Fourth Amendment, is intended to "protect people, not places[,]" the location of an alleged intrusion factors heavily in a privacy analysis. The greatest chance for liability occurs when a person photographs or videotapes another while in the seclusion of his home. While technology has increasingly shrunk other spheres of privacy in the digital age, the home is still accorded significant legal protection. Using a drone to peer inside the home of anotherwhether looking through a window or utilizing extra-sensory technology such as thermal imagingwould likely constitute an intrusion upon seclusion. Moving from the home to a public space, or even a space on private property where one can be seen from a public vantage point, significantly reduces the chance of tort liability. However, certain instances of highly offensive surveillance in public may be actionable. 
This leads to the second factor that will inform a reviewing court's analysis: the degree of offensiveness of the surveillance. The Ninth Circuit Court of Appeals, applying California law, observed that, in determining offensiveness, "common law courts consider, among other things: 'the degree of intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder's motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.'" Several of these factorsespecially, the context of the intrusion and the motive of the intruderare fact intensive and require application in a particular case to fully understand. However, some generalizations can be made. The cases discussed above that did find an intrusion upon seclusion in a public place required highly offensive activity, such as closely following another person for an extended period or photographing another in a highly embarrassing shot. Likewise, a court might recognize liability if one were to use a drone to follow another for an extended period of time, particularly at a close distance. It is not clear, however, whether knowledge of being surveilled makes the monitoring more or less offensive. For example, one court seemed to rely on the fact that the defendant was unaware that her house was being photographed to hold that she did not have a viable privacy claim. A drone flying at several thousand feet may not significantly disturb the target of the surveillance and could fall within this rationale. Nevertheless, filming someone in a compromising or embarrassing situation without his knowledge can be equally offensive. Here, the facts of the particular case would determine liability.
Congress could also create a privacy statute tailored to drone use similar to the anti-voyeurism statutes, or "Peeping Tom" laws, enacted in many states. These laws prohibit persons from surreptitiously filming others in various circumstances and places. Some states prohibit surreptitious surveillance of a person while on private property, usually a private residence. Nevada employs this model, prohibiting a person from entering the property of another with the intent to peep through a window of the building. Likewise, New Jersey prohibits a person from peering into the window of the dwelling of another "under circumstances in which a reasonable person in the dwelling would not expect to be observed." Other states require a prurient intent when conducting the surveillance. Under Washington State's statute, a person commits the crime of voyeurism if, for the purpose of arousing or gratifying his sexual desire, he films or photographs (1) a person in a place where he or she would expect privacy; or (2) the intimate areas of another person, whether he or she is in a public or private place.
Similarly, Congress could adopt an "anti-paparazzi" statute, like that enacted in California, to prevent intrusive drone surveillance. In fact, Congress considered a similar measure in the 105 th Congress. The Privacy Protection Act of 1998 and the Personal Intrusion Act of 1998 would have made it unlawful to persistently follow or chase another person for the purpose of obtaining a visual image of that person if the plaintiff met the following elements: (1) the image was transferred in interstate commerce or the person taking the photograph traveled in interstate commerce; (2) the person had a reasonable expectation of privacy from such intrusion; (3) the person feared death or bodily injury from being chased; and (4) the taking of the image was for commercial purposes. Also, these bills would have created a civil remedy for an individual whose privacy was intruded upon. Congress could use this model to make it unlawful to persistently monitor another person using drone surveillance.
section_title: FAA Regulation of Privacy
paragraphs: Some observers have questioned whether the FAA has the legal authority to create privacy protections as it begins to integrate drones in the national airspace. This section will explore the FAA's legal authority to establish privacy protections when it engages in rulemaking and establishes the six drone test ranges as required under FMRA.
It is well settled that agencies do not wield inherent powers, and that any authority they do have must be delegated by Congress. Thus, when engaging in rulemaking or any other administrative action, the agency must be able to identify a specific statutory source of authority. In Chevron v. Natural Resources Defense Council , the Supreme Court established a two-part test (now known as the Chevron two step) that assesses whether a federal agency should be accorded deference in interpreting and implementing its authorizing statute or a statute it administers. First, this test asks "whether Congress has directly spoken to the precise question at issue." If so, the analysis ends there and the court and the agency "must give effect to the unambiguously expressed intent of Congress." If, however, "the statute is silent or ambiguous" the court must then determine if the agency's interpretation is a "permissible construction of the statute." This type of Chevron analysis may be applied by a reviewing court if the FAA promulgated rules governing privacy, as part of the FMRA directed rulemaking and those rules were challenged. 
subsections: section_title: Rulemaking Required by FMRA
paragraphs: FMRA directs the FAA to engage in two sets of rulemaking. The first rulemaking requires that by August 14, 2014, the FAA issue a final rule on integrating "small unmanned aircraft systems" into the national airspace system. The second rulemaking requires the FAA to develop a "comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system[;]" provide notice on proposed rulemaking to implement this comprehensive plan not later than August 14, 2014; and publish a final rule by December 14, 2015.
As to the small drone rulemaking, FMRA provides little guidance on what factors should inform the agency's rulemaking. The act merely requires that the FAA issue a final rule "on small unmanned aircraft systems that will allow for civil operation of such systems in the national airspace system.... " Applying the first step of Chevron , it is clear that Congress did not address the precise issue at questionthat is, Congress did not expressly provide FAA authority to regulate privacy. Accordingly, a reviewing court would then have to assess under step two whether addressing privacy as part of rulemaking would be a reasonable interpretation of FMRA. There are plausible arguments on both sides of this question. 
The Court asserted in Chevron that "the power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." Given that privacy has been a paramount concern of both the public and various Members of Congress, it would seem odd if Congress delegated the FAA rulemaking authority to integrate drones into the national airspace, but withheld the authority to regulate one of the most prominent and controversial issues surrounding this integration. Rather, one could argue that Congress would have inferred that the FAA would fill in these gaps with reasonable regulations, including those regulating privacy and data collection issues. Conversely, those who contend that the FAA has neither the legal authority nor the expertise to regulate privacy issues concerning drone use may point to the FAA's organic statute. This law provides the FAA authority to ensure the safety and efficiency of air travel, but appears to contain no express authority to regulate privacy. They may further argue that the FAA has not historically regulated privacy as it pertains to persons or things on the ground in relation to traditional air flight, and currently does not have the technical expertise to undertake such regulations. These arguments could support the theory that Congress intentionally omitted privacy regulation from the FAA's purview when conducting this required rulemaking. 
Next, as to the comprehensive plan rulemaking, Congress has provided some guidance as to the factors the FAA should take into consideration, but none of the factors discuss privacy concerns. Thus, like the rulemaking for small drones, under the Chevron first step, Congress has not spoken directly to the issue in question. Moving to the second step, would it be reasonable for the FAA to include privacy regulations in its rulemaking implementing this comprehensive plan? First, the use of the term "at a minimum" as a preface to the list of factors to be considered in this comprehensive plan and rulemaking make it illustrative, not exhaustive. This phrasing arguably suggests that Congress understood that the FAA might address other factors, perhaps including privacy, beyond those enumerated in Section 332. Second, Section 332 provides that the FAA must "define the acceptable standards for operation and certification of civil unmanned aircraft systems." Viewing this language in light of Chevron deference, a court could find that regulating requirements that protect privacy fall within the "acceptable standards for operation" of drones in the national airspace. 
In sum, it appears that the open-ended nature of Congress's instructions to the FAA, coupled with the prominence of privacy concerns, would likely persuade a court that the FAA's potential regulation of privacy as part of formal rulemaking is a reasonable interpretation of FMRA that should be accorded deference under a Chevron analysis.
section_title: Test Ranges and Privacy
paragraphs: In addition to the rulemaking described above, Section 332(c) of FMRA requires the FAA Administrator to "establish a program to integrate unmanned aircraft systems into the national airspace system at 6 test ranges." On February 22, 2013, the FAA issued a request for comment on the privacy rules that will apply to test range operators. In its request for comment, the FAA proposed several requirements that might apply to the operation of these test ranges. Once the FAA selects the site operators, each must enter into an Other Transaction Agreement (OTA) with the FAAa legally binding agreement setting out the terms and conditions under which the site will be operated. This request for comment is intended to provide the public the ability to comment on "potential privacy considerations, associated reporting requirements, and how the FAA can help ensure privacy considerations are addressed through mechanisms put in place as a result of the OTA." 
This FAA announcement raises another legal question: does the FAA have the authority to regulate privacy via OTA agreements entered into with the test range operators? As a threshold issue, it is not clear what level of deference a court would apply to this administrative action. In certain instances, agency actions that do not amount to formal rulemaking have not been accorded Chevron deference. In Christensen v. Harris County , the Supreme Court held that a Department of Labor opinion letter interpreting the Family Medical Leave Act was not entitled to deference under Chevron . The Court observed that "[i]nterpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron -style deference." Instead, interpretations contained in administrative pronouncements such as opinion letters are entitled to some deference under the rule pronounced in Skidmore v. Swift & Co. , "but only to the extent that those interpretations have the 'power to persuade.'" In United States v. Mead , the Court again ruled that Skidmore , not Chevron , deference applied to a United States Custom Service opinion letter setting tariff levels on certain imports. 
A reviewing court could apply the Christensen-Mead line of cases to hold that the lower level deference accorded under Skidmore should apply to the FAA's use of the OTAs in establishing the test ranges. As in those cases, the OTAs would not have the force of law and would not be the product of formal agency adjudication or rulemaking. These factors weigh against applying Chevron 's deferential approach. 
However, Mead suggested that Chevron deference may be due when the agency conducts notice and comment procedures as part of its interpretive process, which were not utilized in either Christensen or Mead . Here, the FAA has issued a notice for comment on the proposed privacy regulations that will be included in the OTAs. This fact might persuade a court into applying the more deferential Chevron test. 
Under either level of scrutiny, it is not at all clear whether the FAA would have the authority to regulate privacy as part of the OTAs. Congress did not speak to this issue in FMRA. Thus, a reviewing court would have to determine if the agency's regulation of privacy is either a reasonable interpretation of the statute under Chevron or has the "power to persuade" under Skidmore . Some of the same factors that arguably support the inclusion of privacy in the formal rulemaking could apply equally to the test ranges The idea that Congress left it to the FAA to fill in the gaps in establishing the test ranges, and that privacy is one of the primary concerns surrounding the integration of drones into U.S. airspace, could be offered as an argument to uphold the FAA's regulation of privacy. On the other side of the ledger, the act's enumerated list of factors to be addressed at these test ranges is primarily focused on safety issues and does not expressly permit the FAA to regulate privacy. One could argue that this formulation evinces Congress's intent for the FAA to focus on safetythe FAA's stock and traderather than privacy, an area in which the FAA appears to have little experience. 
section_title: Related Legal Issues
paragraphs: In addition to the legal issues described above, there are a host of other issues that may arise when introducing drones into the U.S. national airspace system. 
Preemption of State and Local Regulations . The increased presence of drones in domestic airspace raises the question of potential federal preemption of state or local efforts to regulate different aspects of drone use. The doctrine of preemption derives from the Supremacy Clause of the Constitution, which states that federal law, treaties, and the Constitution are the "supreme Law of the Land." A federal law may preempt state or local action in one of three ways: if the statute expressly states its intent to preempt state or local action (express preemption); if a court concludes that Congress intended to occupy the regulatory field, implicitly preventing state or local action in that area (field preemption); or if the state or local action directly conflicts with or frustrates the purpose of the federal provisions (conflict preemption).
With regard to traditional aviation laws, generally, state regulations of aviation safety, airspace management, and aviation noise are preempted by federal laws and regulations. Congress vested sole responsibility for the aviation industry and domestic airspace with the federal government in the Federal Aviation Act of 1958. According to the legislative history, the FAA was to have "full responsibility and authority for the advancement and promulgation of civil aeronautics generally, including promulgation and enforcement of safety regulations." In City of Burbank v. Lockheed Air Terminal, Inc. , the Supreme Court struck down a local city ordinance that prohibited planes from taking off during certain hours of the day as preempted by the federal regulatory scheme. Expressing its fear regarding local control of airspace, the Court stated, "If we were to uphold the Burbank ordinance and a significant number of municipalities followed suit, it is obvious that fractionalized control of the timing of takeoffs and landings would severely limit the flexibility of the FAA in controlling air traffic flow." The Supreme Court has, however, upheld state regulations imposing taxes on aircraft equipment located within the state. 
State proposals seeking to regulate the use of drones are currently pending in many state legislatures throughout the country. The Virginia General Assembly has passed a two-year moratorium on the use of drones by state and local law enforcement. The bill prohibits the use of drones by agencies with jurisdiction over criminal law enforcement or regulatory violations, but includes exceptions for emergency situations. Following passage of the bill, the Governor neither signed nor vetoed the bill, but rather sent it back to the General Assembly with amendments, where it now awaits further action. Several other states have introduced bills similarly targeting the use of drones for surveillance. Other states, like Texas, have introduced bills attempting to address privacy concerns related to widespread drone use. The Texas proposal would create a new state misdemeanor when a person uses a drone to capture an image without the consent of the landowner who owns the property captured in the image.
If these proposals were implemented, questions about federal preemption may be raised. It appears that field preemption or conflict preemption would be the most likely grounds for finding preemption of such state regulations based on current federal law, if at all, since FMRA does not contain an express preemption clause. The extent to which the state can regulate drone use without being preempted by federal law may depend on the scope of the forthcoming federal regulations, the nature of the state regulations, and a reviewing court's analysis of whether Congress intended to "occupy the field" of regulation on that issue. The Court has determined that field preemption can be inferred when "the pervasiveness of the federal regulation precludes supplementation by the States, where the federal interest in the field is sufficiently dominant, or where the object sought to be obtained by the federal law and the character of obligations imposed by it reveal the same purpose." 
Righ t to Protect Property f rom Trespassing Drones . There may be instances where a landowner is entitled to protect his property from intrusion by a drone. Under Restatement (Second) of Torts Section 260, "one is privileged to commit an act which would otherwise be a trespass to a chattel or a conversion if the act is, or is reasonably believed to be, necessary to protect the actor's land or chattels or his possession of them, and the harm inflicted is not unreasonable as compared with the harm threatened." What this means is, in certain instances, a landowner would not be liable to the owner of a drone for damage necessarily or accidentally resulting from removing it from his property. However, there appear to be no cases where a landowner was permitted to use force to prevent or remove an aircraft from his property. Additionally, as discussed above, determining whether a drone in flight is trespassing upon one's property may be unusually challenging. 
Stalking, Harassment, and Other Crimes. Traditional crimes such as stalking, harassment, voyeurism, and wiretapping may all be committed through the operation of a drone. As drones are further introduced into the national airspace, courts will have to work this new form of technology into their jurisprudence, and legislatures might amend these various statutes to expressly include crimes committed with a drone.
Wiretap Laws. Under the federal wiretap statute, it is unlawful to intentionally intercept an "oral communication" by a person "exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.... " Currently, commercial microphones can record sounds upwards of 300 feet. Use of such a microphone on a drone to record private conversations could implicate the federal wiretap statute.
section_title: Conclusion
paragraphs: The legal issues discussed in this report will likely remain unresolved until the civilian use of drones becomes more widespread. To that end, the FAA has been tasked with developing "a comprehensive plan to safely accelerate the integration" of drones into the national airspace, which focuses on the safety of the drone technology and operator certification. While the deadline for development of the plan has already elapsed, the FAA has until the end of FY2015 to implement such a plan. Additionally, the FAA must identify six test ranges where it will integrate drones into the national airspace. This deadline, 180 days after enactment of the act, has also elapsed without FAA compliance. Once these regulations are tested and promulgated, the unique legal challenges that could arise based on the operational differences between drones and already ubiquitous fixed-wing aircraft and helicopters may come into sharper focus.