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When Rand Paul went on CNN last month and warned anyone looking to fly a drone over his house that they should “beware” because “I’ve got a shotgun,” you could imagine lots of heads nodding in agreement.

For instance, you might imagine security managers at Apple’s new Silicon Valley “spaceship” headquarters would like to shoot down overhead drones snooping on the construction project. And guards in the Secret Service security shack at the White House might welcome that capability too, after an off-duty intelligence officer crashed his DJI Phantom there last month.

Bravado aside, Paul — the Republican senator from Kentucky and a likely 2016 presidential candidate — was doubtless voicing the opinion of many who believe that drones flying overhead present a huge threat to their personal and business privacy.

But don’t load your shotgun just yet, Senator. Existing federal law and judicial rulings make it clear property owners do not enjoy unlimited privacy rights to their airspace. In fact, some believe that drones — quadcopters, octocopters, and other small-scale unmanned aerial vehicles — are already governed under the same laws that regulate aircraft like helicopters and airplanes.

Those laws, unsurprisingly, make it a crime to shoot down planes flying over your house.

“We don’t want people taking out their shotguns in urban areas and shooting things,” said Hannah-Beth Jackson, a Democrat and state senator from California, adding that Rand Paul “needs to beware that he will be violating a lot of laws and ordinances about shooting a firearm in an urban area. That’s not acceptable behavior.”

Eric Cheng, the director of aerial imaging at DJI, one of the world’s largest consumer drone makers, agrees. “The law,” Cheng said, “is pretty clear about fining or imprisoning people who shoot at aircraft.”

And while Paul himself hasn’t yet shot at anyone’s drone, these opinions haven’t prevented all gun-on-drone hostilities. Last fall, a New Jersey man was arrested after allegedly shooting down a neighbor’s drone. According to CBS Philly, the man was charged with “possession of a weapon for an unlawful purpose and criminal mischief.”

But shotguns aside, do we even have a legal expectation of privacy when it comes to being photographed from above? Can you do anything at all to stop someone from sending their flying camera buzzing over your property?

Like jumping over a fence

Jackson thinks existing laws don’t do nearly enough. That’s why the Santa Barbara Democrat introduced a bill designed to specifically make it illegal to fly a drone without permission over someone’s property at an altitude of less than 400 feet. Airspace over 400 feet is regulated by the Federal Aviation Administration, she said.

Just this weekend, the FAA proposed new guidelines that aim to clarify the rules regulating non-recreational drone use. Under the proposal, drones weighing less than 55 pounds would be prohibited from flying over 500 feet off the ground, and more than 100 miles an hour. Some of the details, including the altitude limits, conflict with Jackson’s bill.

Although she acknowledged that it’s legal to take photographs or video from an airplane or a helicopter over private property, Jackson argues that the dynamics of drones are totally different and that long-standing FAA rules governing aircraft don’t address them.

California state Senator Hannah-Beth Jackson

Above: California state Senator Hannah-Beth Jackson

Image Credit: Hannah-Beth Jackson

“When you think about helicopters or airplanes,” Jackson told VentureBeat, “you’re talking 400 feet or more. When you’re talking about drones, you’re talking about eye level. That’s a different issue.”

Jackson is positioning her bill as an aerial replacement for rules that make it illegal to jump over someone’s fence without their permission. It “acknowledges the reality that drones are an interesting and new technology,” she said, “but can still cause the same kind of interference and violation of your physical space” as a fence jumper.

The drones that film Apple’s spaceship campus are a case in point. Although neither Apple nor the videographer who shot one published by AppleInsider last week responded to VentureBeat requests for comment, it’s virtually certain the technology giant didn’t give its permission.

If someone had jumped a fence onto Apple’s property, they would have been subject to arrest for trespassing. And although Jackson does believe drones represent an exciting new technology, “when they violate long-standing principles and people’s expectations of what can and cannot be done with them, it’s important to set guidelines.”

Subject to arrest?

Jon Resnick, DJI’s policy and marketing representative, thinks those guidelines have already been set, and doesn’t see the need for new legislation. Although drones can carry high-quality cameras when flying low over private property, Resnick argued that photographers on board airplanes or helicopters have long been able to take pictures or video with extremely powerful cameras that can outdo just about anything a drone can carry.

“The question is, do we single out this particular type of technology for some type of special treatment?” Resnick asked. “In my opinion, any kind of legislative or regulatory remedy that excludes [drones] from taking an image … is not any kind of enhancement or protection of privacy. That’s the strangulation of that particular technology. It still allows for [aerial pictures] to be taken. It’s just saying this one particular type of technology is not allowed to take it.”

To Gregory McNeal, a professor of law and public policy at Pepperdine University School of Law and a frequent author on drone policy issues, the sentiment behind Jackson’s proposed legislation is “innovative” and a “good start.” However, for technical reasons having to do with how Jackson and the FAA define navigable space that drones use, the bill wouldn’t be enforceable as written, McNeal wrote in Forbes.

Still, McNeal said he loves “the idea of extending property rights in airspace,” and in a paper he penned in November for the centrist think thank Brookings Institution, McNeal proposed that legislators address a multitude of concerns about drones and their impact on privacy with new laws giving landowners “the right to exclude aircraft, persons, and other objects from a column of airspace extending from the surface of their land up to 350 feet above ground level.”

The DJI Phantom that crashed at the White House last month.

Above: The DJI Phantom that crashed at the White House last month.

Image Credit: U.S. Secret Service

There are some, of course, who want to give property owners the ability to be proactive in keeping drones out of their airspace. One company, known as NoFlyZone, has come up with a system it says can achieve just that. It is compiling an opt-in database of addresses, and has so far signed up seven drone makers who have agreed to restrict their devices, via firmware updates, from flying over those properties. None of the biggest names in the industry have joined the effort.

However, DJI, which has for some time limited its drones from being able to fly close to airports, added an update to its Phantom 2 drones’ firmware after the White House incident that restricted the devices’ ability to fly in Washington, D.C. The company later reversed the update after reports of erratic flying.

Up in the air

Proposed legislation like Jackson’s and the variety of opinions about the legal ramifications of flying drones over private property notwithstanding, lawyers who specialize in the area are waiting for the kind of precedent-setting cases that will clear things up.

“Is the drone violating some kind of trespass … legal provision?” asked Brendan Schulman, who heads the unmanned aircraft systems practice at Kramer Levin Naftalis & Frankel. “Thus far, it’s been unresolved.”

Schulman said there has been plenty of case law, including U.S. Supreme Court decisions, to establish that people have no expectation of privacy from the air, and that law enforcement doesn’t need a warrant to surveil someone from an altitude of several hundred feet.

Yet Schulman also said privacy rights are unclear when it comes to drones flying low to the ground. “There’s arguably a trespass issue,” Schulman told VentureBeat, “which would be based on older doctrines that conceived of airspace as private property, particularly when airspace is low enough to the ground that it could be usable by a landowner.”

Unfortunately, then, these questions are still very much — forgive the pun — up in the air.

But as companies like DJI, 3D Robotics, Parrot, and others sell thousands and thousands of drones worth hundreds of millions of dollars every year, the legal dynamics are going to be increasingly tested. We may have to wait for clear answers until someone with a vested interest in the outcome is willing to take their grievance all the way to trial.

Until then, however, we don’t really know, and the debate may well come down to definitions of different types of aircraft.

“I think what you have to have is a technology-neutral viewpoint on this,” DJI’s Resnick said. “If we want to have a discussion on privacy rights in the 21st century, and your right to an expectation of privacy in the 21st century, that’s a good discussion to have. But that’s not the same as ‘Let’s ban drone photography.'”

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