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A Drone Flies Over Your Backyard – Is That Trespassing?

It's Sunday afternoon and the neighbor kid's drone comes buzzing over your yard, maybe 50 feet overhead. Like any good lawyer you ask yourself, "Is this drone flight violating my airspace?" (If you're a really good lawyer, you refer to "airspace" as "vertical curtilage.")

The short answer is yes, writes Elizabeth Austermuehle in the April ISBA Real Property newsletter. "[I]n the absence of federal or state regulations granting drones the right to fly over private property without the property owner's permission, drones do not have the right to do so," she writes. Though Illinois has passed legislation ordering up a task-force report on drone regulation (due July 2017), state law does not currently regulate drone use.

As for federal law, the FAA has long permitted flights over private property in "navigable airspace," which generally applies to the space 500 feet and higher above ground, Austermuehle writes. But it hasn't had much to say about drones - at least not until June 2016, when the agency "released its first operational rules for routine use of small [unmanned aircraft systems]," she writes. "The rules offer safety regulations for UAS weighing less than 55 pounds conducting non-hobbyist operations. Among other things, the rules require drone operators to keep the drones within their visual line of sight and prohibit flights over unprotected people on the ground who are not directly participating in the UAS operation."

But a good lawyer knows that having rights and enforcing them are two different things. "Property owners may enforce their rights through tort law, and may bring trespass and invasion of privacy claims to do so," Austermuehle writes. "In Illinois, trespass is 'an invasion of the exclusive possession and physical condition of land.' Colwell Sys., Inc. v. Henson117 Ill. App. 3d 113, 116, 452 N.E.2d 889, 892 (4th Dist. 1983). Thus, if a drone operator flew a drone over your property below the FAA's navigable airspace, the operator would technically be trespassing on your land."

You might be able to sue for invasion of privacy, too. Find out more in the May Illinois Bar Journal.

Posted on May 09, 2017 by Mark Mathewson | Comments (0)
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