Keep Out! The Efficacy of Trespass, Nuisance and Privacy Torts as Applied to Drones

Abstract

The drone industry is burgeoning and there is boundless excitement over the potential civil and commercial applications of these aerial observers. Drones are also fun recreational toys that have more capabilities than their predecessor - the remote controlled helicopter. But along with the benefits comes the potential for misuse. More and more frequently concerned spectators are reporting drones flying around the windows of homes, backyards, and at beaches and sporting events. In some places people are even shooting them down.

We have entered a new frontier of aerial observation with the unmanned aircraft. As is often the case with new technology, drones (or unmanned aircraft systems as they are commonly referred) are outpacing the law. Controversies over whether a drone can hover above one’s property, capture images of those on the ground without consent, destroy a drone that is invading one's privacy are ripe legal issues. The question being asked by lawmakers, practitioners, journalists, and the general public is whether existing laws provide adequate remedies or whether this technology falls through a legal gap? This article sets out to answer that question at a time when lawmakers are feverishly proposing drone specific legislation, possibly duplicating laws already in place.

At present, 45 states have considered legislation seeking to regulate drones. Twenty-five states have passed laws that limit the use of drones. The majority of these laws include civil causes of action for capturing images and recordings of individuals by a drone without consent. Before more incidents ripen in to lawsuits, we need to evaluate whether our long-standing common law torts - trespass, nuisance, intrusion upon seclusion, and publication of private facts, offer remedies of equal or greater value than the drone specific legislation being considered. To the extent that common law torts fall short of providing adequate remedies at law, understanding their shortcomings will strengthen future drone legislation.

Note: This paper was originally published with the Georgia State University Law Review. The original can be found at 33 Ga. St. U. L. Rev. 359 (2016).

Keywords: technology, privacy, trespass, nuisance, drone