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Editorial: In, and over, our backyards: Council right to question domestic drone use

The Northampton City Council has endorsed resolutions over the years that raised eyebrows because these actions tackled matters far removed from anything it controls. The drone resolution it passed unanimously last week is not in this category.

We hope the Northampton council’s action inspires communities across the country to take a look at an issue relevant to everyone’s backyard.

In a densely worded two-page resolution, the council calls attention to regulations under consideration by the Federal Aviation Administration that seek to expand what is known as “navigable airspace” to permit drone flights closer to the ground.

In its FAA Modernization and Reform Act, Congress instructed the FAA to create rules to govern the integration of drones into the national airspace system by September 2015.

This is a highly complicated issue. According to an analysis by the Congressional Research Service, such regulations raise thorny questions.

“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 pre-empt future state law,” the Congressional Research Service report states.

Congress essentially ordered the FAA to create regulations that come to grips with technological advances and what they mean for the federal airspace. “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,” the report says.

In concrete terms, what does this mean for a homeowner on Lyman Road, or Elm Street, or Florence Road?

Why should any of us care what the FAA does?

Laws governing the use of our country’s airspace date to 1926 and passage of the Air Commerce Act, which later became the 1938 Civil Aeronautics Act. These laws guaranteed the right to free air travel in what is termed “navigable airspace.” This trumped the long-held notion that a property owner controlled the air above the land all the way up into the heavens.

The Federal Aviation Act of 1958 declared that “navigable airspace” began at 500 feet above private property.

The use of drones brings that understanding into question because, unlike airplanes and jets, they operate close to the ground. Among the tasks now before the FAA is redefining navigable airspace by writing rules that integrate drones into the system.

One proposal would expand public airspaces by lowering them to within inches above the ground, accommodating low-flying drones.

Not surprisingly, this concerns people who believe it poses a threat to privacy and property rights as well as local or state autonomy. The privacy concerns include a fear that the technology will be used to spy on American citizens using high-powered cameras, facial recognition technology and license plate readers.

Of course privacy rights must be balanced, in some cases, with the public’s right to information, and the First Amendment right of the press to gather information in the public interest.
It is worth noting that in a current City Council configuration that doesn’t often achieve cohesion, this resolution passed unanimously. Among the most liberal councilors, one called the proposal chilling; among the most conservative, one called it “overreaching.”

In the end, the gist of the council resolution is to ask Congress and the FAA “to respect legal precedent and constitutional guarantees of privacy, property rights and local sovereignty in all matters pertaining to drone aircraft and navigable airspace.”

That is a clear and justifiable request.

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