Federal drone regulations raise questions about property, privacy rights

Last modified: Friday, January 08, 2016

Standing in the control tower of Westover Air Reserve Base overlooking six massive C-5 military aircraft Thursday, Air Force Maj. Emily Koziol warned of the dangers of a much smaller plane she held in her hand — a personal drone.

The model airplane of years past has been given a new moniker — drone — a small, unmanned, remote-controlled aircraft that is becoming increasingly popular. This holiday season some 700,000 drones were sold across the country. Though they are often used for aerial photography or other merriment, they pose a real danger to the delicate engines of larger airplanes should they get sucked up by the engine, Koziol said.

New Federal Aviation Administration regulations on “unmanned aircraft systems” require most drones to be registered online and outline a set of suggestions for their safe operation.

That includes flying below 400 feet, keeping the aircraft within your line of sight, avoiding flying within five miles of an airport without first notifying airport officials and steering clear of people and stadiums.

And while the FAA says the regulations are to keep airspace safe, a local drone expert and a civil liberties lawyer say that government regulation of drone use raises big questions about privacy and property rights.

Birds first

For years, the main enemy of the spinning turbines of airplane engines was birds, which can get sucked up by the powerful force of the engines. Last year there were 10,000 “bird strikes” of aircraft in the United States, according to Koziol, the 439th Airlift Wing’s chief of safety.

Koziol said she recently investigated $2.5 million in damages done to a military plane by a 2-pound red-tailed hawk.

“If you think about a bird, which is feathers, meat and hollow bones, and it can do that much damage, you can imagine something like (a drone), which has hard plastic and metal with a battery, what damage it could cause to an airplane,” she said.

Though the cockpit of a C-5 has plenty of windows, Koziol said it’s difficult to see even a small, single-engine plane, let alone a tiny drone.

From January through Aug. 20, there were 26 close encounters between drones and piloted aircraft in Massachusetts reported to the FAA, according to the Boston Globe.

Patrick Brough, of Easthampton, said he bought a drone about two years ago to complement his photography hobby. His DJI Phanton 2 Vision Plus can take photos and videos and cost $1,200.

“I want to be able to take pictures without somebody having to take me up in an airplane,” he said. He often posts his photos and videos on the popular Easthampton 01027 The Good News Page on Facebook, which he maintains.

Brough said he’s comfortable with the FAA regulations.

“I’m comfortable with rules and regulations for people’s safety,” he said. “Two hundred feet above the ground is high enough. I’ve been 300 feet up and it’s a tiny speck from the ground.”

‘Who owns the sky?’

Paul Voss, a professor of engineering at Smith College in Northampton and an avid drone user, said while the FAA regulations help maintain safety around drone use, they raise a lot of questions over local control of the aircraft and “who owns the sky.”

British common law, and later American law, dictated that landowners own the land and “all the way up to the heavens,” a concept known as ad coelum.

The concept is the reason why someone cannot build a structure that hangs over a neighbor’s yard, or a railroad company can’t construct an elevated line over someone’s property, Voss said.

That concept was modified during the tenure of President Calvin Coolidge, who appointed a board to study federal regulation of the aviation industry. The resulting Air Commerce Act was signed into law in 1926.

“That was the foundation of our entire airspace system,” Voss said.

That act created the concept of navigable airspace, which provided that the air up to 500 feet from the ground was the property of landowners, while the FAA had jurisdiction over airspace above 500 feet.

With the passage of drone regulations, “the FAA has stopped using the term navigable airspace,” in favor of “national airspace system.” And by regulating the flight of personal drones below 500 feet, the FAA has entered unprecedented territory, Voss said.

“It’s a march in the direction of everything’s a public highway, you need permission to use it all,” he said. “That’s very reasonable when you’re a couple hundred feet up, but it’s an entirely different question when someone’s using a small toy in their backyard.”

Voss said the country’s lawyers need to start asking “more questions” about what this regulation means.

He said if the FAA continues to regulate the space “above the grass,” it’s eliminating the possibility of local control and limiting land ownership rights.

“It’s a world where you really can’t fly a kite some day,” Voss said. “Maybe you need a license to fly a kite, maybe there’s designated areas to do that.”

Exciting future

Voss and Brough say they are excited by both the current and possible future uses of drone technology.

Brough said the aircraft are used to examine power lines, as a way for firefighters to get an overview of fires and by farmers. He is even a member of a group devoted to flying drones for search-and-rescue missions should law enforcement request it.

Though the commercial use of drones is largely banned, companies such as Google and Amazon have expressed interest in using drones for delivery and the FAA is in the process of drafting rules on corporate use.

William Newman, director of the western Massachusetts office of the American Civil Liberties Union, said the FAA regulations do not address privacy concerns of drone use.

“I think it’s important to note that this is the beginning of the discussion and the fight, not the end of it,” he said. “There is certainly an important role to be played in preserving privacy and protecting privacy when it comes to drones.”

Northampton passed a resolution on drones in 2013 and Amherst followed the next year.

The Northampton resolution reads that the expansion of FAA-regulated airspace “threatens long-standing property rights, expectations of privacy, and state and local sovereignty.”

The similar Amherst resolution reads that no airborne object shall have the “public right of transit” through private property.”

“As drones become more and more available and increasingly prevalent, the potential for misuse, not only by individuals, but also by law enforcement, is going to frighten people,” Newman said. “If you look out your window and you see a beautiful bug and begin to wonder if that’s a law enforcement agency’s (surveillance) weapon of choice, it is and should be concerning.”

Chris Lindahl can be reached at clindahl@gazettenet.com.


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