By: Jeff John Roberts
After a New Jersey man spotted his neighbor’s camera-equipped drone flying over his house this week, he fetched a shotgun and peppered the drone with holes, knocking it from the sky. Did he have a right to do so?
Even though local police arrested the man on unlawful weapons charges, some people will feel he had the right to defend himself against an unlawful robot intrusion. More broadly, the episode highlights an emerging issue as more dronestake to the skies: how to balance the rights of drone owners against people’s rights to privacy and self-defense.
HOME AS A CASTLE, FROM SOIL TO THE SKY?
Under common law traditions, the New Jersey man appeared well within his rights to shoot down the drone. As the famous 17th century jurist Edward Coke explained, “whoever owns the soil, it is theirs up to Heaven” and “the house of an Englishman is to him as his castle” — implying that property owners can use force against invaders.
These days, of course, it’s not so cut and dry. The arrival of airplanes meant property rights no longer extend right to the sky, while the so-called “Castle doctrine” typically requires a home owner to fear injury before she can use force. This means you better think twice before blasting away at the Phantom 2 hovering above your lawn.
“Generally speaking, tort law frowns on self-help and that includes drones,” says Ryan Calo, a robotics and cyber-law scholar at the University of Washington. “You would probably have to be threatened physically, or another person or maybe your property, for you to be able to destroy someone else’s drone without fear of a counterclaim.”
By “counterclaim,” Calo means that the drone owner could turn around and sue whoever destroys his device, many of which cost over $1,000. In this sense, the law is the same as what applies when a car or a cow trespasses on your land – you can remove the car or cow (or whatever) and bill the owner for your trouble, but you can’t simply destroy the invading article. There’s also some obvious alternatives:
“Most people who encounter alleged trespassers call the police. State “self defense” laws tend to require a threat of imminent bodily harm, and these drones are of course not armed or dangerous, they are just remote controlled model helicopters,” noted drone lawyer, Brendan Schulman.
That might not be the end of the matter, however. As people’s privacy gets eroded by the growing presence of camera-equipped devices, some are suggesting that self-defense rights should be expanded.
WHEN FORCE IS NECESSARY
The reason you can’t simply shoot a person (or cow) who steps on your lawn is that the harm would likely outweigh the threat to your privacy and your property. But when using force against a drone, the calculation is different: the drone is likely recording and it may be armed and, unlike other trespassing vehicles, you can’t just tow it away.
These are some of the factors that have led Michael Froomkin, a University of Miami law professor, to suggest that people have a greater right to use force against drones and other robotic intruders.
“If one is entitled to assume the worst then, in the absence of persuasive notice that the robot is harmless, the victim of robotic trespass frequently will be privileged to employ violent self‐help,” wrote Froomkin, a co-author of a recent paper titled “Self Defense against Robots.”
The paper doesn’t claim people have a right to waste anything that flies on their land, of course. But it does suggest that, especially in rural areas, courts may find a privilege to shoot down trespassing drones – a conclusion that would be a logical extension of the Castle doctrine.
All this is fine in theory, but how are these drone conflicts playing out on the ground?
GUNS, LIBERTARIANS AND THE FAA
Calo, the legal scholar, said he’s not aware of cases where courts have ruled on how the law of trespass and self-defense should apply to drones. But it seems like it’s just a matter of time.
In 2012, for instance, an animal rights groups claimed that hunters (perhaps unsurprisingly) shot down a drone that the group was using to monitor them. The local police reported filed a “malicious damage to property report,” but nothing more appeared to come of it — and, in any case, the incident didn’t occur on private land where trespass law would apply.
Meanwhile, yahoos across the country have been using drone-shooting in various publicity stunts: a Montana candidate for the House of Representatives published a video of himself firing his rifle at a drone, while a Colorado town voted on a man’s proposal to pay $100 bounties for each downed drone its citizens bring in.
Such gimmicks highlight the growing tension around drones, but they don’t bring much legal clarity. Instead, the rules for when you can and can’t fire on a drone will for now depend on local firearms and mischief regulations, which will vary from state to state. And, as the Froomkin paper noted, “reasonableness” will play a big part in determining what’s legal and what’s not — a farm owner is likely to win more sympathy than an urban apartment dweller when it comes to firing guns at the sky.
Finally, the FAA is still plodding away with overdue rules about how and where to integrate consumers into the nation’s airspace. Schulman, the aviation lawyer, pointed to a law that makes it a serious federal crime to destroy an aircraft — a law that, in theory could apply to drones:
“That does not seem right to me, because that statute was clearly intended to protect people who are flying in the air, not toy helicopters. But the FAA has recently taken the position that all of these devices are just “aircraft” for legal purposes. There are unintended consequences to trying to cram new technology into existing legal frameworks without carefully considering all the consequences.”