Drones: Milestones and Unknowns

Drones are now more accessible than ever. Despite their specialized beginnings as exclusive military aircraft, drones have evolved into a staple of modern technology, influencing farming, film, and delivery services such as the eagerly awaited “Amazon Air.” They even found a successful consumer niche, becoming one of the most popular Christmas gifts of 2017. Amidst these exciting advancements, the construction industry has emerged as an unlikely beneficiary. The applications for drones in construction are vast, ranging from safer, more efficient site inspections to project monitoring and material and equipment transportation.

In 2016, over twenty percent of private sector worker deaths were in construction, with one of the leading causes of death being falls (per OSHA).  This is hardly surprising. Site inspections often require workers to climb ladders, scaffolding, and rooftops, where one misstep can quite literally be the difference between life and death. The danger of falling can be mitigated or altogether eliminated by integrating drones, or unmanned aerial vehicles (UAV’s) into the inspection process. UAV’s allow inspectors to obtain quality aerial imaging without ever leaving the ground, and to do it quickly. What was formerly a time-consuming enterprise investigating every crack, discoloration, and potential weak spot is now consolidated into a single flight. Inspectors can take a continuous video and review it in detail later, slowing down, zooming in, and enlarging any points of interest. Many UAV’s used in construction are even equipped with thermal imaging capabilities, making it easy to identify potential leaks or other problematic areas.

So what’s the catch? The ever-changing regulatory landscape is proving difficult to navigate. Effective August 29, 2016, commercial drone users are forced to comply with the Federal Aviation Administration’s “Part 107 Regulations,” which include: 1) The drone registration process, 2) remote pilot certification training, 3) a weight limit of 55 lbs, 4) a requirement that drones only be flown within the operator’s line of sight, 5) maintaining a safe distance from airports and other aircraft, and 6) and flying only during daylight. Waiver applications are available for select requirements, but the federal regulations are not the only ones at play. The law governing UAV’s is an interesting intersection between FAA regulations, state and local regulations, tort law, and in some cases, constitutional law.

Thirty-one states have passed legislation relating to UAV’s in the last two years. The bills are aimed at everything from monitoring fire hazards and facilitating rescue missions to forbidding weaponization and creating new criminal sex offenses. The issues of most importance for builders and inspectors, however, pertain to property law and remain largely unclear.

Who Owns the Airspace?

As determined by the United States Supreme Court in United States v. Causby (1946) 328 U.S. 256, landowners do have ownership rights over some airspace above their properties. The question of how much involves a case-by-case determination of the “immediate reaches of the enveloping atmosphere” as well as a “buffer zone” encompassing any areas where intrusions would “subtract from the owner’s full enjoyment of the property and to limit his exploitation of it.” Id. at 265. At a minimum, landowners are considered to own any airspace they can occupy or use in connection with their land. Id. at 264. Unfortunately, this standard creates more questions than answers and offers little guidance for UAV-users trying to avoid trespass and nuisance claims.

Even at a typical home inspection with the homeowner’s permission, trespass violations may be difficult to identify and avoid. Photographing two-story homes often requires inspectors to utilize vantage points over adjacent properties. Many homeowners do not take kindly to UAV’s hovering near or above their properties, and some have gone as far as shooting invasive UAV’s right out of the sky. Joe v. McBay (2015) Cal. Sup. Ct., Stanislaus Col, Small Claims Case No. 21012429; Boggs v. Meredeth (2016) Case No. 3:16-CV-6-DJH (W.D. Ky.). The infamous Kentucky “drone slayer” shot down a drone that wandered into his backyard while his daughter was sunbathing. The judge dismissed criminal charges against the shooter, holding that he was within his rights to shoot at the drone, because it was a “clear invasion of privacy,” as evidenced by the fact that at least two witnesses could see the drone flying below the tree line. While many states (including California) have carved out exceptions in their privacy laws for reasonable commercial use of UAV’s, it’s hard to see how the average homeowner would be able to distinguish a commercial drone complying with Part 107 from a voyeuristic hobby drone. Resulting perceived privacy violations may incite significant litigation against builders and inspectors until law (whether state law or FAA regulations) effectively catches up with UAV technology.

Constitutional Implications

For UAV-users acting under government authority, the law is further complicated by the protections of the Fourth and Fifth amendments. In a long line of cases addressing what constitutes a “search” for 4th Amendment purposes, the Supreme Court has repeatedly permitted warrantless aerial surveillance. In Florida v. Riley (1989) 44 U.S. 445, the Court held that aerial observation of a defendant’s greenhouse from 400 feet above ground did not constitute a search. Interestingly, the biggest Fourth Amendment hurdle for current commercial drone use does not involve aircraft at all. In Kyllo v. United States (2001) 533 U.S. 27, the Supreme Court held that use of a thermal imaging device at a defendant’s home, much like the thermal imaging devices used by inspection UAV’s, did constitute a search and prompted a full Fourth Amendment analysis. This was largely due to the general unavailability of such technology to the public.

Under the Fifth Amendment, the government has authority to take private property for public use so long as it pays the property owner “just compensation.” This would likely apply to government UAV paths over private property, as the Causby opinion prophetically stated, “We would not doubt that if the United States erected an elevated railway over respondents’ land at the precise altitude where its planes now fly, there would be a partial taking, even though none of the supports of the structure rested on the land. Causby, supra, 328 U.S. at 266. This makes a Causby analysis of airspace ownership especially important when it comes to low-flying government UAV’s.

For all the benefits and possibilities born from UAV technology, the competing interests of efficiency, privacy, and safety have resulted in a complex, incomplete body of law, making it difficult to predict the likelihood of liability exposure from commercial UAV activity. Regardless, the advantage of UAV’s in construction is too great to ignore. Expect drones to become the norm, and expect the law to adapt.