Drones can be a nuisance. Sometimes they can be a menace. Drones equipped with cameras might be used to spy on a family’s private interaction. Drone operators have been known to peek through windows with camera-equipped drones. The increasing number of drones is a growing problem for homeowners who want to protect their privacy.
The FAA expects more than 7 million drones to be in operation in the United States by 2020. Excluding military and government-owned drones, about a quarter of all drones are operated by businesses that use them for commercial purposes.
Those drones tend to be professionally piloted and they usually stay away from private property unless they are making a delivery or have otherwise been invited by the property owner.
Hobbyist drones are another story. When drones appear to be spying on a property owner, tempers flare.
If a drone is interfering with your property rights, can you shoot it down? The commonsense answer is that damaging another person’s property is usually a bad idea, if only because it makes the property owner angry. The cautious lawyer’s answer is that you might get yourself into legal trouble by shooting at drones.
Laws that prohibit trespass to land generally extend to a reasonable amount of airspace above the land. That’s why you might have the right to cut down the part of your neighbor’s tree branch that extends above your land — although it isn’t usually wise to do that without talking to your neighbor first.
California has enacted a specific law that applies to trespassing drones. Section 1708.8 of the Civil Code makes a drone operator responsible for a civil trespass when the drone enters someone’s airspace without the owner’s permission for the purpose of taking pictures or making a recording of private activity, provided that taking the picture or making the recording would be offensive to a reasonable person.
The remedy for a violation of section 1708.8 includes a civil fine and an award of damages, including the possibility of punitive damages. The property owner will need to locate the drone operator and bring a lawsuit to collect damages.
Of course, one way to find out who owns the drone is to shoot it down. Most drones need to be registered and must display a registration number. However, shooting down a drone in order to read the registration number places the shooter at risk of a criminal prosecution for the reason discussed below.
The remedy for a drone trespass is not to shoot the drone, any more than a property owner has the right to shoot a trespasser who steps on the owner’s lawn. The right to use deadly force to defend a home from a burglar who has entered the home does not extend to defending land from trespassers.
If someone pulls into your driveway to turn around, you can’t shoot their car, even if you put a “no trespassing” sign on your driveway. Damaging or destroying another person’s property violates California’s law against vandalism.
The same principle applies to drones. When a drone overflies your property, it may be a nuisance, but another person’s annoying behavior doesn’t give you the right to commit a crime. If you damage a drone that isn’t yours, you can be charged with vandalism, even if the drone was flying over your property when you shot it down.
Federal Aircraft Laws
Shooting at a drone may also violate local laws against discharging a firearm within city limits. However, the bigger problem for privacy enthusiasts who want to shoot down drones is that the Federal Aviation Administration (FAA) has classified most drones as aircraft. As you might suspect, it is a violation of federal law to shoot down (or to shoot at) an airplane.
The FAA has imposed a number of regulations on drone operators. One regulation requires drone hobbyists to maintain visual contact with the drone at all time. Another prohibits drones from flying within 5 miles of airports or aircraft. Drones that weigh more than about a half pound must be registered. Drones used for commercial purposes have their own set of regulations, including pilot licensing requirements.
Since the FAA views drones as aircraft, it considers the federal Aircraft Sabotage Act to apply to drones. That Act makes it illegal to damage or destroy an aircraft. The same law makes it illegal to interfere with anyone who is engaged in the authorized operation of an aircraft. That might make it illegal to threaten your neighbor while your neighbor is flying a drone over your lawn.
Now the fact that the FAA interprets a law in a particular way doesn’t necessarily mean that a court will agree. A court might not think a drone is the kind of aircraft to which the Aircraft Sabotage Act applies, particularly if the drone is small and not subject to federal registration. A court might also believe that using a drone to spy on property owners in violation of California law is not an “authorized” use of an aircraft.
Still, drone law is in its infancy. Nobody wants to be the “test case” to determine whether a federal criminal law applies to them. If you shoot down a drone and a federal court decides that you committed an act of aircraft sabotage, you could be facing a federal prison sentence.
If you’re bothered by a drone, your best option is to take a picture or video of the drone, and then call the police. Tell the investigating officer that you’re being harassed by a drone. If you can identify the drone operator, tell the officer why you think that person was operating the drone.
If the police don’t respond or if they don’t resolve the problem, consider bringing a lawsuit for trespass against the drone operator. You might also be entitled to pursue a harassment injunction. Your pictures or video will give you valuable evidence that you can use to prove your case.
Making the legal system work for you is better than committing an act that will cause the legal system to work against you. Shooting down drones is almost certain to get you in hot water with either state or federal law enforcement authorities.