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Encounters of the Drone Kind: Drone Shootings and No-Fly Zones

by on June 26, 2020 · 2 comments

By Brent Skorup & Connor Haaland

We think drones are exciting technology with the potential to improve medical logistics, agriculture, transportation, and other industries. But drones fly at low altitudes and, to many Americans, drones represent a nuisance, trespasser, or privacy invasion when they fly over private property. This is why we think the FAA and states should work together to lease airspace above public roads—it would free up millions of miles of low-altitude airspace for operations while avoiding many lawsuits from public and private landowners.

In the meantime, states and landowners are pushing back on certain drone activities. Per Prof. Stephen Migala, about 10 states have created “no-fly zones” for drones, prohibiting flights over government property, state forests, or sensitive areas. Most state airspace rules prohibit drones at low-altitudes over “critical infrastructure” like nuclear, gas and electric facilities, bridges, dams, and communication networks. Some states prohibit drones over jails, prisons, and schools.

In Texas, in fact, there is litigation over a state ban on photography drones above critical infrastructure, sports venues, and prisons. One of the legal issues is whether state police powers over trespass, nuisance, and privacy allow states to exclude drones from low-altitude airspace. As we’ve pointed out in a GovTech piece, this is a festering issue in drone regulation—no one knows at what altitude private property (and state police powers) begins.

For private property owners who don’t want drones flying over their property, they might be able to bring a trespass lawsuit under existing state law. Around 20 states expressly vest air rights with landowners. However, many states also recognize a privilege of non-disruptive flight, so it’s unclear if a landowner would win a lawsuit in those states. We’re unaware of the issue being litigated.

Unfortunately, many landowners and annoyed neighbors are taking matters into their own hands and shooting drones out of the sky. We’ve identified over a dozen such encounters in the past eight years, though there are likely some near-misses and unreported cases out there.  (Don’t shoot a drone–it’s dangerous and, as the cases below show, you risk being arrested and convicted for criminal mischief or some other crime.)

  1. In November of 2012, unknown shooters in Bucks County, Pennsylvania shot down a drone that was flying over their hunt club. The drone was flown by an animal rights group to bring scrutiny to pigeon shooting and this was the fourth time the activists’ drone had been shot down. No criminal charges appear to have been filed.
  2. In October of 2014, a man shot down a drone in Lower Township, New Jersey. It’s unclear if the drone was hovering over his property or a neighbor’s. The man plead guilty to criminal mischief. 
  3. In November 2014 in Modesto, California, a man allegedly instructed his minor son to shoot his neighbor’s drone out of the sky, and the drone was destroyed. The neighbor claims the drone was not over the man’s property and won $850 in small claims court from the man for damages and costs.
  4. In July of 2015 in Bullitt County, Kentucky, William Meredith,  annoyed at a drone flying over his backyard while grilling with friends, shot the drone when it flew over his property. The drone’s owner, a neighbor, called the police upon discovering his destroyed drone. Meredith was arrested and charged under local law for firing a gun in a populated area. At the highly publicized trial in state court, the judge dismissed the charges with a brief statement that Meredith was justified in shooting because of the invasion of privacy.
  5. In April of 2016, an unnamed woman shot down a drone in Edmond, Oklahoma. The drone was flown by a construction company employee who was inspecting gutters in the neighborhood. It’s unclear if the drone was flying over the woman’s property. The case was investigated by the police, who said that they did not expect to file charges
  6. An unknown shooter in Aspen, Colorado shot down a drone during 4th of July fireworks in 2016. It’s unclear if the drone was over the shooter’s property. The pilot of the fallen drone filed a report with local police and the FAA but the shooter remains a mystery.
  7. In August of 2016, a woman allegedly shot down a drone in The Plains, Virginia with her 20-gauge shotgun. The woman alleged that the drone hovered 25 to 30 feet above her property and she believed it was being used to spy on her movie-star neighbor, Robert Duvall. The two men flying the drone left the scene when she told them she was calling the police. No charges were filed. 
  8. In April of 2017, an unknown person in Morgan County, Georgia shot down a drone with a .22 rifle. It’s unclear whose property the drone was flying over. The drone owner filed a report but a suspect was never identified.
  9. In October of 2017, a man allegedly shot down a drone in Jackson County, Oregon with his pellet rifle and later turned himself in for arrest. The photography drone was flying over a state recreation area. The local prosecutor charged the shooter with first degree criminal mischief, a felony in Oregon. (The drone’s owner feels that a felony charge is excessive. With a Google search, it’s unclear whether the man was convicted.)
  10. In May of 2018, a man allegedly attempted to shoot down a drone with his handgun in Bradenton, Florida. It was a neighbor’s drone and the man claims it was on his property, hovering a few feet above the ground. Police were called and warned the man about the danger and legal risk of shooting drones. No charges were filed.
  11. In February of 2019, a man allegedly shot down a drone in Long Island, New York with a shotgun. The drone was being used by an animal rescue group to find a lost dog. It’s unclear if the drone was flying over the man’s property. He was charged with third-degree criminal mischief and prohibited use of a weapon.
  12. In May of 2020, a man allegedly shot down a drone flying over a chicken processing plant in Watonwan County, Minnesota. The drone operator was apparently taking video of the plant as a citizen-journalist. The man was charged with two felonies: criminal damage to property and reckless discharge of a firearm in city limits. 
  13. In June 2020, someone shot a drone flying somewhere in western Pennsylvania at 390 feet above the ground. Despite being grazed and damaged, the drone managed to safely operate and land. It’s unclear if the drone was over the shooter’s property. The shooter is unknown and the drone operator contacted state police but has not filed a complaint.

As you can see, the legal penalties for shooting a drone vary based on the circumstances and the prosecutor. Some got off with warnings but a few were charged with a felony under state law. Arguably, someone shooting a drone violates federal law, which imposes penalties on anyone who

willfully . . . damages, destroys, disables, or wrecks . . . any civil aircraft used . . . in interstate . . . commerce.

Federal penalties for willfully damaging an aircraft are stiff—fines and up to 20 years’ imprisonment. We’re unaware of federal prosecutors bringing a case against someone for shooting a drone. Perhaps federal prosecutors feel it’s excessive to use this statute, which was written with passenger planes in mind. Further, it’s unclear when drones are used in interstate commerce. As one federal judge said in a 2016 drone regulation case, Huerta v. Haughwout:

the FAA believes it has regulatory sovereignty over every cubic inch of outdoor air in the United States. . . . [I]t is far from clear that Congress intends—or could constitutionally intend—to regulate all that is airborne on one’s own property and that poses no plausible threat to or substantial effect on air transport or interstate commerce in general.

Hopefully lawmakers will clear up the ambiguity and demarcate where property rights end. As we pointed out in our recent 50-state drone report card, creating drone highways would prevent many issues. Congress should also consider drawing a federal-state dividing line in the sky, much like it drew a dividing line in the ocean in the Submerged Lands Act for energy development. For now, landowners, drone operators, the FAA, and state governments are all trying to determine the limits of their authority.

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Why not auction off low-altitude airspace for exclusive use?

by on June 27, 2017 · 0 comments

By Brent Skorup and Melody Calkins

Tech-optimists predict that drones and small aircraft may soon crowd US skies. An FAA administrator predicted that by 2020 tens of thousands of drones would be in US airspace at any one time. Further, over a dozen companies, including Uber, are building vertical takeoff and landing (VTOL) aircraft that could one day shuttle people point-to-point in urban areas. Today, low-altitude airspace use is episodic (helicopters, ultralights, drones) and with such light use, the low-altitude airspace is shared on an ad hoc basis with little air traffic management. Coordinating thousands of aircraft in low-altitude flight, however, demands a new regulatory framework.

Why not auction off low-altitude airspace for exclusive use?

There are two basic paradigms for resource use: open access and exclusive ownership. Most high-altitude airspace is lightly used and the open access regime works tolerably well because there are a small number of players (airline operators and the government) and fixed routes. Similarly, Class G airspace—which varies by geography but is generally the airspace from the surface to 700 feet above ground—is uncontrolled and virtually open access.

Valuable resources vary immensely in their character–taxi medallions, real estate, radio spectrum, intellectual property, water–and a resource use paradigm, once selected requires iteration and modification to ensure productive use. “The trick,” Prof. Richard Epstein notes, “is to pick the right initial point to reduce the stress on making these further adjustments.” If indeed dozens of operators will be vying for variable drone and VTOL routes in hundreds of local markets, exclusive use models could create more social benefits and output than open access and regulatory management. NASA is exploring complex coordination systems in this airspace but, rather than agency permissions, lawmakers should consider using property rights and the price mechanism.

The initial allocation of airspace could be determined by auction. An agency, probably the FAA, would:

  1. Identify and define geographic parcels of Class G airspace;
  2. Auction off the parcels to any party (private corporations, local governments, non-commercial stakeholders, or individual users) for a term of years with an expectation of renewal; and
  3. Permit the sale, combination, and subleasing of those parcels

The likely alternative scenario—regulatory allocation and management of airspace–derives from historical precedent in aviation and spectrum policy:

  1. First movers and the politically powerful acquire de facto control of low-altitude airspace,
  2. Incumbents and regulators exclude and inhibit newcomers and innovators,
  3. The rent-seeking and resource waste becomes unendurable for lawmakers, and
  4. Market-based reforms are slowly and haphazardly introduced.

For instance, after demand for commercial flights took off in the 1960s, a command-and-control quota system was created for crowded Northeast airports. Takeoff and landing rights, called “slots,” were assigned to early airlines but regulators did not allow airlines to sell those rights. The anticompetitive concentration and hoarding of airport slots at terminals is still being slowly unraveled by Congress and the FAA to this day. There’s a similar story for government assignment of spectrum over decades, as explained in Thomas Hazlett’s excellent new book, The Political Spectrum.

The benefit of an auction, plus secondary markets, is that the resource is generally put to its highest-valued use. Secondary markets and subleasing also permit latecomers and innovators to gain resource access despite lacking an initial assignment and political power. Further, exclusive use rights would also provide VTOL operators (and passengers) the added assurance that routes would be “clear” of potential collisions. (A more regulatory regime might provide that assurance but likely via complex restrictions on airspace use.) Airspace rights would be a new cost for operators but exclusive use means operators can economize on complex sensors, other safety devices, and lobbying costs. Operators would also possess an asset to sublease and monetize.

Another bonus (from the government’s point of view) is that the sale of Class G airspace can provide government revenue. Revenue would be slight at first but could prove lucrative once there’s substantial commercial interest. The Federal government, for instance, auctions off its usage rights for grazing, oil and gas retrieval, radio spectrum, mineral extraction, and timber harvesting. Spectrum auctions alone have raised over $100 billion for the Treasury since they began in 1994.

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How the FCC Killed a Nationwide Wireless Broadband Network

by on January 9, 2015 · 8 comments

Many readers will recall the telecom soap opera featuring the GPS industry and LightSquared and the subsequent bankruptcy of LightSquared. Economist Thomas W. Hazlett (who is now at Clemson, after a long tenure at the GMU School of Law) and I wrote an article published in the Duke Law & Technology Review titled Tragedy of the Regulatory Commons: Lightsquared and the Missing Spectrum Rights. The piece documents LightSquared’s ambitions and dramatic collapse. Contrary to popular reporting on this story, this was not a failure of technology. We make the case that, instead, the FCC’s method of rights assignment led to the demise of LightSquared and deprived American consumers of a new nationwide wireless network. Our analysis has important implications as the FCC and Congress seek to make wide swaths of spectrum available for unlicensed devices. Namely, our paper suggests that the top-down administrative planning model is increasingly harming consumers and delaying new technologies.

Read commentary from the GPS community about LightSquared and you’ll get the impression LightSquared is run by rapacious financiers (namely CEO Phil Falcone) who were willing to flaunt FCC rules and endanger thousands of American lives with their proposed LTE network. LightSquared filings, on the other hand, paint the GPS community as defense-backed dinosaurs who abused the political process to protect their deficient devices from an innovative entrant. As is often the case, it’s more complicated than these morality plays. We don’t find villains in this tale–simply destructive rent-seeking triggered by poor FCC spectrum policy.

We avoid assigning fault to either LightSquared or GPS, but we stipulate that there were serious interference problems between LightSquared’s network and GPS devices. Interference is not an intractable problem, however. Interference is resolved everyday in other circumstances. The problem here was intractable because GPS users are dispersed and unlicensed (including government users), and could not coordinate and bargain with LightSquared when problems arose. There is no feasible way for GPS companies to track down and compel users to use more efficient devices, for instance, if LightSquared compensated them for the hassle. Knowing that GPS mitigation was unfeasible, LightSquared’s only recourse after GPS users objected to the new LTE network was through the political and regulatory process, a fight LightSquared lost badly. The biggest losers, however, were consumers, who were deprived of another wireless broadband network because FCC spectrum assignment prevented win-win bargaining between licensees. Continue reading →

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Are Privacy Property Rights and Contracts Even Possible?

by on August 7, 2013 · 0 comments

In my latest essay for the IAPP “Privacy Perspectives” blog , I ponder the question: Why is it that better methods of digital contracting and data ownership have not yet developed to help us protect our privacy online?  I note that the idea has long been floating around out there, but never gone anywhere. I offer a couple of explanations for why that has likely been the case. But I also note that there may still be some reasons to believe that private data contracting has a future.

Read the whole thing.

(Note: I discuss these issues in greater detail in my forthcoming George Mason Law Review article, “A Framework for Benefit-Cost Analysis in Digital Privacy Debates.” It will be out before the end of the month and I will post it here once it is live.)

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New Paper on “A History of Cronyism & Capture in the Information Technology Sector”

by on July 2, 2013 · 1 comment

WP coverThe Mercatus Center at George Mason University has just released a new paper by Brent Skorup and me entitled, “A History of Cronyism and Capture in the Information Technology Sector.” In this 73-page working paper, which we hope to place in a law review or political science journal shortly, we document the evolution of government-granted privileges, or “cronyism,” in the information and communications technology marketplace and in the media-producing sectors. Specifically, we offer detailed histories of rent-seeking and regulatory capture in: the early history of the telephony and spectrum licensing in the United States; local cable TV franchising; the universal service system; the digital TV transition in the 1990s; and modern video marketplace regulation (i.e., must-carry and retransmission consent rules, among others.

Our paper also shows how cronyism is slowly creeping into new high-technology sectors.We document how Internet companies and other high-tech giants are among the fastest-growing lobbying shops in Washington these days. According to the Center for Responsive Politics, lobbying spending by information technology sectors has almost doubled since the turn of the century, from roughly $200 million in 2000 to $390 million in 2012.  The computing and Internet sector has been responsible for most of that growth in recent years. Worse yet, we document how many of these high-tech firms are increasingly seeking and receiving government favors, mostly in the form of targeted tax breaks or incentives. Continue reading →

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Land Rights, Bottom Up, Using GPS and Satellite Data

by on May 9, 2013 · 2 comments

Check out how tribal villagers in parts of India are establishing a basic right that we take for granted. Using GPS and satellite imagery, they’re marking out the plots of land that they have lived on, unrecognized, for decades, and they’re making it their property.

The project is described here, and you can noodle around and find plots that they’ve mapped out here.

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Ronald Cass on intellectual property

by on February 19, 2013 · 0 comments

Ronald A. Cass, Dean Emeritus of Boston University School of Law, discusses his new book, Laws of Creation: Property Rights in the World of Ideas, which he co-authored with Boston University colleague Keith Hylton. Written as a primer for understanding intellectual property law and a defense of intellectual property, Laws of Creation explains the basis of IP and its justification. 

According to Cass, not all would-be reformers share a similar guiding philosophy, distinguishing between those who support property rights but nevertheless have specific critiques of the intellectual property system as it currently stands, and reformers who do not see a place for property.

Cass explains that the current intellectual property system is neither wholly good nor wholly bad, but is a matter of weighing tradeoffs. On the whole, he argues, intellectual property benefits society. Cass also argues that intellectual property law in the U.S. is still more functional than that in other countries, such as Italy, and that, while it would benefit from some reform, it is fundamentally a workable system.

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Avoiding Silicon Valley’s ‘Suicidal Impulse’: Strategies to Reduce Tech Cronyism

by on January 29, 2013 · 2 comments

In an important essay this week entitled “Silicon Valley’s ‘Suicide Impulse’,” Wall Street Journal columnist L. Gordon Crovitz warns that “Silicon Valley has long prided itself on avoiding the lumbering relationship between big government and most industries, but somehow it has become one of the top lobbyists in Washington.” Crovitz is worried that Internet and technology companies are falling prey to what Milton Friedman labeled “The Business Community’s Suicidal Impulse”: the persistent propensity to persecute one’s competitors using regulation or the threat thereof. “Rather than lobby government to go after one another,” Crovitz argues, “Silicon Valley lobbyists should unite to go after overreaching government. Instead of the ‘suicide impulse’ of lobbying for more regulation, Silicon Valley should seek deregulation and a long-overdue freedom to return to its entrepreneurial roots.”

Crovitz’s essay touches upon a dangerous trend I have written about here and elsewhere in the past: the increasing politicization of the Internet and information technology sectors and the gradual rise of rent-seeking (i.e., favor-seeking) over time. I’ve written about this problem in essays like:

These essays have documented how tech companies are increasingly vying for the attention of legislators and regulators in Washington, statehouses, and international capitals across the globe.

Why should we care about the increasing politicization of the information technology sector? Continue reading →

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Tom Bell on copyright reform

by on December 4, 2012 · 0 comments

Tom W. Bell, professor of law at Chapman University and author of the concluding essay in Copyright Unbalanced, a new book edited by Surprisingly Free’s own Jerry Brito, discusses the ways in which copyright has evolved over time and why reform is vital.

Bell differentiates copyright from other types of property, arguing that conflating the two terms causes great confusion amongst laypeople and, over time, corrodes the value placed in tangible property rights. According to Bell, copyright is a privilege created by statute that doesn’t exist in a state of nature and is not recognized by common law.

As a special type of economic good, copyright must be treated differently than tangible property rights, according to Bell, who outlines five proposals for copyright reform.

While Bell is not opposed to copyright, he argues that copyright enforcement has gone too far, and lawmakers should structure policies to lead us towards a world in which we conceivably do without it.

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Copyright, Privacy, Property Rights & Information Control: Common Themes, Common Challenges

by on April 10, 2012 · 616 comments

Andrew Orlowski of The Register (U.K.) recently posted a very interesting essay making the case for treating online copyright and privacy as essentially the same problem in need of the same solution: increased property rights. In his essay (“‘Don’t break the internet’: How an idiot’s slogan stole your privacy“), he argues that, “The absence of permissions on our personal data and the absence of permissions on digital copyright objects are two sides of the same coin. Economically and legally they’re an absence of property rights – and an insistence on preserving the internet as a childlike, utopian world, where nobody owns anything, or ever turns a request down. But as we’ve seen, you can build things like libraries with permissions too – and create new markets.” He argues that “no matter what law you pass, it won’t work unless there’s ownership attached to data, and you, as the individual, are the ultimate owner. From the basis of ownership, we can then agree what kind of rights are associated with the data – eg, the right to exclude people from it, the right to sell it or exchange it – and then build a permission-based world on top of that.”

And so, he concludes, we should set aside concerns about Internet regulation and information control and get down to the business of engineering solutions that would help us property-tize both intangible creations and intangible facts about ourselves to better shield our intellectual creations and our privacy in the information age. He builds on the thoughts of Mark Bide, a tech consultant:

For Bide, privacy and content markets are just a technical challenges that need to be addressed intelligently.”You can take two views,” he told me. “One is that every piece of information flowing around a network is a good thing, and we should know everything about everybody, and have no constraints on access to it all.” People who believe this, he added, tend to be inflexible – there is no half-way house. “The alternative view is that we can take the technology to make privacy and intellectual property work on the network. The function of copyright is to allow creators and people who invest in creation to define how it can be used. That’s the purpose of it. “So which way do we want to do it?” he asks. “Do we want to throw up our hands and do nothing? The workings of a civilised society need both privacy and creator’s rights.”  But this a new way of thinking about things: it will be met with cognitive dissonance. Copyright activists who fight property rights on the internet and have never seen a copyright law they like, generally do like their privacy. They want to preserve it, and will support laws that do. But to succeed, they’ll need to argue for stronger property rights. They have yet to realise that their opponents in the copyright wars have been arguing for those too, for years. Both sides of the copyright “fight” actually need the same thing. This is odd, I said to Bide. How can he account for this irony? “Ah,” says Bide. “Privacy and copyright are two things nobody cares about unless it’s their own privacy, and their own copyright.”

These are important insights that get at a fundamental truth that all too many people ignore today: At root, most information control efforts are related and solutions for one problem can often be used to address others. But there’s another insight that Orlowski ignores: Whether we are discussing copyright, privacy, online speech and child safety, or cybersecurity, all these efforts to control the free flow of digitized bits over decentralized global networks will be increasingly complex, costly, and riddled with myriad unintended consequences. Importantly, that is true whether you seek to control information flows through top-down administrative regulation or by assigning and enforcing property rights in intellectual creations or private information.

Let me elaborate a bit (and I apologize for the rambling mess of rant that follows).

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