In an effort to accelerate this introduction, in the FAA Modernization and Reform Act of 2012, Congress tasked the Federal Aviation Administration (FAA) with safely integrating drones into the national airspace system by September 2015. Next, it will discuss theories of takings and property torts as they relate to drone flights over or near private property. It will then discuss the privacy interests implicated by drone surveillance conducted by private actors and the potential countervailing First Amendment rights to gather and receive news. Development of Aviation Law and Regulations

The predominant theory of airspace rights applied before the advent of aviation derived from the Roman Law maxim cujus est solum ejus est usque ad coelum , meaning whoever owns the land possesses all the space above the land extending upwards into the heavens. With the passage of the Federal Aviation Act in 1958, the administrator of the FAA was given "full responsibility and authority for the advancement and promulgation of civil aeronautics generally.... " This centralization of responsibility and creation of a uniform set of rules recognized that "aviation is unique among transportation industries in its relation to the federal government—it is the only one whose operations are conducted almost wholly within federal jurisdiction.... " The FAA continues to set uniform rules for the operation of aircraft in the national airspace. However, it left many questions unanswered. Finally, some courts have concluded that the altitude of the overhead flight has no determinative impact on whether a taking has occurred. One court explained: "Enjoyment of property at common law contemplated the entire bundle of rights and privileges that attached to the ownership of land.... Owners of fee simple estates ... clearly enjoy not only the right to put their land to a particular present use, but also to hold the land for investment and appreciation.... " However, other courts have rejected the idea that restrictions on uses by future inhabitants, without showing loss of property value, are relevant to a determination of the owner's own use and enjoyment of the property. Trespass and Nuisance Claims Against Private Actors

Although Causby arose from a Fifth Amendment takings claim, its articulation of airspace ownership standards is also often used in determining state law tort claims such as trespass and nuisance. With the ability to house high-powered cameras, infrared sensors, facial recognition technology, and license plate readers, some argue that drones present a substantial privacy risk. Undoubtedly, the government's use of drones for domestic surveillance operations implicates the Fourth Amendment and other applicable laws. Congressional Response

If Congress chooses to act, it could create privacy protections to protect individuals from intrusive drone surveillance conducted by private actors. As a threshold issue, it is not clear what level of deference a court would apply to this administrative action. Related Legal Issues

In addition to the legal issues described above, there are a host of other issues that may arise when introducing drones into the U.S. national airspace system. If these proposals were implemented, questions about federal preemption may be raised. There may be instances where a landowner is entitled to protect his property from intrusion by a drone. Additionally, as discussed above, determining whether a drone in flight is trespassing upon one's property may be unusually challenging. Stalking, Harassment, and Other Crimes.
Under the FAA Modernization and Reform Act of 2012, P.L. 112-95, Congress has tasked the Federal Aviation Administration (FAA) with integrating unmanned aircraft systems (UASs), sometimes referred to as unmanned aerial vehicles (UAVs) or drones, into the national airspace system by September 2015. Although the text of this act places safety as a predominant concern, it fails to address significant, and up to this point, largely unanswered legal questions.
For instance, several legal interests are implicated by drone flight over or near private property. Might such a flight constitute a trespass? A nuisance? If conducted by the government, a constitutional taking? In the past, the Latin maxim cujus est solum ejus est usque ad coelum (for whoever owns the soil owns to the heavens) was sufficient to resolve many of these types of questions, but the proliferation of air flight in the 20th century has made this proposition untenable. Instead, modern jurisprudence concerning air travel is significantly more nuanced, and often more confusing. Some courts have relied on the federal definition of "navigable airspace" to determine which flights could constitute a trespass. Others employ a nuisance theory to ask whether an overhead flight causes a substantial impairment of the use and enjoyment of one's property. Additionally, courts have struggled to determine when a government-operated overhead flight constitutes a taking under the Fifth and Fourteenth Amendments.
With the ability to house surveillance sensors such as high-powered cameras and thermal-imaging devices, some argue that drone surveillance poses a significant threat to the privacy of American citizens. Because the Fourth Amendment's prohibition against unreasonable searches and seizures applies only to acts by government officials, surveillance by private actors such as the paparazzi, a commercial enterprise, or one's neighbor is instead regulated, if at all, by state and federal statutes and judicial decisions. Yet, however strong this interest in privacy may be, there are instances where the public's First Amendment rights to gather and receive news might outweigh an individual's interest in being let alone.
Additionally, there are a host of related legal issues that may arise with this introduction of drones in U.S. skies. These include whether a property owner may protect his property from a trespassing drone; how stalking, harassment, and other criminal laws should be applied to acts committed with the use of drones; and to what extent federal aviation law could preempt future state law.
Because drone use will occur largely in federal airspace, Congress has the authority or can permit various federal agencies to set federal policy on drone use in American skies. This may include the appropriate level of individual privacy protection, the balancing of property interests with the economic needs of private entities, and the appropriate safety standards required.