The National Association of Mutual Insurance Companies is urging the federal government to protect Americans left vulnerable to drones flying over their homes and yards under current Federal Aviation Administration rules that do not recognize private airspace.
In “Unmanned Aircraft: Defining Private Airspace,” a white paper released today by NAMIC, Tom Karol, general counsel-federal, explores how the FAA’s decision to reject the concept of private airspace has drastically changed property rights and exposed virtually every American’s back yard to unwanted drone intrusion.
“You have the legal right to have your neighbor removed from standing in your front yard,” Karol said. “You can have his dog removed and keep his tree limbs from growing over your yard. But under the FAA’s definition of ‘navigable airspace,’ you can’t stop a drone from flying over your property, even at low altitude, and it may be a federal crime to try.”
Historically, common law doctrine was that ownership of the land extends to the periphery of the universe, with owners said to own the land, everything below it, and all the airspace “up to the heavens,” according to Karol.
“But in the age of commercial air traffic the heavens became a public highway,” he said. “Supreme Court rulings have established a safe and effective floor for airplane flights, but the FAA has gone far beyond, concluding that – with few exceptions – the navigable airspace for drones under FAA supervision includes all airspace that is not indoors. This means that there is no longer private airspace.”
The elimination of private airspace equates directly to a lack of privacy, given current statutes, Karol added. “In general, if you are legally permitted to be where you are, it is not a violation for you to see what you can see or even photograph or record what you can see,” he said. “If an FAA-compliant drone can fly in what the FAA has determined is navigable airspace, including over your yard, five feet from your window, then that drone has every right to be where it is and every right to see or record whatever it can see.”
While the FAA has claimed not to have authority on the issue of privacy, local and state governments have taken action. As a result, concurrent efforts at the state and local levels threaten to create a patchwork of varying standards that would hamper the legitimate use and development of drone technology.
“While property/casualty insurance companies see the benefits in using unmanned aircraft systems to serve policyholders, as well as to provide coverage for policyholders that use UAS, the industry is stymied by a smorgasbord of differing and often competing standards of privacy,” Karol said. “Questions surrounding private airspace must be resolved in order to define how insurers will use and insure UAS, as well as to determine what regulations are needed to facilitate both. If the FAA won’t take action, then it’s up to Congress.”
NAMIC has been a leader at the intersection of insurance and drones, striving to define and refine the federal regulatory impediments to NAMIC members using drones for insurance services and providing property/casualty protection to policyholders. Karol is also the author of a white paper on commercial UAS use released by NAMIC in February 2015 and has provided extensive commentary cited by the FAA in its initial regulations for commercial drone use released in September of that year. He has testified before Congress regarding drones, sat on the Commerce Department's Drone Privacy Working Group, and is currently a member of both the FAA/Industry UAS Safety Team and the NUSTAR Advisory Board.
Media and Federal Advocacy Communications