It seems that every day I read of some community somewhere deciding to create rules about where you can fly. These laws, all of them, would fail in a court test.
49 USC § 40103 – “Sovereignty and use of airspace”:
(a) Sovereignty and Public Right of Transit.—
(1) The United States Government has exclusive sovereignty of airspace of the United States.
Only the FAA can create a “no-fly” zone.
Only the FAA can regulate flight.
Many amateur legislators will misread the Causby decision and make interpretations that simply aren’t supported in the Causby decision. (For a detailed explanation of the Causby decision, see my blog post: There is no Unregulated Airspace in the US )
US v. Causby, 328 US 256, 264 (1946) held that a landowner owns as much of the airspace above his or her property to which he or she can reasonably use, and any invasion of that airspace is a trespass subject to damages. Likewise, that airspace above the “immediate reaches above the land” is part of the public domain, not subject to trespass.
What can the lawmakers do?
A town can regulate where a drone may take off and land on property they control. That’s all. A public park, for example. One of the most published restrictions is by the National Park Service prohibiting “takeoff, landing or operating” a drone in a National Park. Takeoff and landing are pretty obvious, but is “operating” the same as “flight”? Not according to the FAA. The FAA calls a takeoff or a landing “an operation”. Ideally an even number. But once the aircraft is in flight, it is the exclusive authority of the FAA.
The FAA is concerned with this patchwork of local laws and recently published this Fact Sheet to explain what local legislators can do. [link]
Flying 50 to 100 ft over private homes is not illegal, but other general laws may apply to the drone operator. For example, if your drone is hovering to take photos of the nude neighbor getting an all-over tan in their back yard, then you may likely have violated privacy or “peeping tom” laws. Those laws apply regardless of the method – a drone, a camera on a kite or on the end of a long stick. If you attach a loudspeaker to your drone and play “The Ride Of The Valkyries” by Richard Wagner at 6AM with maximum volume, then you could be charged with general noise violations. You could be in violation of the same law if you parked on the public roads and shook the neighbors windows with whatever they call that eardrum smashing noise the kids like today. But the hum of a drone hovering is likely quieter than the lawn mower across the street, so noise or nuisance laws probably won’t apply.
Some will say, if it bothers the homeowner, just go somewhere else to fly. This approach bothers me. A lot. What it says is that “your non-existent right to be annoyed trumps all of my legal rights”. Besides, it’s pretty hard to take a photo of my home from a mile away.
I am not a lawyer. Anyone who relies on my blog posts as legal advice is an idiot.