Drones: your private property and the law

Drones are getting everywhere, even the White House lawn, and there is increasing concern over the intrusion into private lives and private property.

That inevitably brings lawyers into the process of considering what drones are capable of and what we should permit.

If Amazon sends one with the next in the Fifty Shades series I may appreciate the anonymity, but if one peeks through the window to capture a re-enactment I will be less impressed.

The principles of trespass are well established. Freehold title goes up to the heavens and down to the earth's core. Cross my boundary without authorisation and I have rights to protect my property.

Aircraft are permitted to overfly private land by legislation, but that deals mostly with piloted aircraft. The level of control over the smallest aircraft, and hence drones, is sparse and directed chiefly to safety.

Overflying property without permission is trespass and property owners can take action against a perpetrator. That can include damages and injunctions but there are significant problems, such as identifying the perpetrator.

Remote control may hide the person responsible for guidance and now there may be no direct control. Autonomous aircraft do exist. Most modern airliners are equipped for automated landing and robot drones can operate without direct human intervention.

So who is responsible for what an autonomous drone does? Is it the programmer who writes the algorithm by which the drone operates, or the person who sets parameters for the flight, e.g. duration, targets or range.

Even if a property owner can overcome these issues, is there an effective remedy?

Generally claims would seek an injunction to prevent future intrusion and damages to ensure the intruder has not profited. If someone trespasses onto my property and causes me no financial loss but gains £1m by doing so then my claim is for that sum. Anything less would incentivise profitable trespass.

But if the intrusion is for data collection then what is the value of each datum? Measuring my double-glazing might be worthless on its own but accumulated with 100,000 others it provides information on insulation and energy consumption which can guide commercial and political decisions. The value of the whole is far greater than the sum of the parts.

Intrusion into personal matters raises more issues. We have no general right of privacy at present and although that is changing property rights are currently somewhat stronger that privacy arguments.

The inherent difficulty is that a privacy claim follows the event.

So how does the Duchess of Cambridge deal with images taken not from four hundred yards away, on a stepladder, peering over a fence with a telephoto lens, but from an autonomous drone driven by face recognition software hovering several feet over her head streaming live to the internet?

The damage done is instant and irretrievable.

Where there is no effective legal process the temptation is to resort to self-help. Property owners can cut from a tree branches which grow across a boundary. The intrusion is small so legal processes can be bypassed but aggressive unilateral topiary is a single issue remedy.

Attempts to legislate interact awkwardly with laws on aircraft generally. Distinguishing a drone from other flying objects is difficult and the need to control piloted aircraft is applying pressure from other directions.

And America has additional issues. Trawl the internet for relevant articles and US entries seem centred on two questions:

"Do I get in trouble if I shoot it down?" and "Who cares, how big a gun can I use?".

In Britain there is little that can be done to capture a trespassing drone and no direct precedent on whether chattel rights or real property interests take precedence. Is the owner liable for damage or is the drone just a flying branch and therefore fair game?

One analogy is the battle over unlawful parking, clamping and charging which does work if there is an overall justification. We await with interest the first attempt to clamp a drone.

These difficulties challenge the essence of a legal system. Technology is going beyond the scope of legal remedies and into realms where identification of the wrongdoer is difficult, the time required to obtain a remedy can never match the speed at which trespass can benefit the perpetrator and the calculation of damages may be depend on the rights of large groups of owners who have no means of securing collective action.

Maybe shooting them down is the right answer.