Can the Government Fly a Drone Over My Backyard?
4th Amendment Protection
U.S. Sovereignty of Airspace
The U.S. Government has exclusive sovereignty of airspace within its borders.[1] This rule applies to all aircraft operators that conduct flights into or over U.S. territorial space to comply with the following: (1) national security requirements; (2) CBP, TSA, FAA, DOT, ICAO, ATF, Public Health requirements; and (3) Scheduled Common Carriage Flights rules.[2]
Air Rights
Air rights refer to the right of an owner, lease holder, or renter to occupy the vertical air space above a plot of real estate.[3] Typically, FAA governed airspace begins at 1,000 feet above the highest obstacle on the ground.[4] In uncongested areas, the federal government considers the area above 500’ as navigable airspace; however, it is considering lowering the limit to accommodate surveillance drones.[5]
Government Drone Overflights
The following are considerations for unmanned aircraft in general that weigh less than 0.55 pounds but should also apply to government drones of the same characteristics : (1) weight of the drone; (2) flight elevation; (3) time of overflight — night operations; (4) trajectory; (5) speed; and (6) possibility of catastrophic failure.[6]
The purpose and the inherent capabilities of government-owned drones, regardless of size, are important:
Future Pitfalls with the 3-Prong Test
Today’s evolving standards of (1) Intimacy; (2) Amount of collected data; and (3) Cost of activity will soon be tested by the ubiquity of micro-drones that weigh less than the 0.55 pound FAA weight limit. Drones the size of insects, cheaply deployed by the millions, that can penetrate cracks and crevices of property, or can be blown off its intended, search warrant-protected course, will challenge the 4th Amendment’s 3-Prong Test.
Copyright Leonard Casiple 2023. All rights reserved.
About the author: Leo Casiple is a first-generation American who grew up in Southern Philippines under martial law. He spent much of his 21-year career in the US Army as a Green Beret.
Leo is currently a doctoral student at Northeastern University’s Doctor of Law and Policy program (2022–2025 Cohort). He earned his education from California Lutheran University (MPPA), ASU Thunderbird School of Global Management (MBA in Global Management), Excelsior University (BS in Liberal Arts, Ethnic and Area Studies), Academy of Competitive Intelligence (Master of Competitive Intelligence™), Defense Language Institute and Foreign Language Center (18-month Arabic Language Course), and the US Army John F. Kennedy Special Warfare Center and School (Special Forces Qualification Course and Psychological Operations Specialist Course).
For more information about the author, click here: Leo’s LinkedIn Profile
[1] 49 U.S. code § 40103 — Sovereignty and use of airspace. (1958, August 23). LII / Legal Information Institute. https://www.law.cornell.edu/uscode/text/49/40103
[2] GEN 1.2 flights into or over U.S. territorial airspace. (n.d.). Federal Aviation Administration. https://www.faa.gov/air_traffic/publications/atpubs/aip_html/part1_gen_section_1.2.html
[3] Ibid.
[4] MasterClass. (2021, May 5). Air rights guide: How air rights work in real estate. https://www.masterclass.com/articles/air-rights-guide
[5] Palmer, B. (n.d.). Do you own the air above your home? Slate Magazine. https://slate.com/news-and-politics/2013/07/photographer-george-steinmetz-arrest-how-much-airspace-do-you-own.html#:~:text=Today%2C%20the%20federal%20government%20considers,useful%20guideline%20in%20trespass%20cases
[6] Operations over people general overview | Federal aviation administration. (2022, November 10). Federal Aviation Administration. https://www.faa.gov/uas/commercial_operators/operations_over_people
