How To Get Drones And Flying Cars Unstuck
Immutable Technological Advances Build On Constitutional Rights - Opening The Skies
Airspace is constitutionally protected property, and protecting constitutional property rights while enabling innovation is not mutually exclusive.
The Fifth Amendment of the U.S. Constitution states:
"Nor shall private property be taken for public use without just compensation."
This includes not just land but the airspace above it. In United States v. Causby, 328 U.S. 256 (1946), the Supreme Court ruled:
"The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land."
Over time, airspace use has changed and gains more utility as innovation progresses. The Court rejected the notion that the government could claim all airspace above land:
"The airspace, apart from the immediate reaches, is part of the public domain ... but flights over private land are not immune from liability."
In Griggs v. Allegheny County, 369 U.S. 84 (1962), the Court held that continuous low-altitude overflights that interfered with the use and enjoyment of land constituted a taking, requiring compensation. These rulings confirm that the immediate reaches of airspace (up to 500 feet) are private property, protected by the Constitution. Drones must fly below 400 feet, and flying cars must fly in and out of airspace below 500 feet.
Legal Questions of Liability: Who is Responsible?
Consider a commercial drone operator licensed by the FAA, flying at 200 feet over a suburban backyard without the landowner's consent:
Does FAA approval override property rights?
Is the landowner entitled to compensation?
Who bears liability for trespass, nuisance, or surveillance?
Courts have ruled that FAA authorization does not nullify private rights. In Kaiser Aetna v. United States, 444 U.S. 164 (1979):
"Even if the Government physically invades private property pursuant to its regulatory powers, it must compensate for that taking."
This creates a significant legal and financial risk for drone operators and their clients who fail to obtain property-specific permission.
The FAA has broad authority over “navigable airspace,” which refers to airspace above 500 feet. States and cities retain police powers over land use, zoning, privacy, and trespass, critical in regulating drone operations at low altitudes.
Under U.S. common law and court precedent, landowners have enforceable rights in the airspace immediately above their property, particularly below 400 feet. Avigation easement laws in the U.S. states allow flight only so long as drones do not interfere with a landowner’s current use - this fundamentally recognizes the landowner’s baseline rights.
Without the private air rights owners having a real stake and incentive in the drone ecosystem, the commercial drone entities are just extractive. This is not generally how private citizens want drones used. There have been some engaging surveys on the topic recently.
They have shown mixed public sentiment toward drone deliveries, with notable concerns regarding privacy, safety, and neighborhood disturbances. These concerns need to be solved through the market. A survey by the Vanderbilt Policy Accelerator in June 2024 revealed that 66% of Americans oppose drones capturing images or videos of their homes. This is particularly notable as entire businesses are being developed around this surveillance monetization. 70% of respondents are apprehensive about potential neighborhood disturbances and safety issues.
Over 60% of private air rights owners would allow drones if they explicitly give permission and get paid for it. This is reasonable and in keeping with a society that holds freedom and property rights in high regard.
These concerns have manifested in tangible opposition. For instance, Amazon's Prime Air drone operations in College Station, Texas, faced significant backlash due to noise and privacy issues, temporarily suspending services.
The simple fact is they went in head first, claiming they had the rights to private airspace and were quickly pushed back. There is a better way to do this; the answer is to have a marketplace for air rights.
The unauthorized use of private airspace by commercial drones places all companies doing business with these drone entities at significant legal risk and fuels public opposition. Drone companies that rely on the FAA for permission to operate in private airspace will quickly be made aware that liability does not rest with the good people at the FAA, as they cannot permit third-party drones to operate in private property that they don’t own or control.
Companies must prioritize obtaining explicit landowners' permission to navigate these challenges rather than continuing the extractive practices. The marketplace for decentralized air rights and drone transit permissions is now available, so claiming an inability to get permissions is not a valid argument.
We must not forget the fundamental principles that have made our society great - individual property rights and freedom. The notion that the government or corporations can claim dominion over our private airspaces, without our consent or compensation, is a stark reminder of the dangers of unchecked power.
But there is a better way. By recognizing and respecting the private property rights of landowners, we can create an innovative and just marketplace for air rights. This is not a zero-sum game, where progress must come at the expense of individual liberty. It is a testament to the power of human ingenuity, which creates new opportunities and wealth while respecting all citizens' fundamental rights.
Air rights have multiple use cases, and it is not just about allowing drones and flying cars in private airspace. Air rights are used to build into and protect views, as well as for telecom companies and their assets. Transferring air rights allows for greater utility and density where people want to work and play. Upending this for commercial drone entities would have predictable and unpredictable negative results for markets worth trillions. With a market-based solution using freedom as the backbone, the gods of commerce and reason smooth the way for growth.
The future of aerial technology is not a choice between progress and property rights but rather between a top-down, command-and-control approach and a bottom-up, market-driven decentralized approach. The former will continue to lead to conflict, litigation, and stagnation, while the latter will unleash innovation and prosperity.
This is not a utopian dream, but a practical reality that can be achieved through the power of markets. We will unlock a future where flying cars and drones enhance our lives rather than infringe upon our freedoms.