Is flying a Drone illegal?

[Whirlygig]

Sorry for the delay - I've been out of here for a while. Right now in the US,, I do not own the sky above my property, but that is very controversial, and may be changed. In many countries, that is already the case, and several states in the US are attempting regulations about that. CA tried, but I think the Governor killed it. Or the CA Senate.
In Australia it's illegal to fly over someone's backyard without permission, but you CAN fly over their front yard.

I am intrigued by this air rights issue. I think you and EW are correct that some courts have held that private landowner can only own and exclusively control the airspace over his yard to the extent he is actively using it at the time (at least up to 500 feet when you hit navigable airspace where there is no private ownership by definition). The theory is favorable for drone flying (which I like) but I'm not sure it makes sense to me or how it squares with that US Supreme Court case I cited way back, Causey. The court said in that case that farmer could force government to pay for easement to fly planes 85' over his property due to grave disturbance of resident chickens. There seemed no question the farmer had air rights, the court just avoided saying exactly how far above 85'. This caused me to speculate that the size and sound of the uav may be relevant to creation or enforcement of state nuisance, trespass, and invasion of privacy laws in future. Now that front vs back yard distinction in AUS, that's a real head scratcher! As if trying to make heads or tails out of this isn't hard enough without the Aussies muddying the waters!

 

[DattaGroover]

I am intrigued by this air rights issue. I think you and EW are correct that some courts have held that private landowner can only own and exclusively control the airspace over his yard to the extent he is actively using it at the time (at least up to 500 feet when you hit navigable airspace where there is no private ownership by definition). The theory is favorable for drone flying (which I like) but I'm not sure it makes sense to me or how it squares with that US Supreme Court case I cited way back, Causey. The court said in that case that farmer could force government to pay for easement to fly planes 85' over his property due to grave disturbance of resident chickens. There seemed no question the farmer had air rights, the court just avoided saying exactly how far above 85'. This caused me to speculate that the size and sound of the uav may be relevant to creation or enforcement of state nuisance, trespass, and invasion of privacy laws in future. Now that front vs back yard distinction in AUS, that's a real head scratcher! As if trying to make heads or tails out of this isn't hard enough without the Aussies muddying the waters!

They (the Aussies) also allow flying over National Parks and preserves, but have a very gray standard when it comes to safety. For example, an octocopter is considered far safer than an quad copter flying of areas where there are people, but it really depends on how many people are down below. No specs on that, though.
One thing I've noticed is that many countries (including Australia and Japan that I've noticed, and if I remember correctly The Netherlands) have a 30 meter clearance rule to all people not involved with the flight operation of the UAS.

 

[Whirlygig]

I found an interesting air rights case from 1936: Hinman v Pacific Air Transport.

 

[ChrisBird]

They (the Aussies) also allow flying over National Parks and preserves, but have a very gray standard when it comes to safety. For example, an octocopter is considered far safer than an quad copter flying of areas where there are people, but it really depends on how many people are down below. No specs on that, though.
One thing I've noticed is that many countries (including Australia and Japan that I've noticed, and if I remember correctly The Netherlands) have a 30 meter clearance rule to all people not involved with the flight operation of the UAS.

Having recently gone through this process in Australia in particular NSW i can say its not as good as we'd like (National parks are state managed). You can fly over a National park in NSW but you cannot operate from a National park, any request for non commercial will be denied (admitted in email, which differs from their public policy). To prove a point I flew over a particular national park as i operated it from a road that ran through the NP but it is clearly marked on topo maps that the road is not in the national park.

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[DattaGroover]

Having recently gone through this process in Australia in particular NSW i can say its not as good as we'd like (National parks are state managed). You can fly over a National park in NSW but you cannot operate from a National park, any request for non commercial will be denied (admitted in email, which differs from their public policy). To prove a point I flew over a particular national park as i operated it from a road that ran through the NP but it is clearly marked on topo maps that the road is not in the national park.

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Oh, I didn't know that. Thanks for the heads-up.

 

[Whirlygig]

...If you where walking along the boardwalk at a nude beach taking random photos, that's your right, and their risk. But if you stop and focus on a specific person, it becomes their right and your risk of prosecution.

I think you are right but the law may turn on a word or a comma! I previously wrote that the Washington State Supreme Court shocked the world several years ago by dismissing the criminal conviction of a man who was caught taking "up the skirt" videos of women at the Seattle Center. The rationale was that state law prohibited taking surreptitious photos of people in places where they had a reasonable expectation of privacy which no one could have walking around a public place like the Seattle Center.

Now its the Georgia appellate court's turn to shock the world by dismissing the conviction of the person shown in the photo below, who was caught on security camera in flagrante delicto. Gary v State of Georgia, No. A16A0666, published July 15, 2016. The dismissal was for the same reason given in the Washington court case, the GA law prohibited observing, photographing or recording the activities of another which occur "in any private place and out of public view." The court ruled the aisle in a supermarket did not qualify even though the defendant freely admitted what he was doing there with his camera.