The United States Supreme Court decision in United States v. Causby, decided in 1946, dramatically changed the “to the heavens” doctrine, which had endured for centuries, by constraining public rights to airspace to navigable altitudes above approximately 400 feet. This ruling clarified that property owners retained rights to the airspace immediately above their properties, and interrupting their use and enjoyment of their property through low-flying aircraft protects them legally. The airspace between ground level and 400 feet—the preferred operating zone for drones—remains a largely unregulated and murky legal status.
The Drone Boom and Regulatory Vacuum
The Federal Aviation Administration (FAA) estimates that by the year 2026, there will be more than 2.1 million commercial drone deliveries made across the United States, which demonstrates how quickly unmanned aerial systems have entered the mainstream [1]. Drones mainly operate below 400 feet, speaking to the legal gray space left undefined by Causby and all of the subsequent federal regulations. The FAA regulates drone safety, and air traffic mix interacts, but has yet to define the rights of property owners in this low-altitude corridor.
To exacerbate this legal issue, fewer than ten actual states have enacted statutory laws that only deal with "low-altitude trespass" from a drone, which are uneven in both their breadth and seriousness. Statutes range from illegalizing flights by drones over private property without permission, to laws that only have some privacy protections. The absence of clear federal legislation leaves property owners at the mercy of aerial intrusions covering their property, with little option or leverage to alter the situation.
Legal Disputes on the Horizon
This unresolved tension suggests an increased number of disputes as drone technology continues to advance. Property owners may be concerned with invasion of privacy or property rights when a drone is hovering just a few feet above their backyard, taking images and/or surveillance. On the other side, businesses and public agencies are proud of the efficiency drones bring for package delivery, infrastructure inspection, and emergency services.
Recent cases illustrate the problems. In People v. Riley (2024), a California court determined damages should be awarded to a homeowner when a commercial company continued overrunning their property despite notice, indicating a need for trespass laws [2]. But in many jurisdictions, courts have yet to provide a definitive ruling (to both residential and commercial property owners) on drone overflights, resulting in inconsistent protections and interpretations.
Balancing Innovation and Rights of Property
It will be a challenge for lawmakers and regulators to achieve a balance between the technological innovations brought by drones with the property rights and privacy of the property owner. Experts urge the establishment of a federal statutory framework for federal, state, and local drone regulations so that all users of drone technology know the minimum allowable altitudes for drone operations over private property, and the requirements for consent, notice, and liability [3].
In the meantime, the use of automatic technological means such as geofencing (essentially, electronic limitations on drone use over certain private property) and remote identification systems may lessen the risk of conflicts, provided that the federal limitations on drone use include all parties using drone technology and include enforcement policies [4].
As drones become common in commercial and government-sanctioned uses, the legal ambiguity that surrounds low-altitude airspace over private property needs to be clarified. The likelihood of conflict will continue to grow in the absence of clear rules. This reinforces the importance of having lawmakers establish what boundaries of ownership exist in the airspace that is just above us.
References:
[1] FAA, “U.S. Commercial Drone Delivery Forecast,” 2024
[2] People v. Riley, California Superior Court, 2024
[3] Congressional Research Service, “Drone Airspace and Property Rights,” 2025
[4] FAA, “Remote ID and Geofencing for Drones,” 2023
[5] Image Source: https://www.linkedin.com/pulse/can-you-fly-drone-over-private-property-explained-usman-khan-5zalf/