Drones and Surveillance in Our Brave New World

Modern technology has become a total phenomenon for civilization, the defining force of a new social order in which efficiency is no longer an option but a necessity imposed on all human activity. ~ Jacques Ellul

I have long had mixed feelings about technology. On the one hand, I regard the Industrial Revolution as, perhaps, the most important period in our known human history; having allowed us to both understand and act within social systems that maximized our capacities for the production and exchange of the material values that sustain life. The earlier advances provided by the agricultural revolution, combined with industrialization meant that our nutritional menus were no longer confined to the bugs, berries, and tree barks from which our hunting-and-gathering ancestors made their daily dietary selections.

On the other hand, while technologies have largely been created by individuals, they generally end up being financed by and housed within institutions. We become attached to the technologies we associate with the quality of our lives. If Congress, or an imperious president, were to announce that we could keep our Internet connections only if we allowed the state to monitor all our communications; how many of us would reject the proposal? And how many would eagerly accept, lest we lose access to the machinery we believe necessary for our material well-being?

Men and women desirous of living in a world of peace and individual liberty need look no further than to discover whether the principle of privately owned property is respected. Societies in which thinking is dominated by the promotion of material wealth tend to allow this essential civilizing principle to erode in the face of supposedly "pragmatic necessities." The humanizing qualities that depend upon long-term commitments to values that make our social lives worthwhile, are often ignored when we are engaged in the "real-world" necessities of daily living. Thus does the sanctity of life get sacrificed in the practice of aborting unborn children, some of whom have their organs harvested for financial gain; or the "hydrogen bomb" improvement that allows the institutional order to only kill life forms, while leaving buildings, technologies, and other material values intact; or the morally twisted thinking that gave Clinton administration Secretary of State, Madeleine Albright, comfort in defending her government’s policy of allowing some 500,000 Iraqi children to die as a consequence of economic sanctions.

The failure of respect for the inviolability of the property principle does not find expression only in such well-organized slaughter. In lesser – but nonetheless troublesome – ways, our habit of treating the preeminence of institutional interests as the default response in our thinking is evident. Once a new technology is created and manages to surmount corporate-state anti-competitive barriers to entry in the marketplace; varied responses occur. The novelty of the new creation will provide amusement – or even fear – as we contemplate how our daily lives might be affected by it.

The Amish culture, on the other hand, has approached technological change intelligently. Machines – such as cars and tractors – are not dismissed as the work of the devil; but are analyzed from the perspective of whether their introduction into the Amish community would diminish the spiritual values of that culture, and cause their society to become dominated by a technological imperative that made them dependent upon the external world.

The Amish example is one to which each of us should pay close attention. Most of us are so attached to our institutionally-structured, technologically-dominated culture that we fail to ask the question: is the inviolability of the property principle, which is essential to peace, liberty, and social order, benefited or weakened by new technology? The current fascination so many of us have with drone aircraft provides an opportunity to analyze whether such machinery can be employed by individuals in ways that respect the inviolate nature of one another’s property boundaries?

The toy-like character of drones may cause us to dismiss the implications they have for violation of the property principle. When thought of alongside other aerial playthings such as kites or July 4^th skyrockets, we may consider their challenge to the property concept as an exaggeration. Consider this: since the early common law, the boundaries of real estate were not confined to the surface of land, but extended downward to the core of the earth, and outward into boundless space. The legal doctrine is expressed in the Latin as Cuius est solum, eius EST usque ad coelum et ad inferos. Think of your parcel of land as a giant slice of pie: anything that came within these boundaries was, if permanent, part of your land; if only temporary, it might amount to a trespass.

This long-standing doctrine was quite useful in resolving many real property disputes, but was put to the test when new technologies, such as hot-air balloons and, later, airplanes, came into being. If one of these devices flew over your land, was there an actionable trespass for which damages or injunctive relief might be available? At any given – albeit brief – moment, the planet Neptune might be crossing the boundaries of your land, a matter having only theoretical rather than practical considerations.

The processes of legal reasoning have long been abetted by the use of "legal fictions," (i.e., fabricated explanations of facts designed to help generate understanding of a legal doctrine). The long-held rule that defined the boundaries of real property ownership was an example of such a fiction. In much the same way that major paradigm shifts occurred in the history of the sciences (e.g., the abandonment of the geocentric model of the universe in favor of a heliocentric explanation), legal fictions have often undergone such shifts. The creation of technologies that challenged the premises upon which earlier property boundary doctrines were grounded, was one such instance. The courts were forced to reexamine the older legal concept, not so much for the purpose of destroying it, but to see if, indeed, it was truly consistent with the property principle itself.

Such an inquiry must begin by examining the nature of property ownership, which consists of the following elements: [1] the boundary of the interest to be owned; [2] a recognizable claim by a person to be the owner; and [3] the capacity for one to extend his or her will over the item so as to control its use. Do helicopters, airplanes, and drones fly within an area that can be said to be part of the ownership claim of a surface owner?

In my years of teaching property law, I found a surprising number of students who could not contemplate the idea of "space" – such as what exists above the surface of land – as being subject to private ownership. Perhaps this is to be expected in a culture grounded in the preeminence of material values. If, to paraphrase Gertrude Stein, "there is no ‘there’ there," space, even above one’s own land, the concept may be difficult to grasp. Even the briefest study of astronomy should convince a student of how order in the universe is dependent upon massive quantities of space. When I suggest that the ownership of space above buildings in Times’ Square, or Sunset Boulevard in Hollywood, or Las Vegas, has great economic value to be marketed, the point becomes easier to grasp.

But to what heights might such "empty space" rise, so as to provide a surface owner with grounds for legal protection against trespasses? Does an airplane flying thirty feet above your house violate your property interests? What about a plane flying thirty-five thousand feet overhead. The old common law rule would find an actionable trespass in both cases. But more modern courts would recognize that the fiction contained an element that was incompatible with the real-world nature of property ownership: the capacity of an owner to control what he owned. But how is this height to be determined?

A 1946 U.S. Supreme Court case, United States v. Causby [328 US 256], effectively disposed of the ancient common law rule, while providing insight as to how air rights would be defined for constitutional purposes. A North Carolina chicken farmer’s land was adjacent to a parcel of land upon which the Army and Navy jointly operated an airfield. When planes took off or landed from this government facility, they flew from 63 to 85 feet in the air space above the Causby land. Causby brought an action, alleging that the US government had taken an easement through his airspace. The outcome of the case turned on whether the boundaries of Causby’s land included the airspace above the surface and, if so, how far did such ownership extend?

In holding for Causby, the Supreme Court reasoned that "if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise, buildings could not be erected, trees could not be planted, and even fences could not be run." The court went on to emphasize the decision-making control that gives real-world meaning to ownership: "The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land."

Those inclined to treat such a ruling as a judicial retreat from common law notions of property, would do well to consider that the legal fiction extending outward into the universe, is an idea with no application to real-world concerns over who gets to make decisions about what.Respect for the inviolability of individual property claims derives, in Lockean terms, from the need – and right – of each individual to extend his/her life-sustaining actions into the rest of nature; but without trespassing upon the equally respected property claims of others. A fiction that was grounded in real property boundaries measurable only in dimensions of light-years, hardly qualifies as a standard to be applied to modern human action in a physical world.

The success of political systems depends upon confused and hazy definitions of "property." If men and women understood how respect for the inviolability of private property interests would assure both individual liberty and social order, such awareness would continually generate questions about the propriety of government programs and policies. For this reason, the state – with the help of its allies in the courts, the media, and academia – needs to introduce and enforce vagueness regarding "property" questions. "Pollution" problems are addressed as "environmentalism," instead of seeing such occurrences as the failure of property owners to internalize all the costs of their actions, by not trespassing – whether with smoke, industrial waste, or other byproducts – upon the property interests of others. It is politically-incorrect to ask whether an unborn child is a self-owning human being, the abortion question being recast as a "women’s rights" issue.

With the modern state enjoying an increased use of tools with which to wiretap, spy upon, or otherwise surveil telephone conversations, computer files, or other personal conduct or communications; the private property violations implicit in such intrusions is transformed from objectively-described trespasses into amorphous and vague questions as to whether a property owner had a "reasonable expectation of privacy." The word "reasonable" has long been a weasel-word with which the state is allowed to validate its own conduct! "Trespass" questions – such as "did the defendant ride his bicycle across plaintiff’s lawn" provide "yes" or "no" factual responses that do not depend upon a judge’s interpretation of whether plaintiff’s objection was "reasonably" grounded.

The "nuisance" doctrine is another rapidly-expanding alternative to "trespass" as a means of transferring the authority to treat factually-based violations of property boundaries from "owners" to judges; judges who are not confined to finding actionable trespasses, but enjoy the subjective power to determine the "reasonableness" of the parties’ conduct. If A, without the consent of his neighbor, B, rode his bicycle across B’s lawn, B’s cause of action, grounded in trespass, would provide the court with little more than the power to make an evidentiary determination as to whether the intrusion took place. But let us suppose that A painted his house in a two-tone fuchsia and chartreuse coloration, for which B sought legal redress. In such a case, B could not base his action upon "trespass," as A’s acts took place solely on his land. But with the private nuisance doctrine – defined in terms of whether A’s actions amounted to a "substantial and unreasonable interference with B’s quiet use and enjoyment of his land" – B might prevail. The court would be free to decide, based upon hazy, subjective, and emotionally-driven standards, whether A – who has confined his decision-making to his land – has nevertheless legally offended B.

In a culture whose foundations embrace the technological imperative as a first principle, I suspect that drones will soon find themselves to be additional beneficiaries of the further erosion of the private property principle, in favor of a state-favored standard of "reasonableness." The value, to government intelligence agencies, of drone technology being able to more closely spy upon Americans, will make it easy for courts to find a "reasonable" distinction between government spying and a teenager using his drone to peer into the bedroom window of a fellow female student.

Likewise, the use of drones to help retailers make deliveries of goods to customers will be judicially defended as a way of reducing the costs of doing business. That this same argument was advanced on behalf of firms externalizing (i.e., socializing) some of their costs, will likely not dissuade the courts. So, when property owner A sees a delivery drone flying some 15-20 feet above his property, on its way to deliver a package to neighbor B, he will likely be unable to rely on the Causby case for support for his "trespass" claim. He will be told that this intrusion did not "unreasonably interfere" with his use and enjoyment of his property, nor did it deprive him of an "unreasonable expectation of privacy."

That such contradictory outcomes can occur within the framework of a Constitution whose words in the original seven articles have not been altered – but only "reinterpreted" – since 1789, should make us aware of how dangerous it is to allow the state to define its own powers!

Butler Shaffer holds undergraduate degrees from the University of Nebraska-Lincoln, a JD from the University of Chicago Law School, and is presently Professor of Law Emeritus at Southwestern University Law School in Los Angeles. Is also the author of numerous articles, as well as the books Calculated Chaos, In Restraint of Trade, Boundaries of Order, The Wizards of Ozymandias, and the soon-to-be-published Please Don’t Feed the Cannibals! A Visitor’s Guide to the Human Zoo.