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ULC Offers Revised Approach to Trespass and Privacy Laws Relating to Drones

BY Isabella Lee
28 February 2019

Back in October 2018, we wrote about the drone industry’s backlash to the Tort Law Relating to Drones Act proposed by the Uniform Law Commission (ULC). The drafting committee has since issued a new draft of the Act and will meet in Washington D.C. this week to discuss it.

We had the opportunity to speak with lawyer and drone industry advocate, Joshua Turner about the drone industry’s views on this latest draft and what the upcoming ULC meeting will entail.

Turner provides counseling on compliance with evolving drone regulations and serves as the co-chair of Wiley Rein’s Unmanned Aircraft Systems (UAS) Practice. He has been invited to participate in the ULC’s meeting in Washington D.C. this Friday and Saturday as an officially recognized observer. Observers are able to speak and participate in the debate, but they are not given a vote on which proposals get adopted.

ULC Tort Law Drones

Through the rest of this article, we provide a breakdown of what the Tort Law Relating to Drones Act really means for drone operators and share Turner’s insights on the proposed legislation.

What is the Tort Law Relating to Drones Act?

The Tort Law Relating to Drones Act seeks to establish liability with the drone operator for damages associated with trespass by drone, violations of privacy by drone, and negligent operation of drones.

The Act was proposed by the ULC in June 2018 and has been undergoing review and revision since then. The ULC proposes model legislation but does not have the power to turn it to law. Once they’ve agreed on a final draft of the Act, they will recommend it for adoption in each state.

Why Was the Prior Draft Problematic?

A major concern with the prior draft of the Act was that it would have drawn an arbitrary 200-foot line in the sky beneath which drones would be banned unless the operator gained permission from private property owners.

The proposal that the mere presence of a drone of any size for any period within 200 feet over private property (or any structure on it) would cause a per se injury was, of course, appalling to the drone industry. Had the ULC maintained this approach, the Act would have run counter to existing federal law and gone against preemption principles.

When the drafting committee last met in Detroit, MI during October of last year, they agreed to revise their proposal with greater consideration for drone operators. This was largely due to the criticisms voiced by drone industry leaders such as DJI and PrecisionHawk (see the letter they penned outlining the problems with the proposal).

“To the credit of the ULC and the drafting committee, they took our concerns very seriously in Detroit. The committee voted to change direction and instead of pursuing the per se ban below 200 feet, decided to adopt a structure that was much more consistent with traditional aerial trespass torts,” said Turner.

What Changes Has the ULC Made to Improve the Act?

The per se rule that would have prevented drones from flying below 200 feet is now completely absent from the new draft, and the ULC has proposed a new approach to handling trespass and privacy violation scenarios involving drones.

The ULC has decided to adopt a structure that is more consistent with traditional aerial trespass torts. Turner explains this in simplified terms:

“What that means is the way that aerial trespass has been traditionally understood is the overflight must substantially interfere with the use of the land below. As a committee, there was a vote taken that they would adopt a structure that was more along these lines, and would recognize an aerial tort for unmanned aerial vehicles that incorporates that substantial interference concept.”

The revised draft gives courts some guidance about what factors they should consider when deciding whether or not there’s been an aerial trespass by a drone. These include:

  • The amount of time the drone was operated over the landowner’s property
  • The altitude at which the drone was operating
  • How many times the drone has been operated over the property
  • The time of day the drone was operated
  • The operator’s purpose in operating the drone over the property
  • Whether the operation of the drone caused physical damage
  • Whether the operation of the drone caused economic damage
  • Whether the drone was seen or heard while it was over the property
  • Whether the drone recorded or captured audio, video, or photographs
  • Whether the landowner has regularly allowed operation of drones over the property

The Act also includes landowner responsibilities. These include the landowner’s responsibility to refrain from taking action to interfere with the flight of a drone over their property and the landowner’s cooperation in allowing the operator to retrieve his drone in the case of a forced landing.

“Ensuring that drone owners have the right to get their equipment back is a step in the right direction,” said Turner regarding the changes made to the most recent draft.

Ultimately, this new version of the Act does a much better job of protecting landowners without overly restricting drone operators.

“Our concern from the beginning has been ‘how do we make sure that landowners are protected against pernicious operations, while also not overly restricting the development of legitimate, life-saving, and convenience-advancing uses of drones?’ And I think this draft is a huge step in that direction. We’re cautiously optimistic going into Washington, knowing that this is a pretty good draft compared to where we were before,” said Turner.

Some Issues Still Remain Going into The ULC’s Upcoming Meeting

While the latest draft of the Act has made substantial improvements in regards to how it handles trespass by drone, there are still some lingering issues regarding how the ULC approaches privacy violations by drones and negligent operation of drones.

There are federal laws already existing that regulate and enforce action against negligent drone operation. Plus, there is a multitude of state laws that protect the privacy of persons and their property. With laws already in place to handle these issues, drone-specific privacy laws are unnecessary.

“We generally take a position that technology-specific restrictions, or technology-specific requirements, aren’t the best way to go. And that, especially when it comes to drones, there are a lot of existing laws, most with respect to privacy as with respect to negligence generally, that already apply to the operation of unmanned aircraft systems. You don’t need to have, and it’s in fact counterproductive to have, special rules or regulations that apply just to drones or to any one kind of technology,” said Turner.

A better approach would be for states to make clear that their existing privacy laws apply to drones and that drone operators are not exempt from generally applicable negligence standards.

Drone Regulations Will Continue to Evolve

The ULC addresses real concerns of land and property owners. There are certain types of drone operations that might be dangerous, and no one in the drone industry wants to see someone or someone’s property damaged by those types of operations.

As drone regulations continue to evolve, the FAA will continue to be the sole regulator of the national airspace and carry the responsibility for ensuring drones are operated safely. The ULC’s Tort Law Relating to Drones Act opens up discussion about states’ ability to take action against operators of drones who violate existing trespass, privacy, and negligence laws.

Moving into the ULC’s meeting this week, March 1-2 in Washington D.C., there will be much to discuss regarding the implementation of the Tort Law Relating to Drones Act. Share your thoughts on the revised draft in this thread on our community forum.

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