Drones flying over your property can be annoying, but is it illegal? As most legal answers go, it depends. While the laws aren't crystal clear in this area, one thing is: As recreational and hobbyist use of drones has increased over the years, so have complaints from people concerned about their privacy and property rights. In response, local and state governments have stepped in to address certain uses that interfere with privacy rights and create public safety concerns.
This article will discuss how state and local criminal laws play a role when it comes to operating recreational drones—also called unmanned aircraft systems (UAS) and unmanned aerial vehicles (UAV).
Although not discussed here, an operator might also be in violation of federal rules and regulations. If called to an incident, local law enforcement can take note of any federal violations (such as failure to register a drone) and report the violations to the FAA.
Figuring out what rules and laws apply to the recreational flying of drones can be a daunting task. Federal, state, and local laws all interact in this area.
Federal law (the Air Commerce Act) gives the U.S. government exclusive control over navigable airspace, through which the public has a right to travel. Federal law preempts (trumps) state and local laws when it comes to the regulation of airspace, such as restrictions on flight altitude or paths or requirements for aviation training.
State and local officials traditionally have the authority to make laws that protect public health and safety—also known as "police powers." When it comes to drones, states and local governments can generally enforce laws that prohibit criminal acts, such as trespass, privacy invasion, and harassment, or that regulate zoning and land use, without overstepping their bounds (into federal preemption areas).
Because a person's first point of contact regarding a drone complaint will likely be the local authorities (and not the feds), this article focuses on common state and local violations.
With some exceptions, federal law doesn't restrict flying over another's property. However, drones pose two primary public health and safety concerns when flying over (or near) another's property, which means state and local laws may come into play.
Drones can malfunction and fall from the sky or crash into something, creating public safety concerns. Another issue is privacy: Drones have cameras on them that allow the operator to see where it's going, but these cameras may also see into bedroom windows or backyards. To address these concerns, states and local governments have taken a number of steps, which include enacting criminal trespassing and invasion of privacy laws directed at drone use. Even if a state doesn't have drone-specific laws, their general trespassing and privacy laws may apply.
A person trespasses by entering another's property without consent or permission. Typically, trespassing only becomes a crime if the trespasser knew they didn't have a right to enter (such as through a verbal warning or clearly posted signs) or if they remain on the property after learning they're not welcome. So if you decide to fly a drone over your neighbor's yard and the neighbor tells you not to, another unauthorized flyover could mean criminal trespassing charges should that neighbor contact the police.
Several states have enacted laws specifically addressing trespass by drone use. For instance, Virginia makes it a class 1 misdemeanor to knowingly fly a drone over another's property or within 50 feet of another's dwelling after receiving notice to stop such drone use. (Va. Code. § 18.2-121.3 (2022).) Utah has a similar law but it also provides that a fence provides sufficient notice against entering another's private property by land or air. (Utah Code § 76-6-206 (2022).)
Many states also prohibit the recreational operation of drones over certain public and private properties, including prisons, critical infrastructure areas, sporting events, concerts, or other large outdoor venues. In a similar vein, certain states now have laws making it a crime to fly a drone over an area where first responders are actively engaged. These situations might range from natural disasters and wildfires to car accidents or crime scenes. These provisions can sometimes be found in trespass laws or obstruction laws. Delaware, for instance, makes knowing use of a drone over any active first responder incident an unclassified misdemeanor for a first offense. (Del. Code tit. 11, § 1334 (2022).)
Quite a few states have addressed the use of drones in their privacy-related criminal laws, including as forms of harassment, stalking, invasion of privacy, voyeurism (peeping Tom), and unlawful surveillance. Here, the laws focus on the defendant's intent. West Virginia, for instance, makes it a misdemeanor to intentionally operate a drone to harass someone or to capture or view images that invade a person's reasonable expectation of privacy. (W. Va. Code § 61-16-2 (2022).)
You can violate privacy laws even if you don't fly over another's property. Flying a drone on your own property can still violate the law if you knowingly focus the camera toward your neighbor's bedroom window or hover at a vantage point with the intent of stalking or harassing another. Some states include these privacy-related violations in protection or restraining orders, which can lead to additional charges. (Del. Code tit. 11, § 1334 (2022).)
Shooting down a drone—even one that is not legally over your property—could lead to some serious criminal charges. You might also be liable for the cost of replacing the damaged drone.
Federal law makes it a crime to shoot down an aircraft, and drones technically qualify as aircraft. (18 U.S.C. § 32 (2022).) Shooting down a drone can also violate local ordinances prohibiting discharging of a firearm within city or municipality limits. Or you could be charged with state crimes, including reckless discharge of a firearm, disorderly conduct, or disturbing the peace. Police might also charge you with intentional destruction of property.
Claiming defense of property would likely fail as shooting at a drone isn't a reasonable and proportional response (unless it were armed) to the property intrusion. And if you brandish the gun in any way against the operator, you could face menacing or assault charges.
What's a better way to address the issue? Talk to the operator of the drone and ask them to stop flying over or near your property. Tell the operator that you plan to call the police if they continue to trespass. (Remember, under most trespass laws, the alleged trespasser must be on notice of their offense and given the chance to leave before charges can be filed.) If you're not comfortable speaking with the operator or you feel threatened, contact the police.
If you're facing criminal charges for a drone-related incident, contact a criminal defense attorney. Many of the charges above are misdemeanors and might seem minor, but any criminal conviction can stay on your record and follow you for a long time.
If you have questions regarding where you can fly your drone or if someone can fly a drone near or over your property, check out the FAA website or B4UFLY app. You will also want to check out state and local regulations. Your city or county administrator may be able to assist you.
If you believe someone is harassing or threatening you or invading your privacy, contact the police department.