California's Drone Trespass Bill Is Great, Except For One Fatal Flaw
California State Senator Hannah-Beth Jackson (D-Santa Barbara) has introduced an innovative drone trespass bill. The bill is a good start, unfortunately as drafted, it won’t work. SB 142 purports to prohibit the unauthorized use of unmanned aerial vehicles in airspace directly over private property, but the devil is in the details — and this bill will be unenforceable if enacted as drafted.
At the outset, let me say I love the idea of extending property rights in airspace. In fact, I proposed something similar in this Brookings paper “Drones and Aerial Surveillance: Considerations for Legislators” which is a short version of this forthcoming work. The problem with Senator Jackson’s proposal is that it does not define the airspace right (as I argue it must), instead it makes reference to “navigable airspace.” Here is the language the bill uses:
"(a) A person knowingly enters onto the land of another person … if he or she operates an unmanned aerial vehicle below the navigable airspace, as defined in paragraph (32) of subsection (a) of Section 40102 of Title 49 of the United States Code, overlaying the property. (b) A person wrongfully occupies real property and is liable for damages… if, without permission, he or she operates an unmanned aerial vehicle below the navigable airspace, as defined in paragraph (32) of subsection (a) of Section 42102 of Title 49 of the United States Code, overlaying the real property."
So in layman’s terms, if you’re flying a drone over someone’s property, and below “navigable airspace” as that term is defined in Federal law, you’re trespassing in California.
This sounds great, but it’s destined to fail for three reasons...