/Protecting Yourself from Amazon Violating Your Air Rights and Privacy by Drone Trespassing

Protecting Yourself from Amazon Violating Your Air Rights and Privacy by Drone Trespassing

Amazon is planning to launch delivery by drone “within months” and announced it could send 75% to 90% of its packages by drone. The Associated Press reported that the FAA, the regulator of commercial drones, did not respond to a request for comment, but the article noted that the agency had given Google the go-ahead for drone delivers in parts of Virginia.

In reality, Amazon’s drone delivery scheme is never going to amount to much. Drones are costly, fragile and tempting to hackers. More important, they won’t be cost competitive with existing delivery mechanisms that already move huge volumes of packages. The drone project is an exercise in image-burnishing which if Amazon is very lucky might goose the stock price a tad. It’s realistic only for delivering to places that don’t allow cars, like Mackinac Island or as a gimmick to land a package on a squillionaire’s doorstep rather than at the gate of his estate.

The Verge makes clear that Amazon isn’t as far along as its patter would have you believe:

More significant than the specs, though, was Amazon’s vagueness about when, where, and how this technology will be made available to customers. Wilke told the audience at Re:MARS: “You’re going to see it delivering packages to customers in a matter of months.” But the company has not yet selected a location for this early service.

“Our objective is to have a certified commercial program that will allow us to deliver to customers, and that’s what we’re working towards in the coming months,” Wilke told reporters a press briefing.

Amazon is hoping to get FAA approval for the design though. As Wilke told Bloomberg, the entire drone is built either from FAA-approved parts or designed with approval in mind. “We’re not telling the FAA, hey, here is something new that you’ve never seen before,” he said. “We’re saying, this is an airplane that’s built to exacting aerospace standards.”

It’s worth remembering that Amazon doesn’t have a great track record when it comes to meeting its deadlines in this area. The company first announced plans for Prime Air all the way back in 2013, but soon ran into problems with logistics and regulations. Then in 2016, it said it had made its first successful drone delivery to a customer in Cambridge, England. But that proved to be a one-off stunt rather than the beginning of a regular service.

However, since Amazon wants the great unwashed public to accept its PR at face value, let’s tease this idea out. In its usual tech bro disregard for the law, Amazon appears to believe it can violate the rights of property owners and their renters en masse. Drones may encroach on FAA controlled air space, and communicating with them in theory could interfere with airline communications, hence the reason for the agency’s interest.

However, drone deliveries would also violate the air rights home owners and renters all over the US. The extent of property-owner airspace is a grey area but it has been litigated in paraglider cases. A quick and dirty recap from Slate in 2013:

Before the advent of air travel, landowners owned an infinitely tall column of air rising above their plot. (The Latin doctrine was Cujus est solum ejus usque ad coelum, or “whose is the soil, his it is up to the sky.”) In 1946 the Supreme Court acknowledged that the air had become a “public highway,” but a landowner still had dominion over “at least as much of the space above the ground as he can occupy or use in connection with the land.” In that case the court held that a plane flying just 83 feet in the air—the commotion was literally scaring the plaintiff’s chickens to death—represented an invasion of property. The justices declined to precisely define the height at which ownership rights end. Today, the federal government considers the area above 500 feet to be navigable airspace in uncongested areas. While the Supreme Court hasn’t explicitly accepted that as the upper limit of property ownership, it’s a useful guideline in trespass cases. Therefore, unless you own some very tall buildings, your private airspace probably ends somewhere between 80 and 500 feet above the ground.

Amazon has effectively acknowledged that it will be flying its drones in the private airspace range. From the Associated Press account:

Amazon said its new drones use computer vision and machine learning to detect and avoid people or clotheslines in backyards when landing.

“From paragliders to power lines to a corgi in the backyard, the brain of the drone has safety covered,” said Jeff Wilke, who oversees Amazon’s retail business.

The “clothesline” and power lines comment are admissions by Amazon expects the drones to operate regularly at below 80 feet. The minimum height of power lines is 12 feet or 15 feet, depending on the voltage; the National Fire Protection Association recommends at least 18 feet. Per Wikipedia:

The standard utility pole in the United States is about 40 ft (12 m) long and is buried about 6 ft (2 m) in the ground. However, poles can reach heights of 120 ft (37 m) or more to satisfy clearance requirement.

Remember that as with the standard pole, part is buried in the ground and the electrical lines hang well below the top of the pole.

Again, playing out Amazon’s scenario, that instead of flying cars, we’ll have delivery drones zipping around handling most of Amazon’s traffic, what might an unhappy homeowner, or better yet, tenant renting a warehouse next to Amazon’s1 and therefore suffering from a blizzard of drones zooming overhead?

An Amazon drone using airspace without permission is trespass. And while property owners aren’t allowed to rough up trespassers (“use excessive force”), protecting property in ways that won’t harm hapless trespassers (like visible barbed wire) are fine. So shooting a drone over your property or deploying drone-frying equipment would seem to be kosher.

Now Amazon may think it can cover itself by inserting some new language in microtype in its Terms and Conditions that by using its delivery services, you have also consented to the use of your airspace for drone deliveries. But I don’t see this as enforceable in the case of using your air rights for deliveries to third parties. For a transfer of a right to Amazon, there needs to be an offer, acceptance, and consideration. Amazon isn’t giving any consideration to the air rights holder.

And that’s before getting to the wee problem…do you think local cops and courts would have any interest in defending Amazon’s perceived right to buzz homeowners to deliver toothpaste?

But let’s go further and say you wanted to sport with Amazon by being super self protective. I am sure the lawyers in the house could vastly improve on my napkin-doodle, but one could send a letter to Amazon’s general counsel warning Amazon that it is prohibited from entering your airspace, even for the purposes of making drone deliveries to you, unless they paid, say, $1000 per year, and warning them that you are not responsible for what happens to any Amazon property that impermissibly enters your airspace. You’d probably need language that this notice supersedes any prior understanding.

If you are so lucky as to dispatch a drone, I would hang onto the damaged drone and delivery. I’d wait a day or so to make sure the delivery is late before informing Amazon that they are welcome to send a live human being by to pick up their stuff if they are so inclined.

Fortunately, mass Amazon droning is highly unlikely to be part of your future. But you should be well armed in case things go that way!

1 My understanding is that renters get to exercise the air rights of the property owner during their tenancy.

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