Published in the Idaho State Bar Advocate Magazine, Mar/Apr 2015.
by Arthur B. Macomber
In Idaho, regardless of the lawful geographic position of the drone operator, Idaho law prohibits the flying of drones1 into properly posted private property airspace without permission of the title owner or possessor of that airspace.2
In Idaho, real property includes land3 and land includes airspace.4 Rights in and limitations on the use of airspace in Idaho are governed by state statute and federal law, the latter through the commerce clause of the U.S. Constitution.5 However, in Idaho Code “Flight in aircraft over the lands and waters of this state is lawful. . . ,” which implies a person inside the aircraft, not flight of a remote-piloted drone.6
This article discusses possible actions damaged individuals may have against drone operators: both civil and criminal trespass, 7 and violations of privacy rights. It first discusses, however, the pertinent state and federal law governing drones.8
Drones are aircraft
Both Idaho and federal law include drones in the definition of aircraft. Idaho statutory definitions of the word “aircraft” differ depending on which chapter of Title 21 is consulted.9 Idaho Code section 21-101(b) definitions are only “as used in this chapter,” so it makes sense the definition in Chapter 2 should control interpretation of the legislature’s intent related to unmanned aircraft systems, because the only section of Idaho law related to such systems is in that Chapter 2.10 Therefore, Idaho statutes likely include unmanned aircraft systems as “aircraft” because they are for “navigation of or flight in the air,” by “any contrivance” known “or hereinafter invented” for flight not used primarily as safety equipment.11
This interpretation is supported by the Idaho Code definition of “unmanned aircraft system” as “an unmanned aircraft vehicle, drone, remotely piloted vehicle, remotely piloted aircraft or remotely operated aircraft that is a powered aerial vehicle that does not carry a human operator, can fly autonomously or remotely and can be expendable or recoverable.”12
The Federal Aviation Administration now includes unmanned aircraft systems within the definition of the term aircraft.13 A November 18, 2014 NTSB Opinion and Order stated “the clear, unambiguous plain language of 49 U.S.C. § 40102(a) (6) and 14 C.F.R. § 1.1: an ‘aircraft’ is any ‘device’ ‘used for flight in the air.’ This definition includes any aircraft, manned or unmanned, large or small.”14 Thus, a plain reading of Idaho and federal law includes unmanned aircraft in the definition of aircraft.15
Common-law tort damages and drones
Flight in Idaho is lawful unless it interferes with an owner’s existing use or is imminently dangerous to persons or property.16 “Imminently dangerous” would likely include the operation of an unmanned vehicle that could strike a person.
For instance, an NTSB Order acknowledged
the aircraft [flew], inter alia, ‘directly towards an individual standing on a . . . sidewalk causing the individual to take immediate evasive maneuvers so as to avoid being struck by [the] aircraft’; ‘through a . . . tunnel containing moving vehicles’; ‘under a crane’; ‘below tree top level over a tree lined walkway’; ‘under an elevated pedestrian walkway’; and ‘within approximately 100 feet of an active heliport.’ 17
Certainly, it would be imminently dangerous in Idaho if a person could be in a moment physically struck by a flying drone.
Flight could be unlawful in Idaho if “imminently dangerous” were more expansively defined to include causation of tort damages to a privacy right. In an age of identity theft and cyber warfare, imminent danger to multiple personal and property interests may occur if one’s privacy is violated.
In Idaho, owners or operators of aircraft operated over the lands or waters “shall be liable for injuries or damages to persons or property on or over the land or water beneath, caused by . . . flight of aircraft . . ., in accordance with the rules of law applicable to torts on land in this state.”18
Reading the plain language, injuries to persons or property likely means physical injuries. Conversely, the statutory inclusion of the additional word “damages” indicates more than physical injuries are contemplated. Arguably, damages to persons includes tort damages pursuant to an argument that a privacy right has been violated.19 Violations of privacy rights may occur, whether a physical entry trespass to the property of another occurred. Physical entry trespass is conceptually familiar, so it is discussed first.
Trespass in Idaho
“Trespass is a tort against possession committed when one, without permission, interferes with another’s exclusive right to possession of the property.”20 Private owners suffering unlawful entry can sue for a civil trespass,21 or they can call the police and press charges for criminal trespass. 22 A trespasser is “a person who goes or remains upon the premises of another without permission, invitation or lawful authority. Permission or invitation may be express or implied.”23 The difference between a civil trespass and a criminal trespass depends on whether a criminal statute clearly mandates indictment, fine, and or imprisonment for those defined acts.24 If the criminal statute’s plain language mandates punishment for trespass, it is criminal trespass.25
Idaho’s criminal statutes define “entering” real property to mean “going upon or over real property either in person or by causing any object, substance or force to go upon or over real property.”26 “Causing any object” likely includes causing a drone to fly. Entering the property of another without permission and with notice as given by conspicuous posting is a misdemeanor.27 Pertinently, the 2014 Idaho aeronautics privacy statute does not require entry.28 Statutory trespass requires the interloper “enter upon the real property,” and it is unlikely the word “upon” includes flight.29
Thus in general, an Idaho private property owner can bring common-law and statutory action for civil trespass, or notify the police that a criminal trespass has been committed if a non-owner causes an unmanned aircraft to enter the owner’s airspace. However, a dispositive finding by an Idaho court whether civil or criminal trespass occurred may only be reached by determining whether the non-owner unmanned aircraft operator was exercising a “right of flight.”30
Civil trespass and drones
Since property in Idaho includes the air space above it, a person flying a drone into airspace owned by another without permission is trespassing, subject to the right of flight. If a person without permission enters the real property of another with notice that such entry is a trespass, “and nonetheless continues his trespass, the landowner plaintiff may be entitled to punitive damages.”31 Therefore, while the definitions of “permission” and “entry” will refine the issue, flying a drone into private property airspace should initially be analyzed as a common-law tort.
Criminal trespass and drones
Idaho’s criminal statutes define criminal trespass using essentially the same criteria of entry to property without permission from the owner, where the person entering has notice of the property boundary and thus will be trespassing.32 However, Idaho criminal statutes, while including only entry without permission to posted property to be prosecutable as trespass,33 usually require some form of damage to be done to the real or personal property found past the posted boundary.34
An interesting question is whether a court would limit a complainant to the remedy in the aeronautic statutes for unlawful drone flight to a privacy tort civil action,35 or whether it would use the definition of “entry” in Idaho Code Section 6-202A to find a civil trespass.36 Both civil and criminal trespass statutes define “entry” to include “objects” going “over real property.”37 It is unlikely a court would simply use the definition of “entry” from either civil or criminal trespass statutes for an aeronautics privacy tort violation by a drone because the trespass statutes clearly limit the use of that definition to the specific type of trespass alleged.38 Good legal counsel will not second guess a court, but will plead trespass and in the alternative a tort violation to cover all the bases.
Privacy and drones
Certain uses of unmanned aircraft in Idaho are prohibited without “written consent,” even if entry into the airspace owned by another does not occur.39 These activities, “absent a warrant,” (except for emergency responses for health and safety), include surveillance of persons or property, gathering evidence or information about a person or property, “photographically or electronically record[ing] specific [ ] persons or specific [ ] private property is a dwelling, “farm, dairy, ranch or other architectural industry.”40
Thus, even if an unmanned aircraft system operator in Idaho stands on a public street where she is legally allowed to be, she cannot fly her unmanned aircraft in the air above that public street to watch specific persons or specific private property that may abut that public street without written consent of the persons being watched or the property owner.41 For this reason, the statute as written is overbroad because it prohibits photographic aerial capture of then-presently occurring “constitutionally-protected speech activity, such as protests, speeches, or rallies.”42
In short, the Idaho aeronautics statutes protect individual privacy interests by allowing a civil cause of action, instead of merely barring trespass using aircraft through physical entry.43 The statute includes language stating it applies “absent a warrant,” mentions a private dwelling’s curtilage,44 while ignoring the U.S. Supreme Court’s “open fields” doctrine.45 By ignoring the open fields doctrine, Idaho statutes protect privacy interests more strictly than does the United States Constitution’s Fourth Amendment, which only protects “people and not places.”46 Idaho law may over-protect privacy, whether privacy is defined as the privacy of persons, or the privacy of their activities, whether such activities are on private property or not.
Idaho property owners’ rights to exclude others can be enforced by actions for common-law or statutory civil trespass, but posting private property is encouraged to retain the enforcement using prosecutorial causes of action for criminal trespass and to remain a good neighbor.47 Trespass by physical entry may be found if unmanned aircraft enter private airspace, but even without entering private airspace, privacy rights of individuals and their activities is protected from snooping operators of such drones.
- Idaho Code § 21-213(1)(a). Idaho statutes call drones “unmanned aircraft systems.”
- Idaho Code §§ 21-213; 6-202; 6-301; 6-302; and 6-303. Both fee simple private and public owners and lessees have exclusionary and privacy rights in real property. Idaho Code §§ 21-203; 55-101; 55-101A; 6-202; 6-301; 6-302; 6-303; 18-7008; and 18-7011.
- Idaho Code § 55-101.
- Idaho Code §§ 55-101A; and 21-203 (“ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath, subject to the right of flight”).
- Idaho Code §§ 21-203 (“right of flight”); 21-204 (“flight in aircraft” implies a person inside such aircraft; versus “flight of aircraft.”); 49 U.S.C. §§ 106 (authorizes F.A.A.), and 40101(a)(6) – (12), inclusive, et seq. (policy related to benefits of federal regulation to interstate commerce); U.S. Const. Art. 1 §§ 8, 9 (commerce clauses); see Roark v. City of Caldwell, 87 Idaho 557, 394 P.2d 641 (1964) (state and federal statutes regarding use of airspace must be read in conjunction with each other).
- Idaho Code § 21-204 (emphasis added).
- Idaho Code §§ 21-213(3(a); 6-202; 6-301; 6-302; 6-303; and 18-7008.
- Idaho Code § 21-213(2).
- Idaho Code §§ 21-101 (“navigation of or flight in the air for the carriage of pilots or passengers”), as amended by S.L. 2013, ch. 107 § 1 (Jul. 1, 2013) (emphasis added); 21-201 (“navigation of or flight in the air” not necessarily for carriage, and excepting safety equipment); and 21-701 (more general: no carriage or safety equipment in definition).
- Idaho Code § 21-201(a) (“‘aircraft’ means any contrivance now known or hereafter invented, used, or designed for navigation of or flight in the air, except a parachute or other contrivance designed for such navigation but used primarily as safety equipment”).
- Idaho Code § 21-213(1)(a); S.L. 2013, ch. 328, §1, eff. Jul. 1, 2013.
- Huerta v. Pirker, NTSB Docket CP-217, Op. and Order No. EA-5730, p. 12 (Nov. 18, 2014).
- Roark v. City of Caldwell, 87 Idaho 557, 562, 394 P.2d 641, 646 (1964) (Idaho aeronautics statutes must be read “in conjunction with [federal statutes] under the commerce clause of the United States Constitution, as interpreted by the Supreme Court of the United States.”
- Idaho Code 21-204. This article does not address whether a violation of an owner’s privacy pursuant to Idaho Code § 21-213 constitutes an interference with the exercise of a residential or commercial right to use real property.
- Huerta v. Pirker, NTSB Docket CP-217, Op. and Order No. EA-5730, p. 2 (Nov. 18, 2014).
- Idaho Code § 21-205.
- Idaho Code § 21-213(3).
- Walter E. Wilhite Revocable Living Trust v. Northwest Yearly Meeting Pension Fund, 128 Idaho 539, 549, 916 P.2d 1264, 1274, (1996); see Jaquith v. Stanger, 79 Idaho 49, 54, 310 P.2d 805, 808 (1957).
- Idaho Code §§ 6-202; 6-301; 6-302; Idaho Civil Jury Instruction 3.19.1 – Trespasser, definition; and 4.40 – Trespass –issues.
- Idaho Code § 18-7008, 7011.
- Idaho Civil Jury Instruction 3.19.1.
- U.S. v. Briggs, 50 U.S. 351, 355 (1850) (cutting any timber on protected lands, “whether reserved for naval purposes or not” is an act “clearly indictable” using plain language reading of statute).
- Idaho Code § 18-7011(1) (“as used in this subsection and in section 18-7008”).
- Idaho Code § 21-213.
- Idaho Code § 6-202.
- Idaho Code § 21-204.
- Weaver v. Stafford, 34 Idaho 691, 700, 8 P.3d 1234, 1243 (2000); see Aztec Ltd., Inc. v. Creekside Inv. Co., 100 Idaho 566, 570, 602 P.2d 64, 68 (1979).
- Idaho Code § 18-7011.
- Idaho Code § 18-7008(A)(9).
- Idaho Code § 18-7008(A)(1) (cutting timber); (A)(4) (digging or taking away materials); (A)(6) (destroying fencing); (A)(10) (killing the owner’s dog).
- Idaho Code § 21-213(3).
- Idaho Code § 6-202A.
- Idaho Code §§ 6-202A; 18-7011(1).
- Idaho Code §§ 6-202A (“as used in section 6-202”); 18-7011(1) (“in this subsection and in section 18-7008, Idaho Code”).
- Idaho Code § 21-213(2).
- Id. at (2)(a)(ii).
- Jeremiah Hudson and Nick Warden, Narrowing the Drone Zone: The Constitutionality of Idaho Code § 21-213, The Advocate, Sept. 2014, at 23, 25 (Idaho Code § 21-213 may be overbroad).
- Id. at (2)(a)(i).
- State v. Beck, 2014 Op. No. 82 (Idaho Ct. App. 2014) (citing Oliver v. United States, 466 U.S. 170, 180 (1984) (“curtilage’ is “the land immediately surrounding and associated with the home”)).
- Id. (citing Hester v. United States, 265 U.S. 57, 59 (1924) (special protections of the Fourth Amendment are “not extended to the open fields”)).
- Id. (citing Katz v. United States, 389 U.S. 347, 351 (1967) (an individual within a phone booth had a reasonable expectation of privacy from outside listening devices, because “the Fourth Amendment protects people, not places”)).
- Robert Frost, Mending Wall (1914).
About the Author
Arthur B. Macomber is the managing attorney for Macomber Law, PLLC. His undergraduate degree in business was accomplished at George Fox University. Prior to attending the University of California Hastings College of the Law, he enjoyed 25 years in business, real estate, and construction. Macomber Law, PLLC focuses on real property, land use, water, and construction law.