Drones and the Future of Public Space

In United States v. Causby, the Supreme Court conceptualized airspace as a “public highway.” In the same decision, the Court recognized that landowners must be able to “exercise exclusive control of the immediate reaches of the enveloping atmosphere” in order to exercise full enjoyment of their property. The precise boundaries of public and private space have always been contested; however, the lack of clear legal definition of “public space” is increasingly problematic given the growing availability and use of drones.


How should the law conceptualize “public space” in relation to drones? Do drones present legitimately new issues for “public space” jurisprudence, or do they simply present issues of scale? Are there micro-airspaces surrounding individuals and special places that merit the recognition of an increased private interest in airspace? In what contexts should the law privatize or enclose portions of the “public highway” in favor of protecting privacy rights? How can the law reconcile a largely public airspace with diverse privacy expectations on the ground? Should there be restrictions on the use of thermal, infrared, millimeter, or other advanced sensor technologies in the airspaces around public and private spaces? And, to what extent can local and state authorities develop or effect tailored regulations surrounding personal and commercial use of airspace?