Why someone can fly a drone over your house in New Jersey and why there's nothing you can do about it

That air above your house — who owns it? Is it you, or can your neighbor fly a drone over your home?

Are drones an invasion of privacy — and can you defend yourself against one?

These questions are popping up in New Jersey and elsewhere across the country in this, the era of the unmanned aerial vehicle. 

In the state Legislature, elected officials are advancing a law which would limit how law enforcement uses drones to catch criminals – and would also ban putting guns or other weapons on the unmanned aircraft in New Jersey.

Recently, in Cape May, a man allegedly shot down a drone flying over his house – and was charged criminally. The Federal Aviation Administration told NJ Advance Media that is perfectly legal to fly private drones over private houses, and the agency is working on a full set of regulations expected next year.

"The FAA does not prohibit flying model aircraft over a private residence unless it is operated in an unsafe manner," they said in a statement last week. "Local and state privacy and nuisance laws may be applicable in these cases." 

These are just the first forays into the wild blue yonder in the age of drones, large and small. As the technologies get better and cheaper, the laws in New Jersey and across the rest of the U.S. will struggle to catch up with the changing nature of privacy and security, say legal experts.

“Traditionally, you don’t have privacy for things that are open to public view,” said David Opderbeck, the director of the Gibbons Institute of Law, Science and Technology at the Seton Hall School of Law. “It may be the case now that you can’t expect those places to be private any more.”

“The genie is out of the bottle,” said Bernard Bell, a professor of law at Rutgers Law School.

The case of a Cape May man who allegedly downed a drone over his house became the talk of the nation for a few days in September. Russell Percenti, a 32-year-old from Lower Township, was arrested and charged with possession of a weapon for an unlawful purpose and criminal mischief for the incident on Sept. 26, authorities said. Percenti is accused of using a shotgun to blast a multicopter flying around his home on Seashore Drive, they added.

“The charge speaks for itself,” said Robert Taylor, the Cape May County Prosecutor. “The evidence just seemed to indicate the user was photographing a friend’s house.”

The operator of the drone was not charged, Taylor said.

“We don’t have a basis to charge by FAA regulations or anything,” the prosecutor added.

The state Attorney General’s Office agreed, saying it has no regulations in place to charge in such situations.

“There are not any AG directives or guidelines on drones — or shooting down drones,” said Peter Aseltine, the office spokesman.

Percenti, who made bail shortly after the incident, could not be reached for comment.
 
As it stands, a drone can be flown almost anywhere in the country. The FAA issued a series of regulations in July which outlined impermissible uses of unmanned model aircraft, focusing on “the safety of the national airspace system,” particularly near airports and over large crowds of people like at national sporting events.

But a list of “dos” and “don’ts” also issued over the summer doesn’t say anything beyond keeping away from airports and manned aircraft. The federal agency is expected to issue full drone regulations by the end of 2015. Until then, local governments hold sway with possible nuisance laws, they added.

Local governments have grappled with the question, as the feds work out their laws. Last month a New Jersey State Assembly subcommittee advanced a bill limiting the use of drones by law enforcement and fire departments.

The bill also proposes to specifically prohibit any weapons to be attached to drones in the future. The state Legislature passed a similar bill late last year which would have limited the use of drones in the Garden State – but it was pocket vetoed by Gov. Chris Christie in January.

As it stands, anything visible from the air is not subject to privacy, said Bell, of Rutgers. A series of Supreme Court decisions gradually whittled down traditionally-held case law that private property extended below ground and straight up into the air.

The shrinking of the vertical property line started with the 1946 Supreme Court decision U.S. v. Causby – which ruled that a chicken farmer’s airspace was a “public highway" that planes could continue to fly through. In three decisions in the 1980s, the nation's highest court found that aerial views made by law enforcement and public agencies did not require warrants – and the property owners did not have any expectation of privacy, even within their fences.

“There is no Fourth Amendment expectation of privacy for matters that can be viewed from airspace the public may legitimately use,” Bell said.

The NJ Supreme Court has occasionally referenced a "more robust" expectation of privacy under the state constitution, Bell added – but the state’s highest court has so far remained silent on the topic.

In the meantime, the American Civil Liberties Union says it is monitoring the drone regulations in each state.

"It's important that legislatures deal with this now, before we have a mess on our hands," said Ari Rosmarin, the public policy director of the ACLU in New Jersey. "Drones in our airspace are not far away. They're here now. We're only going to get more and more of them."

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