Amazon Clarifies Position on ULC Trespass Draft; Heritage Foundation Supports

The battle to define drone tort law continues with drone advocates ramping up more opposition to a proposed draft law being considered by the Uniform Law Commission’s Tort Law Relating to Drones Drafting Committee.

The draft proposal would define conditions under which a property owner may sue a drone operator under civil tort law – a tort being “an intentional or negligent act which harms another person.”

The ULC draft seeks to clarify if “whether an intrusion into [the airspace 200 feet above someone’s land] would be found to be an entry [trespassing] into the immediate reaches of the landowner’s airspace.” The proposal would create a “per se aerial trespass” doctrine, which states:

“A person operating an unmanned aircraft is liable to a landowner or lessee for per se trespass when the person, without consent, intentionally causes the unmanned aircraft to enter into the airspace below 200 feet above the surface of land or below 200 feet above improvements built upon the surface of the land.”

In short, a landowner could sue a drone pilot for flying a UAV over their property unless the purpose of the flight is “protected by the First Amendment,” involves public safety flight, or flights deemed “valid easement, right of way or license.”

The Commercial Drone Alliance is leading the dissent and has sent a statement to the ULC committee noting:

“By creating such a “No Fly” zone for drones up to 200 feet, the draft Act is at odds with the federal government’s exclusive role in regulating matters of aviation safety and its authority to regulate airspace use. It would also create a patchwork of state laws that would stifle the growth of the commercial drone industry and slow innovation. As currently written, the draft Act would prohibit many of the tremendous benefits of drone use our organization promotes by businesses, non-profits, academics and more and would restrain an industry that has the potential to inject billions of dollars into the U.S. economy.”

This week Amazon – a leading innovator in delivery drone tech – released its own letter of opposition and clarified that – contrary to some interpretations, the company had never supported the draft.

Nested within the draft is a portion of testimony that seemingly supports the ULC’s position made earlier by John Griffin (purported to be an Amazon employee). The section states:

“Practical reasons for selecting this altitude include the fact that at least three states have adopted altitude limits higher than adopted in this Act, including one state (Nevada) where a leading drone package delivery company testified in support of legislation that featured a 250-foot altitude limitation.”

“We ask for removal of sections in the draft that mischaracterize Amazon’s support for the proposal. Amazon does not support a line in the sky concept,” the company’s letter states.

“The cited testimony, which was provided by a consultant for Amazon, not an Amazon employee, was in support of state legislation that exempted commercial operations authorized by the FAA from the 250 feet limitation in the Nevada law. Because the ULC draft does not include a commercial exemption and thus does not reflect the context in which this testimony was given, we ask for this citation to be removed.”

Meanwhile, conservative think-tank The Heritage Foundation came out in support of the ULC draft.

Calling the draft “a thoughtful measure intended to support the development of the Unmanned Aircraft Systems (UAS) industry,” the foundation claims the law would also respect the “traditional right of a property owner to exclude unwanted intruders from their property.”

“A bright line aerial trespass standard balances the interests of the nascent UAS sector with the traditional rights of property owners to exclude unwanted intruders from their property. The alternative—reliance on manned aviation’s ill-fitting aerial trespass doctrine—will result in unpredictable and skewed outcomes, cumbersome and costly litigation, and may prompt a reactionary public response that would hinder the development of the UAS industry and deprive the public of the myriad benefits this technology has to offer.”

However, in an earlier analysis, attorney and drone pilot Andrew Elefant counters the draft will only create more confusion and red tape.

“There is nothing uniform about legislation that allows property owners to make the airspace above their property a de facto no-fly zone. This will inhibit the commercial industry and put people back in harm’s way doing jobs that are dull, dirty and dangerous.”