Friday, January 18, 2013

Will Personal Drones Require Further Development of Libertarian Property Theory?

Although drones are mostly now used by the military, that is going to change in the not too distant future. Both personal drones and commercial drones will become quite common. Indeed, some personal drones are already available.

This raises the question, how should drones, from a libertarian perspective, be treated relative to private property? Should, for example, one be allowed to fly a drone into a neighbor's backyard? If a neighbor is cooking outside on a grill, can I fly a drone directly above his shoulder and monitor his cooking? If someone is swimming in a swimming pool can I buzz a drone directly over that person's head? What about a drone flying 30,000 feet above a backyard, just like airplanes do?

I do not believe that there are any libertarian discussions that have completely resolved this matter. This post is an attempt to advance the discusion.

My focus on private drones was the result of an email sent to me by Daniel Reznicek. It consisted of one sentence:
I was wondering the libertarian perspective on the public at large using drones for personal use?
My initial response was three sentences:
Tricky question, the use of drones is fine above your own land. But libertarian air space might get a little complicated. For example, how high above someone else's property must a drone fly so that it is not to be considered an invasion of private property? I don't think the answer has been hashed out. 
I am going to forward this email to Walter Block to see if he has any thoughts on the subject.
Walter Block is, of course, a libertarian scholar who tends to do work, not exclusively, but occasionally on the fringes of libertarianism applications.  In other words, a perfect scholar to hurl the question at, and so I did. He replied:
 Dear  Bob, Dan: In my book on roads, see below, I wrestled with this issue. I did so because I oppose eminent domain, it ‘twas thought that this was necessary to address the holdout problem for a private highway developer. My view expressed in this book was that the private road developer could tunnel under the holdout’s land, or build a bridge over it, so he wouldn’t need eminent domain. Thus I reject the concept of  ad coelum, which means that the landowner also owns the ground under him, to the core of the earth, and the air above him, to the heavens above. This is incompatible with the Lockean-Rothbardian concept of homesteading (the land owner didn’t homestead territory 100 miles beneath the surface, so slant drilling is justified). He doesn’t own the air 40,000 feet above him, so he may not charge a fee to airplane firms. 
 Now to answer your question: people may fly airplanes above other people’s land, high up in the sky. But, drones are in effect airplanes filled with bombs. I regard drones, then, as a clear and present danger to others. So, even if ad coelum was correct, and someone did own the air above him, he’d have no more right to fly a bomb-laden drone in the air above all of us, any more than he would have a right to store dynamite, or an atom bomb, on his own property. On the latter see this: Block, Walter and Matthew Block. 2000. “Toward a Universal Libertarian Theory of Gun (Weapon) Control,” Ethics, Place and Environment, Vol. 3, No. 3, pp. 289-298;
Now, Block here is to a great degree limiting the discussion to governemnt armed drones, and I concur with his view on armed drones. But I do not believe this answers the question with regard to personal and commercial unarmed drones.

I emailed Block again: 
Thanks for your quick reply. I am with you as far as weaponized drones. But what is your view on commercial drones and personal drones. I also get that there would be no problem with drones that are "high up in the sky," but I think the problem comes in with the commercial and personal drones, which are coming. The retailer Brookstone is already selling a personal drone. 
Will a neighbor be able to use a drone and fly it around me at shoulder level? OR will we just pick an arbitrary height where we say "above this airspace level" private property rights no longer exist?
Block replied this way, which suggests either boredom with the topic, boredom with me or a failure to understand my view that there is to date no satisfactory outline of how personal and commercial drones should be viewed from a libertarian perspective:
I answer all such questions by harking back to Lockean-Rothbardian homesteading theory. The way I see this, drones in the air will soon be followed by, Which ships have the right to use a river or ocean, as these amenities get more and more crowded. My answer: first come, first served. The people who first used these resources get a property right in them, that they can use or sell.
I agree that the question might be answered based on Lockean-Rothbardian homesteading theory and probably this is the best way to do so. But just how should such theory be applied? As Block states, a plane 40,000 feet above a homeowners backyard is not interfering with Lockean-Rothbardian homesteading private property rules. The  Lockean-Rothbardian homesteading view holds that a person must mix his labor with land to claim it as his property. Thus, a plane 40,000 feet above is not invading a person's backyard airspace, since the person has not mixed his labor with that altitude.

In his book, The Privatization of Roads and Highways  Block's answer is:
[...]if the landowner put in a three-story house, he also owns a “penumbra” of air above it, enough so as to enjoy the ordinary amenities of home ownership. This might be defined both in terms of height and number of flights of airplanes per day. The answer to the puzzle in this case would be in the thousands of feet.
But there is a problem with this view "to enjoy the ordinary amenities." Austrian economists know that enjoyment is subjective. When my son was young, I would take him to the airport and it was pretty cool to see planes just a few hundred feet above us. I'm sure if at the time, he had the option of living where planes flew low over him, he would have been in favor of it. He would have "enjoyed" it. People, in fact, do live close to airports because they like to see planes fly in close. (watch news reports after there is an incident with a plane at an airport, and you will hear from people who were out on their porches and balconies watching planes fly in and out). On the other hand, I'm sure others can be found who are annoyed at planes flying 30,000 feet above. In other words, there is no ordinary enjoyment. It is subjective. (Note, the problem of how high above a property a plane should be allowed to fly [or drone] is mostly a problem for those who are annoyed by drones or planes that fly even at very high altitudes. Since, it is no problem for those who enjoy drones flying at lower levels to grant permission for  planes and drones to enter their airspace)

So the question remains, how high must a drone stay above a person in his backyard? I suggest one answer might be that is it as high as the highest point of any structure on a person's property. If a person has a flag pole that is the highest point, then that person has mixed his labor to that altitude. If the highest point is a tree, then that person has mixed his labor to that altitude. If a person puts a huge tower (or pole) in his backyard, then he has mixed his labor to that altitude. It would be interesting to see what types of structures would be developed in a free market to keep drones at a non-menacing (to most) distance, if libertarian property rights would be recognized. But this mixture of property rights with airspace would likely only be comfortable not much beyond young boys and serious plane  (drone) fans. But still given subjective nature of enjoyment what is one to do? Some criteria must be developed.

An alternative view might be that a person mixes his labor relative to altitude by how far up a human eye can see, for example, a lit candle. A property owner lights a candle and thus, in a way mixes his labor, via the light from the candle with altitude.  According to Divio:
Under ideal conditions, the human eye can see a candle about three and a half miles out.

For a point source against a dark background, and with a fully dark-adapted human eye, the threshold for human visibility T (in footcandles) can be found by this equation:

ln T = .0828 [K ln(B)]^2 + .194[K ln(b)] - 9.73

... where B is the background brightness in nanoLamberts, and K = .4343. A perfectly dark, clear night sky will have a brightness of about 100 nanoLamberts, and this equation is valid only for backgrounds of 0.1 nanoLamberts or greater, which is essentially totally dark.

Solving this equation for T, the threshold visibility against a background of 0.1 nL gives us 5.3 x 10^-5 footcandles, which is the brightness of 1 candle at 18,792 feet, or 3.6 miles.

Allowing for atmospheric attenuation will reduce that number a bit.
Thus, using the candle measure, drones (and planes) would have to stay three and a half  miles (18,480 feet) above a backyard, unless permission to fly lower was granted by the property owner.

Note, I am fully aware that one could argue that for this "candle measure" it could be used for horizontal use as well as vertical use to capture unowned land. Thus, is this a strong enough "mixing" of labor with land (or altitude)? Should we limit the "candle measure" to altitude and not apply it to determination of horizontal land property rights? In some sense the measure we use for altitude will be arbitrary, though there would be a nice symmetry between using the Lockean-Rothbardian homesteading theory for determination of airspace property rights, but is the best alternative?

Certainly for vertical use, the "candle measure" has a certain attractiveness, since it would keep drones from buzzing immediately overhead, which would bother most of us, but probably not everyone in the world, and it seems to hold up fairly well to the Lockean-Rothbardian homesteading rule. I present this though as an opening discussion on a topic that will quickly have very practical applications as personal and commercial drones fly the skies.


  1. it would more like how tv or radio signals are handed, the interloper would have to disist, if it was causing an issue.It could be like a pet cat; if the cat walked across a back lawn then there mightn't be cause for alarm, however a cat trained to sit outside a bathroom window would be a different issue altogether.
    However since the drone is a machine,under control of someone then it would be much the same asa remote contol lawn mower that would crash through a hedge and into your flower beds. somewhat intrusive.

  2. A very perplexing problem. Suppose a woman gets a victim protective order against a former boyfriend or spouse that says he can't come within a certain distance of her but then he buys a drone with a camera and transmitter to follow her around. He can harass her without coming close to her.

    As I said, a very perplexing problem.

    1. I'm guessing this type of action would still qualify as harassment, there are cyber stalking laws as well, physical distance is just one component. Not to say that the discussion is arbitrary, or I agree with the necessity of more laws to cover such an eventuality, but in general I think the case law would cover it.

  3. I think comparing drones to airplanes is a mistake. Plane are travelling *through* the airspace above your property so some sort of homesteading is made by the airline of that airspace, I think homesteading has something about rights of thoroughfare if I'm not mistaken. In any case I think that drones could be limited by the resolution of the cameras onboard. The drone can't use a camera, realitive to the height is hovers at, to make out fine details. Personally I would like to see a free market product that would act like one-way camouflage netting.

  4. If I openly stand on my back porch every evening at 6pm and ceremoniously fire a 12 gauge shotgun straight up into the air, would I be effectively homesteading the altitude that the pellets attain at the end of their ascent? The pellets fall back to earth harmlessly I will assume?

    This mind-experiment is related to your drone question (directly).

    If so, the question becomes, shouldn't I begin this ritual immediately?

    1. In my view of Lockean-Rothbardian homesteading theory,you would be homesteading. But you would be liable for any shot that landed outside your property that damaged person or property.

      In the end, a candle is much less likely to result in liable, and it would extend your homesteading rights a greater distance into airspace than a gunshot.

    2. While my mind-experiment is not non-serious, it is a little light-hearted, in that a candle will not bring down a drone.

  5. Really? Heh. Rather than write a circumlocuos blog that states it's point in a 1000 word rant- very often I just use one sentence to paraphrase the discussion. Like who gives a shit anyway?

    Ultimately the situation will be resolved by a bunch of libtards who are smarter than we are.

  6. Gents - before you go down this road too far, know that there is a wealth of scholarship already available in the common law cases that revoked the ad coleum doctrine. The general rule is that a person's property, properly homesteaded through use, includes all ancillary rights necessary to use and enjoy such property without "physical interference", or stated similarly, the airplane inteference cannot come within the "immediate reaches" of the property. If someone, for example, puts a massive tarp 2 inches above my home that blots out the sun, I could not go on the roof to perform maintenance.

    Or if I already had a satellite and it interfered with my signal, then they interfere with homesteaded rights. I may also be using sunlight for my garden, thereby homesteading a stream of sunlight sufficient to maintain my garden (like a traditional riparian right of indian tribes to fish from rivers).

    There is no question that this is an area of libertarian theory that requires more development so the post is extremely apt, but I believe a combination of the above principles, common sense, and putting law in private hands (for example, entire neighborhoods could put their heads together to create drone free zones, like sending out disruptive electronic signals above their homes to prevent new drones from entering the airspace), and lastly and most importantly, cultural barriers/mores against invading people's common privacy.

  7. This makes me think of the Mad Men episode where Betty shoots at her neighbor's pigeons after he threatens to shoot their dog. The pigeons fly into her yard and she starts opening up on them. Pretty funny.

  8. When I purchase property and the rights to minerals are included, how far below the surface do those rights extend? Can I only obtain water to a maximum depth of 30 feet? Or should it be to 100 feet? If I drill a well that extends 100 feet, how far below that does the groundwater I access extend? The same concepts can be extended to "air rights". To what altitude does the air I'm allowed to use extend and who gets to make that decision? As a Land Surveyor, I find Dr. Block's rejection of the "concept of ad coelum" extremely troubling. He seem all to willing to turn long established property rights traditions aside in favor of a poorly defined (and I think incomplete) "Lockean/Rothbardian" concept

  9. Anon at 11:49 - see my post above for general answers to your specific questions. If no one has homesteaded the "depths", then go as far as you want. A person that hasn't made use of that depth and nonetheless sells you the "depth", has basically sold you nothing more than perhaps a waiver by him of going after the depths later.

    Note that ad coleum has already been rejected above the surface to allow for airflight since the advent of airflight, so it is not "long established" anymore. It is also inconsistent with the Rothbardian "use" paradigm, which I see as a logical development of Lockean (and earlier, Scholastic) theory.

    As to below the ground, why shouldn't the same principle apply? If I can side drill under your property, and I do not affect the use and enjoyment of your property (that is, I don't inhibit any water sourcing you are doing, and I don't cause geologic shifts that adversely affect your foundation, etc.), then ad coleum should not apply and there is nothing wrong with me capturing the oil and gas.

    As a practical matter, horizontal drilling is not perfect and frankly can only go so far, so the surface owners would still have a say.

  10. Airspace and oceans are areas where Lockean-Rothbardian homesteading theory, as useful as it is, does not provide very satisfactory answers IMHO. Libertarians of the bleeding heart variety have some useful things to say about spaces that are not owned by anyone in particular.

    Regarding drones, it seems to me that these should be permitted and legally protected (as property) from attack so long as not creating a nuisance, or posing an unreasonable risk of harm to any property owners below. Spying on private property I would classify as a clear nuisance and depriving the owner of the enjoyment of privacy that property is reasonably expected to provide, although the nuances of that need some hashing out. No distinction should be made between private or government drones.

    Because the property owner cannot determine using present technology whether or not a drone is spying on property below, I believe property owners should be permitted to bring down or otherwise disable any overflying drones, so long as they do not use an unreasonable amount of force in doing so. Such drones should be protected to the extent reasonably possible and returned to the rightful owners if possible to do so (and the drones are not evidence of a violent crime). What is "reasonable" should depend on the circumstances and would change with time as drone-protection technology improves.

  11. Just on the candle measure: it is insufficient. I'm not sure if it's even justifiable either and using it as principle measurement is itself arbitrary.

    Using the candle measure would change property rights every day, depending on atmospheric conditions. Does it make sense that non-weaponized drone can be legitimately flying much much lower in a foggy day, and not in the next clear day?

    Furthermore, it would not apply to below ground conditions, since as the author of such a measure already admits, it depends on visibility. As such, using the candle measure your property rights below ground would actually be 0 feet.

    1. Any system is going to be arbitrary. Even mixing land with labor is arbitrary, i.e., that is it could be something else, first to lay eyes on land

      As for fog etc, well you won't see a candle light at all when the sun is out. It's more a rule as to how far up peak light would be under ideal conditions, and use that as the rule, i.e. 3.5 miles.

    2. I don't think the mixing of labor and the determination of boundaries by utilization is arbitrary. I do agree that Block's mention of common enjoyment is problematic, but he does make good points in that chapter. I would say, as he implies about the airport (where the first come, first serve criteria is used) and crop fields (lower height since it does not disturb the crops), it is really a matter of disturbance. Also, there are footnotes that I have not yet read referencing more material in journal articles about Road, Bridges, and Sunlight.

      Coming back to the candlelight criteria, it's sort of contradictory. Since the criteria indicates peak conditions (total darkness) BUT perceptible to the human eye... yet the fact that criteria is predicated upon the human eye seems to contradict the need for qualifying against ideal conditions. i.e. if we can't ever perceive from such a height with the human eye most of the time, even at night, given the light pollution, then what use is the criteria, especially if it's supposed to be predicated upon homesteading.

      But the other problem I have with candle light criteria is that does it include human glasses? Lenses? What about more sophisticated optical devices? I think you see the problem, because light extends practically infinitely

  12. Perry Mason:

    I take your points and appreciate the comments. However, if as you've suggested (and a number of American Courts have apparently ruled) that property rights extend upward (and downward) to a point that is "necessary for the practical use and enjoyment by the surface owner" (from Clark on Surveying and Boundaries, Sixth Edition), the paramount question remains: Who gets to make that determination?
    As Mr. Wenzel has said, practical use and enjoyment is a subjective matter. My readings indicate that at least one state court has stated that what is reasonable should be determined on a case by case basis.
    That being said, how far should we trust courts which have routinely ruled against private property owners that a pipeline company from Canada has the right to the use and enjoyment of portions of their property in order to construct a privately owned petroleum transport facility for a profit.

  13. might be a coincidence, but italian civil aviation authotority has just strictly regulated RC models, with weight and altitude limitations. european aviation authority is going to do the same. so governments are freeing airspace and frequencies from amateurs and reserving them to themselves, along with everything else

  14. I agree that determining the "minimim" airspace/underground rights ought to be based on the highest/deepest structure on one's surface property, as it seems the most inherently logical (i.e. this doesn't seem arbitrary). The same would hold for underground property rights. This would be a non-contentious right under libertarian legal theory.

    In addition to this, it's possible that something more arbitrary (but not greatly so) could be utilized, eg. a recognition of a "buffer zone", which would be double the "minimum" height/depth.

    For instance, if the tallest structure on my surface property is a tree that is 30 feet tall, then my "minimum", non-arbitrary airspace right is 30 feet high, but the "buffer" zone would extend another 30 feet, for a total of 60 feet. However, this "buffer" zone would have lesser (if you will) libertarian legal validity than the "minimum" airspace rights. More of a "no man's land" type of arrangement, perhaps? So commercial drones would not be permitted below 60 feet over my surface property, in this specific example. Or put another way, drones (or whatever) would not be permitted below 30 feet above my tallest structure (the tree). Just putting that out there. ;-)

    I am intrigued, though, by "gpond's" example of shooting into the air as a determinging factor for airspace rights!

    Richard G.

  15. Robert,

    I think this whole area needs much further development. There was a feeble attempt at it in a article which brought in the idea of insurance companies which I think might be one of the best solutions.

    It is also best to not conflate riparian or mineral rights with airspace rights. They are two separate bodies of law that have evolved very differently and for different reasons. And then there are the economic effects of the law and it seems the Common Law as applied in the US has, for the most part, taken a fairly economically beneficial stance on these three areas. But then it had to in order to tame the West and survive.

    For example, the first Iraq war was premised largely on a how mineral rights developed out of a basic property law 1805 case about a fox (Pierson v. Post). Saddam was pissed because Kuwait was drilling diagonally and tapping oil under Iraqi territory. But Kuwait were the ones actually able to 'capture' the oil; not Iraq. So it was a similar issue to the Pierson v. Post case just playing out 200 years later among much larger actors.

    Another issue is whether there is any 'right to privacy' at all or whether privacy is a derivative effect from applying tactics such as trespass or other defensive measures, like tarps to avoid spy drones or encryption, which would be violently? breached. After all, the Warren Court has worked tremendous mischief in the law. On a personal note, the tension between the freedom of speech and the privacy has me quite perplexed fairly continually and is one of the reasons I started

    The real fun with drones though are going to be quadcopters available for Bitcoins on places like Silk Road:

    We really miss Rothbard on these issues who had such a comprehensive intellect including the law, solid grounding in economics and keen sense of the principles of liberty and freedom.

  16. Some early, penetrating analysis of these issues can be seen at this link.

  17. This is, basically, an issue with improperly defined property boundaries. The whole idea that one can capture exclusive rights to a chunk of 3-dimensional space by drawing a 2-dimensional line around it is silly.

    There are more than a few cases when one may want to have exclusive rights to airspace in a complex shape (for example, an airport may want to have the right to control aircraft entry and prohibit building or other structures intruding into the approach and departure paths and VFR pattern).

    That said, the mere transit does not establish property rights. The Lockean commingling of labor with "land" has to be of a permanent nature and necessary for the economic activity (for example, somebody who owns an airport has homesteaded some airspace needed for functioning of the airport - with shape of airspace homesteaded dictated by the paths aircraft make to land and take off safely). Shining lights or shooting lead just doesn't cut it. "Land" is, basically, space in a specific frame of reference.

    The transition from 2D to 3D land/space titles is going to be haphazard, on case-by-case basis, or governed by local customary laws. But once it is done, the drone/airspace/deep ground problem simply disappears.

    The "libertarian" restrictions for drones are likely to come from trespass/nuisance angle (i.e. noise, pollution, and safety). The privacy angle just doesn't work - you can obtain very high-resolution images from a long distance away, and so restricting where drones can fly because of this is rather silly, as this will exclude pretty much all air traffic around populated areas.

  18. If the air space were privatized, land/home owners could could purchase airspace to X metric when purchasing real estate, similar to water or drilling rights. Then the use of a drone would be an invasion of ones property to whatever X metric is determined in purchase. Owners could purchase more or less of the air space above the land based upon their concerns for having privacy or rights to that space.

  19. Lets also remember our veterans. I hear those whinning wasp zipping "flashbacks" I letting go of my ammo. I want peace & quiet. This is not a toy for pervs it was a killing machine.