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Michigan legislators should amend Michigan’s current unlawful surveillance statute to specifically regulate recreational drone users.

Under the current language of the statute, your neighbor can likely use his camera-drone to watch you through your living room window or hover over your family pool party without facing any legal liability.

The language of M.C.L.A. 750.539(b), Michigan’s unlawful surveillance statute, contains loopholes that drone operators can figuratively fly right through. This statute currently states that: “A person who trespasses on property owned or under the control of any other person, to subject that person to eavesdropping or surveillance is guilty of a misdemeanor.”

So, to be liable under this statute, a drone user must trespass on property owned or under the control of any other person. An airborne drone does not meet either of these elements.

Currently in Michigan, trespassing occurs “only upon proof of an unauthorized direct or immediate intrusion of a physical, tangible object onto land.” Webster’s Dictionary defines “onto” as “to a position that is on.” So, given that a drone is a tangible object, if it never touches ground, then it is never in “a position that is on” land and, as such, cannot engage in trespassing.

What’s more, Michigan landowners do not have sufficient property rights in the airspace above their land for it to be considered “property owned or under the control of any other person.” The question that needs to be asked here is, “What rights does a property owner have to the airspace above his or her private property?” In short, the federal government’s current answer is “probably none.”

The federal government claims complete and exclusive national sovereignty in the “navigable airspace” over the United States. Navigable airspace is defined as airspace where an aircraft can safely fly. Since drones, which are considered aircraft, can safely fly a few feet above land, the FAA suggests that modern ultra-low-flying drones extend federal sovereignty over navigable airspace all the way to the ground. Therefore, the airspace outside your bedroom window or above your pool is public domain, and cannot be “property owned or under the control of any other person.”

Michigan Legislature should add the phrase “or uses an unmanned aircraft to enter the airspace above that property” to M.C.L.A. 750.539(b). This proposed amendment would read, “A person who trespasses on property owned or under the control of any other person, or uses an unmanned aircraft to enter the airspace above that property, to subject that person to eavesdropping or surveillance is guilty of a misdemeanor.” This eliminates both the property and trespassing issues currently found in the law.

First, the addition of the word “or” creates a violation by either a trespass or an airspace violation. Second, as long as a landowner could establish that a drone incurred into the airspace above his property, the question of his property rights in the airspace above his land becomes moot.

It’s a simple fix. Let’s get to work.

Ryan VanOver is a J.D. candidate at the University of Detroit Mercy.

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