No tolerance for drones near aircraft

Story highlights

  • Danny Cevallos says operating a drone near an airplane is one of those crimes for which there can be no acceptable excuse
  • The law needs to prepare for a world in which drones are omnipresent, he says

Danny Cevallos is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his.

(CNN)A passenger jet arriving from Switzerland was reportedly struck by a drone on the approach to London's Heathrow Airport on Sunday. The Airbus A320 landed safely and no one on board was injured and officials are investigating the possibility, reported by the pilot, that a drone hit the plane.

It was bound to happen.
    Anytime you have some nascent technology, combined with near-viral demand, and subsequent mass distribution, a new legal frontier is created. New gadgets enhance our human senses and capabilities. And whenever one individual enjoys augmented abilities, it potentially infringes on another individual's rights. Guns, cars, boom boxes, binoculars; all these things enhance us beyond our human limitations, which can, in turn, easily violate the rights of another.
    Every statute, law or regulation usually boils down to some variation of "do whatever you want, unless and until the moment it infringes upon someone else." Then the law typically does a balancing test, weighing your self-interested act against the well-being of society as a whole. Laws are just rules designed for people to live among other people. There may be nothing inherently "good" or "ethical" about them — other than they prevent a species from destroying itself.
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    Any enhancement of individual ability simultaneously threatens to infringe on others. The automobile was a tremendous improvement over the horse and buggy. But the automobile also kills many thousands of people per year. It's hard to argue that one person's convenience of driving to White Castle isn't outweighed by another's death on the highway. But since the automobile is so essential, society deems those losses acceptable. We're not about to give up our cars. And, as universal as cars are, we're still tweaking the massive body of law regulating them today. We have not even begun to figure out what to do with the driverless cars. We'll have to legislate as we go.
    One bug -- or feature, depending on how you look at it — of our legal system is that it moves slowly. On the whole, lawmakers are better at reacting to situations after the fact than predicting what laws will fairly regulate technology in advance.
    Within a few years, everyone will have drones. It won't be limited to hobbyists, journalists and law enforcement. Sooner or later some genius will devise some app that rideshares drones and teaches them how to pick up our dry-cleaning and prescription medications. Dance recitals or school plays will just have audiences of buzzing drones, live-streaming the performance to absentee dads. And those are some of the benefits of drones.
    They will also create problems. Drones by their very nature occupy airspace, an area in which the law has not developed as substantially as others.
    Historically, someone's property line went straight up to heaven: "Whose is the soil, his it is up to the sky." Why not? Nothing human could occupy the air in the dark ages, so it didn't really matter. But when mankind began inventing machines that went up in the air, regulations had to be created. The Federal Aviation Administration was created in 1926, and one of its first pronouncements was that the air above 500 feet is the public domain.
    A 1946 Supreme Court case then ruled that landowners at least own the air up to 83 feet above their property.
    That area from 83 feet to 500 feet was a sort of no-man's land. Pre-drones, there wasn't much reason to care who owned it. Now there is. Not surprisingly, the FAA is now asserting it can regulate that zone, too. Also according to the FAA, since drones are "aircraft," it is a federal crime to shoot them down.
    Saying that shooting down a palm-sized microdrone from Sharper Image is like shooting down an Airbus full of human beings feels logically inconsistent. At the same time, we don't want zealous property owners firing off Mossberg shotguns or surface-to-air missiles at a drone hovering above their property -- or do we? Reasonable minds may differ on that issue.
    Indeed, this early approach to drones raises all kinds of questions: If the FAA defines a drone as an "aircraft," can you operate one after a few shots of tequila at happy hour? Should that be as illegal as drunken driving?
    There's one legal line that would be easy to draw: keeping drones away from real aircraft, using the concept of "strict liability". Strict liability is a concept in both civil and criminal law that holds someone automatically responsible for harm caused by their product, even if they weren't negligent or the injury was an accident.
    Most crimes require that an act was done with some mental element: intentionally, recklessly, or with some guilty state of mind. In some situations, however, we hold people automatically responsible. In criminal law, strict liability is usually for nonserious, regulatory crimes.
    Every citizen has committed a common strict liability crime: speeding. "I didn't know the speed limit" or "I didn't mean to speed" is not a defense to speeding. The mere fact you are sitting in the driver's seat and your car went 88 mph is generally enough for your conviction, irrespective of whether you intended it.
    In civil, tort law, we hold defendants strictly liable when they engage in ultra-hazardous activities, like crop dusting, shooting off rockets, and fireworks displays. Strict liability should be sparingly used, because it removes what is usually thought to be an essential element of any crime: the "scienter," or the mental state that accompanied the act.
    Yet operating drones near airliners is one of those situations where strict liability is warranted. First, there is clear precedent for holding the operator of airborne objects strictly liable. Second, drones near aircraft can be really, really dangerous.
    Legally, among all the thorny issues raised by drones and the cameras they carry, this is one of the easy ones: if your drone hits a plane, you're guilty. Period.