Aerial Highways: The Fifth Amendment Implications of Commercial Drone Delivery Services

Commercial drone delivery systems that deliver packages of purchased products directly to the homes of consumers are being developed and tested by many companies in America, including Walmart and Amazon. Soon enough, our skies will be filled with low-flying drones. This Article joins the growing cohort of legal scholars discussing drones, but focuses on an issue not addressed to this point - how commercial drone delivery systems can undermine and diminish the property rights of private landowners. In the past, most legal scholars have addressed the interplay between drones and private property by examining potential tort liability for drone operators under theories such as trespass, nuisance, and intrusion upon seclusion. This approach, however, has proven insufficient to address the unique challenges created by commercial drone delivery systems. Moreover, proposed federal laws and regulations in this area threaten to further limit the rights of private landowners to the airspace above their property. Through a thorough constitutional analysis, this Article argues that proposed government regulations in this area would extinguish rights to the airspace above private property to such a degree that they constitute a governmental taking of private property under the Fifth Amendment to the United States Constitution, requiring just compensation for the taking of those valuable air rights.