Danaya C. Wright is the T. Terrell Sessums & Gerald Sohn Professor of Constitutional Law and director of the Center for Governmental Responsibility at the University of Florida.
By Danaya C. Wright
In the 1850s, the technological marvel of the railroad transformed capitalism and consumerism in the United States by delivering goods, including complete homes, to people thousands of miles away within weeks or perhaps even days.
In our new COVID-reality of 2021, where the internet has elevated consumer gratification to a technological art form, we are told to expect drones delivering our latest mail-order gadget within hours to our front doors. The logistics of delivering individually packaged goods via drone is a marvel of innovation, a marvel we have been anticipating for the past decade and one that the entrepreneurs have mastered.
Federal and state governments have created a web of interdependencies that run so smoothly that I can sign into my wireless email, order a new cell phone from California, pay with my federally insured credit card and have my gadget transported over 3,000 miles within two days.
Yet even as that wait time has decreased, I am still not getting my new phone via drone delivery. Why? Because even though the technology exists to deliver that tiny package to my doorstep, the judicial interpretation of the property rights of landowners between the Amazon warehouse and my home erect legal barriers that stymie innovation and reflect a revisionist history of the sanctity of private property that is most heavily promulgated by the conservative members of the U.S. Supreme Court.
This is not to say that property rights are unimportant. Picture thousands of tiny drones flying over your backyard BBQ on their way to your neighbors’ doorsteps. And it’s not just the privacy concerns that worry me. I simply don’t want to look up and see flocks of drones 200 feet above my yard; I want to see birds gliding on the air drafts and hear the quiet of a beautiful sunset.
And based on current statistics, if drones were to deliver just 50% of the packages that are currently sent by mail or parcel delivery truck, there would be over 5 billion drone flights per year. Compare that to the meager 16 million air flights per year that occur in the upper airspace. Unless you live in the landing zone of Chicago’s O’Hare International Airport, you are unlikely to be bothered by airplanes six miles above your head; but drones whizzing just above the trees are another matter.
Drones flying over public roadways are not feasible either, with their potential to distract drivers or fall out of the sky and land on moving cars. Imagine driving down I-95 with an army of drones flying overhead in the median. And yet Google and Amazon are still clinging to the idea of drone delivery, even as their lawyers have yet to figure out how to negotiate the treacherous legal landscape of private property rights, privacy and possible tort liability for drone accidents.
Fortunately, history provides a valuable lesson when we look to the massive public infrastructure investments in the railroads and utility corridors of the 19th century. Updating our utility and transportation infrastructure to accommodate new technologies is sensible, environmentally sound and logistically workable. A drone highway over a railroad corridor is not a safety threat since a 200-ton locomotive beats a 20-lb drone every time.
This country thrived because we all invested in railroads and utilities and because we created a legal regime that facilitated cooperation between transportation and communications providers. Federal regulation of the airspace below 500 feet, state laws facilitating multi-modal uses of utility and transportation corridors, and judicial recognition of the unique property rights of railroads and other commercial easements could lead to a seamless and coordinated public transportation system that would decrease reliance on individual automobiles and reduce the environmental costs of using the internal combustion engine to deliver consumer goods that last mile.
And new technology can better protect private property rights by instantly depositing a small payment into individual landowners’ bank accounts whenever drones must traverse private land.
The legal barriers to a clean delivery technology are the product of the 20th century obsession with private property rights — rights that in no way reflect the legal protections for property that existed at the founding or even during the heyday of industrial expansion.
If we look to the important lessons of the rails-to-trails program, which repurposed inactive railroad corridors to multi-modal public trails and utility corridors, perhaps we can reinvest more wisely in our public infrastructure and you won’t have to wait another decade for Amazon’s lawyers to tell their engineers that it is safe to get your cell phone to you via drone.
Danaya C. Wright is the T. Terrell Sessums & Gerald Sohn Professor of Constitutional Law and director of the Center for Governmental Responsibility at the University of Florida.
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