Modern technology has become a total phenomenon for civilization, the defining force of a new social order in which efficiency is no longer an option but a necessity imposed on all human activity.
I have long had mixed feelings about technology. On the one hand, I regard the Industrial Revolution as, perhaps, the most important period in our known human history; having allowed us to both understand and act within social systems that maximized our capacities for the production and exchange of the material values that sustain life. The earlier advances provided by the agricultural revolution, combined with industrialization meant that our nutritional menus were no longer confined to the bugs, berries, and tree barks from which our hunting-and-gathering ancestors made their daily dietary selections.
On the other hand, while technologies have largely been created by individuals, they generally end up being financed by and housed within institutions. We become attached to the technologies we associate with the quality of our lives. If Congress, or an imperious president, were to announce that we could keep our Internet connections only if we allowed the state to monitor all our communications; how many of us would reject the proposal? And how many would eagerly accept, lest we lose access to the machinery we believe necessary for our material well-being?
Men and women desirous of living in a world of peace and individual liberty need look no further than to discover whether the principle of privately owned property is respected. Societies in which thinking is dominated by the promotion of material wealth tend to allow this essential civilizing principle to erode in the face of supposedly “pragmatic necessities.” The humanizing qualities that depend upon long-term commitments to values that make our social lives worthwhile, are often ignored when we are engaged in the “real-world” demands of daily living. Thus does the sanctity of life get sacrificed in the practice of aborting unborn children, some of whom have their organs harvested for financial gain; or the “hydrogen bomb” improvement that allows the institutional order to only kill life forms, while leaving buildings, technologies, machines, and other material values intact; or the morally twisted thinking that gave Clinton administration Secretary of State, Madeleine Albright, comfort in defending her government’s policy of allowing some 500,000 Iraqi children to die as a consequence of economic sanctions.
The failure of respect for the inviolability of the property principle does not find expression only in such well-organized slaughter. In lesser – but nonetheless troublesome – ways, our habit of treating the preeminence of institutional interests as the default response in our thinking is evident. Once a new technology is created and manages to surmount corporate-state anti-competitive barriers to entry in the marketplace; varied responses occur. The novelty of the new creation will provide amusement – or even fear – as we contemplate how our daily lives might be affected by it.
The Amish culture, on the other hand, has approached technological change intelligently. Machines – such as cars and tractors – are not dismissed as the work of the devil; but are analyzed from the perspective of whether their introduction into the Amish community would diminish the spiritual values of that culture, and cause their society to become dominated by a technological imperative that made them dependent upon the external world.
The Amish example is one to which each of us should pay close attention. Most of us are so attached to our institutionally structured, technologically-dominated culture that we fail to ask the question: is the inviolability of the property principle, which is essential to peace, liberty, and social order, benefitted or weakened by new technology? The current fascination so many of us have with drone aircraft provides an opportunity to analyze whether such machinery can be employed by individuals in ways that respect the inviolate nature of one another’s property boundaries?
The toy-like character of drones may cause us to dismiss the implications they have for violation of the property principle. When thought of alongside other aerial playthings such as kites or July 4th skyrockets, we may consider their challenge to the property concept as an exaggeration. Consider this: since the early common law, the boundaries of real estate were not confined to the surface of land, but extended downward to the core of the earth, and outward into boundless space. The legal doctrine is expressed in the Latin as Cuius est solum, eius est usque ad coelum et ad inferos. Think of your parcel of land as a giant slice of pie: anything that came within these boundaries was, if permanent, part of your land; if only temporary, it might amount to a trespass.
This long-standing doctrine was quite useful in resolving many real property disputes, but was put to the test when new technologies, such as hot-air balloons and, later, airplanes, came into being. If one of these devices flew over your land, was there an actionable trespass for which damages or injunctive relief might be available? At any given – albeit brief – moment, the planet Neptune might be crossing the boundaries of your land, a matter having only theoretical rather than practical considerations.
The processes of legal reasoning have long been abetted by the use of “legal fictions,” (i.e., fabricated explanations of facts designed to help generate understanding of a legal doctrine). The long-held rule that defined the boundaries of real property ownership was an example of such a fiction. In much the same way that major paradigm shifts occurred in the history of the sciences (e.g., the abandonment of the geocentric model of the universe in favor of a heliocentric explanation), legal fictions have often undergone such shifts. The creation of technologies that challenged the premises upon which earlier property boundary doctrines were grounded, was one such instance. The courts were forced to reexamine the older legal concept, not so much for the purpose of destroying it, but to see if, indeed, it was truly consistent with the property principle itself.
Such an inquiry must begin by examining the nature of property ownership, which consists of the following elements:  the boundary of the interest to be owned;  a recognizable claim by a person to be the owner; and  the capacity for one to extend his or her will over the item so as to control its use. Do helicopters, airplanes, and drones fly within an area that can be said to be part of the ownership claim of a surface owner?
In my years of teaching property law, I found a surprising number of students who could not contemplate the idea of “space” – such as what exists above the surface of land – as being subject to private ownership. Perhaps this is to be expected in a culture grounded in the preeminence of material values. If, to paraphrase Gertrude Stein, “there is no ‘there’ there,” space, even above one’s own land, may make its relevance to the property concept difficult to grasp. Even the briefest study of astronomy should convince a student of how order in the universe is dependent upon massive quantities of space. When I suggest that the ownership of space above buildings in Times’ Square, or Sunset Boulevard in Hollywood, or Las Vegas, has great economic value to be marketed, the point becomes easier to grasp.
But to what heights might such “empty space” rise, so as to provide a surface owner with grounds for legal protection against trespasses? Does an airplane flying thirty feet above your house violate your property interests? What about a plane flying thirty-five thousand feet overhead. The old common law rule would find an actionable trespass in both cases. But more modern courts would recognize that the fiction contained an element that was incompatible with the real-world nature of property ownership: the capacity of an owner to control what he owned. But how is this height to be determined?
A 1946 U.S. Supreme Court case, United States v. Causby [328 US 256], effectively disposed of the ancient common law rule, while providing insight as to how air rights would be defined for constitutional purposes. A North Carolina chicken farmer’s land was adjacent to a parcel of land upon which the Army and Navy jointly operated an airfield. When planes took off or landed from this government facility, they flew from 63 to 85 feet in the air space above the Causby land. Causby brought an action, alleging that the U.S. government had taken an easement through his airspace. The outcome of the case turned on whether the boundaries of Causby’s land included the airspace above the surface and, if so, how far did such ownership extend?
In holding for Causby, the Supreme Court reasoned that “if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise, buildings could not be erected, trees could not be planted, and even fences could not be run.” The court went on to emphasize the decision-making control that gives real-world meaning to ownership: “The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.”
Those inclined to treat such a ruling as a judicial retreat from common law notions of property, would do well to consider that the legal fiction extending outward into the universe, is an idea with no application to real-world concerns over who gets to make decisions about what. Respect for the inviolability of individual property claims derives, in Lockean terms, from the need – and right – of each individual to extend his/her life-sustaining actions into the rest of nature; but without trespassing upon the equally respected property claims of others. A fiction that was grounded in real property boundaries measurable only in dimensions of light-years, hardly qualifies as a standard to be applied to modern human action in a physical world.