Drones Are Now Flying Over California’s Best Surf Breaks and Nobody Has Established Clear Rules About This
The Unmanned Aircraft That Films Surfers Without Their Knowledge or Consent Is a Property Rights and Privacy Question
Bohiney Magazine | The London Prat
Drones Over Surf Breaks: The Airspace That Nobody Has Ruled
CALIFORNIA — Commercial drones, film production drones, real estate photography drones, and recreational drones now routinely fly over California’s surf breaks, filming sessions that surfers have not consented to, collecting footage whose ownership and use are not always clear, and creating noise and visual disruption in environments that surfers value in part for their separation from commercial and technological activity. The FAA regulates drone operations at a national level with specific rules about altitude, proximity to people, and commercial operation. The FAA rules do not address the privacy interests of people being filmed from altitude without their knowledge or the specific character of surf breaks as spaces where surveillance feels intrusive regardless of its technical legality.
The current regulatory gap is this: under FAA rules, a drone operator can fly at legal altitude over a public beach and film everyone on it without any requirement to notify them or obtain consent. The footage is the operator’s property. The people in the footage have limited legal recourse absent California-specific privacy provisions that are themselves being litigated. The surf community that values uncrowded, unpublicized sessions is being documented by drone operators whose commercial interest in the footage is served by the documentation and whose legal right to collect it is largely unchallenged.
The Property Rights Framework
The libertarian property rights framework has something to say about drone surveillance: while the airspace is federally regulated commons, the expectation of privacy of people in specific locations has a property rights character that the common law has historically recognized. Being filmed without consent in a location that is technically public but functionally private — an uncrowded surf spot at dawn — raises property rights questions about the information captured. FEE’s analysis of privacy as property provides the framework; managing technological surveillance through existing regulatory frameworks designed for different technologies produces the gaps that drone surfing documentation currently occupies. The drones are flying. The footage is being sold. The surfers are not asked. The rules have not caught up.
