Not necessarily so, as the airspace classifications are per treaty and law. Class G airspace (starting at the ground) is uncontrolled, so the FAA can never really "own" it, regulate it or place restrictions on it (it would then be a different class of airspace if they did). There are areas such as around airports and such where other classes of airspace extend to the ground that the FAA does "own".
I agree with you as well as the principles you base your post on.
My point is that things are changing. The FAA has claimed the right to "control" all airspace. The way things are headed, my concern is that the FAA will over-reach and start controlling things all the way to the ground. Registration and claiming UAVs to be "aircraft" under FAA jurisdiction has already happened. Upcoming rules have the potential to greatly increase the unintended consequences.
Just to be clear, this is a personal opinion and these issues may have been addressed authoritatively at some point in time that I'm just not aware of or missed.
As are my statements. There is so much that is unchallenged in court that opinion is all we have at this point.
But if I'm right, then the airspace above the tallest object on that property is public property, or at the very least a public easement. Either way, flight cannot be restricted by local laws as they would be preempted. Nor can photography be restricted, as it's not illegal to take a picture from the street where the camera is facing a private property.
Want more airspace, add something taller to the property! But if you stay above the private airspace of the property then there is no trespass.
I understand your position, but cannot fully agree. If the tallest object defines the limit, then above that is FAA space. Thus, you cannot add something taller without FAA permission because you are encroaching on their space. While I realize Causby is somewhat outdated, the fact is that they clearly avoided setting a hard limit on airspace ownership. The also avoided setting a minimum which was tied to the tallest object. In Causby, the planes were 18ft above the tallest object and deemed to have encroached. I am thinking that it will vary depending on circumstances. In short, what is "private" property and what is "public" airspace is far from decided.
I also agree that local laws cannot preempt FAA rules. However, trespass, privacy, etc. can all be legislated and enforced locally. They can't tell you not to fly, but they can enforce trespass laws.
Photography can and is restricted. You are correct about the public street scenario, but we will have to see where that meets the "expectation of privacy" issue. If you have secured your yard from prying eyes (trees/fence/not visible from street) you have an expectation of privacy. It remains to be seen how the courts will handle this when someone flies from a public area to an altitude high enough to see over the fence and take photos.
I completely understand that those photos at that distance will not clearly show people in the yard. That can change as cameras and technology in this area evolves. This is a whole new area, which poses some challenges. New laws and rules are going to affect the outcome of court cases like this.
