This Michigan Court Ruling Could Have a Major Impact on Commercial Drone Operations

A recent Michigan Court Ruling touches drone privacy: and could lead to major problems for the commercial drone industry. An article in JDSupra (worth a full read) explains how the decision developed and why it could have a significant impact on commercial drone operations in the state – or the whole country.  The ruling says that drones are different than other aircraft, and “that this difference directly impacts a landowner’s reasonable expectation of privacy.”

“In a new decision, the Michigan Court of Appeals has held that when it comes to privacy and aerial surveillance, a landowner has a greatly enhanced expectation of privacy when unmanned aircraft are involved,” writes Mark McKinnon in JDSupra.  “The decision, Long Lake Township v. Maxon, 2021 WL 1097336 (Mich. App. Mar. 13, 2021), is the first time that an appellate court has addressed these issues.”

The case didn’t start out as a way for Michigan to address drone privacy.  The original case was an action by a town (Long Lake) against a homeowner who had too much junk in his yard.  The town proved their case by attaching drone images, documenting the increase of junk over several years.  The defendant cried foul, saying that taking drone images of his property was the same as “illegal search” and violated his Fourth Amendment (the amendment concerning unreasonable search or seizure) rights.

The essence of the argument is that while homeowners have no reasonable expectation of privacy against manned aircraft flights, drones are different – essentially, because they fly lower and have better cameras.   While the first court found that the defendant had no “reasonable expectation of privacy related to aerial photography,” the Michigan Court of Appeals disagreed, ruling that drone surveillance “of this nature intrudes into persons’ reasonable expectations of privacy . . . .”

Aerial Searches and the Fourth Amendment

Fourth Amendment decisions at their simplest used to depend upon whether or not  there had been trespass on private property: you can’t take a picture while standing on someone’s driveway, but you can take one from the public park across the street.  Additionally, when it comes to aerial searches, the Supreme Court has ruled that there is no reasonable expectation of privacy from a manned aircraft at 1,000 feet or from a helicopter at 400 feet.  Drones, however, able to fly at lower altitudes, are different – at least in Michigan.  From the JDSupra article:

Based on these principles, the Court of Appeals held that the use of “low-altitude, unmanned, specifically targeted drone surveillance of a private individual’s property is qualitatively different from the kinds of human-operated aircraft overflights permitted” by the Supreme Court.  As a result, drone surveillance “of this nature intrudes into persons’ reasonable expectations of privacy . . . .”    Furthermore, “given their maneuverability, speed, and stealth, drones are—like thermal imaging devices—capable of drastically exceeding the kind of human limitations that would have been expected by the Framers not just in degree, but in kind.”

The Impact on Commercial Operators

Drone privacy is a difficult issue for the commercial drone industry: at least in part due to issues of public perception.  While a commercial drone operating at a construction site almost certainly has it’s camera trained specifically on the site, a homeowner next door may be concerned about what the drone could see.  Legal precedents that imply that homeowners have an expectation of privacy in the airspace over their homes open up many complex issues: for one, is the airspace over someone’s home private property?  Is there some kind of altitude limit for drones flying over property?  Will commercial drone operators need to prove that they are not gathering data when flying over homes?

As these issues are slowly resolved in the courts, commercial operators must continue to operate defensively, doing everything they can to communicate with the communities in which they operate and defining their policies well in advance.