A recent Michigan court ruling affects drone privacy and could create major problems for the commercial drone industry. An article in JDSupra (well worth a full read) explains how the decision played out and why it could have a significant impact on commercial drone operations in the state – or across the country. The ruling states that drones are different from other aircraft and that “that difference directly affects a landowner’s reasonable expectations for privacy”.
“In a recent ruling, the Michigan appeals court ruled that a landowner has greatly increased privacy and aerial surveillance expectations when unmanned aerial vehicles are involved,” writes Mark McKinnon in JDSupra. “The decision, Long Lake Township v. Maxon, 2021 WL 1097336 (Mich. App. March 13, 2021), is the first time an appeals court has addressed these issues.”
The case didn’t start with Michigan being able to address drone privacy. The original case was an action by a town (Long Lake) against a homeowner who had too much trash in his yard. The city proved its case by putting up drone images that documented the increase in garbage over several years. The defendant cried badly and said that taking drone pictures of his property was the same as “illegal search” and violated his fourth amendment (the improper search or seizure change) rights.
The gist of the argument is that while homeowners don’t have reasonable expectations of privacy on manned airplane flights, drones are different – essentially because they fly lower and have better cameras. While the first court found that the defendant did not have “reasonable expectations of privacy related to aerial photography,” the Michigan appeals court disagreed, ruling that drone surveillance “of this nature encroaches on people’s reasonable expectations of privacy. . . . ”
Flight searches and the fourth change
The fourth change decisions, in its simplest form, depend on whether or not there is a private property violation: you can’t take a picture while standing in a driveway, but you can take one from the public park across the street. Additionally, when searching for aircraft, the Supreme Court ruled that there was no reasonable expectation of privacy from a manned aircraft at 1,000 feet or from a helicopter at 400 feet. However, drones that can fly at lower altitudes are different – at least in Michigan. From the JDSupra article:
Based on these principles, the appeals court ruled that the use of “unmanned, targeted drone surveillance of a private individual’s property at low altitude at low altitude is qualitatively different from the types of human-operated aircraft overflights permitted by the Supreme Court”. As a result, drone surveillance “of this kind” interferes with people’s reasonable expectations of privacy. . . . In addition, because of their maneuverability, speed, and camouflage – like thermal imaging devices – drones are able to dramatically surpass human limitations that framer would have expected not just in degrees but in kind.
The impact on commercial operators
Drones privacy is a difficult issue for the commercial drone industry: at least in part due to public awareness issues. While a commercial drone working on a construction site will almost certainly have their camera specially trained on the construction site, a homeowner next door may be concerned about what the drone might see. Legal precedents implying that homeowners expect privacy in the airspace above their homes raises many complex questions: For one, is the airspace above a person’s private property? Is there a height restriction for drones flying over property? Do commercial drone operators have to prove that they are not collecting data when they fly over houses?
As these issues are slowly resolving in court, commercial operators must continue to act defensively, doing everything possible to communicate with the communities in which they operate, and defining their policies early on.
Miriam McNabb is editor-in-chief of DRONELIFE and CEO of JobForDrones, a marketplace for professional drone services, and a fascinating observer of the emerging drone industry and the regulatory environment for drones. Author of over 3,000 articles focusing on the commercial drone space, Miriam is an international speaker and recognized figure in the industry. Miriam graduated from the University of Chicago and has over 20 years experience in high-tech sales and marketing for new technologies.
For advice or writing in the drone industry, email Miriam.
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