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.  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 opinion arises out of an action brought by Long Lake Township (“Township”) against the defendant, alleging that he had illegally expanded his storage of junk cars and other junk materials on his property in violation of a previous court settlement.  In support of the action, the Township attached aerial photographs taken by an unmanned aircraft.  The pictures documented the increase in the amount of junk on the property over several years.  The defendant moved to suppress the evidence, claiming that the pictures constituted an illegal search under the Fourth Amendment.

In his motion, the defendant recognized that there is binding United States Supreme Court precedent permitting the use of aerial photographs taken from manned aircraft under similar circumstances. He argued that these cases should not apply, however, because UAS are equipped with “high power cameras” and operate at a much lower altitude.  As a result, while he admitted that he had no reasonable expectation of privacy related to the overflight of a helicopter or fixed wing aircraft, he claimed he did have a reasonable expectation of privacy against drone flights.  The trial court disagreed with the defendant, finding that there was no reasonable expectation of privacy related to aerial photography.  The defendant appealed the decision.

The Court of Appeals began its analysis by observing that for decades, Fourth Amendment decisions were relatively clear-cut, because they turned on whether the information was gained by trespassing on someone’s property.  Searches involving trespass were almost always a violation of the Fourth Amendment, while searches that involved visual surveillance from a public location were permissible, or deemed to not even be searches.  Technology, however, has greatly complicated matters.  For example, the Court of Appeals noted that the use of an infrared camera to “see inside” a structure was considered to be an illegal search even when the camera was operated from a public place.  As the  Court of Appeals observed, a homeowner should not be at the mercy of advancing technology.  “The development of historically-novel ways to conduct unprecedented levels of surveillance at trivial expense does not per se reduce what society and the law will recognize as a reasonable expectation of privacy.”  Id. at *4.

The Court of Appeals then turned to Supreme Court precedent regarding aerial searches.  In 1986, the Supreme Court held that a landowner had no reasonable expectation of privacy from a search from a fixed wing aircraft flown at an altitude of 1,000 feet.  Three years later, the Supreme Court ruled that there was no reasonable expectation of privacy from an aerial search conducted from a helicopter at 400 feet.  In doing so, the Supreme Court held that the fact that a helicopter could fly legally at that altitude justified permitting the search at this lower level.

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.”

In its determination of a landowner’s rights, the court also gave weight to a Michigan statute that prohibits the use of an unmanned aircraft to “otherwise capture photographs, video, or audio recordings of an individual in a manner that would invade the individual’s reasonable expectation of privacy.”  MCL 259.322(3).  Finally, the Court of Appeals noted, without deciding, that given the low-altitude at which UAS operate, at some point a drone flight may constitute a trespass when it invades the immediate reaches of the airspace over private property.  The Court declined, however, to set a permissible  “altitude test” for such drone overflights on the grounds that it would be “unworkable and futile.”  Instead, the Court of Appeals concluded that:

persons have a reasonable expectation of privacy in their property against drone surveillance, and therefore a governmental entity seeking to conduct drone surveillance must obtain a warrant or satisfy a traditional exception to the warrant requirement.

While this case involves the Fourth Amendment and whether the Township should have obtained an administrative search warrant, it has enormous implications for commercial drone operators.  The heart of the Court of Appeals’ ruling is that unmanned aircraft are different from other aircraft, and that this difference directly impacts a landowner’s reasonable expectation of privacy.  The Michigan privacy statute cited by the Court of Appeals is not limited to the government.  It applies equally to all commercial UAS operators.  Similarly, the common law tort of invasion of privacy almost always turns on whether the person photographed has a reasonable expectation of privacy.  If drones are going to be treated as inherently different from other aircraft, then the likelihood of invading someone’s privacy and being subject to a lawsuit is greatly expanded.

Based on this ruling, now would be a good time for all commercial operators to review their privacy and data use and retention policies to ensure that best practices are being followed.  If you don’t have such policies, now would be a good time to start working on one.