On government drone use, privacy advocates say: Not in my backyard
A neighbor had already warned Todd Maxon of seeing something unusual hovering over his lakeside Michigan property 鈥� but then, suddenly, there it was.
鈥淚 walk out of my house, with my dog and kid, and here鈥檚 a drone, directly above me,鈥� Mr. Maxon recalled of the 2018 incident.
It turns out the drone had been over the five-acre property at least two other times in previous months, part of what turned out to be an effort by the local Long Lake Township to surveil the Maxons鈥� land over a zoning dispute involving his hobby of fixing up old vehicles.
But the township did so without getting a warrant first 鈥� and Mr. Maxon and his legal team say that infringed his constitutional right against unreasonable searches.
After bouncing between courts in recent years, the Michigan Supreme Court heard oral arguments in October, and a ruling in coming months could set a precedent nationally.
鈥淚t鈥檚 very intrusive,鈥� Mr. Maxon told the Thomson Reuters Foundation.
鈥淭hey could have done it multiple more times 鈥� that鈥檚 the unrest you have, as you just don鈥檛 know,鈥� he said. 鈥淚 don鈥檛 know if there鈥檚 going to be a drone surveilling my kids, or wife, or animals.鈥�
Mr. Maxon said the township had also used drones to enforce zoning rules on others in the community.
Long Lake Township declined to comment on the pending case, but it has previously accused Mr. Maxon of operating an unlicensed junk yard in a residential area, an accusation he denies.
The township has said the drone images were of areas beyond the Maxons鈥� home and hence not protected by the Constitution鈥檚 Fourth Amendment, which guarantees 鈥渢he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches鈥� without probable cause.
The Maxons鈥� attorney rejected that logic.聽
鈥淲hen the government hires somebody to fly a drone all over your property ... in order to gather evidence, that鈥檚 a search under the Fourth Amendment. It violates a reasonable expectation of privacy,鈥� said Robert Frommer, a senior attorney with the Institute of Justice public interest law firm who is representing the Maxon family.聽
鈥淚f you want to do this going forward, all you have to do is go to a judge and give a good reason. The one thing we don鈥檛 want is for officials to decide this themselves 鈥� the next thing you know, we鈥檒l have drones flying over everyone because they鈥檒l be fishing for violations.鈥�
As the use and availability of drone technology expands, Mr. Frommer said the case could set a legal precedent.
鈥淭his is a bellwether. This decision will affect the course of not just Michigan, but all of America about how it treats drone surveillance.鈥�
Both the Federal Aviation Administration and the Association for Uncrewed Vehicle Systems International, a trade group, declined to comment on the case, citing the active litigation.
Outdated safeguards
The U.S. Supreme Court has previously weighed in on the issue of aerial surveillance, but its main decisions came in the 1980s and related to manned aircraft.
While the court then found that manned aircraft surveilling backyards did not violate the Fourth Amendment, the differences with today鈥檚 drones are significant, said Hannah Zhao, a staff attorney with the Electronic Frontier Foundation, a watchdog group that filed a brief in the Michigan case.
Manned aircraft have natural limits that restrict their ability to be used as surveillance, she said, pointing to cost as well as the fact that the presence of a large, noisy aircraft itself serves as notice of potential surveillance.
鈥淲hen discussing manned aircraft in the 鈥�80s, it would have been unfathomable at the time to have something [so small] that could fly over your backyard and is so much more maneuverable,鈥� she said.
More recent aerial surveillance programmers have run into legal trouble, with a court in 2021 rejecting a Baltimore police program that flew a surveillance airplane for 12 hours a day.
Meanwhile, evidence suggests police departments are increasingly using drones, including as first responders to emergency calls.
Last year the American Civil Liberties Union said the country was 鈥渙n the cusp of an explosion in law enforcement use of drones鈥� and flagged concerns that these tools could be used to target poor and marginalized communities in particular.
Tracking from the Electronic Frontier Foundation showed nearly 1,500 law enforcement agencies have purchased or used drones.
A Justice Department report in 2020 found that most authorized drone use by law enforcement was for search and rescue operations, investigating armed suspects, disaster response, and crime or accident reconstruction, along with crowd monitoring and general surveillance.
鈥楶rivacy law has not kept up鈥�
Yet as the technology develops, the law has not, Ms. Zhao said, with many police departments relying largely on internal policies to decide what they can and cannot do.
鈥淲e should all be worried about the fact that privacy law has not kept up with the rapid pace of drone technology,鈥� she said.
Only a handful of states have passed laws requiring some degree of transparency on the issue. For instance, Minnesota requires a warrant as well as the logging of any time that drones are deployed by the government.
Ms. Zhao said a decision in the Michigan case now could influence how other courts across the country approach the issue 鈥� and potentially lead the U.S. Supreme Court to revisit the topic.
That鈥檚 also what Todd Maxon is hoping. He sees his case as an important first step.
鈥淭his has nothing to do with my small-peanut case anymore,鈥� he said. 鈥淚f they don鈥檛 rule on this correctly, nobody鈥檚 safe from government spying.鈥�
This story was reported by The Thomson Reuters Foundation.
