'Intrusive' drones? US surveillance case tests privacy law

• Michigan Supreme Court hears arguments
• Surveillance of property violated constitution, suit claims
• Decision could help update outmoded laws

WASHINGTON - A neighbour had already warned Todd Maxon of seeing something unusual hovering over his lakeside Michigan property – but then, suddenly, there it was.

"I walk out of my house, with my dog and kid, and here's a drone, directly above me," Maxon recalled of the 2018 incident.

It turns out the drone had been over the five-acre (two-hectare) 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' land over a zoning dispute involving his hobby of fixing up old vehicles.

But the township did so without getting a warrant first – and 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.

"It's very intrusive," Maxon, 51, told Context.

"They could have done it multiple more times – that's the unrest you have, as you just don't know," he said. "I don't know if there's going to be a drone surveilling my kids, or wife, or animals."

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 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' home and hence not protected by the constitution's fourth amendment that guarantees "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches" without probable cause.

The Maxons' attorney rejected that logic.

"When the government hires somebody to fly a drone all over your property ... in order to gather evidence, that's a search under the fourth amendment. It violates a reasonable expectation of privacy," said Robert Frommer, a senior attorney with the Institute of Justice public interest law firm who is representing the Maxon family.

"If 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't want is for officials to decide this themselves – the next thing you know, we'll have drones flying over everyone because they'll be fishing for violations."

As the use and availability of drone technology expands, Frommer said the case could set a legal precedent.

"This is a bellwether. This decision will affect the course of not just Michigan, but all of America about how it treats drone surveillance."

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's 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.

"When discussing manned aircraft in the '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 manoeuvrable," she said.

More recent aerial surveillance programmes have run into legal trouble, with a court in 2021 rejecting a Baltimore police programme 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 "on the cusp of an explosion in law enforcement use of drones" and flagged concerns that these tools could be used to target poor and marginalised communities in particular.

Tracking from the Electronic Frontier Foundation showed nearly 1,500 law enforcement agencies have purchased or used drones.

A Department of Justice report in 2020 found that most authorised 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.

'Privacy law has not kept up'

Yet as the technology develops, the law has not, Zhao said, with many police departments relying largely on internal policies to decide what they can and cannot do.

"We should all be worried about the fact that privacy law has not kept up with the rapid pace of drone technology," 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.

Zhao said a decision in the Michigan case now could influence how other courts across the country approach the issue – and potentially lead the U.S. Supreme Court to revisit the topic.

That is also what Todd Maxon is hoping. He sees his case as an important first step.

"This has nothing to do with my small-peanut case anymore," he said. "If they don't rule on this correctly, nobody's safe from government spying."

(Reporting by Carey L. Biron; Editing by Jon Hemming.)