SKYBORNE SURVEILLANCE Herding opinions: Long Lake Township drone case draws many

Nov. 19—TRAVERSE CITY — Type "herding cattle with a drone" into an online search bar and anyone not in the ranching business should prepare themselves for some astonishing videos.

One of these, filmed in Texas, has 28,000 views and an appropriate soundtrack — "Rawhide," the ubiquitous theme song from a 1960s-era TV series of the same name.

Move 'em out, head 'em up, etc.

Drone advocates say applying such New World technology to Old World labor can save money, increase productivity and even cut fossil fuel emissions — ATVs are used more frequently than horses, for example.

National privacy advocates, however, aren't singing a song, they're raising an alarm, and using a local court case to do it.

"(M)odern drones have sophisticated animal herd tracking algorithms that could be applied to surveil large numbers of people," write attorneys Nicholas Miller and Gene Schaerr.

Miller and Schaerr represent the Project for Privacy and Surveillance Accountability, a nonpartisan civil liberties group based in Washington D.C.

PPSA is one of 10 such outside advocacy groups that filed amicus briefs in a Long Lake Township zoning enforcement lawsuit, argued last month in front of the Michigan Supreme Court.

The case involving Todd and Heather Maxon, the couple whose property was surveilled, started in Grand Traverse County's 13th Circuit Court, bounced back and forth in the state's Court of Appeals, then last month was argued in front the state's highest court.

An amicus ("friend of the court" in Latin) brief is a court filing made by a person or group who is not a party to the case, but is permitted by the court to offer information, arguments or opinion, because they've shown they have an interest in the outcome.

Attorneys for Long Lake Township previously acknowledged in court filings that township officials hired a drone pilot to conduct three flyovers of the Maxons' property — two flights in 2017 and one flight in 2018.

Township zoning officials said they believed Todd Maxon, who spends his free time repairing and maintaining 4-wheel drive vehicles on his 5-acre property, had violated the township's zoning regulations.

The township's position is, that since these flights were in public airspace, complied with Federal Aviation Administration rules and took photos similar to those on free internet sites such as Google Earth, they were legal and didn't violate anyone's civil rights.

Municipalities have no plans to employ drones for dystopian uses to control people, Long Lake Township attorney William Henn told state Supreme Court justices during oral arguments.

The Maxons, however, said the drone flights violated their Fourth Amendment's protection against unreasonable searches, that they were never informed of the flights and the township did not have a search warrant.

"The township went on a fishing expedition by flying a drone multiple times over my property," Maxon told the Record-Eagle, the day before the case was argued before the state Supreme Court.

"Every family should feel secure and safe from any government agency spying on them, from above, with a drone," Maxon said.

Maxon said he believes all government officials, not just those with police power, need to adhere to the Fourth Amendment.

Maxon and others have expressed concern over the "slippery slope" of drone use, and several justices, during oral arguments Oct. 18, asked what the result might be of unfettered use of drones by municipal officials.

A ruling could come anytime, but perhaps not until the end of the year.

In the meantime, two state associations, the Michigan Municipal League and the Michigan Townships Association, filed a joint brief in support of Long Lake Township's position, and eight civil liberty groups have filed briefs in support of the Maxons.

The MML and the MTA say a government's use of a drone for certain enforcement activities, even without a warrant, does not constitute an unreasonable search and is akin to use of airplanes and helicopters, video doorbells and cell phone cameras.

"In considering Fourth Amendment application to the governmental use of drones to search private property from above, it should not be unexpected or surprising to a property owner to know that a drone flew over their property and took a picture of junk piles out in the open," the joint MML/MTA brief, authored by attorney Robert Thall, states.

"The reasonable expectation of privacy has diminished with regard to items stored outside in the open," Thall states. "We all live in this digital world with drones and cameras as a norm."

The case has also drawn the attention of people like Brent Skorup, a Virginia-based attorney and drone policy expert who serves on a Federal Communications Commission advisory committee.

Skorup and his brother, Jarrett Skorup, sought to raise the profile of the case, in their guest opinion published this week in the conservative news outlet, The Washington Examiner.

On Friday, Skorup made the point that drone use by police and civil authorities is on the rise, and if warrantless searches are allowed by the courts, it would have far-reaching effects.

"This is a new area of law that a lot of privacy advocacy folks, drone lawyers and civil liberties people are watching," Skorup said. "Michigan Supreme Court will be the first supreme court to take this issue up."

Skorup said property owners own the airspace above their land, but this ownership isn't infinite and the issue has never been clarified.

"Has there been a trespass? That's an issue that came up in oral arguments and it's an important question," Skorup said.

Skorup's brother, Jarrett Skorup, works for the Mackinac Center for Public Policy, a Midland-based free market group, that submitted an amicus brief jointly with the American Civil Liberties Union of Michigan, in support of the Maxons.

Attorneys in this joint brief make a variety of arguments, including that since the cost of drones have come down in recent years, technology is no longer a barrier to this form of surveillance, making the public even more reliant on the Fourth Amendment.

A market analysis report by Grand View Research, found commercial drone sales were $4.5 billion in 2021 and expected to increase annually until 2030.

Opposing attorneys do appear to agree on at least one thing: The issue isn't going away anytime soon.

"The importance of this case to municipal and constitutional jurisprudence cannot be overstated," Thall writes, in the MML/MTA brief. "The opinion of this Honorable Court will necessarily establish certain parameters to be followed by governmental entities to assist them in operating drones in a constitutionally compliant manner."