Drone Operator Sues North Carolina Over Its First Amendment-Violating Surveyor Licensing Laws

from the propping-up-the-good-old-boys-at-the-expense-of-people's-rights dept

It's always a problem when a private citizen starts horning in on the government's racket. The government has plenty of rackets and likes them to stay in their possession, undisturbed and unthreatened.

When the government feels threatened, it starts making threats. And, since it has almost all the power, its threats usually work. But sometimes it gets sued. That's what's happening here: a government regulatory body has decided the incumbent interests it has propped up for years is more important than little things like the First Amendment.

A drone operator in North Carolina is suing the state because it claims he can't fly drones over land and take pictures without the proper license. It's not a commercial drone operator license. (He has that.) It's a license that basically says the government has given him permission to photograph the land underneath the drones his company operates. (h/t Techdirt reader Vidiot)

Here's the impetus of the lawsuit being brought by photographer Michael Jones, as summarized by Miriam McNabb of Drone Life:

Hiring a surveyor is an expensive business, but necessary if you want to establish legal property lines. What if you just want to see what your property looks like, or create a visual map of your property or work place in order to help make decisions about new development or see what type of topography you have? While previously, you may have had to hire surveyors to make a map, now that information is readily available by using aerial images. Commonly available commercial drone software is designed to do exactly this: creating orthomosaic maps and 3D images.

Surveyors apparently don’t like the competition. In North Carolina, they’re trying to push drone operators out of business. “…drone entrepreneurs on the cutting edge are finding a very old industry standing in the way: land surveying. In North Carolina, the Board of Examiners for Engineers and Surveyors [the NC Board] sends warnings to drone operators saying that certain photography amounts to surveying without a license and threatens them with possible criminal prosecution.”

Michael Jones is being represented by the Institute for Justice. His lawsuit [PDF] claims that, first of all, he's not actually engaging in the land surveying that falls under the control of the North Carolina Board of Examiners. Or, at least, he shouldn't be, but the Board has engaged in some weird form of eminent domain, rolling up every possible definition of aerial drone photography and converting it into something it can sell licenses to engage in.

In North Carolina... drone start-ups have found themselves targeted by a centuries-old profession: land surveyors. As most people would understand it, “land surveying” involves establishing legal boundaries between tracts of land. Yet the North Carolina Board of Examiners for Engineers and Surveyors (Board) takes a far more aggressive view. According to the Board, capturing and disseminating data about the dimensions or elevations of land—or the size of objects on land—requires a full-blown land-surveyor license. Drawing even rough approximations of property lines on images requires a land-surveyor license. Even stitching aerial photos together using orthomosaic software requires a land-surveyor license.

So, the stuff many wouldn't associate with the licensed act of surveying is considered subject to Board rules and regulations. The Board's aggression manifested itself with an investigation of Jones' company, 360 Virtual Drone Services. The Board claimed Jones was engaging in unlicensed land surveying. But Jones has never presented himself as a "surveyor," nor has he offered surveying services to anyone. All he has done is take photos of land from the air at the request of customers. That didn't stop the Board from threatening him with civil and criminal "consequences" unless he was willing to open up his wallet and participate in the local government's licensing scheme.

Jones refused. And has greeted these threats -- ones delivered to at least another half-dozen drone companies in North Carolina -- with allegations that this regulation violates his First Amendment rights.

[B]oth the Board and the statutes it enforces violate the First Amendment at a bedrock level. Simply, the projects the Board targets—aerial photos, data, 3D digital models, and the like—are speech that is fully protected by the First Amendment.

As Jones points out in the lawsuit, the restrictions the board places on aerial photography are content-based. Some aerial photos are fine but those containing any sort of useful data, like the stuff that appears on sites like Google Maps (elevations, geographical coordinates, property boundaries), are considered to be land surveying even if -- as Jones has made clear to customers -- he does not offer surveying services. He has also made it explicit the photos customers purchased from him did not establish property lines and could not be used for legal purposes.

At this point, Jones' drone photography business is on hold. Hopefully the court will find in his favor and let him get back to work. If the state really wants to protect surveyors, it should nudge them towards getting commercial drone operator licenses. This would foster competition, rather than ensure surveyors who have been slow on the tech uptake still have a captive market.

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Filed Under: 1st amendment, drones, michael jones, north carolina, surveyor


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  • identicon
    Anonymous Coward, 29 Mar 2021 @ 1:43pm

    One would think the obvious thing, in the case it ever actually happened that a person who commissioned aerial photography attempted to use the mapping to make property boundary claims with a government or in court, that the relevant agency simply inform the person that "these are not valid, please hire a surveyor or refer to existing plat maps on file in your county".

    But what, no, we want a new revenue stream and to protect our surveyor buddies from competition in their non-surveying addition services.

    You gonna arrest me if you see me in my front yard with a tape measure?

    reply to this | link to this | view in chronology ]

  • icon
    Flakbait (profile), 29 Mar 2021 @ 1:52pm

    Not NC’s first rodeo

    The North Carolina Board of Dental Examiners got smacked down by the US Supreme Court a few years back for pretty similar turf-keeping activities. This isn’t exactly the same, but there are strong similarities.

    https://www.scotusblog.com/case-files/cases/north-carolina-board-of-dental-examiners-v -federal-trade-commission/

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 29 Mar 2021 @ 1:56pm

    I wonder how they keep food fresh in NC considering they still are only allowed ice blocks.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Mar 2021 @ 1:58pm

    A picture is worth a thousand words.
    A pair of guys with surveying tools is worth a couple of hundred, but they are highly authoritative.

    To a lawyer, though, even a thousand words represents only a fairly slow morning.

    reply to this | link to this | view in chronology ]

  • icon
    Graham J (profile), 29 Mar 2021 @ 2:28pm

    Re: heyy

    they all do

    reply to this | link to this | view in chronology ]

  • identicon
    Bruce C., 29 Mar 2021 @ 2:32pm

    So does Google..

    Pay this NC state surveyors' license fee? Because most of the activities at issue also appear in Google maps, whether satellite view, street view or map view.

    reply to this | link to this | view in chronology ]

    • icon
      Avatar28 (profile), 30 Mar 2021 @ 7:09am

      Re: So does Google..

      I had the exact same thought reading the article. But Google is big enough that the board knows they can't bully them so they are allowed to continue unimpeded.

      reply to this | link to this | view in chronology ]

  • icon
    Graham J (profile), 29 Mar 2021 @ 2:32pm

    Streisand much? Rather that drawing attention to the fact that any idiot with a drone can do surveying, shut up and hope no one notices.

    First Amendment seems like a stretch but last time I checked photography from any altitude was fair game.

    reply to this | link to this | view in chronology ]

    • icon
      crade (profile), 29 Mar 2021 @ 4:49pm

      Re:

      How does it seem like a stretch? It's practically textbook. As mentioned many times in the article, he isn't selling surveying services. He is selling pictures of the land from the sky.. If that can take the place of surveying services they obviously aren't worth as much as they think they are.
      Why should he worry about Streisand or drawing attention since he clearly isn't doing anything wrong?

      reply to this | link to this | view in chronology ]

    • identicon
      OGquaker, 29 Mar 2021 @ 6:05pm

      Re: almost Nobility

      At the recommendation of Lord Fairfax, George Washington became the official surveyor of Culpepper County in 1749, at the age of seventeen years old before marrying wealth and being ordained as a general. The rest is history

      reply to this | link to this | view in chronology ]

    • icon
      madasahatter (profile), 30 Mar 2021 @ 8:48am

      Re:

      Streisand Effect definitely as many would not think to use an aerial survey drone for this purpose instead of a surveyor.

      As far as 1A, definitely as he is not claiming his services are legally valid surveys. He is only taking aerial photos and making various maps from those photos.

      If I 'hired' a friend to do this and paid him for his time I would have the same result - photos but not a valid survey.

      reply to this | link to this | view in chronology ]

    • identicon
      yodel, 30 Mar 2021 @ 6:26pm

      Re:

      I think you missed the point that, no, any idiot with a drone can't do surveying.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Mar 2021 @ 2:42pm

    How about the surveyors join the 21 century

    The last paragraph in the article more or less summed up what I was thinking as I read this... why don't the surveyors get a drone license and add drone photography to their list of services.

    Charge a certain rate for just the photo that cannot be legally used for boundary marking and such and another rate for a fully marked up picture with boundaries, elevations, and buildings. Although, the way it sounds in NC, they would probably be stepping on someone else's toes and would need a different license to mark up an aerial photo.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Mar 2021 @ 6:14pm

      Re: How about the surveyors join the 21 century

      Over 50 years ago, Litton was experimenting with their inertial navigation system, cruising around LA checking the machine against local survey monuments. Sadly, they informed my friend that the some monuments were in the wrong place

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Mar 2021 @ 3:17pm

    Licensed pilots, with a good enough camera, could fly over in a normal airplane from higher altitude and get a good picture.

    Just don't operate from any airfields in North Carolina and they cannot do much about it.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 29 Mar 2021 @ 3:18pm

    Someone's been taking tips from the mob I see

    Ah good old protection rackets... 'Nice business you got there, be a shame if something were to happen to it, but I'll tell you what, you pay my buddy over there for a 'license' that you'll never use because it doesn't apply to what you're doing and I'm sure nothing at all will happen to you or your business...'

    reply to this | link to this | view in chronology ]

    • icon
      Richard M (profile), 30 Mar 2021 @ 5:54pm

      Re: Someone's been taking tips from the mob I see

      Corrupt Govt officials engaging in anti-competitive rent-seeking behavior has been around for thousands of years. Bribing Govt officials for "favors" was probably a thing in the first ever Govt that existed.

      The mob has been taking tips from the Govt....

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Mar 2021 @ 4:26pm

    "government has plenty of rackets"

    "When the government feels threatened, it starts making threats. And, since it has almost all the power, its threats usually work." TD

    What's the core problem here?
    Government regulatory and licensing powers are supposed to be a good thing.

    reply to this | link to this | view in chronology ]

    • icon
      Madd the Sane (profile), 29 Mar 2021 @ 5:08pm

      Re: "government has plenty of rackets"

      Government regulatory and licensing powers, like any tool, can be used, misused, and abused. This is clearly in the second or third area for it to be "Drone operators will steal our business of surveying, even if they're just offering pictures."

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Mar 2021 @ 1:08pm

      Re: "government has plenty of rackets"

      It's amazing, the sheer size and quantity of the strawmen you burn. You must single-handedly keep half of the straw-producing farmers in this country in business.

      reply to this | link to this | view in chronology ]

  • icon
    Qyiet (profile), 29 Mar 2021 @ 6:07pm

    As a drone pilot for a survey firm in another country

    This sounds nuts. Here you need a licensed land surveyor to check and verify legal plans are correct, and that's pretty much it. They sign their name to it, and are liable if its wrong. (there's a bit more to it than that.. but its the core)

    Some places want a licensed surveyor to do stuff as part of their process but its pretty rare. Doing work like general topo mapping, stockpile volumes etc can be done by anyone, a lot of the field work is done by graduate surveyors who have yet to become fully licensed. Even the field work for legal surveys can be done by technician surveyors, but the licensed surveyor will be checking the work, and that all the math does in fact stack up (its their license on and liability after all).

    In the drone space we get competition from non-surveyor operators. For some tasks they do the job cheaper, and are a better option if what they produce is good enough.. then its fine. Often they don't understand the limitations of of what they are producing, or the accuracy. But that shouldn't stop them from operating.. Like we shouldn't be stopping someone from drawing a map of a place by hand.. it may or may not be fit for the purpose at the end of it. For example a "you are here map" who cares if the dimensions are correct if they are close enough to find your way. If that purpose isn't of legal consequence then its up to the client to choose the quality they want.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 30 Mar 2021 @ 7:21am

      Re: As a drone pilot for a survey firm in another country

      Yeah, well this is the land of the... um... free, where the government stays out of... uh, never mind.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Mar 2021 @ 5:51am

    the KING needs it's cut too

    with dinosaurs seeing the end of there usefulness, like the copyright cartel, big oil, telico's, or anything not keeping up with technology see new tech as a threat to there dying business.
    then government steps in and says you need a permit for that!
    oh you found a new way to make $$$? we need our cut!
    with the way things are going, i wouldn't be surprised if we need a "PERMIT" just to leave the house!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Mar 2021 @ 8:56am

    Thanks!

    reply to this | link to this | view in chronology ]

  • identicon
    sophocles, 30 Mar 2021 @ 10:22am

    this will fail, just as the case of an Oregon self-identified engineer who tried to argue a red-light-camera case; he never held himself out to be a registered "Professional Engineer".

    reply to this | link to this | view in chronology ]

  • icon
    silentsceu (profile), 24 Jun 2021 @ 12:21am

    sure they all do....

    reply to this | link to this | view in chronology ]


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