Michael Jones Provides Innovative and Valuable Services for His Customers
In recent years, drones have taken America by storm. Kids get drones as presents. Amazon is testing drones to deliver packages. Real-estate agents use them to snap vivid images of homes. Hobbyists fly them in parks.
Drones have also revolutionized our ability to capture and synthesize data. Using cameras, drones can photograph buildings. With heat-sensor imaging they can identify thermal leaks in massive storage units. They can create incredibly detailed photographs of land by flying over the property and capturing images, which are then stitched together using orthomosaic software. Drones can capture other useful data as well, about land elevations, distances and the size of objects.
All this new technology is exciting and affordable. So, not surprisingly, many small-business entrepreneurs have seen opportunities in the drone industry. Often, their services involve creating marketing photographs and videos. But they also capture and create images and data for clients to use. They use drones to photograph large construction sites, for example, so that builders can monitor the progress of their work. Using 3D modeling software, they can compare final site plans with the current state of construction. They can photograph the exterior of tall buildings, so the owner can check for damage. And so on.
Michael Jones, of Goldsboro, North Carolina, has been fascinated by drones for years. He runs a one-man photography and videography business, and he branched out into drones around five years ago. As he explained to a local reporter, “I want to use drones to help solve problems people have . . . I can send a drone out and get information in 10 minutes that could take a crew of guys several hours.”
His services included what he calls “mapping.” For example, a property-management company might want an updated aerial shot of its land, so Michael would send out his drone, photograph the property piece by piece, and use software to stitch the pictures together to form a comprehensive aerial image. Other times, local businesses would hire him to run a thermal-sensor drone over their distribution center, so they could review the images to see where heat was escaping. Real-estate agents sometimes asked him to take aerial photos or videos of tracts of land for marketing materials. For Michael, drones were at the cutting edge of his business.
North Carolina’s Surveying Board Cracks Down
Enter the North Carolina Board of Examiners for Engineers and Surveyors. In December 2018, the Board sent Michael a letter advising that it had begun investigating Michael and his business for practicing land-surveying without a license. At first, Michael thought it was all a misunderstanding. As he told the board investigator, his images didn’t purport to mark property lines with legal accuracy. But the investigator told him it didn’t matter. According to the investigator, giving a client an aerial photograph that contained geospatial metadata would amount to the unlicensed practice of surveying. Drawing lines on any photograph also qualified as surveying, even if Michael made clear that the lines weren’t for use in defining property boundaries. Even stitching together photos qualified as surveying, the investigator said.
Things settled down for a while. But that summer, the Board issued Michael a formal letter declaring that his business was “practicing, or offering to practice, surveying in North Carolina . . . without being licensed with this Board.” According to the agency, Michael’s illegal activities “include, but are not limited to: mapping, surveying and photogrammetry; stating accuracy; providing location and dimension data; and producing orthomosaic maps, quantities, and topographic information.” Unless Michael “came into compliance,” the Board warned, he’d face a civil injunction and even criminal charges.
Faced with those threats, Michael shut down much of his burgeoning drone business. He stopped offering to create orthomosaic images. He stopped drawing lines to even roughly approximate property lines on real-estate marketing materials. He gave up on his efforts to pitch clients on 3D digital models and volumetric data. With little choice, he acceded to the Board’s demand for compliance.
Surveying Boards vs. Drone Start-Ups
Michael didn’t know it at the time, but his was one of several companies targeted by North Carolina’s surveying board. Since 2018, the Board has issued at least a half-dozen cease-and-desist letters to drone companies and operators. According to the Board, drone operators need a land-surveyor license if they provide a client with aerial photographs of land containing any metadata or other information about coordinates or distances. Or if they take aerial photographs and use orthomosaic software to stitch the photos together. Or if they take aerial photographs of a building and uses software to process them into a 3D digital model. Or if they create accurate aerial maps. Or if they take aerial photos and process them into an image showing elevations. Or if they take aerial photos and process them in such a way that a client can make rough measurements of distances. Or if they process aerial photos of stockpile, for instance, so that a client can use software to estimate the volume. Much of the innovative work drone companies offer, in other words, is illegal in the eyes of the surveying board.
Nor is North Carolina alone in targeting drone start-ups. As the American Council of Engineering Companies in California acknowledged in 2017, “UAS [Unmanned Aerial Systems] and smart phones have come on the scene quickly and disrupted the traditional surveying and mapping establishment.” And in some states, the establishment hasn’t taken kindly to disruption. Much like North Carolina’s, for example, the California surveying board has reportedly sent warning letters to drone companies. More formally, California’s board has also warned that “orthogonally rectifying . . . photography to the surface of the Earth” (in other words, basic mapping of aerial images) requires a land-surveyor license. To the north, Oregon’s surveying board has proceeded similarly, cautioning that “[p]hotogrammetric mapping,” “[t]opographic mapping,” “[v]olume computation,” and “3D mapping” all are “potential areas of infraction for UAS owners.” “UAS operators providing similar photogrammetry services without the proper licensure, knowingly or unknowingly, could potentially receive fines or face further legal action,” Oregon declared.
The First Amendment Protects Michael’s Speech
Drones may be a new phenomenon, but the principle at stake is nearly as old as the nation itself. Michael Jones wants to use his drone to capture, create, and disseminate images of land and data about the dimensions and size of property and structures. In short, he wants to create and communicate information—speech.
A series of U.S. Supreme Court cases decided in just the past decade make clear that activities like Michael’s are fully protected by the First Amendment. In 2010, the Court observed that the First Amendment applies where “conduct triggering coverage” of a law “consists of communicating a message”—such as providing maps, photographs, or data. A year later, the Court declared that “the creation and dissemination of information are speech within the meaning of the First Amendment” and that the First Amendment is “implicated when information [a speaker] possesses is subjected to restraints on the way in which the information might be used or disseminated.” More recently, in 2018, the Court unequivocally rejected restrictions on “professional speech”—speech made as part of an occupation—which some had treated as a separate category of speech subject to lesser constitutional scrutiny.
IJ also secured a major victory at the 5th U.S. Circuit Court of Appeals against Mississippi’s surveying board on behalf of an innovative company, Viziline, that provided maps to its banking customers. The unanimous panel wrote that: “Mississippi’s surveyor requirements are not wholly exempt from First Amendment scrutiny simply because they are part of an occupational-licensing regime.” Following this ruling, the state surveying board gave up on its attempts to shut down Viziline.
To be clear, Michael doesn’t want to perform what most of us would think of as “surveys.” He isn’t claiming a right to establish legal property boundaries or place survey markers (the absolute reference points used to mark boundaries or triangulate locations in surveying). Nor did his creations purport to be authoritative—they didn’t get turned into legal descriptions of property to be submitted to the local register of deeds.
All Michael did—and all he wants to do—is use innovative technology to provide images and information to willing customers. That speech is fully protected by the First Amendment.
Now, Michael is fighting back with a First Amendment lawsuit against North Carolina’s surveying board. He’s raising a single claim under the First Amendment, seeking to vindicate the right to capture, create and disseminate information as part of his business.
The Litigation Team
IJ Attorney Sam Gedge and Law & Liberty Fellow James Knight II represent Michael Jones and 360 Virtual Drone Services LLC. They are joined by local counsel David Guidry of Mainsail Lawyers.
About the Institute for Justice
The Institute for Justice is the nation’s leading advocate for First Amendment rights and economic liberty. IJ has challenged efforts to use occupational-licensing laws to silence speech by tour guides, mapping companies, veterinarians, diet coaches and makeup artists.