Threatened with Jail for Drone Mapping, North Carolina Man Makes Important First Amendment Fight

Surveyors in North Carolina are worried about drone pilots encroaching on their work.

So much so that they say any georeferenced image or output made using a drone and sold to a client—whether it’s a photo, a 2D map, or a 3D map—would be considered surveying without a license.

Let’s pause on this.

According to this definition, if you were paid to take an aerial picture of someone’s property for their own use, if that picture had georeferenced metadata attached to it—even if you were unaware that it had that data and it wasn’t part of what you were offering or selling—you could face prosecution for doing surveying work without a license.

This view seems pretty extreme, and pretty silly. But the state has backed it up.

Credit: Institute for Justice

According to the North Carolina Board of Examiners for Engineers and Surveyors, aerial mapping is survey work. And it can only be done by a licensed surveyor.

Of course, surveyors have a big stake in this debate. If someone can hire a drone pilot to get a quick georeferenced map of their land for half what they might pay a surveyor, surveyors stand to lose a lot of business.

But what about people who just want photos of their land? Or a quick orthomosaic to show real estate clients? Apparently, all of this work would have to be done by a licensed surveyor, and at a much higher cost than a non-licensed drone pilot would charge.

And this isn’t just an academic argument. According to the Institute for Justice (IJ), the non-profit that’s taken North Carolina to court over this issue, surveyors are actively going after drone pilots for doing any kind of work that contains even basic land information.

For years, the state’s land-surveying board has targeted small-time drone operators, claiming their maps and models amount to illegal ‘surveying.’

– The Institute for Justice

The Court Case Against North Carolina

The case that’s bringing North Carolina’s state restrictions on drone mapping to the public eye is one filed by a drone pilot named Michael Jones, who owns a company called 360 Virtual Drone Services LLC.

Representing him is the Institute for Justice, whose focus as a non-profit is on protecting first amendment freedoms. Jones’ lawyers have argued that taking and sharing drone pictures is a form of free speech that’s protected by the first amendment.

But this argument didn’t work out for him the first time the case was heard.

In that case, the court sided with the North Carolina Board of Engineers, finding that the state could punish drone pilots for creating and sharing even basic land information if they weren’t surveyors.

The IJ is appealing the verdict, calling out the state of North Carolina for stifling innovation.

Licensing boards should not be able to use their authority just to protect businesses from competition. The government should step out of the way and let innovative businesses like Michael’s continue serving their customers.

– James Knight, Attorney for IJ

What Exactly Does the State of North Carolina Require?

The trouble for Michael Jones began in 2018, when he got a letter from the North Carolina Board of Examiners for Engineers and Surveyors.

In the letter, he was told that the commercial drone work he did was illegal because it constituted surveying without a license. The Board demanded that he stop immediately or face criminal and civil prosecution.

Worried about the threat, Jones soon shut down his small drone services business. And he’s not alone. At least a half dozen other drone service providers in North Carolina closed or significantly changed their offerings after receiving similar letters.

So what exactly did Jones do that attracted the wrath of the Board?

First, it’s important to say that Jones never positioned his aerial services as survey work.

In fact, he’d been very careful to say on his website that he was not a surveyor, and that his aerial photos and any 2D or 3D outputs he made with them didn’t establish property lines, and that they couldn’t be used for surveying purposes.

But none of that mattered. According to an investigator from the Board, what he was doing was illegal.

Here are some of the specific activities the Board said weren’t allowed:

• Providing images of a property that contained metadata (i.e., elevation, distance, or GPS coordinates).
• Providing stitched together images of a property (i.e., orthomosaics)—even if you didn’t take the pictures, just stitching them together using orthomosaic software could get you in trouble, according to the Board investigator.
• Drawing approximations—even rough ones—of property lines on images.

The first two are incredibly broad.

If you can’t share any photo of a property that contains metadata or stitch together images of a property, that effectively means you can’t do real estate marketing with your drone, which is one of the more common services small drone companies offer.

It’s easy to see how the vagueness and broadness of this language could create a chilling effect for anyone thinking about offering drone services.

If you’re worried you’ll get fined for just taking a drone photo of someone’s property, you may not offer any kind of service that could include pictures of property, buildings, or land. You may even decide that offering any kind of drone service is too fraught with potential legal pitfalls, and decide to drop the whole endeavor.

This case is important because it could be used as a model for other state surveying boards, who might become emboldened to launch their own attacks on small drone businesses.

We’ll be watching closely as the IJ appeal makes its way through the system, and will keep you posted as the case develops.