Drones (and the First Amendment) take on regulatory overreach in North Carolina

By Sam Gedge, Michael Jones

Raleigh, NC – Drones! In recent years, drones have captured the imagination nationwide. There are over 1.7 million FAA-registered drones in the U.S. And increasingly, they’re used not just for fun, but for work. Drone-photography companies have popped up across the nation, using new technology to capture, create, and process data. The services have been a boon for many industries. Developers hire drones to monitor property. Construction companies hire them to oversee the progress on building sites. Real-estate agents hire them to capture vivid images.

Photo by Karl Greif

Increasingly, though, drone start-ups have found themselves grounded by a centuries-old profession: land surveyors. As most people would understand it, “surveying” involves establishing and recording legal boundaries between pieces of property. But surveying boards—most notably, North Carolina’s—are taking a far more aggressive view: They insist that simply creating and sharing images of and information about land is the “practice of surveying” and illegal without a full-blown surveyor license. 

Drone photographers across the state have been surprised to receive stern warnings from the North Carolina Board of Examiners for Engineers. The letters state that drone companies are “practicing or offering to practice surveying without a license.” And unless they stop “mapping” and “come into compliance,” there will be civil and even criminal consequences. One of us (Michael) even received one of these warnings directly.

Now, we are teaming up to fight back, filing a lawsuit against the surveying board to vindicate everyone’s right to generate useful information.

Drone technology may be new, but the principles at stake are as old as the nation itself. Photographers want to use drones to create valuable images and data for willing customers. That’s speech, and it’s protected by the Constitution. As the Supreme Court underscored in 2011, “the creation and dissemination of information are speech within the meaning of the First Amendment.”

That principle applies with equal force to occupational licensing. Just last year, in fact, a federal court in Mississippi remarked that “surveyor requirements are not wholly exempt from First Amendment scrutiny simply because they are part of an occupational-licensing regime.” Put simply, surveying boards can’t claim a monopoly on useful information about land. Small-business drone companies aren’t creating maps for the purpose of defining legal property boundaries. They’re creating and communicating photos and information. It’s speech, pure and simple. In fact, much of it is similar to what you can find on Google Maps.

North Carolina should encourage innovative business ventures, not suppress them because established industries don’t like competition. And as our case will establish, you don’t need the government’s permission to take photos—no matter how cutting-edge the technology.

Michael Jones is a videographer, photographer, and drone pilot from Goldsboro, N.C. and Sam Gedge is an attorney with the Institute for Justice, a public-interest law firm.