Don't Bet the Business

The privacy landscape continues to shift and evolve – especially concerning whether we live under a microscope … or rather, highly sophisticated cameras and video technology. 

Many believe there is already too much intrusion on our daily privacy, while others welcome technological advances into their homes and lives, either, without much thought or with limited concern of how that data and information may ultimately be used. As shown by recent developments in Michigan, and beyond, this issue gets more complicated once government or law enforcement, or even employers, become involved. 

Earlier this month, the Michigan Court of Appeals ruled that certain drone surveillance of the yard of a private residence by a government entity implicates the Fourth Amendment and is illegal without a warrant or a traditional exception to the warrant requirement. 

In Long Lake Township v Todd Maxon, et al, Long Lake Township alleged that Todd and Heather Maxon, home and property owners in the township, were in violation of a zoning ordinance by storing “junk cars,” other junk material, and operating an illegal salvage or junk yard. To support its case, and because the Maxons’ yard (or curtilage – the legal term for the area surrounding a person’s house) was visibly private from the ground, the township hired a third-party contractor to operate a drone, fly over the property, and capture aerial photographs during multiple drone flights. 

In response, the Maxons moved to suppress the photographic evidence, arguing that the drone surveillance constituted an unlawful search in violation of the Fourth Amendment of the U.S. Constitution. 

In reversing the trial court, the appellate court agreed with the Maxons. In doing so, the appellate court analyzed numerous U.S. Supreme Court cases that previously addressed privacy at and around a person’s home and yard, and also discussed the Michigan statute M.C.L. 259.322, which already prohibits the use of a drone to “capture photographs, video, or audio recordings of an individual in a manner that would invade the individual's reasonable expectation of privacy.” 

The appellate court referenced rather prescient statements from the U.S. Supreme Court from Kyllo v United States, 533 US 27; 121 S Ct 2038; 150 L Ed 2d 94 (2001), that the mere existence and availability of technological advancements should not be per se determinative of what privacy expectations society should continue to recognize as reasonable. The appellate court also discussed how drones are “necessarily more intrusive” than an airplane overflight and that the low altitude at which drones fly, when flying over a private residence without permission, could constitute a trespass. However, critical to the appellate court’s analysis and decision was the Maxons’ clear intention that their property remain private. Indeed, little, if any, of the property was visible from the ground.

While the Maxons clearly desired to live privately, others are essentially inviting law enforcement to their properties. Many homeowners have purchased smart-doorbell security camera systems, with the Ring Video Doorbell (commonly and simply referred to as “Ring”) likely the most prevalent. These doorbell devices have built-in cameras, and often microphones, that are typically activated by the touch of the doorbell or motion sensors, which then alerts the homeowner or user of the activity at the door – however, some models are always recording. While this is a straightforward example of a private person making an independent decision about privacy at their own home and property, the issue is complicated when law enforcement becomes involved.

The Ring platform already has a built-in app called Neighbors Public Safety Service which allows users to voluntarily share their own videos and also view videos shared by other Ring users – the general concept being a community of watchful “eyes.” Some users readily share these videos with law enforcement, emergency services and other government entities. But recently, 60 Michigan police and sheriff’s departments signed agreements with Amazon (the maker of Ring) letting them access images and video from Ring video doorbells. 

This trend is not unique to Michigan police agencies as hundreds of other law enforcement bodies around the nation have similar agreements. Even beyond these agreements, law enforcement agencies can obtain a search warrant for the doorbell videos directly from Amazon or similar platform providers without requesting them from the homeowner. 

While the use of this video to solve crimes is arguably a net benefit to society, concerns have been raised about the lack of a proper framework, accounting for appropriate privacy protections. These videos capture much more than a particular crime that may have occurred but also the lives of those who happen to be near the camera; the concern is even greater for the cameras that are constantly active. Further, the partnerships between law enforcement and private companies that circumvent the homeowner’s role in choosing to create the footage adds another layer of complexity. 

Even without the involvement of law enforcement or government, some companies are turning to cameras and biometric technology to further efficiency, safety, accountability, and presumably profit. For example, in February 2021, Amazon announced plans to install artificial intelligence powered cameras to monitor delivery driver behavior. Perhaps, it is not surprising that employers would be interested to know if their drivers were following traffic laws and generally driving safely. But this technology is powerful and sophisticated enough to capture yawning and distracted drivers (monitoring if a driver has a phone in hand or is looking down rather than at the road). It seems inevitable that similar technology will make its way into many more workplaces.    

As technological advancements continue to become intertwined in our lives, personally, professionally, and socially, we must grapple with the privacy implications that these devices present. What cannot be overlooked is that with each of these privacy issues, the underlying information (which may be deemed private) is valuable. This value not only means different things to different people (or entities), but the same information may be highly valuable to some and have little value for others or have little value in isolation but great value in aggregation. This information ranges from personal, with perhaps only intrinsic value, to highly sophisticated business data used for competitive advantage and trade secrets.  Of course, the more private or the more valuable the information, the greater the stakes in protecting it.    

As with most things, trying to strike the right balance is often challenging and perhaps fleeting at times. But of course, this is not anything new, though the landscape certainly looks different.

However, just because technology has advanced and the cost of the technology drops to the point of it being commonplace, privacy must still be accounted for. As noted by the Michigan Court of Appeals, “the development of historically-novel ways to conduct unprecedented levels of surveillance at trivial expense does not per se reduce what society and the law will recognize as a reasonable expectation of privacy.”