The Volokh Conspiracy

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25-Foot Rooftop Videocamera Peering Into Neighbor's Yard Must Be Taken Down

Sounds right to me.


[UPDATE May 30, 2021: On May 28, the court issued a revised opinion, with a few factual details altered; I've marked the deletions using strikeout font, and the insertion using underlining.]

From Jackman v. Cebrink-Swartz, decided Friday [March 26] by the Florida Court of Appeal, in an opinion by Judge Robert Morris, joined by Judges Daniel Sleet and Matthew Lucas:

The Jackmans and the Swartzes own adjoining lots with the border running along the sides of their respective homes. [After some disputes,] the Swartzes installed a twenty-five-foot-high rooftop camera. The record reflects that the camera had night-vision capabilities and recorded twenty-four hours a day, seven days a week.

The camera was positioned to see over the Jackmans' [6-foot-high] privacy fence, allowing the Swartzes to see into a portion of the Jackmans' backyard and the edge of their lanai. Testimony reflected that the camera could also see the side door to the Jackmans' home but could not see beyond the threshold of the door when it was open….

Mrs. Jackman testified that she could see the camera from within her lanai and that she found it highly offensive and intrusive, frustrating her use and enjoyment of the Jackmans' property. Mrs. Jackman further testified she did not believe there was a legitimate reason for the installation of the camera since the Swartzes already had three other cameras installed on their home, two of which already faced the common border area between the homes, though they were not positioned to see over the Jackmans' privacy fence.

Mrs. Swartz testified the twenty-five-foot-high camera was installed due to her fear of Mr. Jackman, with whom she had had several confrontations. She testified that after installation of the camera, Mr. Jackman ceased the activities that had caused her concern on prior occasions. {Mrs. Swartz alleged that Mr. Jackman had previously followed her and paced along side of her as she was working in her side yard.} The Jackmans presented testimony from two neighbors … who testified that they had never observed Mrs. Swartz had never acted acting like she was in fear of Mr. Jackman….

The court held that the Jackmans were entitled to an injunction ordering Swartzes to take down the camera, because the camera's operation constituted tortious intrusion upon seclusion:

The tort of invasion of privacy is comprised of several different forms. Intrusion upon seclusion is defined as where a person "intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns … if the intrusion would be highly offensive to a reasonable person." Restatement (Second) of Torts § 652B (Am. Law Inst. 1977). Notably, this form of invasion of privacy "does not depend on any publicity given to the person whose interest is invaded or to his affairs." …

[T]here is a reasonable expectation of privacy within the curtilage of a residence, and we conclude that there is a material difference between occasionally viewing the activities within a neighbor's backyard that are observable without peering over a privacy fence and erecting a camera to see over a privacy fence to thereafter surveil and record those activities on a consistent basis. See Goosen v. Walker (Fla. 4th DCA 1998) (recognizing that engaging in repeated surveillance of another person can constitute the tort of invasion of privacy—intrusion upon seclusion); Shafer v. City of Boulder (D. Nev. 2012) (citing United States v. Cuevas-Sanchez (5th Cir. 1987), for the proposition that video surveillance of someone's backyard is different from a one-time overhead glance and that society would recognize a homeowner's expectation to be free from such video surveillance to be reasonable); Baugh v. Fleming (Tex. App. Dec. 31, 2009) (holding that evidence was sufficient to establish intrusion upon seclusion claim where party videotaped neighbor through window by peering over six-foot-high privacy fence in their backyard).

We do not overlook the Swartzes' argument that the Jackmans had their own camera installed on their home and that it surveilled a portion of the Swartzes' home. However, the Swartzes have acknowledged that the Jackmans' camera is aimed primarily at the border area between the homes—rather than into the Swartzes' backyard—and that it is facing the street. Further it is undisputed that the door of the Swartzes' home that is visible to the Jackmans' camera is a side door to the house which is visible from the street. Thus the Swartzes do not have the same subjective expectation of privacy related to that area of their home as they would if it was enclosed by a privacy fence adorned with "no trespassing" signs….

Finally, we note that the trial court determined below that the position of the camera was not dispositive and that the dispositive issue was what footage the camera was capable of capturing. For the reasons we have already explained, we conclude that the position of the camera in this case—peering over a privacy fence into the curtilage of a neighbor's backyard—was dispositive. However, we also recognize that due to the proliferation of home surveillance cameras and drones, there is some uncertainty about what surveillance activities may be maintained without resulting in an invasion of privacy of another person. Thus we certify the following question as one of great public importance:

Does the use of a camera by a private citizen to monitor and/or record activities occurring within the curtilage of a home surrounded by a privacy fence not belonging to the camera operator constitute the tort of invasion of privacy—intrusion upon seclusion?

This certification, as I understand it, would give the Florida Supreme Court discretionary jurisdiction to consider the matter, should the Swartzes decide to seek review by the Florida Supreme Court; but if the parties don't seek such review, then the Jackmans are entitled to the injunction.