Aerial Photography and Privacy – Where Do You Draw The Line?

BY KERRY GARRISON · APRIL  2014

Aerial photography is not new, we have all seen the effects and benefits of it with tools like Google Maps and Google Earth. But where does the line get drawn in terms of privacy? If you are sitting in your backyard, typically not view able by any of your neighbors, you have a certain expectation of privacy. However, satellites and airplanes are taking pictures of your yard on a regular basis. We need to ask ourselves, where do we draw the line?

Here is an image from Google Earth of my backyard, of course, it shows my neighbor’s yards as well as I cannot zoom in any more with these tools.

Ok, so the resolution isn’t that great, I might be able to see that someone was in the backyard but could certainly not pick out someone specifically as the resolution simply isn’t good enough.

In the next image, this was taken from a quadcopter about 40′ off the ground.

This picture certainly is much clearer, has more detail, and could be zoomed in to actually distinguish a specific individual. Zoomed as close as I could get, we can see myself standing there controlling the copter.

The question we have to ask is how close is too close? If we accept that Google, Government, and other services are routinely taking pictures of our private space, then when does it become unacceptable?

From a photographer point of view, I fully understand and believe in the concept of the expectation of privacy. I wouldn’t hold my camera over the fence to take pictures of my neighbor’s yard, but obviously we have made it acceptable for an airplane at a few thousand feet to take that same picture. If the FAA regulations say that a remotely piloted vehicle must stay under 400 feet above ground level, is it then 500′ that becomes acceptable? Does that mean I can fly a full sized, manned helicopter down to 500′ and use a nice 600mm lens to snap away unfettered?

If we are to believe that we still have any privacy in our yards, than any aerial photography would have to be banned. One the other hand, if we accept that we are under aerial surveillance already, does the expectation of privacy no longer extend outside the walls of your house?

What is expectation of privacy? It really comes down to two key concepts:

• Subjective expectation of privacy – a certain individual’s opinion that a certain location or situation is private; varies greatly from person to person
• Objective, legitimate, reasonable expectation of privacy – An expectation of privacy generally recognized by society

So let’s take my neighbor’s back yard. “He” may hold the opinion that his backyard is private space and a photo from a quadcopter would be an invasion of his privacy. Certainly he is entitled to his opinion. On the other hand, as a society, we have already recognized that our backyards are not private or we would not allow services like Google Maps/Earth to exist.

From Wikipedia:

In general, one cannot have a reasonable expectation of privacy in things held out to the public. A well-known example is that there are no privacy rights in garbage left for collection in a public place.^[2] Other examples include: pen registers that record the numbers dialed from particular telephones;^[4] conversations with others, though there could be a Sixth Amendment violation if the police send an individual to question a defendant who has already been formally charged;^[5] a person’s physical characteristics, such as voice and handwriting;^[6] what is observed pursuant to aerial surveillance that is conducted in public navigable airspace not using equipmentthat unreasonably enhances the surveying government official’s vision

Using this example, it can be argued that a modern multi-rotor copter is easily available to the general public and that a basic camera attached to it does not unreasonably enhance the operator’s vision.

Until this is tested in the courts, we really don’t have a definitive answer as to what is reasonable or not. I would prefer to err on the side of caution and not go around filming people’s yards without their permission. However, there is another side to this as well. I have security cameras all around my property, there is no way to adjust them so that they can’t see into my neighbor’s yards. Should I not be allowed to secure my own property even if it peers into an adjoining yard?

This article was not intended to be a definitive solution or legal basis for aerial photography, I am hoping it starts up a discussion with you, the readers, and I really want to hear what you all have to say on this.