A recently enacted law will affect backyards across New York state for years to come. Senate bill S870-A (Senator Young) and its counterpart Assembly bill A861-A (Assemblyman Braunstein), collectively known as the backyard surveillance bill, has been signed into law by Governor Cuomo. The new law provides a homeowner the ability to sue a neighbor or third-party who has invaded a homeowner’s privacy by taking pictures or filming the homeowner’s backyard without their knowledge or consent. The express language of the law provides:
any owner or tenant of residential real property shall have a private right of action for damages against any person who installs or affixes a video imaging device on property adjoining such … property for the purpose of videotaping or taking moving digital images of the recreational activities which occur in the backyard of the … property without the written consent thereto of the owner … with the intent to harass, annoy, or alarm another person ….
The genesis of the new law stems from loopholes in prior legislation regarding “peeping toms” or similar situations where folks were being surreptitiously recorded in their own backyards. This new law aims to plug those loopholes. Homeowners now have a legal claim against their neighbor who, for example, places a camera on a tripod for the purposes of filming them or their children in their own backyard without their consent. While most would agree that this is rather disturbing behavior, until now there was no individual legal right to stop such conduct or a way to seek money damages from the offending neighbor. The protections afforded under this new law also extend to tenants as well, and are not restricted to the actual owner of the rental property. Excluded, however, is law enforcement surveillance and other related authorized duties.
Yet, the new legislation leaves some questions unanswered. For example, the law is restricted to “backyards,” and does not prohibit filming of the side or front yards. But typically most folks’ swimming pools are located in their backyards, so this limitation should not present a real practical issue or concern. An issue that may be of more import, however, is the language “installs or affixes a video imaging device on property adjoining ….” This language suggests that the law would only apply to cameras or recording devices that are installed on, or affixed to, some object found on the neighboring property. The aforementioned camera placed on a tripod comes to mind, as well as, for instance, a camera affixed to a lamp pole or shed pointing into a neighbor’s backyard. Given the recent advancement in portable cameras and film equipment, such as GoPro cameras or drones with cameras, it is not entirely clear whether the law was intended to be so limited. Indeed, the legislative history behind the new law suggests otherwise, providing that “[a] person is guilty of this action if he or she intentionally uses or installs, or permits to be, used, or installed, a video imaging system that allows the unwarranted video imaging of an adjoining residential property owner’s backyard premise without the property owner’s written consent.” Employing the term “use” in the discussion about the legislation could mean that mere “use” of a camera in such a nefarious fashion would constitute a violation under the new law. But the term “use” never made it into the language of the actual law. Therefore, as it currently stands, the law only provides a homeowner with a way to stop an unscrupulous neighbor or third-party from filming his or her backyard from a fixed or anchored location.
In light of this omission, the new law likely has no application to drones with cameras. The reason is that the drone is neither “installed” nor “affixed” to a video imaging device on property adjoining the homeowner. Even though the current version of the law may not preclude a drone operator from flying her drone into her neighbor’s property, there are other laws aimed at preventing this unwanted behavior, such as reasonable expectation of privacy laws. Thus, while this new law alone may not prevent surreptitious backyard surveillance by drones, it may do so in concert with other existing privacy laws in effect throughout the State.
In short, as with any legislation seeking to balance privacy rights, technological advancement, and recreational activity, this current law will no doubt evolve over time as well. Therefore, drone operators should be cognizant of this new law and stay tuned for further developments with this and other privacy laws on the state and local level.