PRYING EYES IN THE SKY: VISUAL AERIAL SURVEILLANCE OF PRIVATE RESIDENCES AS A TORT
By Jeremy Friedman[1]
Copyright 2003 by Jeremy Friedman
[*1]
How would you know if others were watching you from above? If, through surreptitious surveillance
devices, other private actors were undertaking surveillance of you from airplane or satellite-based
vantage points, how would you know? How would you feel, knowing that you were being observed, maybe
even recorded, by inconspicuous individuals or by unmanned devices which were not readily observable
— devices which could see you at all times but could not easily be seen by you, at any time? What if
the area being observed from afar, by strangers, was your home and yard?
In the not-so-distant past, the rules of liability relating to visual aerial surveillance of private
residences would have created clear liability in many cases—perhaps, a large majority of instances
of visual aerial surveillance. Less than half of a century ago, some such cases would have been
governed by the principle that observation from directly above a private residence was trespass,
since the landowner owned all space above the land. The "ancient doctrine . . . Cujus est solum ejus
est usque ad coelum" ("ad[*2] coelum")[2] gave landowners property rights extending vertically to the
heavens. Not all cases of aerial surveillance would have created liability under ad coelum: for
example, it would not have been trespass of air rights if observation from above were done
diagonally from above a public street adjacent to property being observed. But in earlier times,
when technology was less advanced, there were few satellites and hovering aircrafts, and telescopic
devices for the enhancement of visual images were less powerful. Thus, the one type of visual aerial
surveillance that would not have constituted trespass — diagonal overhead surveillance — would have
been far less feasible (and thus less prevalent) than it is today.
But ad coelum, the rule that would have established clear liability in certain cases of aerial
surveillance, was abolished in 1946. In that year, the Supreme Court's U.S. v. Causby ruling on
government takings characterized the sky as "a public highway."[3] Citing a federal statute that
grants U.S. citizens a right to travel through navigable airspace, the Court explained that ad
coelum was no longer a viable rule.[4] The Court held that no Fifth Amendment taking[5] had occurred
where U.S. military flights' noise and glare had caused a significant number of the plaintiff's
chickens to fly into walls out of fear, killing themselves[6] — thus rendering the plaintiff's
chicken business untenable.[7] Ad[*3] coelum was pronounced dead, an anachronism that had flown into the
wall of change: "that doctrine [ad coelum] has no place in the modern world."[8]
In the wake of the abandonment of ad coelum, an abyss emerged that left landowners unable to rely on
established principles of air rights for protection from overhead surveillance. Causby left it
unclear what principles, if any, would replace ad coelum to determine ownership of the airspace
above pieces of land, in a world of increasing innovation. Though the Court dealt with certain
extreme situations,[9] it did not otherwise elucidate the meaning of the ruling. "[P]roperty" is a
"bundle of rights,"[10] meaning that ownership of airspace need not be absolute; the sky could
become a "public highway," in certain respects, while still remaining private property, in other
respects. To allow public use of the sky for transportation purposes was not tantamount to granting
complete public ownership of the sky. The public gained the right to use the sky for the
transportation, but landowners might still have retained the right to prohibit use of the sky for
certain, if not all, other purposes. On the other hand, Causby might have converted airspace into,
literally, a "public highway," completely owned and regulated by the public; Causby's holding,
perhaps, was that landowners had gone from having absolute ownership of overhead airspace to having
absolutely no rights to restrict[*4] public use of the overhead sky. Ultimately, the Causby Court
created a realm of ambiguity, by not clearly specifying whether landowners had retained any rights.
The result was that landowners were left without any clear protections against the use of the aerial
surveillance technologies that emerged in the decades after the Causby ruling.
The vacuum that emerged in delineating air rights has not yet been filled in the decades after the
Causby ruling, thus leaving subjects of aerial surveillance without any broad remedies. There is a
significant judicial opinion that provides a remedy, in the narrow context of the surveillance of
proprietary business information: in E. I. duPont de Nemours & Co. v. Christopher,[11] the Fifth
Circuit held that a business was liable for making overhead observations to steal its competitor's
trade secrets. There is also a Supreme Court concurring opinion that suggests the need for providing
remedies to the subjects of aerial surveillance: Justice O'Connor's Florida v. Riley[12] concurrence
recognizes that, in Fourth Amendment law, police surveillance from aircraft should be distinguished
as more problematic than ground-level observation. Currently, however, there are no broad, binding
principles of air rights that provide homeowners with established remedies against aerial
surveillance.
While there are currently few general principles of air rights to elucidate the topic of visual
aerial surveillance, there is a relatively new body of law that provides an alternative framework
for analysis of aerial surveillance: privacy tort law. When a private residence is observed from an
aerial vantage point, privacy laws clearly seem implicated — thus providing an alternative source of
legal remedy to the now-amorphous[*5] principles of air rights.[13] This Note argues that private (non-
police) visual aerial surveillance of private residences should presumptively constitute tortious
intrusion — and would constitute intrusion in many states, if the intrusion doctrine were carefully
interpreted. This Note argues that legislation should be enacted, to codify such a conclusion.
The argument is set forth in three parts. Part I spells out the basic problem that visual aerial
surveillance of private residences creates troubling asymmetries of information, very similar to
those created by wiretapping. Part II locates the problem of visual aerial surveillance within the
context of privacy tort law, where intrusion law offers the best available remedy. Applied to
ground-level surveillance, intrusion relies on contextual factors and generally provides a safe
harbor for observations made from public vantage points. Such considerations provide results
generally consistent with creating liability for aerial surveillance. Yet, admittedly, the doctrine
of intrusion has flaws that limit its effectiveness. Part III sets forth a legislative solution to
codify the proper application of intrusion law to aerial surveillance. Neither evidentiary
difficulties nor effects on media and government defeat the value of such a solution.[*6]
At its core, the topic of this Note pertains to the larger question of the regulation of technology.
Advances in technology allow surveillance devices to become increasingly powerful and common.
Ultimately, though, technology should be a means to the ends of serving human beings, without the
devices that we have created taking control of us, or being used to hinder basic values. A justified
desire to avoid acting out of fear yields no simple solution. Some might argue that the call for
protection of privacy reflects alarmist, unfounded fears that technology will become invasive;
others may retort that the only obstacle preventing the legal system from responding to real
problems posed by technology is a fear of confronting the new and unfamiliar. Only by spelling out
the issues clearly and arriving at a reasoned, measured solution can the legal system avoid
resembling the Causby chickens, whose fear spelled their own doom.
I. The Problem of Visual Aerial Surveillance
To address the problem of visual aerial surveillance, it is vital to define all relevant terms and
to clarify the nature of the proposal offered in this Note; after such clarification, the problem
can be more clearly elucidated, and its relevance to contemporary society can be explained.
A. Defining the Scope of the Problem
Due to the current protections offered by wiretap law, this Note focuses on visual
surveillance; but the analysis here could be applied to observation through any of the[*7] senses, to
the extent that such observation were technologically feasible. Aerial surveillance, in this
Note, simply refers to that occurring from aircraft (including both airplanes and helicopters),
manned satellites, or unmanned satellites.
Surveillance is defined as the gathering of information of a fairly high level of detail.[14]
This Note would apply to any purposeful observation of people, such as market research, sociological
study, investigation pursuant to a legal dispute (e.g., workers' compensation, divorce, fraud), or
collection of personal information as a commodity for sale. Mere accidental noticing of information
in the course of other activity, such as mapmaking or geological or topographical surveys, would
generally not involve the intensity of observation that would classify as surveillance of a home or
of a person.[15]
This Note focuses on the prospect of visual aerial surveillance occurring without the subjects
having been informed. This Note strives to create a general remedy for prospective plaintiffs who
are largely, if not wholly, unaware that any visual aerial surveillance has occurred. If the
subjects were fully informed of the identity of the observer and the nature of the observations,
including how and where records were to be stored and who would have access to them, then,
presumably, the subjects could present very specific claims dependent on misuse or fraud. But
because even the subject of surveillance who is notified that the surveillance is occurring would
rarely, if ever, be able to verify basic information — such as the full extent of the observations
or the manner[*8] in which data was being stored — this Note would not free from presumptive liability
observers who notify their subjects. In actuality, in the absence of mandatory notification
regulations, it is highly unlikely that many observers, such as those investigating fraud or divorce
cases, would inform the subjects that surveillance was occurring.
This Note does not examine the possibility of causes of action that focus on the physically
disruptive nature of close-to-the-ground conduct — i.e., trespass or nuisance claims. Such causes of
action provide an inadequate remedy to the problem of visual aerial surveillance. Visual aerial
surveillance may be conducted in a way that is simultaneously non-disruptive and nefarious. Remedies
such as trespass[16] and nuisance[17][*9] are of limited effectiveness and fail to capture the entire
problem created by visual aerial surveillance — as a result, legislation creating liability for
visual aerial surveillance would not be duplicative of trespass and nuisance law.
This Note deals primarily with creating tort liability for visual aerial surveillance done by non-
police parties; police activity is considered briefly, in Part III, Section D, infra. Three Supreme
Court cases spell out certain basic principles of police aerial surveillance.[18] Yet these three
cases do not fully resolve all aspects of the Fourth Amendment law on aerial surveillance.[19][*10]
Nor is Fourth Amendment law regulating police surveillance binding on the treatment of non-police
surveillance. Fourth Amendment law is merely persuasive authority — in ruling on intrusion tort
claims, courts rarely import Fourth Amendment principles.[20] In fact, privacy tort law influences
Fourth Amendment law relating to technological innovation.[21][*11]
B. Reasons that Aerial Surveillance of Residences is Problematic
There are essentially three troubling aspects of visual aerial surveillance of private residences:
the one-sided gleaning of information, the economic transfer from landowner to observer, and the
violation of the sanctity of the home.
1. Asymmetry of "Meta-Information"
In aerial surveillance, pronounced asymmetries arise regarding the occurrence of the surveillance
itself, i.e., "meta-information"[22]: the subject of the observations does not know the identity of
the observer, the frequency of observations, the manner in which the information is being stored, or
the identity of the parties with whom the observer shares the information. The subject of
surveillance has little or no "meta-information,"[23] while the observer has perfect "meta-
information."
The problem that the party being observed is defenseless, not able to even take note of the scope of
the observations—thus being unable to contest the surveillance in[*12] any manner — has been noted in
relation to police wiretapping.[24] Likewise problematic is the defenselessness of the subject of
non-police surveillance. The subject of surveillance cannot monitor whether the observer poses any
threat to the physical security of the subject, or whether the observer will sell or disseminate the
information to parties with interests adverse to the subject — such as parties in business
competition with the subject, or parties with personal enmity towards the subject.
Conceivably, information could fall into the hands of criminals whose plans would benefit from
knowing the daily schedule of the home; their systematic knowledge of when the home would be
unattended would render the property vulnerable, and their knowledge of the daily routine of the
property owners could be used to harm the owners. Furthermore, the subject's dignity is compromised,
since the subject cannot readily be aware of the actual uses of the information, such as to paint an
unflattering picture of the subject in private communications.
A paradigm for dealing with surveillance in situations where there is large asymmetry of "meta-
information" is audio surveillance law, under the Federal Wiretapping Act.[25] The Federal
Wiretapping Act creates liability for all observations made through the asymmetrical surveillance
technique of wiretapping. Wiretap law[*13] protects information by virtue of the protected medium from
which the information was intercepted (such as private phone communication),[26] without looking at
any other factors; no weight is given to the interactions between the observer and the subject of
surveillance, to the purpose of the surveillance, or to any other contextual factors.[27]
Surveillance from the inherently asymmetrical vantage point of the wiretapping eavesdropper is per
se unlawful.
Visual aerial surveillance law should follow the example set by the Federal Wiretapping Act. There
is no valid distinction between visual and audio surveillance that mandates stronger protection of
the latter.[28] Visual aerial surveillance often utilizes expensive equipment — perhaps more
expensive than wiretapping equipment — thus making the asymmetry of information troubling as an
exploitation of economic inequality.[29] Among economists and other commentators, there is ample
support for[*14] providing remedies to rectify significant asymmetries of information,[30] including
those resulting from visual surveillance.[31]
2. Appropriation of Value
The asymmetrical exchange of information creates a one-way flow of value, unjustly enriching the
observer and detracting from the value of the land that is under surveillance. By compromising
physical security and dignity, per the considerations in Part I, Section B, Subsection 1, supra,
regarding asymmetry of "meta-information," visual aerial surveillance lessens the value of the land
that is under surveillance. The landowner cannot avoid surveillance without incurring enormous
expenses associated with construction of overhead barriers; furthermore, overhead barriers
themselves would block sunlight and would generally diminish the value of the land for tree and
plant life and for other uses.[32][*15]
The observer gains value. The use of information gained from visual aerial surveillance for purely
commercial means, such as market research, is more economically troublesome as an unfair
appropriation of value than would be the use of information for academic study, or to uncover facts
related to legal disputes or other wrongdoing, e.g., a private investigator's investigation of
wrongdoing. But even information that is not directly used in business would still confer upon the
observer economic value that was obtained from the private residence, a non-public location.
3. Invasion of the Domestic Sphere of Privacy
Special privacy concerns arise when the loss of physical security and dignity occurs at a person's
home. Security can be lost at public places, and dignity can be impinged upon through public
discourse, such as defamation or libel; but security and dignity interests should receive special
protection at the home. The first argument for the birth of privacy tort law in the U.S.,[33]
presented in 1890 by Samuel D. Warren and Louis[*16] D. Brandeis, centered on the possibility of
technology invading the home.[34] In determining the bounds of permissible police visual aerial
surveillance, Fourth Amendment law recognizes the special interest in the home as a private sphere
deserving of protection;[35] curtilage around homes would also be worthy of protection as part of
the domestic sphere.[36][*17]
Security and dignity concerns are most relevant regarding homes. Public places in nonresidential
areas may have security by virtue of being heavily trafficked and heavily monitored by law
enforcement officers, and privacy expectations may be diminished generally in nonresidential areas,
implying that dignity is not compromised as much by observation.[37] While it might be desirable to
create liability for visual aerial surveillance of areas other than private residences, such a
proposal is beyond the scope of this Note, which focuses on the special protection that the home
deserves.
C. The Problem's Large and Increasing Magnitude
Recent years have seen a growth in aircraft and satellite surveillance technologies. Surveillance
technologies have become increasingly powerful: for example, satellites are capable of revealing an
item below only a few square inches in size.[38] In addition, surveillance technologies have become
increasingly common[39] and affordable.[40][*18] Technologies extend beyond satellite and conventional
aircraft surveillance; now there are novel surveillance methods, such as remote-control helicopters
equipped with cameras.[41] There are automated devices—not requiring continuous human labor—that are
capable of non-stop recording of vast amounts of information.[42]
As surveillance technology has advanced, the possibilities for the exploitation of information have
increased. In recent years, information has increasingly become a commodity[43] — which means larger
incentives exist for visual aerial surveillance. Information technology has grown, allowing more
potential trading in information gleaned from surveillance technologies. Technology allows storage
of increasingly large amounts of information, and technology allows faster and more voluminous
traffic in information.[44] Legal commentators[45] and members of the popular press[46] have
observed that aerial surveillance technologies pose a growing threat to privacy.[*19]
As technology makes surveillance potentially more feasible and pernicious, the importance of legal
remedies increases. The option of providing no legal protection from surveillance becomes quite
troublesome. Without the ad coelum doctrine, the law must turn to other sources that can provide
protection.
II. Privacy Tort Law Applied to Surveillance
Though post-ad-coelum air rights law of trespass and nuisance fails to provide an adequate remedy to
the problem of aerial surveillance,[47] privacy tort law can create air[*20] rights to provide
protections to homeowners. The modernization that made ad coelum anachronistic helped motivate the
1890 article by Warren and Brandeis that marked the birth of privacy tort law[48]; mentioning "[t]he
intensity and complexity of life attendant upon advancing civilization" and "modern enterprise and
invention,"[49] the authors warned of "the numerous mechanical devices [that] threaten" to strip
homes of privacy.[50]
A. Intrusion Law as the Best Remedy Currently Available
§ 8 (1972).
[3]Causby, 328 U.S. at 261, 264.
[4]Id. at 260 (citing 49 U.S.C. § 403).
[5]U.S. Const. amend. V.
[6]Causby, 328 U.S. at 259 ("As many as six to ten of their chickens were killed in one day by
flying into the walls from fright. The total chickens lost in that manner was about 150.").
[7]Id.
[8]Id. at 261. See also id. at 266 ("The airplane is part of the modern environment of life, and the
inconveniences which it causes are normally not compensable under the Fifth Amendment.").
[9]Government flights that render land below completely useless would be compensable takings of
private property. Id. at 261. Government flights that are especially invasive, physically —
interfering with land use or creating danger — would also be takings. Id. at 264–66.
[10]Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982) (citing Kaiser Aetna v.
United States, 444 U.S. 164 (1979)).
[11]E. I. duPont de Nemours & Co. v. Christopher, 431 F.2d 1012 (5th Cir. 1970).
[12]Florida v. Riley, 488 U.S. 445, 452, 454 (1989) (O'Connor, J., concurring) (police, from a
helicopter at 400 feet, looked for marijuana at a private residence).
[13]The emphasis on private residences does not suggest in any way that other landowners might not
also be entitled to remedies. Surveillance of individuals on private property — but not their
private residences — has been observed to be a troubling phenomenon. For example, in 1998 Michael J.
Fox testified before Congress that he was troubled at his loss of privacy when, at his 1988 Vermont
wedding, "helicopters recklessly jockeyed for position directly above our assembled families."
Protection from Personal Intrusion Act and Privacy Protection Act of 1998: Hearing on H.R. 2448
Before the Houst Committee on the Judiciary, 105th Cong. 9-11 (1998) (statement of Michael J. Fox,
actor). In the uproar following Princess Diana's 1997 death in an accident involving paparazzi
pursuit, calls for legal limitations on surveillance grew, but to quite limited avail. Michael J.
Fox advocated for Congressional legislation—which ultimately yielded only a failed proposed bill -—
dealing with the "persistent chasing and intrusion into private property with long-lens cameras"
(mentioning Princess Diana's death).
[14]See Black's Law Dictionary 14659 (7th ed. 1999) (definition of "surveillance" as "Close
observation or listening of a person or place in the hope of gathering evidence") (emphasis added).
[15]Where conversations are accidentally overheard, no "surveillance" has taken place-see definition
of "surveillance," supra note 14. See also Com. v. Louden, 536 Pa. 180, 192, 638 A.2d 953, 959 (Pa.
1994) (refusing to find a justifiable privacy expectation on the part of day care center providers,
regarding conversations that were audible next door).
[16]Aerial trespass actions would be ineffective in curtailing surveillance by aircraft. First, to
the extent that surveillance flights directly over a piece of land would be trespass under an ad
coelum-type standard, observers could avoid the problem by flying over adjacent, public property,
and making observations diagonally, without trespassing, from treetops on neighboring property.
David A. Koplow, Back to the Future and Up to the Sky: Legal Implications of "Open Skies" Inspection
for Arms Control, 79 Cal. L. Rev. 421, 433 (1991). "'[S]lant photography' . . . allows aircraft to
monitor targets located many miles to the side." Id. "The side-looking radar of the United States'
SR71 reconnaissance aircraft has a peripheral vision of up to 80 miles." Id. at n.62 (citations
omitted). See also Ashley C. Null, Note, Anti-Paparazzi Laws: Comparison of Proposed Federal
Legislation and the California Law, 22 Hastings Comm. & Ent. L.J. 547, 554 (2000) ("[A]dvanced
technology has made it easier to violate a person's privacy without violating the laws intended to
protect it. For instance, long range camera lenses, especially those mounted on helicopters, allow
photographers to capture private moments at home without trespassing."). In the case of satellites,
the same reasoning applies; it would be extremely difficult from an evidentiary standpoint to prove
that the satellite was directly above private property. Secondly, ad coelum is no longer an
inviolable principle of law: aerial trespass claims require a plaintiff to show more than just
invasion of airspace above the property-a plaintiff must show that the altitude was too low and must
also prove interference with an "existing use" of the land or imminent danger to persons or
property. Newark v. Eastern Airlines, Inc., 159 F. Supp. 750, 760 (D. N.J. 1958). Trespass must
involve interference with "actual, as distinguished from potential, use," Restatement (Second) of
Torts § 159 cmt. k (1977), so that low flight where a property owner would have the right, under
zoning laws, to own buildings at the altitude of the flight, would not be interference sufficient to
constitute trespass, where such buildings were not actually erected. A large proportion of aircraft
surveillance and all satellite surveillance would escape liability for aerial trespass.
[17]Private nuisance claims could not adequately deal with the problems of visual aerial
surveillance. Theoretically, aircraft surveillance could give rise to a private nuisance action, as
"invasion of another's interest in the private use and enjoyment of land." Restatement (Second) of
Torts § 821D (1977). But in practice the tort is applied primarily to flights causing noise or other
disturbances, or dangers, especially when the flights are quite frequent --typically, private
nuisance would not extend much protection to privacy interests. Id. § 821D cmt. b ("an interest of
personality [that] receives limited legal protection," compared to the "much greater legal
protection" of "freedom from annoyance and discomfort" related to disturbance).
[18]In California v. Ciraolo, 476 U.S. 207 (1986), the U.S. Supreme Court ruled that officers'
naked-eye observation of a fenced-in backyard from a private plane at 1,000 feet, in an attempt to
discern whether marijuana was being grown on the residence, was not a search. In Florida v. Riley,
488 U.S. 445, 447-48, 450 (1989), the court declined to find that a search had occurred where, from
helicopter at a height of 400 feet, police officers using no enhancing devices looked into a
greenhouse, through openings in its roof and sides. The plurality states, "As a general proposition,
the police may see what may be seen 'from a public vantage point where [they have] a right to be.'"
Id. at 449 (quoting Ciraolo, 476 U.S. at 213). In Dow Chemical Co. v. United States, 476 U.S. 227,
229, 239 (1986), the court held that the EPA's aerial photography of an industrial complex from
heights as low as 1,200 feet could not be classified as a Fourth Amendment search. While the court
cites the district court's finding that the EPA had utilized the best aerial camera technology,
capable of significant enhancing, id. at 230, the majority also states that the pictures "at issue
in this case are essentially like those commonly used in mapmaking." Id. at 231. The holding of Dow
Chemical does not apply to surveillance of private residences. See infra note 35 (citing Kyllo v.
U.S., 121 S.Ct. 2038, 2043 (2001)).
[19]In the most recent of the cases, Riley, there was no majority opinion, and the plurality opinion
does not offer clear resolutions to various issues. Bradley W. Foster, Warrantless Aerial
Surveillance and the Right to Privacy: The Flight of the Fourth Amendment, 56 J. Air L. & Com. 719,
748 (1991) ("There is little in the Riley plurality opinion to suggest that 400 feet is a necessary
lower limit for helicopter surveillance."). Though the Riley plurality stresses the fact that the
helicopter was not violating any laws, id. (citing Riley, 488 U.S. at 451-52), there is no minimum
legal height for helicopters, which to be lawful need only follow FAA administrator guidelines and
avoid endangering persons or property. Id. (citing 14 CFR § 91.79(d) (1990) and Riley, 488 U.S. at
461 (Brennan, J., dissenting)). Riley does not necessarily permit all helicopter surveillance:
At the conclusion of its opinion, the Court suggested that the presence of the following may give
rise to a fourth amendment violation: (1) evidence that helicopters flying at the altitude in
question are sufficiently rare so as to lend substance to an expectation of privacy, (2) observation
of intimate details connected with the use of the home or curtilage, and (3) undue noise, wind,
dust, or threat of injury.
Id. at 749 (citing Riley, 488 U.S. at 451). Such considerations clarify the "general proposition
[that] the police may see what may be seen 'from a public vantage point where [they have] a right to
be.'" Riley, 488 U.S. at 449 (quoting Ciraolo, 476 U.S. at 213). Apparently, the police do not have
a right to observe homes from everywhere that a helicopter can legally fly but rather are subject to
limitations based on common usage of airspace, intimacy, and disruption.
[20]See infra note 89.
[21]See Robert C. Power, Criminal Law: Technology and the Fourth Amendment: A Proposed Formulation
for Visual Searches, 80 J. Crim. L. & Criminology 1, 109-10 (1989) ("Application of the fourth
amendment to the use of technological devices requires an evaluation of societal values, and there
is no better evidence of such values than non-constitutional law and practices concerning private
use of a particular device. . . . If society had been unwilling to regulate [wiretapping], it would
be difficult to conclude that society demands freedom from the same intrusions by law enforcement
officers." (citation omitted) (emphasis added)). Fourth Amendment law holds surveillance of the
interior or private homes to constitute a Fourth Amendment search where the surveillance technology
used is not "in 'general public use,'" see infra note 105 (Kyllo standard). Privacy tort law itself
provides a source of influence on the level of technology that are legally permitted to be "in
'general public use.'" Additional determinants of common societal practices in the use of technology
are that limits of current technology make certain types of surveillance unfeasible and, also, that
market constraints influence the determination of which technologies become inexpensive enough to
reach large portions of society.
[22]The term is used in David Brin, The Transparent Society 23 (1998): "Kevin Kelly, executive
editor of Wired magazine . . . of information age journalism [said]: 'The answer to the whole
privacy question is more knowledge. More knowledge about who's watching you. More knowledge about
the information that flows between us-particularly the meta-information about who knows what and
where it's going.' "In other words, we may not be able to eliminate the intrusive glare shining on
citizens of the next century, but the glare just might be rendered harmless through the application
of more light aimed in the other direction. Nor is Kelly alone in this opinion among cyber-era
luminaries.. . . " (emphasis added).
[23]The less conspicuous the surveillance, the less "meta-information" the subject of the
surveillance will have.
[24]"[T]he usefulness of electronic surveillance depends on lack of notice to the suspect. In the
execution of the traditional search warrant, an announcement of authority and purpose ('knock and
notice') is considered essential so that the person whose privacy is being invaded can observe any
violation in the scope or conduct of the search and immediately seek a judicial order to halt or
remedy any violations. In contrast, wiretapping is conducted surreptitiously." James X. Dempsey,
Communications Privacy in the Digital Age: Revitalizing the Federal Wiretap Laws to Enhance Privacy,
8 Alb. L.J. Sci. & Tech. 65, 70 (1997) (citations omitted).
[25]Federal Omnibus Crime Control and Safe Streets Act of 1968 (the "Federal Wiretapping Act"), 18
U.S.C. § 2511. Certain States have similar legislation. See, e.g., Pennsylvania Wiretapping and
Electronic Surveillance Control Act, 18 Pa. Const. Stat. §§ 5703, 5721, 5725.
[26]Bartnicki v. Vopper, 121 S. Ct. 1753, 1761 (U.S. 2001) ("[T]he communications at issue are
singled out by virtue of the fact that they were illegally intercepted-by virtue of the source . .
.."). The Federal Wiretapping Act provides both civil and criminal liability for wiretapping. See
The Federal Wiretapping Act, supra note 25, § 4 and § 5.
[27]But cf. infra Part II, Section B, Subsection 1 (intrusion law can place a high emphasis on
contextual factors).
[28]"[A]irplanes and helicopters are technological aids to surveillance not unlike wiretapping
equipment." Power, supra note 21, at 20. See also infra note 30.
[29]"The vantage point he enjoyed was not one any citizen could readily share. His ability to see
over Riley's fence depended on his use of a very expensive and sophisticated piece of machinery to
which few ordinary citizens have access. In such circumstances it makes no more sense to rely on the
legality of the officer's position in the skies than it would to judge the constitutionality of the
wiretap in Katz by the legality of the officer's position outside the telephone booth." Florida v.
Riley, 488 U.S. 445, 460 (Brennan, J., dissenting) (emphasis added). Justice Brennan's statement
seems to imply that extremely expensive technology inherently would violate the Fourth Amendment
standard of "reasonable expectation of privacy," see infra note 133. The Supreme Court's most recent
ruling on the Fourth Amendment is consistent with such an interpretation. Kyllo v. United States,
121 S.Ct. 2038 (2001). See also infra note 105 (holding the use of technology not in "general public
use" to discern what is in a house constitutes a Fourth Amendment search).
[30] See David Brin, supra note 22, at 24, stating, "Caltech professor John O. Ledyard points out
that 'asymmetric information conveys a monopoly position on the holder of the information that
markets cannot easily overcome.' Although they generally favor transparency, economists warn that
information flows should be open evenly lest one side or another gain an unfair advantage during the
transition - a gradualist approach that is supported throughout this book." Brin notes a perspective
that might seem to argue against limitations on surveillance: "I don't care so much about privacy.
What have I got to hide that would interest anybody?" Id. at 25. But the problem with visual aerial
surveillance is not merely the loss of "privacy"; rather, the problem is the asymmetrical
surrendering of privacy. The problem is the lack of "transparency," which is defined as all people
having access to all information. Id. at 23.
[31]Power, supra note 21, at 110 ("[I]t is imperative that the law regulate private use or else
video surveillance may eventually be thought of as nothing more exotic than remote control
binoculars.").
[32]Justice O'Connor stated:
[Individuals] can build a tall fence, for example, and thus ensure private enjoyment of the
curtilage without risking public observation from the road or sidewalk. . . . In contrast, even
individuals who have taken effective precautions to ensure against ground-level observations cannot
block off all conceivable aerial views of their outdoor patios and yards without entirely giving up
their enjoyment of those areas.
Riley, 488 U.S. at 454 (O'Connor, J., concurring). The case of E. I. duPont in trade secret law,
supra note 11, is simply a specific case of the more general problem of the use of visual aerial
surveillance to appropriate value.
[33]Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 241 (1890),
available at http://freedomlaw.com/Brandeis.htm("The right to privacy . . . has already found
expression in the law of France."). The article by Warren and Brandeis is universally acknowledged
to have originated the movement for privacy tort law in the U.S. See, e.g., Note, Privacy,
Technology, and the California "Anti-Paparazzi" Statute, 112 Harv. L. Rev. 1367, 1369 (1999); Andrew
D. Morton, Comment, Much Ado About Newsgathering: Personal Privacy, Law Enforcement, and the Law of
Unintended Consequences for Anti-Paparazzi Legislation, 147 U. Pa. L. Rev. 1435, 1438 (1999).
[34]Proposing legal recognition of the "right 'to be let alone,'" Samuel D. Warren and Louis D.
Brandeis, supra note 33, at 195 (quoting Thomas M. Cooley, Cooley on Torts 29 (2d ed. 1888)), stated
that privacy rights were merely the logical extension of property law, whose umbrella had already
expanded to include intellectual property. ("From corporeal property arose the incorporeal rights
issuing out of it; and then there opened the wide realm of intangible property, in the products and
processes of the mind, as works of literature and art, goodwill, trade secrets, and trademarks." Id.
at 193-95 (citations omitted)). Eager to protect the rights of owners of residential property -i.e.,
to preserve the sanctity of "the domestic circle," id. at 196-the authors wrote in response to a
Boston Saturday Evening Gazette description of a house party put on by Warren. Jeffrey Rosen, The
Unwanted Gaze 7 (2000).
[35]In the Fourth Amendment context, the Supreme Court has stated: "We have previously reserved
judgment as to how much technological enhancement of ordinary perception from such a vantage point,
if any, is too much. While we upheld enhanced aerial photography of an industrial complex in Dow
Chemical [Dow Chemical Co. v. United States, 476 U.S. 227 (1986)], we noted that we found 'it
important that this is not an area immediately adjacent to a private home, where privacy
expectations are most heightened,' Id. at 237, n. 4 (emphasis in original)." Kyllo, 121 S.Ct. 2038
at 2043.
[36]See supra note 35 (the "area immediately adjacent to a private home, [is] where privacy
expectations are most heightened"). "[C]urtilage . . . refers to an area immediately adjacent to the
home that is so intimately related with home life as to be part of the home itself and thus
deserving of fourth amendment protection . . . ." Seth Ruzi, Comment, Reviving Trespass-Based Search
Analysis Under the Open View Doctrine: Dow Chemical Co. v. United States, 63 N.Y.U. L. Rev. 191,
196-97 (1988) (referring to Dow Chemical Co. v. United States, 476 U.S. 227 (1986)). "The protective
reach of the home extends to its curtilage, typically including such areas as the front and back
yards, garage, and other out-buildings 'to which extend[] the intimate activity associated with the
"sanctity of a man's home and the privacies of life."'" Id. at 204 (citations omitted). See also
Power, supra note 21, at 113 (citing California v. Ciraolo, 476 U.S. 207 (1986)).
[37]See Simson Garfinkel, Database Nation: the Death of Privacy in the 21st Century 93 (2000)
("Whereas we have a reasonable expectation of privacy in our own homes, there is no longer such an
expectation for public places.").
[38]See Koplow, supra note 16, at 434 (regarding "photoreconnaissance satellites," . . . "estimates
suggest a resolution capability under optimal conditions of as fine as a few inches"). See also John
Fleming, The Shocking Menace of Satellite Surveillance, Pravda, July 14, 2001, available at
http://english.pravda.ru/main/2001/07/14/10131.html ("From more than five-hundred miles above earth,
a satellite can sight a tennis ball, photograph it, and send back to earth an image as clear as if
it had been taken on the court at ground zero.") (quoting writer Sandra Hochman).
[39] "[S]atellite reconnaissance . . . - both by the superpowers' military satellites and by
privately owned commercial satellites operated for news-gathering and other purposes-is becoming
more intrusive and pervasive." Koplow, supra note 38, at 445 (citation omitted).
[40]Randy Ringen, I spy . . . my neighbor, FutureWatch, Dec. 27, 1991, at
http://explorezone.com/columns/future_watch_1999/12_27_satellite.htm (last visited Jan. 12, 2002)
("Would you like to know what's in your neighbor's backyard, but the wall is too high? If so, for
less than $10 you can get a detailed photographic image of your neighbor's yard, and the rest of
your neighborhood, courtesy of commercial spy satellites.").
[41]Floatgraph Technologies, at http://www.floatograph.com/observer.html ("Each Floatograph Observer
RC Helicopter comes with a Canon Rebel SLR 35MM still camera and a Sony TRV-320 Digital 8
Camcorder.").
[42]James X. Dempsey, Communications Privacy in the Digital Age: Revitalizing the Federal Wiretap
Laws to Enhance Privacy, 8 Alb. L.J. Sci. & Tech. 65, 67 (1997) ("The use of year-long wiretaps on
multiple individuals in the 'Pizza Connection' drug trafficking case . . . .").
[43]See, e.g., Brin, supra note 22, at 57 on "The Commercialization of Personal Information"
(stating that information about credit card usage, phone calls, and Internet usage has become a
commodity, with a ready market).
[44]See Garfinkel, supra note 37, at 93 ("more and more of what happens in public is captured,
recorded, indexed, and made retrievable . . . ."). See also Julie E. Cohen, Examined Lives:
Informational Privacy and the Subject as Object, 52 Stan. L. Rev. 1373, 1374 (2000) ("The rise of a
networked society . . . has brought with it intense concern about the personal and social
implications of .. . databases now, in digital form, capable of being rapidly searched, instantly
distributed, and seamlessly combined with other data sources to generate ever more comprehensive
records of individual attributes and activities.") (citations omitted).
[45]John R. Dixon, Note, Criminal Procedure/Constitutional Law-Warrantless Aerial Surveillance And
The Open View Doctrine-Florida v. Riley, 109 S. Ct. 693 (1989), 17 Fla. St. U.L. Rev. 157 (1989)
("Aerial surveillance is an attractive investigative tool because it enables law enforcement
officials to make observations they could not constitutionally obtain from ground-level without a
warrant. This unique ability of aerial surveillance makes it both a boon to police investigation and
an unprecedented threat to individual privacy.") (emphasis added). See also Koplow, supra note 16,
at 479 ("Under current jurisprudence . . . a change in public expectations [regarding the scope of
'Open Skies' non-search investigations] could restrict the coverage of the fourth amendment
precisely when its protections were most needed.") (emphasis added) (citation omitted).
[46]John Fleming, The Shocking Menace of Satellite Surveillance, Pravda, July 14, 2001, available at
http://english.pravda.ru/main/2001/07/14/
10131.html ("Spy satellites . . . have little or no civilian use-except, perhaps, to subject
one's enemy or favorite malefactor to surveillance. . . . [T]he overriding evil of satellite
technology . . . [is] it overwhelms powerless victims."). See also Garfinkel, supra note 37, at 93
("[T]he real threat lies in the systematic monitoring of public places, where ability and legality
have created a surveillance free-for-all. Over the next 50 years, the widespread construction of
monitoring networks will fundamentally change our understanding of what it means to be 'in
public.'"). See also Tim Jepson and Maggie O'Sullivan, How do you like your paradise?, The Sunday
Telegraph (London), Jan. 14, 2001 at 10 ("[W]hat the super-rich are paying for [at private island
vacation spots], I suspect, is not the food, the setting, the staff or the frills-for these prices
you can have just about any frill or luxury you desire elsewhere. No, what they are paying for is
the absolute certainty of privacy-no long lenses, no autograph-seekers, no prying helicopters
overhead and no fawning or pointed fingers on the beach.")(emphasis added).
[47]See supra notes 16, 17.
[48]Privacy tort law began with the article by Warren and Brandeis, see supra note 33. The body of
privacy tort law gained widespread acceptance by 1960. See Note, Privacy, Technology, and the
California "Anti-Paparazzi" Statute, supra note 33, at 1369 (citing William L. Prosser, Privacy, 48
Cal. L. Rev. 383, 383 (1960)).
[49]Warren and Brandeis stated, "The intensity and complexity of life attendant upon advancing
civilization have rendered necessary some retreat from the world, and man, under the refining
influence of culture, has become more sensitive to publicity, so that solitude and privacy have
become more essential to the individual; but modern enterprise and invention have, through invasions
upon his privacy, subjected him to mental pain and distress far greater than could be inflicted by
mere bodily injury." Warren and Brandeis, supra note 33, at 196 (emphasis added).
[50]Warren and Brandeis, supra note 33, at 195.
[51]In ground-level surveillance cases, where a plaintiff's physical security is threatened, the
privacy tort of intrusion offers a remedy. See Tompkins v. Cyr, 995 F. Supp. 664, 673 (N.D. Tex.
1998) (the district court affirmed a portion of the jury verdict based upon an intrusion claim where
the defendants, protesting against an abortion provider job, trespassed and made direct physical
threats to the plaintiffs); Souder v. Pendleton Detectives, Inc., 88 So.2d 716, 717 (La. App. 1956)
(the lower court's dismissal was reversed and the case was remanded where the defendant, a detective
agency investigating a workers' compensation case, allegedly trespassed and undertook surveillance
in a manner "calculated to harass and invade the personal safety, comfort and privacy of the
petitioner," and the defendant allegedly violated Peeping Tom criminal statute). Also, one piece of
scholarly literature considers anti-stalking law to protect "a privacy interest for women." Carol E.
Jordan et al., Stalking: Cultural, Clinical and Legal Considerations, 38 Brandeis L.J. 513, 540
(2000). Stalking law typically requires an actual threat to the person being stalked. See, e.g., Ky.
Rev. Stat. Ann. §§ 508.130-508.150 (Michie 1998).
[52]See, e.g., Warren and Brandeis, supra note 33, at 196 ("invasions upon his privacy, subjected
him [man] to mental pain and distress far greater than could be inflicted by mere bodily injury.").
[53]Restatement (Second) of Torts § 652B (1977) ("intrusion upon the seclusion of another").
[54]Id. § 652C (1977) ("appropriation of the other's name or likeness").
[55]Id. § 652D (1977) ("unreasonable publicity given to the other's private life").
[56]Id. § 652E (1977) ("publicity that unreasonably places the other in a false light before the
public").
[57]"One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of
another or his private affairs or concerns, is subject to liability to the other for invasion of his
privacy, if the intrusion would be highly offensive to a reasonable person." Id. § 652B (1977).
[58]Id. § 652B cmt. a (1977).
[59]Appropriation involves "use" of another's identity, id. § 652C, § 652C cmt. a, by impersonation
or by unfounded implication that a plaintiff has endorsed or is otherwise affiliated with a
defendant or a defendant's business, id. illus. 1-8. One requirement of private facts is publicity:
"'Publicity,' . . . means that the matter is made public, by communicating it to the public at
large, or to so many persons that the matter must be regarded as substantially certain to become one
of public knowledge. . . . Thus it is not an invasion . . . within the rule stated in this Section,
to communicate a fact concerning the plaintiff's private life to a single person or even to a small
group of persons." Id. § 652D cmt a. False light occurs where a defendant misrepresents aspects of a
plaintiff's life or work. Id. § 652E illus. 1-5.
[60]E.g., Aisenson v. American Broadcasting Co., 269 Cal. Rptr. 379, 387-88 (Cal. Ct. App. 1990)
(false light and intrusion); Swerdlick v. Koch, 721 A.2d 849, 857-59 (R.I. 1998) (private facts and
intrusion). By contrast, intrusion claims appear without any other privacy tort claims in numerous
cases. See, e.g., Tompkins v. Cyr, 995 F. Supp. 664, 684-85 (N.D.Tex. 1998); Wolfson v. Lewis, 924
F. Supp. 1413, 1419-21 (E.D.Pa. 1996); I.C.U. Investigations, Inc. v. Jones, 780 So.2d 685, 689
(Ala. 2000); Souder v. Pendleton Detectives, Inc., 88 So.2d 716, 717-18 (La. App. 1956); Saldana v.
Kelsey-Hayes Co., 178 Mich. App. 230, 232, 443 N.W.2d 382, 383 (Mich. Ct. App. 1989); York v. Gen.
Elec. Co., 759 N.E.2d 865 (Ohio Ct. App. 2001).
[61]The tort is also commonly referred to as "outrage," e.g., Armstrong v. H & C Communications,
Inc., 575 So.2d 280, 281-82 (Fla. Dist. Ct. App. 1991), and "Outrageous Conduct Causing Severe
Emotional Distress," Restatement of the Law, Second, Torts, § 46 (1965) ("One who by extreme and
outrageous conduct intentionally or recklessly causes severe emotional distress to another is
subject to liability for such emotional distress, and if bodily harm to the other results from it,
for such bodily harm.").
[62]IIED is not one of the four privacy torts: IIED can be applied to many issues not related to
privacy, such as battery or false imprisonment. See David A. Elder, The Law of Privacy 35-36 (1991).
[63]Restatement of the Law (Second) Torts, § 46(1). Where it is termed "intentional infliction of
emotional distress," as opposed to the Restatement's "Outrageous Conduct Causing Severe Emotional
Distress," the standard is still often recklessness. See Sheehan v. United States, 896 F.2d 1168,
1171 (9th Cir. 1990) (citing Restatement (Second) of Torts § 46 (1965)); Cummings v. W. Trial
Lawyers Ass'n, 133 F. Supp. 2d 1144, 1157 n.9 (D.Ariz. 2001) ("the defendant must either intend to
cause emotional distress or recklessly disregard the near certainty that such distress will result")
(citations omitted); Delorean v. Cork Gully, 118 B.R. 932, 947 (E.D.Mich. 1990). But see Oldfather
v. Ohio Dep't of Transp., 653 F. Supp. 1167, 1181 (S.D. Ohio 1986) (actual or constructive knowledge
that "that the actions taken would result in serious emotional distress").
[64]See supra note 57 (Restatement (Second) of Torts § 652B (1977) excerpt).
[65]The two claims can both be pleaded in the same case. E.g., Tompkins v. Cyr, 995 F. Supp. 664,
670-74, 682-84 (N.D.Tex. 1998), Swerdlick v. Koch, 721 A.2d 849, 857, 862-63 (R.I. 1998). In
Swerdlick, the plaintiffs also brought a negligent infliction of emotional distress claim, which was
dismissed because that tort is limited to dangerous physical situations involving the plaintiff
directly or as a bystander. Id. at 864. Truly remote, distant surveillance would not create a claim
under that tort. One empirical examination suggests that when the two actions are brought together,
courts rarely reach different results as to whether there is liability. David A. Elder, The Law of
Privacy 29 (1991). That empirical examination belies the likelihood that in some cases where only
one of the two tort claims was brought-and perhaps gains damages-the other tort claim was not
brought because it was thought likely to fail. For example, where distress is minor, IIED would not
be brought. Elder never suggests that damages would be equal under the two tort claims.
[66]Criminal law, while not providing damages for intrusion, does influence tort law. See, e.g.,
Souder, supra note 51 (the existence of a Peeping-Tom criminal statute leads to reversal of lower
court's dismissal of an intrusion claim). See also Morton, supra note 33, at 1445.
[67]See supra note 60, listing intrusion cases resulting from surveillance; other than Swerdlick and
Tompkins, supra note 65, none of the cases mentioned in note 60 had IIED claims. By contrast, there
do not seem to be any cases in which surveillance leads to an IIED claim, with no accompanying
intrusion claim.
[68]See supra note 61 (definition from Restatement of the Law, Second, Torts, § 46 (1965)).
[69]See supra note 57. See also David A. Elder, The Law of Privacy 28-29 (1991).
[70]Restatement of the Law, Second, Torts, § 46(2), § 46 cmt. i (1965). By contrast, the Restatement
requirement of degree in intrusion is that "the interference with the plaintiff's seclusion is a
substantial one." Restatement (Second) of Torts § 652B cmt. d (1977). Thus, a particularly hardy
plaintiff who is not distressed by a substantial interference would have no IIED claim but would
have an intrusion claim. See David A. Elder, The Law of Privacy 28-29 (1991).
[71]Cal. Civ. Code § 1708.8(b) (2001) states: "A person is liable for constructive invasion of
privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable
person, any type of visual image, sound recording, or other physical impression of the plaintiff
engaging in a personal or familial activity under circumstances in which the plaintiff had a
reasonable expectation of privacy, through the use of a visual or auditory enhancing device,
regardless of whether there is a physical trespass, if this image, sound recording, or other
physical impression could not have been achieved without a trespass unless the visual or auditory
enhancing device was used."
[72]A defendant is liable for treble proximately caused damages, in addition to punitive damages and
disgorgement from resulting commercial gain. Id. § 1708.8(c).
[73]For the proposition that liability in intrusion common law is not predicated upon any attempt to
"capture" observations, see June Mary Z. Makdisi, Genetic Privacy: New Intrusion A New Tort?, 34
Creighton L. Rev. 965 (2001). Makdisi discusses Daily Times Democrat v. Graham, 162 So.2d 474 (Ala.
1964), the "Fun-house case" which is the basis for Restatement (Second) of Torts 652B cmt. c (1977).
34 Creighton L. Rev. at 998 n.201. Makdisi states: "Even if the defendant had not snapped any
photos, the conduct of becoming a 'peeping tom' would suggest a viable cause of action for intruding
upon Graham's seclusion. The dissemination through the press, of course, greatly increased damages."
Id. at 1026 n.201.
[74]The statute does not distinguish between mechanical non-stop recording and other observation.
[75]The bill excludes from liability all investigations of unlawful activity -including but not
limited to the "violation of any administrative rule or regulation," or "any . . . fraudulent
conduct or activity involving a violation of law or pattern of business practices adversely
affecting the public health or safety . . . " that is "supported by an articulable suspicion." Cal.
Civ. Code § 1708.8(f). Thus any surveillance regarding workers' compensation claims - e.g., Souder,
88 So.2d at 717 (the lower court's dismissal of the intrusion claim was reversed)-would be exempted
from liability, under the statute.
[76]See supra note 60.
[77]In Maine and Georgia, trespass, or "physical intrusion," is a prerequisite to intrusion claims.
Pierson v. News Group Publications, Inc., 549 F. Supp. 635, 640 (S.D. Ga. 1982) ("An essential
element of this tort is a physical intrusion analogous to a trespass."). See also Nelson v. Maine
Times, 373 A.2d 1221, 1223 (Me. 1977); Note, Privacy, Technology, and the California "Anti-
Paparazzi" Statute, supra note 33, at 1373. Under current intrusion doctrine in Maine and Georgia,
visual aerial surveillance would not be tortious; but the proposed legislative solution, see infra
Part III, would alter that outcome and provide for liability in all states, if adopted on the
federal level; this Note proposes that the legislative solution proposed be adopted either on the
federal level (pursuant to Congress' power to regulate interstate commerce, U.S. Const. art. I, § 8,
cl. 3) or else by all states, individually.
[78]See David A. Elder, The Law of Privacy 36 and 36 n.77 (1991).
[79]See, e.g., Deteresa v. American Broadcasting Companies, Inc., 121 F.3d 460, 465 (9th Cir. 1997);
Salazar v. Golden State Warriors, 2000 WL 246586, at *3 (N.D.Cal. Feb 29, 2000) (subsequent to
adoption of 1998 California Statute); Wolfson v. Lewis, 924 F. Supp. 1413, 1434 (E.D. Pa. 1996).
[80]Plaxico v. Michael, 735 So.2d 1036 (Miss. 1999). The defendant wanted to modify a child custody
relationship on the basis of his ex-wife's having a lesbian relationship, id. at 1038; for the
custody proceedings, the defendant sneaked outside his ex-wife's cabin and photographed her and her
lover, the plaintiff, semi-nude in bed. Id.
[81]Saldana v. Kelsey-Hayes Co., 443 N.W.2d 382 (Mich. Ct. App. 1989). The defendants were the
plaintiff's employer and supervisor, who hired a private investigation firm to verify the
plaintiff's alleged injuries sustained at work. By naked eye and with a strong camera lens (1,200
mm) investigators-situated in a car parked on the street and also walking by the plaintiff's house-
viewed the plaintiff through windows of his home. Id. at 383.
[82]In Plaxico, applying the intrusion standard of conduct highly offensive to a reasonable person,
the majority held that "most . . . people" would feel that the purpose "justified" the defendant's
actions and "[t]herefore" there is no claim. 735 So.2d at 1040. In Saldana, the court stated that
viewing the inside of a home with a powerful lens would present a strong enough claim to reach a
jury, 443 N.W.2d at 384; but the court affirmed summary judgment for the defendants based on the
purpose of the surveillance-the court found that the defendants were investigating for a legitimate
purpose, in attempting to discern the true nature of the employee's health and his ability to return
to work. Id. at 384. In cases other than Plaxico and Saldana, the inquiry has also seemed
dispositive. See, e.g., Salazar v. Golden State Warriors, 2000 WL 246586, at *4 (N.D.Cal. Feb. 29,
2000) (the plaintiff's claim fails due to the legitimate work-related motive of the defendant, in
investigating phone calls reporting the plaintiff's alleged drug use).
[83]See supra note 42 and text accompanying note 42 (non-stop mechanical surveillance). See also
supra note 43 (information as a commodity).
[84]Indeed, aerial surveillance is arguably more offensive than ground-level surveillance. In
ground-level surveillance where asymmetry is normally more limited, disruptive surveillance at least
alerts the subject of surveillance as to the possibility of the occurrence of surveillance, allowing
the subject to take limited measures to guard privacy, such as by altering the activities occurring
in the area being observed. (Similarly, a plaintiff's right to legal remedies for hostile, open, and
notorious trespass, would not mean that a defendant gains carte blanche for surreptitious usage;
surreptitious trespassers cannot be hostile, open, and notorious and thus cannot gain land rights
through adverse possession. See, e.g., Welch v. Unknown Heirs of Lipscomb, 226 F.2d 776, 780 (D.C.
Cir. 1955) (hostile, open, and notorious land use is required for adverse possession). By contrast,
completely undisruptive and undetectable surveillance, such as that occurring from high-flying
aircraft or from satellite, does not offer the property owner any clues as to the occurrence of the
surveillance.
[85] See supra note 51 and text accompanying note 51 (citing Tompkins and Souder).
[86]In various cases the fact that the plaintiff was visible from a public vantage point is a
central reason for the dismissal of a claim. See, e.g., Deteresa v. American Broadcasting Companies,
Inc., 121 F.3d 460, 466 (9th Cir. 1997); I.C.U. Investigations, Inc. v. Jones, 780 So.2d 685, 689-90
(Ala. 2000); Johnson v. Corporate Special Services, Inc., 602 So.2d 385 (Ala. 1992); Aisenson v. Am.
Broadcasting Co., 269 Cal.Rptr. 379, 387-88 (Cal. Ct. App. 1990); York v. General Elec. Co., 2001 WL
649807, at *3 (Ohio App. 12 Dist. June 11, 2001); Swerdlick v. Koch, 721 A.2d 849, 856-858 (R.I.
1998). See also Morton, Much Ado About Newsgathering, 147 U. Pa. L. Rev. at 1444 ("Tort law,
however, generally supports the proposition that an individual in public implicitly has consented to
being photographed, and thus legal remedies extend little protection to acts of intrusive
photography, videotaping, or surveillance of subjects located in, or in plain view from, a public
place.") (citation omitted).
[87]All uses of the phrase "public vantage point safe harbor" are set in quotations in this Note to
distinguish that phrase as particular to this Note-the exact phrase, and variants on the phrase,
have not been uniformly adopted in case law.
[88]It should also be noted that even where the "public vantage point safe harbor" applies - i.e.,
where surveillance is done from an indisputably "public vantage point" - the safe harbor does not
necessarily completely free all surveillance from liability: Peeping Tom criminal statutes can apply
to certain public vantage points. Souder v. Pendleton Detectives, Inc., 88 So.2d 716, 718 (La. Ct.
App. 1956) ("LSA-R.S. 14:284 defines a 'Peeping Tom' as '* * * one who peeps through windows or
doors, or other like places, situated on or about the premises of another for the purpose of spying
upon or invading the privacy of persons spied upon without the consent of the persons spied upon.'")
(emphasis added). The offender need not be on the victim's property to be criminally liable. Id. In
Souder, this criminal statute is the basis for denying the defendant's motion to dismiss a privacy
claim.
[89]Fourth Amendment standards are not usually imported into privacy tort law-none of the cases in
note 60, supra, import Fourth Amendment law. But see Digirolamo v. D.P. Anderson & Assocs., Inc.,
1999 WL 345592, at *3 (Mass.Super. May 26, 1999) (quoting U.S. v. Taborda, 635 F.2d 131, 139 (2d
Cir.1980)) (Massachusetts trial court imports Second Circuit's Fourth Amendment vantage point
standard). Though tort common law rarely adopts Fourth Amendment standards, legislation that applies
to non-police parties, such as the Federal Wiretapping Act, has adopted Fourth Amendment standards.
See, e.g., Robert A. Pikowsky, Privilege and Confidentiality of Attorney-Client Communication Via E-
mail, 51 Baylor L. Rev. 483, 542-43 (1999) ("The Federal Wiretap Act was enacted in response to the
Supreme Court decisions in Katz v. United States and Berger v. New York, which set out the
constitutional standards to be met for judicial approval of telephone wiretaps.") (citations
omitted). Where a privacy tort statute's language imports Fourth Amendment language, there has been
direct criticism of the importing of such standards. See Andrew D. Morton, Comment, Much Ado About
Newsgathering: Personal Privacy, Law Enforcement, and the Law of Unintended Consequences for Anti-
Paparazzi Legislation, 147 U. Pa. L. Rev. 1435, 1437 (1999) ("This comment argues that by invoking
the precise language of the Supreme Court's Fourth Amendment 'reasonable expectation of privacy'
test to trigger liability, the legislative responses [the 1998 California Statute and two proposed
Congressional bills] to overaggressive newsgathering by the paparazzi inevitably will be limited in
application, or, in the alternative, will restructure and narrow the scope of permissible law
enforcement surveillance activity as defined by contemporary Fourth Amendment doctrine.").
[90]Riley, 488 U.S. at 449 (quoting California v. Ciraolo, 476 U.S. 207, 213 (1986), for the
"general proposition [that] the police may see what may be seen 'from a public vantage point where
[they have] a right to be'")); see also Minn. v. Carter, 119 S.Ct. 469, 480-81 (police observation
through apartment building's window on ground level was "from a public vantage point") (Breyer, J.,
concurring).
[91]Fourth Amendment law applies vantage point analysis through two doctrines, "open view" which
applies to observations made by police officers from public places, and "plain view," which applies
to observations made by police during lawful warrantless entries into homes (e.g., finding
contraband substances in the course of responding to a crime). "Open view" is the doctrine analogous
to the intrusion tort law "public vantage point safe harbor." See Seth Ruzi, Comment, Reviving
Trespass-Based Search Analysis Under the Open View Doctrine: Dow Chemical Co. v. United States, 63
N.Y.U. L. Rev. 191, 205, 206 n.125, 206 n.127, 207 (1988).
[92]"Observations of curtilage from helicopters at very low altitudes are not perfectly analogous to
ground-level observations from public roads or sidewalks." Riley, 488 U.S. at 453 (O'Connor, J.,
concurring). See also supra note 32 (Justice O'Connor's statement that it is feasible to build
fences to prevent ground-level surveillance, but that it is impractical to prevent aerial
surveillance). Riley was decided on the grounds that the height of the helicopter, 400 feet, was
commonly traveled by private aircraft-here, Justice O'Connor agreed with the plurality, though
Justice O'Connor criticized the plurality for placing too much emphasis on the question of whether
or not flight at 400 feet was simply lawful. Id. at 453 (O'Connor, J., concurring) (examining the
prior case of California v. Ciraolo, 476 U.S. 207 (1986), Justice O'Connor states, "Ciraolo's
expectation of privacy was unreasonable not because the airplane was operating where it had a 'right
to be,' but because public air travel at 1,000 feet is a sufficiently routine part of modern life
that it is unreasonable for person on the ground to expect that their curtilage will not be observed
at that altitude."). See also Bradley W. Foster, Warrantless Aerial Surveillance and the Right to
Privacy: The Flight of the Fourth Amendment, 56 J. Air L. & Com. 719, 749 (1991).
[93]"[A] flaw in the Court's open view analysis is the assumption that any member of the public
flying in legal airspace over Riley's greenhouse could have seen what the police saw. . . . The
Court does not acknowledge the qualitative difference that exists between an observation made by a
passenger on a commercial airliner and a focused police inspection over an individual's property.
The mere fact that a private citizen is at a legal altitude says nothing about what that person
could actually see from that height. The view from a commercial airliner that the public has of an
area on the ground is usually fleeting and anonymous. The police, however, knew that the home and
yard they were inspecting was Riley's, and they knew they were looking for marijuana." Dixon, supra
note 45, at 172-73 (1989).
[94]The observer, by virtue of being at a public vantage point, is in view of the subject of
surveillance.
[95]The "actual public vantage point safe harbor" could perhaps also be applicable where devices of
very limited power, such as standard binoculars, are used. See infra note 105 (citing Kyllo's
"general public use" standard).
[96]See, e.g., Deteresa v. American Broadcasting Companies, Inc., 121 F.3d 460, 466 (9th Cir. 1997).
In Deteresa, there was no evidence of enhancing technology having been used, id. at 462-63, 466 n.3.
The Court stated its reason for denying an intrusion claim in terms consistent with the "actual
public view" standard: "With no dispute that ABC videotaped Deteresa in public view from a public
place . . . no intrusion into seclusion privacy claim lies as a matter of law." Id. at 466 (emphasis
added).
[97]The only known adoption of such a standard is the 1998 California Statute. See supra note 71
(Cal. Civ. Code § 1708.8(b) states, in part: "A person is liable for constructive invasion of
privacy when the defendant attempts to capture . . . through the use of a visual or auditory
enhancing device, regardless of whether there is a physical trespass, if this image, sound
recording, or other physical impression could not have been achieved without a trespass unless the
visual or auditory enhancing device was used.") (emphasis added); under the 1998 California statute,
if a given observation could hypothetically have been made without trespass and without the use of
enhancing devices, then the observation may lawfully be made with enhancing devices and from any
remote location. If the argument that the sky is not a public vantage point for surveillance
purposes is accepted, then the "hypothetical public vantage point safe harbor" could only apply
where a piece of land is not enclosed by fences-the lack of fences could mean that certain aerial
observations could hypothetically have been made without trespass from ground-level vantage points.
Language from E. I. duPont de Nemours & Co. v. Christopher, 431 F.2d 1012, 1016 (5th Cir. 1970),
supra note 11, may suggest that the lack of actual fences should not free a defendant from
liability:
Perhaps ordinary fences and roofs must be built to shut out incursive eyes, but we need not require
the discoverer of a trade secret to guard against the unanticipated, the undetectable, or the
unpreventable methods of espionage now available.
In the instant case duPont was in the midst of constructing a plant. Although after construction the
finished plant would have protected much of the process from view, during the period of construction
the trade secret was exposed to view from the air.
[98]See supra note 95 (ordinary binoculars may not qualify as technological enhancing devices).
[99]Power, supra note 21, at 20, 24 (1989), states that aircraft should be considered to constitute
sense-enhancing equipment. Power states:
the Supreme Court simply failed to recognize that airplanes and helicopters are technological aids
to surveillance not unlike wiretapping equipment. If there is a coherent approach to analyzing
technologically-enhanced government observations, one can discover it only after re-examining the
premises of Katz in light of the broader concept of the visual search.
Id. at 20 (citation omitted). One problem with an interpretation of airplanes as enhancing devices
is that automobiles then too would be considered sense-enhancing devices, when used by people who
travel for the purpose of viewing something hundreds of miles away. Yet such an interpretation of
automobiles as being sense-enhancing devices, when used to allow surveillance, has been implicitly
espoused. See id. at 93 ("enhancement by vantage point, [is] a form of mechanical assistance.").
Proposed Federal legislation provides a definition suggesting that airplanes might not be enhancing
devices, but the definition is merely illustrative. Personal Privacy Protection Act, S.2103 §
2(a)(2) ("modern visual or auditory enhancement devices, such as powerful telephoto lenses and
hyperbolic microphones that enable invasion of private areas that would otherwise be impossible
without trespassing.") (emphasis added).
[100]E. I. duPont, supra note 11, may be interpreted as viewing aircraft as sense-enhancing devices:
"Commercial privacy must be protected from espionage which could not have been reasonably
anticipated or prevented. We do not mean to imply, however, that everything not in plain view is
within the protected vale, nor that all information obtained through every extra optical extension
is forbidden. " 431 F.2d at 1016 (emphasis added). The language's implication would be that in the
E. I. duPont case, an "optical extension" (i.e., a technological enhancing device) was used-the case
mentions no use of telescopic lenses or even binoculars, meaning that the only such "optical
extension" would be the plane itself. The language's implication is that while the plane constituted
an enhancing device in the case, the Fifth Circuit chooses not to formulate a rule that covers all
"optical extension[s]" (enhancing devices); rather the holding that trade secrets cannot lawfully be
intercepted through the use of an "optical extension" only applies to certain fact situations.
[101]The "actual public vantage point safe harbor" cannot free from liability observations from a
place where the observer has a right to be for other purposes, when the observer used enhancing
devices. Such a proposition would be counter to basic protections offered by privacy law - such as
the right to privacy in a home. Allowing the "actual public vantage point safe harbor" to apply
where powerful enhancing devices are used defeats the purpose of the safe harbor. E.g., if a
plaintiff's home is the sole building in the center of a large unfenced-in piece of property, and if
from an adjacent street a defendant uses powerful telescopic lenses to view a plaintiff in that
home, clearly the rationale for a safe harbor is defeated; in this hypothetical, the plaintiff was
not visible to a person situated outside of the plaintiff's property - rather, the defendant used
technological aids to view the plaintiff at a level of detail that would have been possible only for
a trespasser, in the absence of the use of powerful technological aids.
[102]The court explained its holding: "Commercial privacy must be protected from espionage which
could not have been reasonably anticipated or prevented. We do not mean to imply, however, that
everything not in plain view is within the protected vale, nor that all information obtained through
every extra optical extension is forbidden." 431 F.2d at 1016 (emphasis added). By clarifying that
its ruling does not apply to "everything not in plain view," the Fifth Circuit suggested that the
case involved something not in "plain view." E. I. duPont, supra note 11, involved standard visual
aerial surveillance: "The area photographed by the Christophers was the plant designed to produce
methanol by this secret process, and because the plant was still under construction parts of the
process were exposed to view from directly above the construction area." Id. at 1013.
[103]The Fifth Circuit perhaps suggests that a "hypothetical vantage point safe harbor" would be
undesirable, even where observations made from the air could have been made from ground-level, see
supra note 97 (actual fences are not needed for plaintiffs to have a trade secret claim when
defendants conducted visual aerial surveillance).
[104]Kyllo v. U.S., 121 S.Ct. 2038, 2043 & n.2 ( 2001) ("The dissent's comparison of the thermal
imaging to various circumstances in which outside observers might be able to perceive, without
technology, the heat of the home -for example, by observing snowmelt on the roof, post, at 2048 -is
quite irrelevant. The fact that equivalent information could sometimes be obtained by other means
does not make lawful the use of means that violate the Fourth Amendment. The police might for
example learn how many people are in a particular house by setting up year-round surveillance; but
that does not make breaking and entering to find out the same information lawful.").
[105]Id. at 2043 ("We think that obtaining by sense-enhancing technology any information regarding
the interior of the home that could not otherwise have been obtained without physical 'intrusion
into a constitutionally protected area,' Silverman, 365 U.S., at 512, 81 S.Ct. 679, constitutes a
search - at least where (as here) the technology in question is not in general public use.")
(emphasis added).
[106]See supra note 105 (police observations of the interior of a home constitute a Fourth Amendment
search, where observations were made with technology that is not in "general public use," regardless
of whether or not the same observations could hypothetically have been made from a public vantage
point and without enhancing devices).
[107]The Supreme Court, in dicta suggesting that police satellite surveillance would constitute a
search, does not make any suggestion that satellite surveillance would not be a search if what was
observed hypothetically could have been seen from a public vantage point, without the use of
technological aids. Kyllo, 121 S.Ct. at 2044; Dow Chemical, 476 U.S. at 238, 250.
[108]Lyrissa Barnett Lidsky, Prying, Spying, and Lying: Intrusive Newsgathering and What the Law
Should Do About It, 73 Tul. L. Rev. 173, 207 (1998) (intrusion's flaws as a doctrine mean that an
especially high percentage of intrusion claims fail).
[109]See Note, Privacy, Technology, and the California “Anti-Paparazzi” Statute, supra note 48, at
1382..
[110]See supra note 57.
[111]"Taken together, the doctrinal flaws in the intrusion tort undermine a plaintiff's ability to
recover for privacy invasions by the media. Equally important, these doctrinal flaws create a great
deal of uncertainty about the scope of the tort's coverage. . . . [T]he strength of the intrusion
tort-that it is broad enough to cover the various types of conduct-may also be its greatest
failure." Lidsky, supra note 108, at 212. The flaws of intrusion include that "intrusion is so
vague, it lends itself to what one might call 'kitchen sink' pleading." Id. at 208. "[T]he amorphous
nature of the right protected by the intrusion tort" makes courts "uncomfortable or even hostile" to
intrusion claims. Id. at 211.
[112]See supra note 51 (citing Tompkins and Souder).
[113]"A . . . doctrinal flaw in the intrusion tort stems from the law's failure to keep pace with
the development of surveillance technology." Lidsky, supra note 108, at 212.
[114]See infra Part III, Section A (proposing legislation).
[115]This Note proposes only civil liability.
[116]Currently, there are forms of visual aerial surveillance that apparently are not used to gather
close observations of people but, rather, garner observations regarding land or the environment.
See, e.g., Koplow, supra note 16, at 481 (1991) ("already, analysts have suggested that Open Skies
imagery and other data can profitably assist . . . environmental assessment (by measuring pollution
levels, deforestation, erosion, etc.) and mapping.").
[117]See Garner, supra note 14 (definition of "surveillance").
[118]Helicopters may have flown by adjacent areas but not directly overhead the property being
observed, thus minimizing the disruption; satellites and other non-disruptive means may have been
used, without the observed ever knowing.
[119]See, e.g., Florida v. Riley, 488 U.S.445, 465 (Brennan, J., dissenting) (suggesting that State
should have burden of proof to demonstrate that non-police flights at an altitude of 400 feet are
commonplace).
[120]E.g., res ipsa loquitur is a response to information asymmetry regarding evidence. Jeffrey W.
Puryear, Case Notes, Schmidt v. Gibbs: The Application of Res Ipsa Loquitur to Arkansas Medical
Malpractice Litigation, 46 Ark. L. Rev. 397, 424 (1993) ("A plaintiff needs an effective tool for
recovery when others control the environment in which the injury occurs . . . .").
[121]In Com. v. Louden, 536 Pa. 180, 638 A.2d 953 (Pa. 1994), and in Malpas v. State, 116 Md.App.
69, 695 A.2d 588 (Md. Ct. Spec. App. 1997), courts rule on the admissibility of evidence obtained
through surveillance - if evidence had been obtained through unlawful means, then the evidence would
be inadmissible in criminal proceedings.
[122]See David A. Browde, Note, Warning: Wearing Eyeglasses May Subject You to Additional Liability
and other Foibles of Post-Diana Newsgathering - an Analysis of California's Civil Code Section
1708.8, 10 Fordham I. P., Media & Ent. L.J. 697, 699 (2000) ("This note analyzes the multiple
infirmities that render section 1708.8 unconstitutional, including singling out the professional
news media for discriminatory treatment, overbroadness, vagueness, and its confusion of Fourth and
First Amendment standards."); see also id. at 699 n.7 (stating that as of 2000, there had been no
rulings on the constitutionality of the statute). But see Ashley C. Null, Note, Anti-Paparazzi Laws:
Comparison of Proposed Federal Legislation and the California Law, 22 Hastings Comm. & Ent. L. J.
547, 558-64 (2000).
[123]See, e.g., Wolfson v. Lewis, 924 F. Supp. 1413, 1417 (E.D.Pa. 1996).
[124]Bartnicki v. Vopper, 532 U.S. 514 (2001).
[125]In Aisenson v. American Broadcasting Co., 269 Cal. Rptr. 379, 381-82 ( Ct. App. 1990),
appellant was a judge who, in addition to being portrayed negatively by commentary, was videotaped
walking from his home to his car for use in a news segment. Summary judgment was affirmed on an
intrusion claim, on the grounds that appellant was a public figure, whose life is of legitimate
public interest and that he was filmed while "in full public view." Id. at 388. (Since an enhanced
lens was used, id., the case potentially would be decided differently today under Cal. Civ. Code §
1708.8(b)).
[126]FAA elements have been delegated authority to issue a temporary flight restrictions NOTAM
(notice to airmen) to protect the President, Vice President, or "other public figures." 14 CFR §
91.141.
[127]See supra notes 54-56, 59.
[128]Fourth Amendment law would not be binding on non-police surveillance. See supra notes 20, 21
and text accompanying notes 20, 21.
[129]488 U.S. 445 (holding, 5-4, that police, from a helicopter at 400 feet, looking without the use
of mechanical devices into a greenhouse, through openings in its roof and sides, had not conducted a
search requiring a warrant for Fourth Amendment purposes).
[130]Riley, 488 U.S. at 451. But see id. at 453 (O'Connor, J., concurring) (the dispositive question
is whether air travel is common at a given height); id. at 460 (Brennan, J., dissenting) ("The
question before us must be not whether the police were where they had a right to be, but whether
public observation of Riley's curtilage was so commonplace that Riley's expectation of privacy in
his backyard could not be considered reasonable."); see also id. at 465 ("What separates me from
JUSTICE O'CONNOR is essentially an empirical matter concerning the extent of public use of the
airspace at that altitude, together with the question of how to resolve that issue.").
[131]See Power, supra note 21, at 113 n.108.
[132]See Kyllo, supra note 105.
[133]See, e.g., California v. Ciraolo, 476 U.S. 207, 211 (1986):
The touchstone of Fourth Amendment analysis is whether a person has a "constitutionally protected
reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J.,
concurring). Katz posits a two-part inquiry: first, has the individual manifested a subjective
expectation of privacy in the object of the challenged search? Second, is society willing to
recognize that expectation as reasonable? See Smith v. Maryland, 442 U.S. 735, 740 (1979).
[134]See supra note 92 (Justice O'Connor criticized the Riley plurality's focus on whether the
police helicopter undertaking surveillance could lawfully fly at an altitude of 400 feet; instead
focusing on the commonality of doing so and people's reasonable expectations of privacy).
[135]In fact, the obligation of police to respect citizens' privacy is at times higher than the
obligation of citizens to respect one another's privacy. Law enforcement officials have at times
been liable for damages for the violation of certain privacy-related standards that do not apply to
private citizens. See, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971) (holding federal officers liable for money damages, for violation of citizen's
Fourth Amendment right not to have house searched by the state without warrant; the officers were
also sued for invasion of privacy, under state tort law).
[136]Foreign Intelligence Surveillance Act of 1978 (FISA), Pub. L. No. 95-511, tit. I, § 101, 92
Stat. 1783 (1983) (codified at 50 U.S.C. §§ 1801-1811 (1996)).
[137]See James X. Dempsey, Communications Privacy in the Digital Age: Revitalizing the Federal
Wiretap Laws to Enhance Privacy, 8 Alb. L.J. Sci. & Tech. 65, 72-73 (1997) (discussing requirements
for surveillance under FISA).
[138]The Cuban Missile Crisis started when visual aerial surveillance of Cuba revealed a threat to
the U.S.; Cuban protests regarding the impropriety of such surveillance belied the actual danger.
See, e.g., R. Garthoff, Reflections on the Cuban Missile Crisis 22 (1987) ("On October 15, the very
day after the crucial U-2 reconnaissance mission, Pravda reported from Havana protests of U.S.
overflights of Cuba.").
[139]See Causby, supra note 8. The need to adapt the law to changing technology has continually been
recognized. See, e.g., Silverman v. U.S., 365 U.S. 505, 508-09 (1961) (describing parabolic
microphones and other new technological devices as "frightening paraphernalia which the vaunted
marvels of an electronic age may visit upon human society.").
[140]Power, supra note 21, at 113 n.78 ("Courts rarely discuss scientific principles in fourth
amendment cases. Justice Harlan did note in his Katz concurrence that the failure to treat
wiretapping as a search was 'bad physics as well as bad law.' Katz, 389 U.S. at 362 (Harlan, J.,
concurring).").
[141]See generally Gregg M. Fishbein & Susan E. Ellingstad, Internet Privacy: Does the Use of
"Cookies" Give Rise to a Private Cause of Action For Invasion of Privacy in Minnesota?, 27 Wm.
Mitchell L. Rev. 1609 (2001); Shawn C. Helms, Translating Privacy Values with Technology, 7 B.U. J.
Sci. & Tech. L. 288 (2001); June Mary Z. Makdisi, Genetic Privacy: New Intrusion A New Tort?, 34
Creighton L. Rev. 965 (2001).
[142]Prior to the Supreme Court's Kyllo ruling, one commentator observed the general importance of
adapting legal principles to new technologies: "This Note contends that any extension by analogy of
earlier Supreme Court cases dealing with technology and the Fourth Amendment to a case involving a
thermal imager signifies a failure to comprehend, and a lack of willingness to investigate, the
unique characteristics and nature of a thermal imager." Robert K. Glinski, Note, Constitutional Law-
Thermal Imagery and the Fourth Amendment: Do I Look Warm to You?-United States v. Ford, 34 F.3d 992
(1994), 14 Temp. Envtl. L. & Tech. J. 293, 295 (1995). See also supra note 92 (Justice O'Connor,
concurrence in Riley, stating that the public vantage point safe harbor should not be mechanically
applied to aerial surveillance).
[143]Significantly, one commentator finds it valuable to compare visual surveillance privacy
concerns with Cyberspace data privacy concerns. Julie E. Cohen, Examined Lives: Informational
Privacy and the Subject as Object, 52 Stan. L. Rev. 1373, 1425 (2000) ("The benefits of
informational privacy are related to, but distinct from, those afforded by seclusion from visual
monitoring. It is well-recognized that respite from visual scrutiny affords individuals an important
measure of psychological repose.").
[144]Examples of public exposure to aerial surveillance - e.g., supra note 13 (Michael J. Fox
testimony before Congress) - are relatively rare.