The Expert Podcast

Is it legal to do surveillance on another person by drone? Many times, as a licensed private investigative agency, we get inquiries to discover information about another party. You want to know their whereabouts, their habits, their transactions, and even their honorable intentions for what they're doing. Sometimes the recommendation from the client is, "Can't you just follow him with the drone or GPS, for that matter?"

Most states have laws regarding the use of aerial devices (drones) for surveillance. As an example, the State of Florida is a very good example of what the laws are in states for privacy and use of drones. Here's how they handle it in that state: in Florida, it's covered by statute 934.5, which talks about the Freedom from Unwarranted Surveillance Act and the use of drones.

The key takeaway from this statute is that you can read all the definitions of what is an image, what is an imaging device, and who are the covered parties. The first part that's important to look at is in Section B, which says a person or political subdivision may not use a drone. Now, this is what you cannot do: record an image of privately owned real property or of the owner, tenant, occupant, invitee, or lienee of a property with the intent to conduct surveillance on the individual or property. So it says right there that you cannot do it.

For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by people at ground level. So if you're behind a fence or in a backyard, you can't use a drone to get that access. But there's another important section of this statute. Notice that it has exceptions. It does not prohibit the use of the drone under these conditions, and it lists a bunch of exceptions.

However, the exception does not apply to a profession in which the lien's authorized scope of practice includes obtaining information about the identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character of a person. So basically, it gives a bunch of exceptions, but you can't use any of those if you are doing an investigation, whether you're a private investigator, a licensed investigator, or somebody getting that information like an attorney.

The bottom line is that in most states (this is from Florida, and you can check your own state), the use of a drone to gather intel that you couldn't get otherwise is typically not permissible. Now, that doesn't mean you can't get the information. There are many ways of getting it, and many times the methods of getting it are better than a drone.

The other thing about a drone is that if you do use it for something, it creates a record of that event. Drones are tracked by ADS-B, which tracks the identity of the owner of the drone, its location, position, where it flew to, and where it flew from. So anybody who thinks or suspects they're being observed by a drone can track any drones that were in their location on a certain day, or if they see one, they can backtrack who came from it and who owned it.

So if you're looking to gather intel on a subject, make sure that either you or even who you're hiring is doing it legally, because if it's found to be performed as an illegal type of observation or surveillance, both the person who performed the activity and even those who hired them could be liable through vicarious liability. This also applies to many uses of GPS tracking. So make sure, when you're doing your investigation, you find out from the investigator how they're doing it and ensure they're following all the laws so you don't get into trouble.