The Military-Style Surveillance Technology Being Tested in American Cities

Say you’re on a commercial flight and you pass over a city. You pull out your phone and take a picture. Much of the area that you have photographed is private property, but have you violated anybody’s privacy? You’d probably say no, and you’d be right. But what if, instead of your phone, you use a professional camera equipped with a telescopic lens that’s strong enough to make out individual people in their backyards? Though your actions might raise some eyebrows among your fellow passengers, they are, from a legal standpoint, no different from the first example.

Let’s say you take it a step further. You fly a helicopter over the city at 1,000 feet. Now, with your telescopic camera, you can even make out distinctive features of the people in your frame. Surely this isn’t legal, you might say. Surely a bright line exists between snapping a photo with your phone from an airplane window and focusing a telescopic lens a few hundred feet over someone’s backyard.

But it doesn’t. Even if you happen to record someone sunbathing in a backyard, it is not your fault. It’s the sunbather’s fault, for not taking better precautions to protect against aerial observation.
This is because the airspace over America falls into the same legal category as other public spaces, such as sidewalks, roads, parks, and beaches—and it isn’t illegal to take photographs of private property, or private citizens, from public space. As a result, we have no expectation of privacy from above.