The Unprotected Sky | Part 2 of 4 | A Blog Series on Drone Surveillance, Privacy Law, and the Fourth Amendment

THE TECHNOLOGY BLIND SPOT

Lynlee Thorne stopped going to the grocery store.

She stopped attending any local event. She shuttered the blinds on her farm in Rockingham County, Virginia. She made her home a hideaway. The reason arrived without warning in 2020: a drone appeared above her property, hovered at low altitude, and then left. It came back. It kept coming back. By the time Dustin Eugene Honeycutt pleaded guilty to six criminal counts in Rockingham County Court on October 23, 2024, Thorne and her family had spent four years under aerial surveillance by a private citizen with a consumer drone and a Part 107 remote pilot certificate.

No government agency sent that drone. No warrant was required, because the Fourth Amendment does not reach private actors. No federal civil remedy existed, because Congress has not created one. Thorne’s path to relief ran entirely through Virginia criminal law, required specialized counter-UAS technology to identify the operator, and took four years to reach a conviction.

That four-year gap is not an anomaly. It is the system working as currently designed.

Part 1 of this series examined what happens when a government agency flies a drone over your client’s property without a warrant: the Michigan Supreme Court’s holding in Long Lake Township v. Maxon, 15 N.W.3d 118 (Mich. 2024), tells you the evidence comes in anyway. This piece addresses a structurally distinct problem. When the drone operator is not the government, the Fourth Amendment analysis ends at the threshold. Private actors face no constitutional ceiling on aerial observation from legally navigable airspace. The remedy lives in state tort law and, where legislatures have acted, state criminal statutes. Neither framework was designed for a device that costs $400, fits in a backpack, and can hover silently at 200 feet for thirty minutes.

Call this the Private Surveillance Gap: the structural absence of a federal cause of action for private aerial surveillance, and the inadequacy of a tort framework built before drones existed.

The Private Surveillance Gap: What the Law Provides and What It Doesn’t

A private individual holding a FAA Part 107 certificate can legally fly a drone over your client’s fenced backyard, photograph everything visible, and face no Fourth Amendment consequence whatsoever. The Fourth Amendment only constrains government actors. The available remedies are state tort law (intrusion upon seclusion, trespass, nuisance), state criminal statutes where enacted, and private actions under state-specific drone privacy statutes where they exist. Each remedy carries identification obstacles, intent requirements, and reasonable-expectation thresholds that existing doctrine built for different technology strains to resolve.

The practical result: a private drone operator legally occupies the same airspace a government agency uses, captures footage of identical quality, and faces a far more forgiving legal landscape than a government actor would if the Michigan Supreme Court’s civil enforcement reasoning did not exist.

The Constitutional Ceiling That Doesn’t Exist

The Fourth Amendment protects against unreasonable searches and seizures by the government. That single word, government, does the work. California v. Ciraolo, 476 U.S. 207 (1986), and Florida v. Riley, 488 U.S. 445 (1989), established that observations made from publicly navigable airspace do not constitute Fourth Amendment searches even when directed at a fenced residential curtilage. Part 1 of this series explained those cases in the context of government drone surveillance. Their doctrinal significance for private actors runs deeper.

Ciraolo and Riley articulated the navigable airspace doctrine by reference to what ‘any member of the public’ could observe. 476 U.S. at 213. That framing was not incidental. The Court’s reasoning rested explicitly on the proposition that if any private citizen legally occupying that airspace could see the same thing, the government’s observation created no privacy violation. The doctrine that permits government surveillance also confirms, as a logical corollary, that private observation from the same position raises no Fourth Amendment issue at all. The Constitution never enters the analysis.

The FAA controls navigable airspace from the surface to 400 feet above ground level. Any Part 107 certified operator may fly within that corridor. The certification costs $175, requires passing a multiple-choice aeronautical knowledge test, and imposes no privacy-related requirements or restrictions. As of July 2025, 433,407 commercial drone registrations existed in the FAA’s database. The FAA’s mandate is aviation safety, not privacy regulation. It has never issued a rule restricting aerial photography of private property based on privacy grounds, and its statutory authority does not extend to doing so.

The constitutional wall, in other words, runs between private actors and government actors. It does not run between drone operators and residential property. For private drone surveillance, the wall does not exist.

Three Remedies, Three Structural Problems

State law provides three potential responses to private drone surveillance: common law privacy torts, state criminal statutes, and state-specific drone privacy statutes. Each carries a structural limitation that a legal framework designed around pre-drone technology did not anticipate.

The primary tort remedy is intrusion upon seclusion. The Restatement (Second) of Torts §652B defines it as intentional intrusion ‘upon the solitude or seclusion of another or his private affairs or concerns’ that ‘would be highly offensive to a reasonable person.’ The cause of action developed in cases involving peepholes, hidden recording devices, and physical trespass into private spaces. Applied to drone surveillance, three elements strain the framework.

First, identification. A drone at 200 feet carrying no visible markings leaves the victim with footage of an aircraft but no operator. The FAA’s Remote ID rule, which took effect September 16, 2023, requires most drones to broadcast identifying information during flight, but that broadcast is not consumer-accessible: only law enforcement can submit requests to the FAA to match a serial number to a registered operator. The private citizen watching a drone from her backyard receives nothing from Remote ID. Thorne’s case required a DRONERESPONDERS deployment: counter-UAS detection technology whose clients include utility companies, airports, and state police agencies, not residential homeowners. ConEdison uses it. Louisiana State Police deployed it for Super Bowl LIX. It required coordination between Virginia State Police, the Virginia Department of Aviation, and the Virginia Innovation Partnership Corporation. It required a search warrant to recover the drone’s serial number. That constellation of institutional resources does not appear in most private drone harassment cases. That is not a path available to most residential property owners.

Second, intent. Intrusion upon seclusion requires intentional conduct. A neighbor photographing a street and inadvertently capturing a backyard creates no tort liability. A drone operator who flew over multiple properties in a commercial photography context and captured your client’s fenced pool along the way may face no civil liability even if the footage was retained and viewed. The intent requirement draws lines the technology does not respect.

Third, the reasonable expectation threshold under existing doctrine. Ciraolo held that no reasonable expectation of privacy exists against naked-eye aerial observation from navigable airspace. That holding arose in a Fourth Amendment context, where the government bears the burden of justifying a search. Its application to private tort law is not settled, but defendants in intrusion cases routinely invoke Ciraolo-derived reasoning to argue that observation from legally occupied airspace cannot satisfy the ‘highly offensive to a reasonable person’ standard. Courts have reached different conclusions, and the Supreme Court has never addressed the question in a tort context.

State criminal statutes provide a second avenue, but only where legislatures have written them broadly enough to reach private operators. Virginia Code §18.2-60.5 prohibits operating a drone to commit stalking and provides criminal penalties. That statute reached Honeycutt. It required a criminal investigation, a specialized detection technology deployment, and a search warrant. The conviction took four years from first incident to plea.

Six states have enacted drone-specific privacy statutes covering private operators: Florida, Idaho, North Carolina, Oregon, Tennessee, and Texas. Florida’s Freedom from Unwarranted Surveillance Act prohibits using a drone to record images of privately owned real property with intent to conduct surveillance in a manner that violates a reasonable expectation of privacy. Fla. Stat. §934.50. Texas enacted a substantially similar criminal and civil prohibition in 2013 under Chapter 423 of the Texas Government Code. A seventh state, California, extended its pre-existing aerial invasion of privacy statute to drones through Assembly Bill 856 in 2015, codified at Civil Code §1708.8. The statute creates civil liability when a person knowingly enters the airspace above another person’s land without permission to capture images, sound recordings, or other impressions of that person engaged in a private or personal activity. A successful plaintiff may recover actual damages, statutory penalties of $5,000 to $50,000 per violation, punitive damages upon a showing of malice, and injunctive relief. The statute’s without-permission element creates some analytical tension with federal navigable airspace doctrine, since Part 107 operators lawfully occupy FAA-controlled airspace regardless of property boundaries below; courts in California have not yet resolved that preemption question in a published opinion involving drone surveillance specifically, so the statute’s full reach remains unsettled. These seven states represent approximately 35% of the U.S. population. They do not represent most of it.

The remaining 44 states offer only common law tort remedies, state criminal stalking and harassment laws requiring pattern-of-conduct proof, and FAA reporting mechanisms with no civil remedy component.

The Counterargument: State Law Is the Correct Vehicle

The strongest version of the opposing position deserves full statement. Privacy regulation of private actors has always been state law, not federal constitutional law. The Fourth Amendment was designed as a government power constraint, not a general privacy right. Applying it to private actors would transform the constitutional framework. The common law of intrusion upon seclusion has adapted to new surveillance technologies before, through cases involving peepholes, telephoto lenses, and recording devices, and it will adapt to drones.

Moreover, the Honeycutt prosecution demonstrates that the system can work. A determined victim with access to the right resources secured a conviction. Virginia’s statute reached the conduct. The conviction creates precedent for future prosecutions. The appropriate policy response is targeted legislation, not judicial expansion of constitutional doctrine.

The position has genuine force. State law is the correct primary vehicle. Targeted statutes like Virginia’s and Florida’s function when properly enforced. The Honeycutt conviction is real.

The flaw is the assumption that Thorne’s result is typical rather than exceptional. Thorne had connections to DRONERESPONDERS through a close friend. She had access to counter-UAS detection technology not available to most residential property owners. The investigation required cooperation from state police, the Virginia Department of Aviation, and the Virginia Innovation Partnership Corporation. That constellation of resources does not appear in most private drone harassment cases. The seven states with drone-specific civil remedy statutes cover approximately 35% of the U.S. population. For the remaining 65%, the framework available is general harassment and stalking law that requires pattern-of-conduct proof and carries the same identification obstacles. Even among the 19 states the NCSL tracks as having drone privacy statutes of any kind, most of those statutes are criminal rather than civil, which means the victim’s path to relief runs through a prosecutor’s discretion rather than her own lawsuit.

The counterargument proves the point it intends to refute. The system works for some victims, under some circumstances, after years of documented harassment. It does not work systematically. That is the gap.

Where This Analysis Is Weakest

The piece’s own argument has a limit worth stating directly. Courts are beginning to apply intrusion upon seclusion to drone cases without requiring a state-specific drone statute, and some have allowed claims to proceed past summary judgment based on the persistent, targeted nature of the surveillance even from navigable airspace. The Restatement framework is not static. A plaintiff with documented evidence of repeated, low-altitude, residential surveillance by an identifiable operator in a jurisdiction with favorable precedent may have a viable tort claim even absent a drone-specific statute.

The argument here is not that no remedy exists. The argument is that the remedies available are inconsistent across jurisdictions, require identification infrastructure most victims cannot access, and produce results that lag the harm by years. The gap is structural, not absolute. Practitioners in states with well-developed drone statutes and access to counter-UAS identification tools face a different landscape than practitioners in states with neither.

Four Levels of Consequence

At the first level, consider the individual client who faces a private drone. The immediate harm is documented and real: Thorne stopped leaving her home. Her family altered every outdoor activity. The harm precedes any legal resolution by years, because the identification problem means the clock on any remedy does not start until the operator is identified.

At the second level, consider the client categories most exposed. Domestic relations clients in contested divorces or custody disputes face a documented threat: a spouse or their private investigator can legally fly over a marital residence and photograph the backyard, the pool, the vehicles present, the visitors arriving and departing. The surveillance is legal from navigable airspace regardless of intent, and the footage is admissible in civil proceedings because the Fourth Amendment does not apply and no state tort claim has yet been adjudicated. Business clients in competitive markets face industrial surveillance from private operators hired to photograph facilities, supply chain operations, or agricultural land from legally occupied airspace. Employment attorneys handling non-compete and trade secret cases should ask whether aerial surveillance of client facilities has occurred during any contested period.

At the third level, consider the legislative gap. The states that enacted private-party drone statutes did so between 2013 and 2017. Technology has accelerated in the intervening decade. Current consumer drones carry thermal sensors, 4K cameras, zoom capabilities, and night-vision technology that existing statutes did not contemplate. The ‘highly offensive to a reasonable person’ standard requires courts to evaluate technology most judges have not personally encountered. The legislative response has not kept pace.

At the fourth level, consider the federal vacuum. No federal statute creates a civil cause of action for private aerial surveillance of residential property. No federal agency has rulemaking authority over private drone photography of private property. Congressional proposals for federal drone privacy legislation have stalled repeatedly. The Brookings Institution identified this gap in a 2015 analysis and noted that court dockets remained ‘essentially empty’ because litigants could not construct viable federal claims. A decade later, the gap remains, and 822,039 registered drones occupy American airspace.

Practice-Specific Implications

Family law attorneys should treat private aerial surveillance as a standard intake question in every contested divorce and custody matter. The relevant questions are: Has any aircraft, including a drone, been observed over the marital residence or the client’s current address? Has the client observed any low-altitude aerial activity that appeared targeted rather than transient? Does the opposing party or their counsel have access to aerial footage of the property? Aerial evidence collected without a state law violation is admissible in civil proceedings. Evidence your client does not know about is evidence your client cannot challenge.

Property and real estate attorneys handling neighbor disputes, easement conflicts, and nuisance claims should apply the same intake approach. A neighbor photographing disputed property from navigable airspace has not committed a trespass under current doctrine in most jurisdictions. The footage may be admissible. The absence of a state drone statute in your jurisdiction means the common law framework, with its identification and intent requirements, is the only available remedy.

Commercial litigators in trade secret, non-compete, and competitive intelligence matters should ask whether aerial surveillance of client facilities has occurred during any period at issue. Industrial drone surveillance from navigable airspace does not require a physical trespass and leaves no trail short of FAA registration data, which requires law enforcement involvement to access.

Tort and personal injury practitioners should understand that intrusion upon seclusion claims against drone operators are viable in some jurisdictions, under some fact patterns, but require clear documentation of the surveillance, an identified operator, evidence of intent, and a judge willing to apply the ‘highly offensive’ standard to aerial observation. Cases with persistent, low-altitude, residential surveillance and an identified operator represent the strongest fact patterns. Single transient observations over residential property, even with a camera active, represent the weakest.

Three Steps for This Week

First, add a private aerial surveillance question to your matter intake template for domestic, property, commercial, and employment cases. The question is: ‘Has any aircraft, including a drone or unmanned aerial vehicle, been observed flying over your property or in your immediate vicinity in connection with this matter or in the two years preceding it?’ Document the answer. If the answer is yes, ask whether the client retained footage of the aircraft, noted a time and date, observed any identifying markings, or observed the operator. That documentation is the foundation of any subsequent identification effort.

Second, identify your jurisdiction’s drone law framework now, before a case requires it. Determine whether your state has enacted a private-party drone surveillance statute. As of early 2026, seven states have enacted drone-specific statutes with explicit civil causes of action for private actors: Florida, Texas, California, Idaho, North Carolina, Oregon, and Tennessee. The National Conference of State Legislatures tracks 19 states with laws prohibiting private drone surveillance of individuals, including Arkansas, California, Delaware, Florida, Idaho, Indiana, Kansas, Louisiana, Michigan, Minnesota, Mississippi, North Carolina, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Virginia, and West Virginia. The remaining states offer only general stalking and harassment law plus common law tort. Determine whether your state’s stalking and harassment statutes have been applied to drone conduct and what pattern-of-conduct proof they require. Determine whether your state’s tort courts have addressed the Ciraolo argument in intrusion upon seclusion cases involving aerial observation. A jurisdiction-specific analysis done in advance takes two hours. The same analysis done at 10 PM when a client calls about a drone over their property takes longer and produces less reliable results.

Third, if your client faces ongoing private drone surveillance and your state’s criminal statutes reach the conduct, report to law enforcement and document every flight. Law enforcement’s access to FAA registration data through proper channels is the most reliable identification path currently available. The Remote ID data the drone broadcasts can be captured by counter-UAS technology, but that technology is not yet accessible to most private citizens outside of law enforcement partnerships. The criminal referral opens the identification pathway the civil framework cannot reach alone.

Appendix: Primary Source Text

The following language comes directly from the primary sources. No characterization substitutes for the text.

Virginia Code §18.2-60.5 (Stalking using an unmanned aircraft system):

Any person who operates an unmanned aircraft system in violation of [Virginia’s stalking statute] with the intent to follow, surveil, harass, or intimidate another person shall be guilty of a Class 1 misdemeanor for a first offense and a Class 6 felony for a second or subsequent offense within 5 years.

Florida Statutes §934.50 (Freedom from Unwarranted Surveillance Act), key provision:

A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent.

Restatement (Second) of Torts §652B (Intrusion upon Seclusion):

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.

California v. Ciraolo, 476 U.S. 207, 213 (1986) (establishing the navigable airspace doctrine):

Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed. On this record, we readily conclude that respondent’s expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor.

The Four Years Before the Conviction

Dustin Honeycutt pleaded guilty on October 23, 2024. He received supervised probation. The conviction is real. Lynlee Thorne fought for four years to get it, with resources most clients do not have and help from a network most victims cannot access.

She stopped going to the grocery store in 2020. She got the conviction in 2024. The law did not give her back those four years.

Your clients who face private aerial surveillance today are operating in that same gap: legally unprotected against observation from navigable airspace, dependent on state frameworks of inconsistent quality, and facing an identification problem that state tort law cannot solve without law enforcement involvement. The technology arrived faster than the law. For now, the law is still catching up.

In Part 3 of this series, we examine what happens when neither a government agency nor a single private operator is flying the drone. The surveillance is aggregated, continuous, and operated by a system that does not need a pilot at all.

This blog provides general information for educational purposes only and does not constitute legal advice. Consult qualified counsel for advice on specific situations.

About the Author

JD Morris is Co-Founder and COO of LexAxiom. With over 20 years of enterprise technology experience and credentials including an MLS from Texas A&M, MEng from George Washington University, and dual MBAs from Columbia Business School and Berkeley Haas, JD focuses on the intersection of legal technology, cybersecurity, and professional responsibility.

Connect: LinkedIn | X | Bluesky

References

Primary Legal Authority

California v. Ciraolo, 476 U.S. 207 (1986). https://supreme.justia.com/cases/federal/us/476/207/

Florida v. Riley, 488 U.S. 445 (1989) (plurality opinion). https://supreme.justia.com/cases/federal/us/488/445/

Kyllo v. United States, 533 U.S. 27 (2001). https://supreme.justia.com/cases/federal/us/533/27/

Long Lake Township v. Maxon, 15 N.W.3d 118 (Mich. 2024). https://law.justia.com/cases/michigan/supreme-court/2024/164948-0.html

United States v. Causby, 328 U.S. 256 (1946). https://supreme.justia.com/cases/federal/us/328/256/

Katz v. United States, 389 U.S. 347 (1967). https://supreme.justia.com/cases/federal/us/389/347/

Restatement (Second) of Torts §652B (Intrusion upon Seclusion) (1977).

Virginia Code §18.2-60.5 (Stalking using an unmanned aircraft system).

Florida Statutes §934.50 (Freedom from Unwarranted Surveillance Act). https://www.flsenate.gov/Laws/Statutes/2022/934.50

Regulatory Authority

FAA Remote ID Rule, 86 Fed. Reg. 4314 (Jan. 15, 2021) (compliance required Sept. 16, 2023). https://www.faa.gov/uas/getting_started/remote_id

FAA UAS Registration Data: 822,039 registered drones, including 433,407 commercial registrations (July 2025). https://www.faa.gov/uas/resources/by_the_numbers

Case Record and Press

Rockingham County, Virginia: Commonwealth v. Dustin Eugene Honeycutt. Guilty plea October 23, 2024. Charges: two counts spying using electronic device, four counts entering property to harass using drone, two counts stalking. Outcome: supervised probation.

WHSV News, ‘Drone stalking victim speaks out about fears, frustration and finding a solution’ (December 13, 2024). https://www.whsv.com/2024/12/13/drone-stalking-victim-speaks-out-about-fears-frustration-finding-solution/

Police1 / Virginia Gazette, ‘Rockingham County woman’s drone stalking case sets legal precedent’ (January 15, 2025). https://www.police1.com/drones/what-happens-when-a-drone-stalks-you-at-first-nothing-but-a-va-woman-found-a-way-to-fight-back

Autonomy Global, ‘Counter-UAS Technology: Catching a Drone Stalker’ (September 23, 2025). https://www.autonomyglobal.co/counter-uas-technology-catching-a-drone-stalker/

Academic and Policy Sources

Rebecca L. Scharf, ‘Drone Invasion: Unmanned Aerial Vehicles and the Right to Privacy,’ 94 Indiana L.J. 3 (2019). https://www.repository.law.indiana.edu/ilj/vol94/iss3/6

Hillary B. Farber, ‘Keep Out! The Efficacy of Trespass, Nuisance and Privacy Torts as Applied to Drones,’ 33 Georgia State U.L. Rev. 2 (2017). https://readingroom.law.gsu.edu/gsulr/vol33/iss2/3/

Stuart Massa, ‘Peeping Town: Drone Surveillance and the Exclusionary Rule in Long Lake Township v. Maxon,’ 119 Nw. U. L. Rev. 1103 (2025). https://scholarlycommons.law.northwestern.edu/nulr/vol119/iss4/6/

Brookings Institution, ‘Civilian Drones, Privacy, and the Federal-State Balance’ (2015, updated). https://www.brookings.edu/articles/civilian-drones-privacy-and-the-federal-state-balance/

Connecticut General Assembly, ‘Privacy Protections Implicated by the Domestic Use of Unmanned Aerial Vehicles or Drones,’ Research Report 2014-R-0137. https://www.cga.ct.gov/2014/rpt/2014-R-0137.htm