Earlier this month, Governor Cuomo signed new homeowner privacy protections into law. The law, often referred to as the “backyard surveillance bill,” allows a homeowner to sue a neighbor or third-party who has invaded the homeowner’s privacy by taking pictures or filming the homeowner’s backyard without their knowledge or consent. However, the scope of this law is far more narrow than one might expect, or may even have been intended.
The goal of the law is to close the “peeping tom” loophole, which refers to the absence of any provision to stop or seek damages for being recorded by a neighbor or other party without permission. This was prompted by incidents in which homeowners using their pools, among others, were filmed without their knowledge by their neighbors. Moreover, the law is not limited to the owner of the property, tenants are also able to avail themselves of the law’s new protections. Notably, the law does not prohibit lawful surveillance by law enforcement agencies, or other forms of legally authorized surveillance.
Despite the apparent intent to be broad in scope, the reality is that the new law’s application is fairly limited. The legislative history stated that “[a] person is guilty of this action if he or she intentionally uses or installs, or permits to be, used, or installed, a video imaging system that allows the unwarranted video imaging of an adjoining residential property owner’s backyard premise without the property owner’s written consent.” Yet the actual law lacks this language, and is limited to devices installed or affixed on an adjoining property. Moreover, it only covers filming activity in a homeowner’s backyards, not a front or side yard (though the impact may be minimal, given that front yards are often visible from the street).
As a result, the new law makes no provision for portable recording devices like cell phones or hand-held cameras. The law would also appear inapplicable to cameras placed on drones, making it unclear how the law might impact that new and increasingly contentious issue in homeowner privacy. As a result, there is a strongly likelihood that this law will need to be amended in the years to come. Even so, it represents a step forward for privacy advocates and homeowners who wish for their private life to remain private.