Private investigators are hired to help with all sorts of cases. Individuals often need help with personal cases such as domestic issues and child custody. Attorneys and insurance companies may need assistance with criminal defense, civil litigation, and investigation of fraudulent insurance claims. Surveillance is perhaps the most common tool used to develop evidence for all of these types of clients. As a potential PI client, you may find yourself wondering if a private investigator can take pictures of you in your home.
Can a Private Investigator Take Pictures of You in Your Home?
Like many answers to life’s questions, it depends. The essence of the question is a matter of privacy. Sometimes it may be okay for a PI to take pictures of you in your home, but in most cases you will be protected from prying eyes by a reasonable expectation of privacy.
In the United States, individuals have a right to privacy that is protected by various federal and state laws. The US Constitution doesn’t specifically cite a right to privacy, but the courts have recognizes several clauses within the bill of rights to imply protections of various aspects of privacy. When it comes to privacy, the home is the most fundamental places where the law protects a person’s right to privacy.
A common privacy test is the concept of reasonableness. Would a reasonable person expect privacy in a specific location or circumstance? Or put another way, is it reasonable for me to expect privacy in this situation. The answer to these questions is often the determining factor on whether a person can take pictures of you or otherwise eavesdrop on your personal activity.
For instance, while sitting at a bench in a public park, is it reasonable for two people to expect privacy in their conversations with each other? Can they also expect no one to photograph or video the two sitting together on the bench? The answer is, no, it is not reasonable for the two to expect privacy from anyone walking by or seeing them together on the bench.
If I’m standing within listening range, it is completely legal and not an invasion of privacy for me to listen in on their conversation. The same goes for taking photographs of the two. Audio recording the conversation may not be legal depending on state law, but that’s the topic of a different conversation.
Reasonable Expectation of Privacy in Your Home
With reasonableness in mind, can a private investigator take pictures of you in your home?
If a PI has your permission to take photos, then the answer is yes. But without your consent or permission, no one can invade your privacy in areas where any reasonable person would also expect to have privacy.
When you put up physical barriers such as walls, window shades, fences, and roof tops, you’re basically signaling to the world your reasonable expectation of privacy in these protected areas. This means that anyone sneaking up to your window and sticking a small camera between the shades would be causing an invasion of your privacy. Climbing a tree or setting up a ladder to look over your fence are examples of violating a reasonable expectation of privacy too. Using high powered lenses and microphones to photograph or record a person in places where reasonable expectation or privacy exists is also a violation of privacy law.
But a private investigator can take pictures of a person in the person’s home when the PI is in a place he or she is legally allowed to be and the person being photographed has placed themselves in a position where no reasonable expectation of privacy exists. If you’re standing in front of an open window or doorway and a PI is standing outside on a public sidewalk, the private investigator would not be violating privacy law by taking pictures of you in your home in this example.
The reasons in the last example are twofold. First of all, by standing on the public sidewalk the private investigator is in a place where he or she has a legal right to be. Second, by standing in front of an open doorway or window, you have eliminated your expectation of privacy. Any person can simply look at your house from the outside and have an unhindered view of you standing in the doorway or window. Any person taking pictures of you in this situation would not be infringing on your right to privacy.
Intrusion Upon Seclusion – Privacy Law
Throughout the United States, the courts use four elements to show when one person has intruded upon the reasonable expectation of privacy of another. The legal terminology for this concept is called intrusion upon the seclusion of another. The four elements that must be proven to validate a claim of privacy intrusion are:
- The subject without authorization intruded or pried into the seclusion of the claimant
The subject’s intrusion would be highly offensive to or objectionable to any other reasonable
- The subject intruded upon a private matter
- The subject caused the claimant to experience anguish or suffering
California courts apply an additional limitation regarding invasion of privacy. A person can claim an invasion of privacy when a subject misrepresents one’s self or otherwise uses deception to obtain private information. The common private investigator tactic or pretexting (basically lying about one’s identity to gain confidential information) is prohibited in California.
California’s Anti-Paparazzi Statute (California Civil Code 1708.8) prohibits any person from trespassing onto private property with the intention of taking photographs, audio recordings, or video of a person engaged in personal or family activity. So even if a person is out in the open on their private property for all the world to see, if a PI goes onto that person’s property to take pictures of you the PI could be liable for violating the anti-paparazzi regulation. For this reason, a professional private investigator will know to stay on public streets, sidewalks, or other places that are open to the public whenever conducting surveillance activities.