For some reason, we have noticed an uptick in instances of “bad neighbors” over the last few months. Our office has received multiple calls this summer from people whose neighbors have pointed cameras at them, trespassed on their property and – even in one instance – shot at their property with a firearm. To narrow the issue, this blog entry focuses on cameras, only.
A person has a reasonable expectation of privacy not only in their home but also in its curtilage, which is defined as “the area around the home to which the activity of home life extends” (Cooksey v. State, 350 S.W.3d 177, 183 (Tex. App. 2011); Kann v. State, 694 S.W.2d 156, 159 (Tex. App. 1985). The curtilage warrants the same Fourth Amendment of the U.S. Constitution protections that attach to the home (Kann v. State at 159). A fenced backyard, especially one used for children’s activities, is generally considered curtilage (State v. Betts, 397 S.W.3d 198, 207 (Tex. Crim. App. 2013); Cooksey v. State 184; Moss v. State, 878 S.W.2d 632, 644 (Tex. App. 1994); Kann v. State at 159). The fact that an area is not visible from a public road or usual pedestrian pathways further supports a reasonable expectation of privacy (Cooksey v. State at 184; Moss v. State at 638; Kann v. State at 158).
Furthermore, Texas common law recognizes an individual’s right to privacy, and the Texas Constitution protects personal privacy from unreasonable intrusion (Daugherty v. Ellington, 15-16 (Tex. App. 2024); Moore v. Lisa Bushman & Integrity Land Servs. & Invs., LLC, 559 S.W.3d 645, 649 (Tex. App. 2018). To establish an invasion of privacy by intrusion, a party must show an intentional intrusion, physically or otherwise, upon another’s solitude, seclusion, or private affairs, which would be highly offensive to a reasonable person of ordinary sensibilities and result in injury (Daugherty v. Ellington at 16; Moore v. Lisa Bushman & Integrity Land Servs. & Invs. at 649). Actual physical invasion onto property or the use of eavesdropping technology is not required; following, watching, and photographing a person while in plain view can constitute the type of willful intrusion required to prove an invasion of privacy (Daugherty v. Ellington at 16, 22-25). The core of this claim is the offense of prying into the private domain of another (Daugherty v. Ellington at 17).
Taking the above into account, essentially what this translates to is that if a camera is pointing generally in the direction of one’s property by a nosy neighbor, it may not be actionable as it is not meant to specifically observe one’s private property only. However, if the camera is pointing clearly and squarely at one’s home, this may be actionable. The liability increases if the intruding neighbor specifically has the camera elevated to look over a fence, into a window, or another area where one would expect privacy.
Each situation turns on its own facts, and the law responds accordingly. Not long ago, our office handled a matter where a neighbor installed a camera aimed directly over a fence into our client’s backyard. The intent was unmistakable – there was no plausible security justification, and the setup served no purpose other than surveillance. By contrast, in a separate case, a camera positioned across the street in the general direction of a neighbor’s home was not deemed offensive. The homeowner had experienced prior break-ins, and the camera’s angle captured a broader view – not being solely focused on the neighboring property.
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