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Since the birth of the concept of a legally-recognized right to privacy in Samuel D. Warren and Louis D. Brandeis’ influential 1890 law review article, The Right to Privacy, common law – with the aid of influential scholars -- has massaged the concept of privacy torts into actionable claims. But now, one of the most innovative technological advancements in recent years, the unmanned aerial vehicle, or drone, has created difficult challenges for plaintiffs and courts navigating common law privacy tort claims.

This Article explores the challenges of prosecution of the specific privacy tort of intrusion into seclusion involving non-governmental use of drone technology. Specifically, it proposes that drone technology must be an added consideration when determining the two elements of the intrusion into seclusion privacy tort. The current common law invasion of privacy tort analysis is not sufficient to protect an individual’s right to privacy for torts committed using the modern and complex technology of drones. Thus, considering drone technology must be weaved into analyzing whether the plaintiff had a reasonable expectation of privacy and whether the intrusion was highly offensive to a reasonable person.

Further, this Article analyzes and evaluates the practical problems that arise in prosecuting intrusion upon seclusion claims in the drone-age, and how certain states’ statutes address or fail to address these issues. From determining the owner of the drone in order to name a defendant, to proving intent, it is almost impossible for a plaintiff to survive to establish a successful intrusion upon seclusion claim. Moreover, this Article suggests that statutes may combat many of the problems in prosecuting drone-related privacy tort claims by incorporating a rebuttable presumption that the defendant intruded upon the plaintiff’s seclusion once the plaintiff has alleged a prima facie case. This presumption is similar to the presumptions found in many state statutes regarding physical damage from torts committed with aircrafts against a person or property. Thus, because the defendant, a prudent drone owner, would be in the best position to disprove the intrusion, the defendant could rebut the claim by introducing such evidence as flight path data, photo of video footage, possession at the time of the alleged intrusion.

With the constantly evolving technology and innovation in the age of drones, prosecuting William Prosser’s concept of the “right to be left alone” when an individual’s right to privacy comes with many challenges. Although other scholarship discusses the relationship between drones and privacy torts, this Article is novel in that it explores the practical issues of prosecuting intrusion upon seclusion claims in the age of drones. It further recommends considerations for courts and legislators when the right to privacy and drones collide.

Publication Citation

94 Ind. L.J. 1065 (2019).