Surveillance on Partner by Drone Considered Stalking
The Fourth District Court of Appeal recently ruled, in the case of Rosaly v. Konecny, that the use of a drone is conduct that can contribute to substantial emotional distress under Florida’s stalking statute.
In Florida, Fla. Stat. §784.0485(1) creates a cause of action for an injunction for protection against stalking. A person commits stalking when the person “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person.” Fla. Stat. §784.048(2). “Harass” has been defined as “to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” Fla. Stat. §784.048(1)(a). “Course of conduct” means “a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose.” Fla. Stat. §784.048(1)(b). Thus, by its statutory definition, stalking requires proof of repeated acts. Florida courts have found that two incidents of harassment can satisfy the requirements for an injunction against stalking.
A finding of harassment requires a showing of substantial emotional distress, which is narrowly construed and governed by the reasonable person standard. Florida case law has made clear that substantial emotional distress is greater than just an ordinary feeling of distress. Unpleasant, uncivil, and distasteful communications will not rise to the level required by Florida courts.
Another required element of harassment is that the course of conduct “serves no legitimate purpose.” Fla. Stat. §784.048(1)(a). Whether a communication serves a legitimate purpose is broadly construed and will cover a wide variety of conduct. The “legitimate” nature will be evaluated on a case-by-case basis, with Florida courts generally finding the contact legitimate when there is a reason for the contact other than to harass the victim.
In the case of Rosaly v. Konecny, the evidence at the hearing showed that Rosaly engaged in frequent drive-bys and the use of a drone over Konecny’s residence on at least three occasions. The Fourth District Court of Appeal found that the use of a drone can contribute to causing a person substantial emotional distress. The Court made note of the fact that the Florida legislature amended Fla. Stat. §934.50 in 2015 to prohibit certain conduct involving drones. The staff analysis for the amendment recognized that “drones possess capabilities which could be used by private individuals…to breach reasonable expectations of privacy, including voyeuristic actions of spying on and recording private acts.” Fla. S. Comm. On Judiciary, CS/SB 766 (2015), Post-Meeting Staff Analysis 3 (March 26, 2015). That staff analysis further indicated, “drones can be equipped with a wide array of sensory equipment, including high-magnification lenses, infrared, ultraviolet and see-through imaging devices, acoustical eavesdropping devices, laser optical microphones, and face and body recognition software.” The staff analysis even noted that a drone, if outfitted with the proper equipment, could “watch a building,” “look inside the building,” and “listen to conversations taking place inside” all at once.
Because of these privacy concerns, the Florida legislature amended Fla. Stat. §934.50 in 2015 to impose limits on the use of drones. The amended statute prohibits using a drone equipped with imagining devices to record an image of a tenant of privately owned real property with the intent to conduct surveillance or capture images in violation of a person’s reasonable expectation of privacy without his or her written consent. Fla. Stat. §934.50(3)(b). The amended statute allows for a civil action for compensatory damages for violations and possible injunctive relief to prevent future violations. Fla. Stat. §934.50(5)(b).
Though Fla. Stat. §934.50 allows for a potential action to be initiated under that statute, the Fourth District Court of Appeal also found that the use of a drone is conduct that could contribute to substantial emotional distress under Florida’s stalking statute as well. The Fourth District Court of Appeal acknowledged that the Third District Court of Appeal has also recognized surveillance by a drone could be considered stalking, stating in the 2018 case of Raulerson v. Font, that surveillance is among the typical hallmarks of stalking and cyberstalking. To add further emphasis, the Fourth District Court of Appeal also noted that other states have considered the use of drones to surveil as stalking.
As drones become more common, available, and technologically advanced, we can look for more courts to make rulings in this area, hopefully continuing to protect individuals from this type of invasive surveillance.
