Surveillance Limits: What’s Lawful vs. Intrusive?

Technology has expanded what’s possible in claims surveillance, but it hasn’t changed the legal and ethical boundaries. Investigators must balance evidence-gathering with constitutional protections and state-level privacy laws. Whether surveillance is conducted from the street, the sky, or with an audio device, the question remains the same: Does the claimant still have a reasonable expectation of privacy?

Private Spaces: Where Surveillance Cannot Go

Surveillance almost always crosses the line the moment it enters a claimant’s private domain.

Courts continue to uphold that a person has a reasonable expectation of privacy inside spaces such as:

• Their home
• Any closed or fenced area
• Bedrooms, bathrooms, and interior living spaces
• Enclosed patios or private backyards
• Private offices or locker rooms

It doesn’t matter that modern equipment can see through distance, walls, or darkness. High-powered zoom lenses, infrared devices, and drones do not erase privacy rights.

This principle traces back to Katz v. United States (1967), where the Supreme Court established that privacy isn’t about property lines; it’s about what a person “seeks to preserve as private.” Katz remains the backbone of privacy rulings today.

More recent cases have reinforced and expanded this rule in the age of advanced surveillance:

• Kyllo v. United States (2001) — Using sense-enhancing tech (like thermal imaging) to obtain details from inside a home without a warrant is a Fourth Amendment violation.
• United States v. Jones (2012) — Physically attaching GPS trackers to a vehicle to monitor movements is considered a “search.”
• Carpenter v. United States (2018) — Government collection of location data from a cellphone requires a warrant, recognizing that privacy includes digital and electronic tracking.

Drone Surveillance: Low Altitude, High Risk

Drones have transformed the insurance industry. They allow adjusters to inspect roofs, document storm damage, and assess unsafe areas without sending someone into harm’s way. But drones are also the surveillance tool most likely to trigger legal trouble.

Under the FAA’s Part 107 rules, drone operators must:

• Keep drones within visual line of sight
• Avoid flying over people without permission
• Stay below 400 feet
• Avoid reckless or intrusive flights

Because drones can fly at low altitudes, there are new privacy issues courts are still sorting out.

Many states now explicitly prohibit drone surveillance of private property:

• Florida bans recording someone on their private property if they could not be seen from a public vantage point.
• Texas prohibits drones from capturing images of private property without consent under the Texas Privacy Act.
• California’s anti-paparazzi law bars entering “airspace of private property” to capture images of private activities.

Across these states, the trend is clear: low-altitude drone recording over private residential areas is increasingly seen as trespass or invasion of privacy, even if done silently and without physical entry.

Eavesdropping vs. Wiretapping

The difference between eavesdropping and wiretapping is one of the biggest legal traps for investigators.

Listening to a conversation in public, such as at a restaurant or park, is generally lawful. If two people are speaking loudly enough for someone nearby to hear, they have reduced their expectation of privacy.

Recording a conversation without proper consent is a different matter entirely.

The U.S. divides states into:

• One-party consent states (38 total) — one participant in the conversation must know the recording is happening.
• Two-party consent states (12 total) — everyone in the conversation must know.

Violating wiretapping laws can be a felony, bringing civil damages and even federal charges under the Electronic Communications Privacy Act (ECPA).

When Surveillance Crosses into Harassment

Even legally permissible surveillance becomes inappropriate if it crosses into harassment.

The National Association of Insurance Commissioners (NAIC) and multiple state departments of insurance warn against:

• Repeatedly circling a claimant’s home
• Parking directly outside for long stretches without investigative purpose
• Following a claimant into sensitive locations (church, doctor’s office, daycare)
• Stalking patterns that cause distress
• Using surveillance to provoke or pressure a claimant

Surveillance should feel reasonable, not aggressive. If an average person would feel hunted or intimidated, the insurer is likely over the line.

Want to learn more about legal, ethical surveillance? Register for our “A Claimant’s Right to Privacy” CE.

Check out our sources:

Carpenter v. United States. 585 U.S. (2018). Legal Information Institute, Cornell Law School. https://www.law.cornell.edu/supremecourt/text/16-402.

Federal Aviation Administration. Small Unmanned Aircraft Systems (UAS) Regulations (Part 107). FAA, 6 Oct. 2020. https://www.faa.gov/newsroom/small-unmanned-aircraft-systems-uas-regulations-part-107.

Katz v. United States. 389 U.S. 347 (1967). Legal Information Institute, Cornell Law School. https://www.law.cornell.edu/supremecourt/text/389/347.

Kyllo v. United States. 533 U.S. 27 (2001). Justia U.S. Supreme Court Center. https://supreme.justia.com/cases/federal/us/533/27/.

National Association of Insurance Commissioners. NAIC Model Laws, Regulations & Guidelines — Table of Contents. NAIC, 2025. https://content.naic.org/cipr-topics/naic-model-laws.

United States v. Jones. 565 U.S. 400 (2012). Justia U.S. Supreme Court Center. https://supreme.justia.com/cases/federal/us/565/400/.

U.S. Department of Justice / Bureau of Justice Assistance. “Electronic Communications Privacy Act of 1986 (ECPA), 18 U.S.C. §§ 2510–2523.” OJP Privacy & Civil Liberties Division, accessed 2025. https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1285.