You’re out on your backyard patio relaxing on a sunny morning. You feel totally comfortable, surrounded by privacy plants and high fencing, enjoying the luxury of not being overlooked. But suddenly you get the feeling that you’re being watched – and then you see the security camera on a nearby house that seems to be scanning your yard.

Garden privacy issues are becoming more common these days as more people use technology to keep an eye on the areas around their home. Security cameras, video doorbells, and outdoor surveillance systems can feel intrusive when pointed toward your garden.

Is it legal for a neighbor to film your backyard? Sadly, the answer to this question is a bit wishy-washy: it depends. Like many of the issues I tackle in my Gardening Lawyer series, the legality of this kind of neighborhood surveillance depends on state and local laws, what the camera captures, and how it’s being used. Read on to find out what to do.

Can Your Neighbor Legally Film Your Backyard?

Most privacy disputes involve a balancing of rights. That is the case when a neighbor’s surveillance camera picks up parts of your backyard. The neighbor has a right to use a security camera to protect their home, and it doesn't automatically become illegal because it captures part of your yard. But they do not have unlimited permission to film others, either.

States and cities have tackled this issue in different ways, so it’s important to read and understand the laws that apply. Generally, the main issue turns on whether you have a reasonable expectation of privacy in the area in question.

Obviously, there is a difference between a backyard area that neighbors can readily see and a secluded patio area surrounded by dense hedging or fencing. The more easily an area can be viewed by neighbors or the public, the weaker the privacy claim.

Does It Matter Where the Camera Is Pointing?

The privacy issue is impacted by the type of camera being used and exactly where it is pointing. Are the neighbors just incidentally capturing a glimpse of your exposed backyard, or are they deliberately intruding into your private life?

Unfortunately, the mere fact that you fence your yard doesn’t mean that all filming is an invasion of privacy. Yes, a fence supports your claim to expect privacy, but camera placement is key. What is it aimed at? What kind of lens does it use? A wide-angle image that captures the edges of your garden as it sweeps the area is not the same as a camera zoomed in on your swimming pool.

But remember, surveillance laws are all over the map. The type of camera and the direction it is pointed are usually just one element in determining whether privacy laws have been violated.

How Does Audio Affect the Situation?

All cameras “see,” but some also “hear.” Does the fact that a surveillance camera also records sound impact its legality? It definitely can.

If the neighbor’s camera has a microphone, you may have another layer of legal protection. Rules about recording are separate and apart from rules about filming. Have you heard of wiretapping laws? Well, they can apply to surveillance camera audio. Just because the filming may be legal doesn’t mean capturing conversations is.

This is a federal issue that is determined under the terms of the federal Wiretap Act. It provides that unless a recording is taken as part of a criminal or civil investigation, at least one of the people whose private conversation is being recorded must give consent to the recording. The neighbor with the camera is not considered part of the conversation, and therefore cannot give that consent.

And that’s just a base level of protection. I live in California, and it is among the states that impose even stricter requirements for consent to recording conversations. The state Penal Code requires that all parties to a confidential conversation consent, although the statute includes a few exceptions.

When Does Surveillance Become Harassment or an Invasion of Privacy?

The law rarely offers a clear litmus test for when a crime is committed. Think about it. Even killing someone is not a crime in some situations. So it’s no surprise that the question of when surveillance becomes harassment involves a weighing of relevant factors.

A court can determine that filming crosses the line into harassment or an invasion of privacy if it intrudes on reasonable expectations of privacy, lacks a legitimate purpose, or is found to be disproportionate to the intended purpose.

All this is determined by weighing the evidence surrounding the surveillance. Generally, viewing or filming places where individuals have a high expectation of privacy will weigh against its legality. That is, filming in bathrooms, bedrooms, or locker rooms is rarely sanctioned. This is also true in workplaces if less intrusive means can achieve the security goal or if the data collection goes beyond the objective.

Can You Legally Ask Your Neighbor to Move Their Camera?

There is no law forbidding you from asking your neighbor to move the camera, and a frank conversation is probably the best place to start. The key is to speak calmly and lay out your concerns. They may have no idea that you are upset and will be quick to change the angle. Alternatively, they might set up privacy masking zones to black out areas.

What Can You Do if Your Neighbor Refuses?

You need to know your local laws in order to move forward if your neighbor decides not to accommodate your concerns. Check your city laws and state laws. If you are part of an HOA, check the CC&Rs (Covenants, Conditions, and Restrictions). Speak with an attorney if necessary to figure out your rights.

If you decide you want to take the matter to law enforcement or the courts, start documenting the surveillance and all written communications between you. This material will be helpful if you decide to file a police report or a civil claim against them.

Can You Block a Neighbor's Camera With Plants or Screening?

Hey, we aren’t gardeners for nothing. One of the best ways to deal with this issue – if the neighbor won’t compromise – is to install privacy screens. Put in as tall a fence as the law allows, or add hedging. Check out shade sails, flexible fabric canopies that can be tied between anchor points to provide protection against sun, rain… or overly nosy neighbors.