In 2015, Dan Mouneimne’s stepdaughter sat outside a downtown Tampa bar when she noticed a drone hovering around her. She fled to her car, and it followed her and crashed on top of her car. The Tampa Police Department told Mr. Mouneimne he could keep the drone, but otherwise there was nothing they could do. WFLA reporter Sunde Farquhar quipped, “Problem is, the technology has evolved so quickly, laws governing the use of drones has simply not caught up.”
Shortly afterward, the Florida Legislature modified the Freedom from Unwarranted Surveillance Act to prohibit use of a drone “to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent.” It was a cutting-edge legal step toward protecting individuals’ privacy from being invaded by flying cameras. The statute creates a cause of action for compensatory damages and injunctive relief against one who, with intent to conduct surveillance, invades someone’s privacy with a drone-mounted camera. So far, however, the statute has gone unused; in the seven years since its enactment, we have been unable to identify a single civil suit brought under it.
In our book, Butler on Drones, currently in its third edition, we predicted that the courts would adapt civil and criminal stalking laws to address privacy violations resulting from the misuse of drones. Florida’s Fourth District Court of Appeal recently did exactly that in Rosaly v. Konecny. In Rosaly, the plaintiff presented evidence that the defendant, with whom she shared three minor children, operated his drone over her residence on three occasions, in addition to other threatening conduct. Though the plaintiff did not invoke the Freedom from Unwarranted Surveillance Act, the Rosaly court nevertheless noted that the facts of the case might have entitled her to initiate an action for damages under the statute. Instead, the plaintiff sought an injunction against stalking under Florida’s anti-stalking statute, which creates a cause of action for an injunction for protection against “stalking,” defined as willfully, maliciously, and repeatedly following, harassing, or cyberstalking another person. The statute defines “harass” to mean engaging “in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” The Rosaly court had no trouble concluding that the use of a drone could cause someone substantial emotional distress and that the defendant’s conduct served no legitimate purpose, so the trial court’s injunction for protection against stalking was affirmed. In a footnote, the court noted that courts in Kansas and Georgia have likewise concluded that surveillance by drone amounts to stalking under their respective anti-stalking statutes.
Anti-stalking statutes are relatively new. Though there are now anti-stalking statutes in all fifty states and the District of Colombia, the first anti-stalking statute wasn’t enacted until 1990, in California. Even states without a cutting-edge drone-surveillance statute like Florida’s are therefore able to employ their anti-stalking statutes to achieve much the same result. For this reason, statutes like Florida’s Freedom from Unwarranted Surveillance Act, and similar statutes in other states, have proven almost redundant to preexisting anti-stalking statutes, which generally offer criminal penalties and the opportunity for injunctive relief. True, statutes like Florida’s offer the added benefit of recovering compensatory damages, but the ability to recover compensatory damages is a poor tool for protecting privacy interests: what stalker fears civil liability for damages more than incarceration? From a practitioner’s standpoint, employing the drone-specific statutes also seems impractical. The drone-stalking victim comes to her lawyer’s office saying, “I want this to stop!” not “I want to recover money.” Except in the case of a particularly wealthy stalker, it seems impractical to incur the costs and headaches of proving the narrower, complex cause of action provided by the Freedom from Unwarranted Surveillance Act when the broader, simpler anti-stalking statute gets you the same injunction.
There are still reasons to have the Freedom from Unwarranted Surveillance Act. For instance, the anti-stalking statute requires at least two incidents of harassment to satisfy the requirements for an injunction, so it wouldn’t have been any help to Mr. Mouneimne’s stepdaughter. The Freedom From Unwarranted Surveillance Act has no such requirement. That said, Rosaly goes down in history as the first Florida appellate case to cite to the statute at all. But it may be some time before the statute is cited by a case that actually employs it. That likely won’t occur until a case presents itself where the statute provides relief that isn’t already available under other laws that are easier to employ.
 Chip Osowski, Drone Follows, crashes into woman’s car in downtown Tampa, WFLA (June 22, 2015, 10:31 AM), http://wfla.com/2015/06/22/drone-follows-crashes-into-womans-car-in-downtown-tampa/.
 § 934.50, Fla. Stat. (2015).
 Id. § (3)(b).
 Id. § (5)(b).
 James Michael Shaw, Jr. & Ryan K. Hilton, Butler on Drones 49, 67 (3d ed. 2019).
 Case No. 4D21-3236, 2022 WL 3904552 (Fla. 4th DCA Aug. 31, 2022).
 § 784.048(2), Fla. Stat. (2021)
 Id. § (1)(a).
 John Villasenor, Observations from Above: Unmanned Aircraft Systems and Privacy, 36 Harv. J.L. & Pub. Pol’y 457, 505 (2013) (citation omitted).
 Similar statutes have been enacted in Idaho, North Carolina, Oregon, Tennessee, and Texas. A. Michael Froomkin & P. Zak Colangelo, Self-Defense Against Robots and Drones, 48 Conn. L. Rev. 1, 49 (2015).
 See Morley Swingle & Kevin M. Zoellner, Criminalizing Invasion of Privacy: Taking A Big Stick to Peeping Toms, 52 J. Mo. B. 345, 346 (1996) (arguing that criminal law is the only thing protecting people from voyeurism in situations where a civil action would be impractical).
 Carter v. Malken, 207 So. 3d 891, 892 (Fla. 4th DCA 2017).