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Volume 5, No. 8
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Footsie, football, photos and phones What is our expectation of privacy in
public places? I've long been an advocate of the notion that we need to refine and articulate our notion of what kind of privacy we expect, or can reasonably expect, in public places. To put it as briefly as possible, I meet a lot of opposition, mostly from those who claim that "once you step out your door, you have surrendered all your privacy." I don't believe it. Like some perfect storm, a series of event came together in the last few weeks to illustrate just how muddled our thinking really is on this issue, although I don't think it has to be. The first, and most innocuous, thing that caught my eye was a stand-up comic on a "reality show." I put "reality show" in parentheses because I've not seen one show yet in which the people were in situations any of us would encounter in real life, but I digress. The comic was talking about how to deal with people who talk loudly on their cell phones in public. His suggestion was just to get closer to them, start actively listening to the conversation, and then asking questions. Eventually, he said, they would say "Hey, how about a little privacy," to which you answer, "But you're not in private. You're in public." There is one element of truth to that, especially to those annoyed by people who talk loudly -- and long -- on cell phones in public, but the real truth is that most of us have some expectations that people not eavesdrop on our conversations. That's a realistic expectation, although not an unlimited one, because as we increase the volume of the conversation, any claim to privacy loses its reasonableness. Still, the expectation does exist and is reasonable, but we need to "stake out a claim" to privacy, in this case by keeping the volume down. The second event was the much-discussed -- perhaps over-discussed
-- case of Senator Larry Craig and his misadventures at the I will warn you that I've found from experience that it is nearly impossible to discuss this case in any detail without lapsing into an unfortunate double entendre. I'll try not to, but I'm not promising anything. Sen. Craig (R-Idaho), is a stalwart opponent of the gay community, gay rights, gay marriage, whatever. So imagine everyone's surprise when he was arrested and charged with allegedly making a sexual advance toward an undercover police officer in an airport men's room. The political fallout has degraded into something like a French farce. Craig has made a series of patently improbable claims -- ignoring the old adage of "when you find yourself in a hole, stop digging." He now wants to withdraw the guilty plea. As much as I like to see a moralistic hypocrite stew in his own juices, I have a problem with what he is alleged to have done. Go google it, if you don't already know. Suffice it to say it consisted merely of some foot tapping and hand gestures that a policeman -- apparently an expert in restroom semaphore -- took to mean that Craig wanted to have a sexual encounter. The exact charge against Craig, however, was "disorderly conduct," although police have used other charges in such sting operations. To rationally discuss the case, you need to get over the "yuck factor." As tawdry as you may find Craig's choice of a venue, yuckiness, in and of itself, isn't a crime, merely a poor aesthetic choice. So, let's transfer the exact same set of actions to a more aesthetic setting. Suppose Craig were seated on a bar stool in the airport's glass and chrome VIP club cocktail lounge. Now, let's suppose he finds the woman seated next to him appealing, and he begins moving his foot closer, finally rubbing his wingtip against her Prada pumps. What now? Is this lewdness? Will he be arrested for disturbing the peace? Hardly. At the most, the woman may move her foot, give him a withering glance, or simply say "Watch it creep." But suppose she doesn't move her foot and allows the "footsie" to continue. Now, the senator, like legions of lounge lizards before him, takes this as a signal to proceed. So, he begins making further advances, both spoken and unspoken. He may even progress to asking the woman to join him "in private" and even to stroking her arm. At what point does he get arrested? You know the answer as well as I. At the most, she will slap his face or throw a drink on him, but most likely she will just tell him to bug off. If he is asked to stop, but persists, the bartender may intervene and -- at the very most -- may ask the lounge lizard to leave the premises. However, to be arrested would clearly involve gross assault or some exposure of forbidden body parts. So, the question becomes why this behavior, which would be merely annoying in the cocktail lounge -- where there is more of a chance of actually disturbing the peace -- suddenly becomes a crime when transferred to the relative privacy of a bathroom stall. The whole affair smacks of a double standard and raises questions whether opposite-sex solicitations are treated differently than same-sex solicitations. Now, you could argue that a man soliciting a woman in a ladies' room would be arrested, and I would agree, but that's hardly analogous. We have a general sense, and may even have some laws, that prohibit men from ladies' rooms in general. I would expect that a man's mere presence in the ladies' room would earn him a set of handcuffs, with or without solicitation. The best argument you can make is that there is some expectation of privacy -- even in a public rest room -- and that Craig somehow invaded the privacy of the police officer in question. That raises several problems. We don't generally have well-defined laws -- or even a well-defined sense -- about privacy in public places, although we have some intuitions. However, it's not clear that even that invasion of privacy -- expressing a sexual interest in someone -- rises to the level of a crime. If it did, the jails would be even fuller than they are. My staring at you relentlessly in a public place or eavesdropping on your conversation in a restaurant might be an invasion of your privacy, but it's not criminal. The matter is confounded by the actions of the police officer -- and one wonders whom the poor guy had to tick off to draw this duty -- who not only didn't repel the alleged advances, but actually seemed, like the imaginary woman in the lounge, to invite them. Can someone reasonably claim that their privacy was invaded when they, like someone talking overly loud on their cell phones, took no actions to stake out a claim to privacy? What if the officer had merely said "Watch it buddy," giving Craig an opportunity to desist? Craig now says that he was confused and that he pled guilty to the charges merely to get the matter over with and not to drag it through the courts. This, as it turns out, is what many people do when arrested for the same behavior. My suspicion is that this is what the police count on when bringing flimsy charges under vague laws. The people charged are embarrassed and just want the matter to go away as quickly as possible. This gives the police the "collars" that they need and saves them the trouble of having to prosecute the cases in court. The fact is that the greatest majority of men caught in these stings are, like Craig, men who don't self-identify as gay, but who identify as straight and who are married. In these cases, the men simply want the matter to be resolved as quickly and quietly as possible, again something that the police know and rely on to improve their statistics. Lest anyone get upset, I'm not excusing or advocating for Craig's behavior or his tawdry choice of venues. I'm merely pointing out that the same set of actions would be treated differently in a different venue, and they would be treated entirely differently if it were an opposite-sex encounter versus same-sex. Now, some men have defended the police by saying, "Hey, I don't want to go into the men's room and have some guy make a pass at me." That may be true, but then women could say the same thing about going to the cocktail lounge for a drink. We still don't arrest the lounge lizards who hit on them. Unless there were actual sexual contact or an offer of sex for money, or vice versa, the charges seem pretty flimsy. If the venue makes such a difference, then there should be a law that specifically covers that, and the police should not have to resort to vague catch-all laws, which probably wouldn't withstand court scrutiny. Apparently, I'm not a football fan, although I do root for the Patriots when they're in the Super Bowl. However, my Super Bowl madness is generated more by the food than by even my regional loyalty to the Pats. I don't think I could name more than one player on the team. So, as they say, I have no dog in this fight (apologies to Mr. Vick), unless it's a hot dog. At first, I was confused. Why was this considered wrong? So, someone explained to me that it meant that the Patriots could steal the other team's signals. But the other team, I argued, is in plain view. It's not as if they were stealing playbooks or putting the video cameras in the locker room. There is no law -- or rather NFL rule -- that says the Patriots can't look at the other bench. What then is wrong with videotaping them? You don't have to watch much football to know that it is the most technologically burdened sport in the world. The teams have spotters in the stands, on the sidelines, in the press boxes, in blimps, and, one has to assume, a satellite or two. All of these people are connected by wireless communication to the coaches and to the quarterback. All the plays are videotaped and reviewed endlessly between games. Scouts are sent to opposing teams to chart their plays and scope out their players. What difference does a little videotape make? No, it was explained to me, the videotape is different. You can look, but not videotape. That's unfair. And finally, I breathed a sigh of relief, because this is what I've been saying for years -- apparently to myself. Whenever I talk about the increasing prevalence of surveillance cameras -- spy cameras -- I'm assured by a lot of people that it's not a problem. If you're on a public street, they say, you have no privacy. If someone can look at you, it's no different if they videotape you. I disagree. I think that videotaping someone makes a lot of difference -- and apparently the commissioner of the NFL agrees with me. And we all know that he occupies a space in the American pantheon just above the Supreme Court and below the Almighty. I won't go into my arguments against surveillance cameras -- except
in certain situations -- because I've covered this ground before.
I merely raise the issue to show
that I was somewhat vindicated. But even in the euphoria
of this vindication, I was confused. What's wrong with stealing signals?
After all, it's a time-honored tradition in baseball. It's one of the first
things rookies are taught. It's why catchers use a different set of signals
with a man on second. And again, as it was explained to me, the matter comes
down to the videotaping. It's okay to steal signals visually, but somehow
videotaping them is wrong. So, more vindication for me -- I'm getting to like
this. The bottom line is that we
do have expectations of privacy even in public places. We even have a lot of
instincts around that, but we don't have well-defined rules and laws. As
surveillance devices become more prevalent, more accessible, and cheaper, we
should come to some agreement on these things -- and even enact some laws --
before the genie is completely out of the bottle. Epilogue: Finally, someone
far more sophisticated than I explained the NFL's virulent attitude toward
videotaping the opposing team. Some people claim it's about "sportsmanship,"
but my acquaintance says, as with so many other things, it just could be a
matter of "follow the money." I'm informed that hundreds
of millions of dollars are bet every week on NFL games, much of that bet on
the "spread," the difference between the scores. Anything that
interferes with the spread, the explainer goes on,
can cost the handicappers millions of dollars. Videotaping can affect the
spread. Ergo, the ban, or so says my informant. I would never accuse the
NFL or its demigod overseers with anything so crass. I prefer to think that,
with the purest of motives, they have simply come around to my way of
thinking and see the ethical questions involved in videotaping someone
against their will -- even in a public place. So, I'll leave you to ponder
the reason for the taping ban. I'll merely pounce on that bundle of
vindication as if it were a fumbled football and run for the goalposts. |
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© Copyright 2007 Carlton Vogt |