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Volume 4 Number 9 April
14, 2006 |
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Expectations of privacy Even in public situations some secrecy is reasonable The OK -- I lied. That's not what the ruling was, but it might as well have been. What the court ruled on was a suit brought by a college employee who used a secluded area of an empty office to apply an ointment to a burned area of her body. She later learned that the office manager had installed a hidden video camera in that location. The employee brought suit against the college and, on appeal, the court ruled that the employee had "no reasonable expectation of privacy," because it was a public office and other staff members could have come through that area at any time without warning. I've written before about how many people confuse the issues in the privacy discussion, thinking it an all-or-nothing concept, and the Massachusetts justices proved they are not immune to that confusion. Granted, the office was a public place, and it might have been true that other staff members might have chanced upon the woman while she applied the ointment. This was apparently a risk she willingly took, knowing the traffic through the office at certain times of day. A risk she apparently didn't take, perhaps because it never occurred to her, was that the office was under 24-hour surveillance from a hidden camera. The manager had reportedly installed the camera because of some after-hours events that had occurred in the space, but the employees were never told of the surveillance. Many people believe, incorrectly I maintain, that there is no difference between casually seeing someone else and videotaping them. For those people, I suggest the following scenario. Suppose you are in the locker
room at your health club. If you undress, there is a chance other people will
see you. In fact, it's quite likely they will. So, following the So, let's imagine further that while you're in the locker room, someone begins to stare at you intently. At first, you might feel uncomfortable. If it continues, you might become angry. From that alone, we can see that you have some expectations surrounding your privacy -- your right to control access to your person, even visual access. Intent staring is markedly different than casual "noticing." Now, let's suppose further that someone in the locker room takes out a video camera and starts filming you while you are undressed. At that point, you would probably become very angry and most likely would complain not only to the club management, but probably also the police. Again, you have certain expectations about your right to control access to your person in the form of recording your body on film -- even though you were willing to allow casual access in the form of a non-threatening glance. Now, let's suppose further that you discovered that the club manager had installed surreptitious video cameras that filmed the locker room 24 hours a day as a result of some wrongdoing that had taken place after hours. At this point you would probably seek a legal remedy against the club. I won't even discuss what your feelings would be if you found out that the club manage was posting your naked pictures on the Internet. Now, I realize that a locker room isn't an office and the expectation may be different because of the nature of the two places, but my point is that just because there is some access to our person visually, it doesn't mean, as the justices ruled, that we have absolutely no reasonable expectations. In the college case, the justices' ruling would mean that the woman would have no reasonable complaint had the manager installed the camera in a floor vent and had been videotaping under women's skirts. (There are people, I'm told, who do that sort of thing.) Some people will claim that "this is different," although the burden would be on them to show why it would be different. And I'd be willing to hear the answer. My argument is that there is a difference between casually seeing someone and staring at them. And there is a greater difference between staring at them and videotaping them. And there is an even greater difference between videotaping them and doing so surreptitiously. My feeling is that if the manager was concerned about after-hours activity, then he should have designed the cameras to film after hours. If he felt it was necessary to film all day, then employees should have been warned that the area was under surveillance. After all, if the intent was to deter the illicit activity, then the warning alone might have been enough to stop it. Our right to privacy grants us the right not to be filmed against our will. If the manager had told people they were being filmed, then they could have made the choice whether to continue working in that office, and, if they did, they could adjust their behavior accordingly. But not advising the people of the filming removed control from the workers there, and accordingly violated their right to privacy. Privacy just is about control. We all go to places where surveillance is underway -- banks, casinos, and even some workplaces -- and in most of those places we are made aware of it. The cameras are visible, and usually the surveillance is announced in prominent ways. This allows us to leave if we wish and, if we choose to subject ourselves to it, to comport ourselves in a manner that wouldn't be embarrassing to us. But when someone in a place not known to be under constant surveillance steps out of public view to do something as innocuous as apply a medication or adjust an errant undergarment, there is a reasonable expectation that they won't be filmed without their knowledge or consent, unless advised otherwise. Quite frankly, the justices blew it. Had the justices ruled that the woman's expectation of secrecy -- not privacy -- was diminished in a public space, they might have been closer to the truth, and might have had an opportunity to define what the limits of that expectation were. However, by making "privacy" a binary concept, they fed into every common misconception about privacy. |
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© Copyright 2006 Carlton Vogt |