Vail Daily column: An expectation of privacy? | VailDaily.com

Vail Daily column: An expectation of privacy?

Rohn K. Robbins
Vail Law
Vail, CO Colorado

Say you like to sleep au naturel. Or you like to cook or vacuum or ride your hobby horse sans-culottes. But (or, better yet, perhaps, “butt”) this is within your own however so humble abode, oui?

What if, though, someone leaned into your window and snapped an image of you cavorting in your altogether? Well, that would be shameful. And illegal. A man’s home is, after all, his castle.

What about if you were parading in the buff about your home with the window blinds flung open? Would your privacy and proclivity for naked in-home prancing be protected?

Well, earlier this year, a 29-year-old Fairfax County, Virginia man charged with indecent exposure after a woman passing by his home looked into his house and saw him inside naked as his morning coffee. This was, mind you, at 5:30 in the blessed a.m.! According to the police report, an unidentified woman and her 7-year-old son were passing our male Godiva’s home when she happened to look in. She called the police. The police then arrested the man on the belief he “wanted to be seen naked by the public” according to the arrest report.

The naturalist who was making coffee at time admitted to being naked, but said he was alone in his own home at the time and that he never expected someone would be looking into his window, especially at that hour of the ungodly morning. “I am a loving dad,” the alleged jaybird protested. “Any of my friends and anyone knows that and there is not a chance on this planet I would ever, ever, ever do anything like that to a kid.” The buff barista was charged with misdemeanor indecent exposure.

Let’s take this just a little further. But first, from where does an expectation of privacy arise? Well, primarily, from the due process clause of the 14th Amendment of the United States Constitution which ensures a “reasonable” expectation of privacy.

Recommended Stories For You

The question that the word “reasonable” begs, however, is if we are being watched seemingly everywhere in nearly everything we do these days – and if most of us at least, willingly lay our privacy before the altar of Facebook and the like – how can any expectation of privacy be “reasonable?” And if unreasonable to you and me, is it reasonable to someone else? What about to people in the public spotlight? Is their privacy different than yours or mine? Is it right, moral, or even legal for the paparazzi to stalk and snap celebs for some supposed public weal?

Which brings up public locker rooms.

In my last column, I observed that taking pictures of bare breasts, without consent, where the person has a reasonable expectation of privacy, amounts to criminal invasion of privacy and constitutes a Class 2 misdemeanor. I noted too that this raises some interesting questions about such things as public locker rooms which may deserve a separate column.

This, then, is that column. And the question remains; what expectation of privacy (where and in what circumstances) is reasonable?

Like many things in modern life, camera phones are both a blessing and a curse. They have been sources of amusement and convenience as well as the making of history (think Arab Spring if you will). Slim as a broken promise, these picture-taking Jobian devices allow for spontaneous photo ops. And, unfortunately, photo “oops.”

For all of their convenience, camera phones ain’t always a good thing. Now that cameras are so discreet, they’re being used for more than candid shots. This has created an ever-expanding litany of problems. Besides the obvious (students using phones to photograph exams and cheat, phones being used for corporate espionage, employing phones to snap images of undercover agents), thanks to these tiny, all-too-convenient devices, a new age of voyeurism has blossomed. Camera phones have turned up in locker rooms, department store dressing rooms, tanning salons, public restrooms, and any and everywhere else where people may drop trou.

Increasingly, the unsuspecting and un-consenting are having their photos snapped and all too often, these pictures later show up on the Internet, almost always without the subject’s permission.

So, can anything be done?

Well, the 108th Congress to the rescue. Really.

In 2004, the Video Voyeurism Prevention Act passed through Congress. What this means is that when it comes to having your picture taken without your permission, you have some rights.

The act prohibits the photographing or videotaping of a naked person without his or her permission in a gym, tanning salon, dressing room or anywhere else where one holds a “reasonable expectation of privacy.” Violators can face fines of up to $100,000 and/or up to a year behind bars. While it remains perfectly legal for someone to snap your photo without your permission when you’re out in public (say, walking down a public street), if someone snaps a pic of you without permission while you’re getting ready to rinse off at the gym, it is against the law.

Admittedly, while the law supplies some heft and gravitas to such offenses, enforcing the law can prove another matter. First, you’ve got to be aware that your picture was taken in the first place. If you’re unaware your image has been snapped, it’s unlikely that you’ll ever know unless you happen to stumble across it on the Internet or someone else brings it to your attention. If you do discover it, the law permits you to take action. But finding the photographer may prove elusive.

So what’s a body to do?

Be aware of your surroundings. If you see someone taking your photo without your permission, demand that he or she stop. If you’re undressed and someone is takes your photo, call in the constabulary. Enforcing your rights makes us all a little more secure. And makes the world at least a tad more of a civil place.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his email addresses, robbins@slblaw.com or robbins@colorado.net