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Vail Daily editorial: Lawyers will love this

the Vail Daily Editorial Board

With the 2015 session of the Colorado General Assembly winding down, another potentially important bill is making its way through the approval process. This one should be killed, or at least revised heavily, lest it create another open playing field for prosecutors.

House Bill 1115 is yet another example of a potentially worrisome law stemming from a perfectly reasonable desire to “do something.” This time, the topic is the potential invasion of privacy from aerial drones. But like the 2013 gun control bills that played a large role in giving Republicans control of the Colorado Senate, the possible solution may be worse than the problem.

According to the text of the bill — provided via email by the Colorado Press Association — this bill would create a new class of criminal — anyone who “knowingly and intentionally captures any photograph, sound recording or other physical or digital image of another person, without that person’s consent, in a situation where that person has a reasonable expectation of privacy.”

Again, this sounds reasonable on the surface, but unintended consequences abound here. That’s what worries the state’s press association — and should concern others as well.

The way we see it, this bill would make a criminal offense of taking photos, with language so vague that prosecutors potentially will have a field day defining what a “reasonable expectation of privacy” might be.

If you’re in your home or yard, you absolutely have a right to be left alone. And the rapidly-expanding use of drones can, and should, concern people worried about the right to privacy. That’s why cockamamie ideas such as the Colorado town of Deer Trail granting hunting licenses for the remote-controlled gadgets is so often treated as a joke, but it’s one with a serious issue behind it.

On the other hand, besides their homes, where do people have a “reasonable expectation of privacy”? The bill’s language provides no guidance. Could a crowd photo at a ski race or similar event be subject to a criminal complaint? What about someone jogging across a park? The answers seem obvious, but there doesn’t seem to be anything in the law that would prevent a person from going to prosecutors.

That applies to newspapers, of course. But it could also apply to bloggers, tweeters and just about anyone else who takes photos while out and about. And remember, this would be a criminal, not civil, complaint.

In short, House Bill 1115 opens up a new universe of prospects to make life very unpleasant for people who heretofore had engaged in perfectly legal activities.

The right to privacy is a relatively recent development in constitutional law, but it does exist and should be vigorously protected. This bill goes too far in the pursuit of a reasonable goal.


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