Robbins: An expectation of privacy?
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?
Several years ago, a 29-year Fairfax County, Virginia, man was charged with indecent exposure after a woman passing by his home looked into his house and saw him inside naked at his morning coffee. This was, mind you, at 5:30 in the blessed morning! 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 sneak a surreptitious peek. She called the police. The police then arrested the man on the belief that he “wanted to be seen naked by the public.”
The naturalist who was dripping Folgers at the time said that he never expected someone to come looking into his window, especially at that ungodly hour of the morning. “I am a loving dad,” the alleged jaybird complained. “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.
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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 insures a “reasonable” expectation of privacy.
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 nearly 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? The New York Times-Sarah Palin case recently took this up. Is it right, moral, or even legal for the paparazzi to stalk and snap celebs for a profit or some claimed public weal?
It is undisputed that taking pictures of bare breasts or other nasty bits, without consent, amounts to criminal invasion of privacy and constitutes a misdemeanor. At least where one has a reasonable expectation of privacy, that is. Presumably, tanning naked in Wash Park would lower that particular expectation.
But what of public locker rooms?
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 aren’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 interfere with copyrights), 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?
In the early Aughts, back in the day when politicians could actually get something done, the 108th Congress came to the rescue. No, really.
In 2004, the Video Voyeurism Prevention Act flew through Congress like panties at a panty raid. 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 say-so 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 snapped. 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 shocked attention. If, however, you do discover it, the law permits you to take action. But finding the photographer may prove elusive.
So what’s a body — clothed or otherwise — to do?
Be aware of your surroundings. If you see someone taking your photo without your permission, demand that they stop. If you’re undressed and someone snaps your image, summon the constabulary. Enforcing your rights makes us all a little more secure. And makes the world a tad more of a civil place.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com — and coming soon, “Why I Walk So Slow.”