Arunabha Banerjee
Senior Associate, Corporate & Compliance Solutions, Thomson Reuters
Abstract
With the advent of technology, the level of invasion into the territory of our individual privacies has increased significantly. Fancy gadgets have crept into changing rooms, lockers, washrooms and in some cases public places to record the most intimate acts, which when revealed would embarrass any victim. In spite of the best efforts of the state legislators, the laws do not sufficiently address the core issues. Even the judicial pronouncements lack sufficient foresight in laying down the gauntlet for the peeping toms. The situation is clearly calling out for implementing more stringent standards both at the level of law and policy.
Keywords: Spy camera, voyeur, voyeurism, peeping, privacy, fourth amendment
Introduction
The inception of Internet had led to the creation of a medium capable of disseminating information at rapid speed. The invasion of privacy through spy camera recording of intimate moments has therefore gathered momentum in the last decade. The probability of the dissemination by voyeurs on the Internet accelerates the fear of being monitored by a single pervert and threatens the dignity of an individual before any person with access to internet. Any individual with a computer accompanied by a modem can obtain an Internet connection and display videos of moments which people would prefer keeping private. Within fraction of a second, these videos are made accessible to countless Internet users all across the globe. In addition, it is next to impossible to prevent the disbursement of the video files the moment they are uploaded on the Internet. Thousands of websites today are adequately equipped with photos that qualify as voyeurism including pictures of unassuming people showering, undressing, and even performing amorous activities with their spouses. These pictures are often captured through windows or with concealed photographic devices located within gymnasium bags in locker rooms for men and women. Within these explicit sites, there are additional levels of sexual and voyeuristic-fetish pictures, clips of women answering nature's call, sneak peeks into undergarments commonly termed as up-skirts and down-blouses.
Common Problems
Several actions for invasion of privacy have been brought against defendants who have utilized secret video cameras, see-through panels, peepholes, hidden microphones, or window-peeping. Wiretapping or eavesdropping legislations however apply to audio taping or recording but do not address issues pertaining to videotaping. In cases where sound is not recorded during creation of a videotape, then complainants must seek alternative remedies to penalize video voyeurs. It is hardly a matter of surprise that law enforcement authorities have not found success in clamping down on these peeping toms. Several video voyeurs are able to avoid criminal proceedings since the laws are found wanting in this regard. (Calvert, 2004, 3) In the case of Commonwealth v. Sullivan, for example, the defendant, Robert Sullivan, was freed from the charge of invasion of privacy after he was arrested taking a photo up a woman's skirt at the Capital City Mall near Harrisburg. The Pennsylvania Assembly was compelled to pass an amendment to the privacy legislation, which now clearly makes it a criminal offense to take pictures of a person's private areas in a public place. (Horstmann, 2007, 2)
Many victims of spy camera recording have approached the courts by claiming intentional infliction of emotional distress to seek remedy under common law. The plaintiff in this case will need to prove that the voyeur was responsible for extreme or outrageous conduct and acted recklessly with intent. In spite of success in some cases, the burden of proof has proved onerous for the claimant in the majority of instances. The tort of trespass, however, provides a more feasible remedy. Here, the plaintiff only needs to prove that the voyeur entered into the plaintiff’s territory. However, this requirement can be easily bypassed by a cunning defendant. (Vitale, 2003, 4)
Conceptual Understanding of the Problem
Before getting to the finer details, it will be prudent to have a basic understanding of the problem of voyeurism. A person commits the crime of voyeurism if, for the purpose of fulfilling the sexual urge,a person knowingly views, films or takes photographs of a second person, without the latter’s knowledge and prior permission, while such person being recorded is in an area where the person is entitled to have a reasonable expectation of privacy. (Calvert, 2004, 5) The notion of enacting a protection against spy camera recording owes its origin to the application of copyright laws to privacy issues. The concepts are strikingly similar in their roots. The individual with exclusive right to works protected by copyright shall be entitled to display the concerned work publicly. The same logic can also be applied to any unauthorized material recorded by voyeurs. As the victims, the recorded subjects of a voyeur's device should be provided the same rights as the owner of copyright. Therefore, by criminalizing the distribution of voyeur recordings, the recorded subjects are given back the requisite control over their right to privacy. (Pope, 1999, 12)
Approach of Courts
The moot question for us to consider here would be whether courts will lean towards expanding the concept of privacy to include public filming and photography. A woman dressed in a skirt should have the liberty to expect when inside a changing room or a public eatery, that spying techniques will not be used to monitor her private parts. It is natural to debate the private desire of video voyeurs to photograph women while undressing or to capture video underneath the skirts as against the notion of newsworthiness. (Calvert, 2004, 7) Additionally, many of the voyeuristic images that appear on the Internet are not obscene under the present three-pronged test laid down by the Supreme Court in Miller v. California. For instance, the pictures may merely be of an unassuming person caught in a state of being naked while taking a shower or sunbathing. The Court has made it succinct that nudity in isolation does not lead to obscenity. In addition, the Court has ruled that sexual expression which is indecent except those which are obscene shall enjoy the protection of the First Amendment. Hence, an up-skirt picture of a woman's underwear may appear offensive or indecent to common people, but it will not be obscene under law and therefore comes within the scope of an expression protected by the Constitution. The judicial approach therefore continues to remain an area of concern. (Calvert & Brown, 2000, 23)
The Fourth Amendment to the United States Constitution served as the first significant movement toward the protection of privacy by freeing the public from unreasonable searches and seizures. Over time, the FourthAmendment also proved to have a major effect on the development of the common law tort of invasion of privacy. (Vitale, 2003, 3) In Katz v. United States, Supreme Court Justice Stewart outlined an expectation of privacy outside the confines of one's own house. Therefore, the court held the complainant had a reasonable expectation of privacy in connection with telephone conversations which occurred in a public telephone booth and were taped by FBI agents. The court relied on the reasoning that the protection conferred by the Fourth Amendment includes both seizure of concrete items and the recording of oral statements recorded in the absence of any technical trespass under local laws. In his concurring judgment, Justice Harlan developed a two-fold test to conclude whether there is an invasion of privacy. The first part of the criteria requires that an individual have an actual anticipation of privacy in consonance with a subjective standard. The second criterion tests whether such expectation is reasonable in line with the societal standards. (Pope, 1999, 4)
Areas of Concern
However, in spite of the statutory safeguards and the noble intentions of the framers of the Constitution, lot remains to be done. Due to the inadequacy of current statutes and case law precedents, voyeurs will continue to abuse loopholes in the legal scheme and force complainants to rely on multiple laws and precedents to substantiate their claims. In spite of the states being aware of the deficiencies, many state bills proposing to penalize video voyeurism fail to see the light of the day. The problem is clearly crying out for an all encompassing federal statute. (Vitale, 2003, 5)
The current pornography business thrives on the use of surveillance cameras. In a few instances, these voyeuristic secret camera, which offer live sexually explicit images to customers, track people who are not aware that they are being monitored and not provided consent to being displayed to the general public. Spy cameras also provide attractions for several purchasers and families. Nanny and granny cams have been creeping into homes in US for tracking the activities of medical and child care. As majority of business and social activities become electronic in nature it becomes possible to monitor a person's online behavior with greater accuracy. Monitoring of such type offers tremendous attraction to vendors who direct their marketing initiatives to a specific target group. In the commercial parlance, several websites try to detect and track potential customers. At the level of government, preventive measures are organized through the National Infrastructure Protection Center (NIPC) brought into existence by a Presidential directive in 1998. The NIPC aims to secure eight critical segments of the economy which depend heavily on information systems. Suggestions implementing the Center's objectives have included improving information security, and preserving the confidentiality of technical information, in addition to the more pertinent proposal of tracking online behavior to detect anomalous activity through profiling. (The Honorable Bob Barr, 2000, 3)
A number of states specifically implemented “Peeping Tom” statutes. An instance was Alabama's 1943 statute which criminalized the conduct of males who goes near and stares, gazes or peeps into a room, apartment, chamber or other place of residence, not belonging to him or under his own control, which is inhabited by a female person. The Alabama law did not ask for a mental element, though, and the Alabama Supreme Court therefore declared it unconstitutional in 1950 for being ambiguous and not addressing a specific purpose since an innocuous peeper could end up being prosecuted under normal circumstances. The contemporary statutes of several jurisdictions make voyeuristic activity a criminal offence, with varying degrees of accuracy, and with the offense having wide variety of names. Under Missouri's statute, a person commits the offense of invasion of privacy if he, with knowledge, views, photographs or films a second individual, without the latter's knowledge and consent, while the second individual is in a condition of full or partial nudity and is in an area where he or she would have a reasonable expectation of privacy.” (Swingle and Zoellner, 1996, 2 and 5)
In the Montana law, the “Peeping Tom” statutes do not clearly address the recording of a person's private areas. Rather, they emphasize more on the general breach of one's privacy that occurs with spying or surveillance without requisite authorization. The Utah statute and similar laws in other jurisdictions exclude any reference to a private area, instead mandating that the impugned act should occur under conditions in which the recorded subject would not expect his or her privacy to be breached. These laws seek to shift the emphasis on whether the victim has a reasonable expectation of privacy to the conditions in which in the breach had occurred. Hawaii's laws and similar enactments in other states are elementary efforts to cover a particular type of behavior and the use of recording devices in places where public have access. The Texas statute, as opposed to the other laws, suffers from shoddy drafting, and is subsequently susceptible to opposition on grounds of ambiguity. The law makes it an offense to record another person under any conditions, whenever the person acts with a amorous intent. The legislation contains absolutely no restriction on the act of recording a film; it covers the whole individual, not just one's private parts, whether covered by clothes or contrary. Last but not the least, the Minnesota statute, although used by the Morris court to decide cases related to the practice of up-skirting, does not bear any similarity to any of the other laws which relate to the behavior and can reasonably be classified as an outlier decision of an ambitious court. (Horstmann, 2007, 3, 6 & 8)
Model Approach - Drawing from the Past
The classic case decided by the Alabama Supreme Court which bears relevance to the concerns of privacy in an information dominated age is Daily Times Democrat v. Graham. Unlike the prima facie up-skirt voyeurism cases of contemporary times, however, this instance involved an attire that was, by the purely literal sense of the word, already up and innerwear that was plainly within sight of the viewing public. Flora Bell Graham, a 44-year-old homemaker, was attending the Cullman County Fair in Alabama in October, 1961. As she was coming out from the funhouse with her two kids, air jets blew up beneath her garment. A photographer for the Daily Times Democrat clicked a photo of her at that exact moment and the newspaper went on to publish the photo on its cover page. Owing to the publication, Graham complained to have become embarrassed, self-conscious and upset. She filed a suit in the court claiming that her privacy was breached by the act of such publication. One of the key questions faced by the Supreme Court of Alabama was whether the plaintiff had a reasonable expectation of privacy at the time the picture was clicked at the funhouse. The defendant argued that she could not harbor such expectation, alleging that the picture was taken at a time Graham was a part of an open public scene and, hence, no breach of privacy could be contemplated. The High Court of Alabama commenced its analysis of the question by admitting that the tenet that one does not have a reasonable expectation of privacy in a public place is proved by past cases. Yet the Court intelligently chose not to adhere to this established rule in Flora Bell Graham's case. The court reasoned that where the plaintiff expects to occupy is altered without his will to a status that is embarrassing to an ordinary person of reasonable sensitivity, then such person should not be considered to have forfeited his entitlement to be protected from an indecent and vulgar invasion of his right to privacy merely because of some unfortunate development in a public place. (Calvert & Brown, 2000, 13)
Conclusion - The Way Forward
Though belonging to a different era, the Graham ruling, offers a brilliant and intuitive insight into the approach that the court needs to adopt in dealing with spy camera offenses in this information technology driven age. Despite the initiatives adopted by a number of states, the laws addressing this practice show us that a considerable work remains to be done. The notions of individual privacy must alter itself to suit the changing needs of time. Practitioners, law makers, and the general public will need to join hands to pursue a new approach in dealing with voyeurism. It is important that states enact proper laws to make sure that the invading deeds do not go unpunished. To prevent individuals from reaping the profits from mass dissemination of such sexually explicit materials, the laws must be enacted to criminalize this unauthorized distribution. Furthermore, the law must also provide for adequate compensation and remedies in torts to the aggrieved for the mental stress and agony caused to the victim. Until and unless, the legislative framework moves towards and implements more stringent standards, the rampant exploitation of privacy of unassuming commoners will continue to haunt our society.
References
Pope, P. (1999). TECHNOLOGY ARMS PEEPING TOMS WITH A NEW AND DANGEROUS ARSENAL: A COMPELLING NEED FOR STATES TO ADOPT NEW LEGISLATION. John Marshall Journal of Computer & Information Law, 1167, 1170 & 1178.
Barr, B. (2000). A TYRANT'S TOOLBOX: TECHNOLOGY AND PRIVACY IN AMERICA. Journal of Legislation, 71, 73.
Swingle, H.M. & Zoellner K.M., (1996), CRIMINALIZING INVASION OF PRIVACY: TAKING A BIG STICK TO PEEPING TOMS, Journal of the Missouri Bar, 345, 346 & 349.
Horstmann T.J., (2007), PROTECTING TRADITIONAL PRIVACY RIGHTS IN A BRAVE NEW DIGITAL WORLD: THE THREAT POSED BY CELLULAR PHONE-CAMERAS AND WHAT STATES SHOULD DO TO STOP IT, Pennsylvania State Law Review, 739, 740, 741, 744 & 746.
Vitale, A., (2003), VIDEO VOYEURISM AND THE RIGHT TO PRIVACY: THE TIME FOR FEDERAL LEGISLATION IS NOW, Seton Hall Legislative Journal, 381, 383, 384 & 385.
Calvert, C. & Brown, J. (2000). VIDEO VOYEURISM, PRIVACY, AND THE INTERNET: EXPOSING PEEPING TOMS IN CYBERSPACE. Cardozo Arts and Entertainment Law Journal, 469, 481 & 491.
Calvert, C. (2004). REVISITING THE VOYEURISM VALUE IN THE FIRST AMENDMENT: FROM THE SEXUALLY SORDID TO THE DETAILS OF DEATH. Seattle University Law Review, 721, 723, 725 & 727.
