Privacy in Public Gets Much More Complicated

Do people have any privacy rights when they are in a public place such as a mall or highway? It is easy to think that because anyone can observe you in public, anything you do can be recorded and reported. For good or bad, things are just not that simple.

Consider how you would feel if you were followed every time you were in a public space. For most of us, the average day would be boring. Home to office, office to lunch, lunch to office, office to home.

Over time, however, the record of your activities might develop some interest as you went to a political meeting, browsed the mall or took a vacation. If you walked into a credit-repair clinic or an adult bookstore, it would be even more noteworthy.

Depending on your circumstances, your surveillance record might be benign, or it might be threatening. Your spouse might be interested to know that you spent an evening in a bar when you said you were working. Knowing that you were under such surveillance would affect your behavior.

Even if everything you did in public was fair game, you might not be pleased that a record of your public activities was available. You might think that your privacy was invaded by the collection of fully publicly observable information about you.

Surveillance might even be actionable under present law. When General Motors investigated Ralph Nader in the 1960s, Nader sued for invasion of privacy. The courts in New York upheld Nader’s lawsuit because the surveillance was intrusive conduct designed to elicit information not available through “normal inquiry or observation.”

Would following you during the day rise to that level of intrusion? It depends on the facts. Case law may protect celebrities against paparazzi. Jacqueline Kennedy Onassis won a lawsuit against an aggressive photographer who stalked her in public spaces.

The Nader and Onassis cases are unusual, but they may establish relevant precedents. Let’s consider some other fact patterns.

Some anti-abortion protesters have been photographing women visiting abortion clinics and putting their names and faces on the Internet. Whether that type of surveillance is actionable remains to be determined. It’s a tough case.

In Washington state, the state Supreme Court threw out a voyeurism conviction against someone who was taking pictures underneath women’s skirts in public places. I expect that result to be overturned with a better-written statute.

How about recording people going into a clinic for drug abuse, sexually transmitted diseases, cancer or proctology? Would you be upset if someone camped outside your psychiatrist’s office in public space and photographed you walking in?

Suppose someone put a surveillance camera, hidden or otherwise, on a public street and recorded everyone passing by or everyone going into a store or office. If we marry the camera with face recognition software, we can link names with faces. With enough cameras (and they are cheap), it is possible to collect lots of information from public spaces. Though face recognition software appears to be overhyped today, it may improve eventually.

Let’s try a different tack. Suppose we put a device in everyone’s pocket that sent out a signal telling an invisible computer system just where that person is at any given instant. Of course, we already have this technology in place. It’s called a cell phone.

Be a hero. Give your kid a cell phone. Then use the tracking capability to identify where he is at any given moment. When he tells you he was at the library, you can show that he was at the arcade. You may think that sounds good, but wait. Remember that you have a cell phone, too, and your kid may use it to track you.

Past rules governing privacy in public places reflect the technology at the time. Following someone was difficult and expensive so it didn’t happen much, and we didn’t need many rules. The limited litigation to date tells us little about the general case of surveillance of everyone all the time. We aren’t there yet, but with cell phones, GPS systems and EZ-Passes on cars, we are much closer.

How will perceptions and protections change once surveillance becomes cheaper? It certainly will make a difference if we are observed by the government or by a private party, but how much of a difference?

It is hard to accept the notion today that anything we do in public is fair game for anyone to observe, record and share. The conflicts here are real, and they aren’t going to go away just by saying that there is no privacy interest in activities that occur in public spaces.

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