Saturday, February 12, 2005

Sorry, if you had a reasonable expectaton of privacy to keep him from photographing up your skirt, our dogs couldn't sniff for drugs at traffic stops

FleshBot lays out the thinking man's dilemma behind a vexing legal problem: The Supreme Court's inadequate definition protecting Americans' "reasonable expectation of privacy," as evidenced in the Caballes case, disallows significant punishment for things like photographing up young girls' skirts in the neighborhood mall. Says FleshBot:
The responsible, privacy-respecting part of us thinks it’s reprehensible that a Virginia man caught secretly filming teenagers at a local mall received a mere ten day prison [sic: jail] sentence thanks to a loophole in most states’ “video voyeurism” laws: apparently it’s only illegal to photograph someone without their consent if it’s done in situations in which they have “a reasonable expectation of privacy”, such as dressing areas or locker rooms. The perverted part of us, however, is all “Cool! More upskirt photos!” So as you can see, we’re a little conflicted about the whole thing.
For my part at least, the responsible, privacy respecting part, ultimately, has won out, and I'll be at the Texas Legislature next week on behalf of ACLU of Texas asking legislators to support new regulations on voyeurism and other abuses of government surveillance cameras. In doing so, I suspect my message will be less like Fleshbot's, and more like those articulated in this recent piece from the UK Guardian:
Victims of video voyeurism are often horrified to find out that what has happened to them isn't even illegal in most states.

``It was really frustrating and depressing,'' said Jolene Jang of Seattle, who was secretly filmed at a festival five years ago by a man who lowered his camera to shoot up her dress. `'I felt helpless.'"

The Internet has only exacerbated the problem. Type the words ``upskirt'' and ``downblouse'' into the search engine Google, and millions of Web sites pop up.

Lawmakers nationwide have begun to respond, reworking laws written before advancements in camera technology led to a boom in digital voyeurism.

Most states with video voyeurism laws prohibit unauthorized videotaping or photographing of people who are in private areas, such as dressing rooms, or in situations where they have ``a reasonable expectation of privacy.''

The description has been too broad for several state courts, which have ruled people do not have a reasonable expectation of privacy underneath their clothing when they're in public.

In 2003, state Sen. Jeff Wentworth added language to an otherwise agreed bill making all information about government surveillance cameras secret, including the location of cameras, policies restricting voyeurism or other misuse, who has access to surveillance data, what the information will be used for, how long it will be maintained, etc. In the wake of that ignominious legislation, some police agencies are keeping surveillance data secret from citizens, but sharing the information with private businesses and other entities.

Perhaps the Baron will correct me if I'm wrong, but the through-the-looking-glass logic that says one has no reasonable expectation of privacy against others looking up her skirt stems from the same set of legal reasoning that brought us the pathetic Caballes decision claiming use of drug sniffing dogs at a traffic stop isn't a search. A dog is an extension of the human senses, the logic goes, so the smell of marijuana from an enclosed trunk is in "plain view" if one uses a dog to enhance the sense of smell. Similarly, if a woman's privates are in plain view from some legally available vantagepoint, perhaps using a telephoto lens, anyone has the right to point a camera at them under the same legal logic.

If you're operating a government surveillance camera in Texas, thanks to Sen. Wentworth's legislation, you can legally do so without anyone knowing you're watching, or what you do with the tape.

That's the new reality behind the proliferation of surveillance cameras that nobody talks about. Under current Supreme Court interpretations of Americans' Fourth Amendment rights, there really are no limits on what can be filmed or how it can be used if it's arguably visible to the public somehow, someway.

For the Fourth Amendment to retain any relevance in the technology-dominated 21st century will require a complete overhaul of the old framework for protecting privacy, and new definitions for what constitutes legitimate government surveillance. Judges have failed to protect our Fourth Amendment rights, and by extension, many important privacy rights that Americans take for granted. It's now time to turn to the legislative process to bolster them again, first to the states.

Via TechLaw Advisor


X said...

Without getting dragged into a knock-down-drag-out-comment-fest, I will only make a few comments/observations.

First, the Fourth Amendment is a limitation on the powers of the government, not some dirty old man. It would be nice for the State of Texas, the State of Indiana, and every other state to pass anti-crotch-shot legislation, but that is not the proper role of the federal government (unless you can sneak it in under the commerce clause - good luck).

Second, if it were the government's cameras snapping the pictures, the same questions would need to be answered. Primarily, did the officer (or camera) have the right to be where the picture was taken?


I do not mind when people disagree with me, but please let me know up front if you are arguing from common sense or law. Unfortunately, they rarely are in line. I think you would be surprised how often my gut lines up with your "libertarian" minded ways. But, we seem to be reading the law differently.

Thanks Grits for another quality post.

Gritsforbreakfast said...

Thanks Baron. As for legal arguments vs. common sense, let me reiterate again (not for your benefit but for our gentle readers') that I'm not an attorney. The problem with legal argument is that ultimately it requires one to accept the definitions and precedents of the jurists as the final word. Obviously, I do not, so almost by definion my arguments against their conclusions won't always be "legal arguments." However, neither is my goal to offer a "common sense" approach.

The Supreme Court has spoken, and finally, for quite a while at least, these key questions of what is a reasonable expectation of privacy (USSC: not what a reasonable person would expect), or what is a search (USSC: not a search if you're looking for illegal things) are set in stone from a legal perspective for good or, in my opinion, for ill.

So, legal reasoning has failed to protect our Fourth Amendment rights as technology progresses, and that unhappy fact by itself is an argument for a fundamental rethinking of whether this so called legal realism is itself reasonable. That debate is beyond my capacities, and will have to take place elsewhere. For us lesser lights, though, that means it's time for political arguments about what should constitute our Fourth Amendment rights -- which is what I've tried to contribute to the post-Caballes debate -- since, as you rightly noted in your first post on the subject, those of us who feel that the string of privacy decisions starting with Katz have diminished our guaranteed freedoms now have no choice but to turn to the state-level political system for redress. If 6 Supreme Court Justice think that a search isn't a search if you're looking for contraband, maybe a majority of legislators will disagree.

Also, I never meant to engage in any comment war. Frankly, Baron, I may have used you a bit, because having found someone who could articulate a credible defense of the Caballes position,it behooved me to press and prod a bit to flesh out the best arguments of my opposition, which is critical information as one prepares to push an issue forward. I'm literally spending a good deal of this week shopping legisation at the Texas capitol related to the Fourth Amendment at traffic stops (more on this later if someone files it), and our good-natured tussle has been tremendously helpful for me in that regard. Thank you.

Markm, you're probably right about the downblouse, unless it could be shown, e.g., as it was in a couple of British studies, that camera operators were disproportionately indulging in down-blouse shots.

X said...

Your kind words are very much appreciated. I am glad I could be of service to you.

I would only add one quick point to our discussion: You keep referring to the dog sniff as a search ("USSC: not a search if you're looking for illegal things").

This is where you and I are failing to come together. Caballes made it quite clear that the sniff is not a search. Would the police be engaged in a search if they walked up to the car and smelled it themselves? No. The reasoning is identical.

Smelling is not the same as searching. "Search" is a legal term just as "probable cause" and "reasonable suspicion" are legal terms. To say the dog sniff is a search is to redefine the term in a manner the Court has not defined it.

Common sense would say the dog sniff is a search, but not the law.

I have no problem with your disagreement with the Fourth Amendment as SCOTUS sees it. I think states should take steps to protect the privacy of individuals and assign them rights under their own statutes and courts the Supreme Court does not offer.

However, arguing to make it tougher to find drugs and guns is not a popular view. Most people want the bad guys off of the street, and they would rather have you offended over a dog sniff than a drug dealer wheeling a suitcase of drugs down their street.

I appreciate the banter. I find it useful and enjoyable.


Gritsforbreakfast said...

Baron said: Would the police be engaged in a search if they walked up to the car and smelled it themselves? No.

But that's not what's at issue. If the police use a tool directed at my property for the sole purpose of finding contraband, that's not the same as walking up to the car and sniffing casually.

I agree that under the USSC's reasoning, a dog sniff is not a search. That shows that legal reasoning has become morally and intellectually bankrupt, not that they're right.

As for the unpopularity of drugs and public sentiment, that's why it's important to draw out the other anti-privacy implications of Caballes and the decisions that preceded it, which I believe are more extensive than you have maintained.

I've enjoyed our exchanges, too.


Anonymous said...

To join in on the common sense Vs law aspect, I would suggest that everyone google the word Kritarchy and study on that type of rule.
I for one do not believe in the rule of law. I do believe in the rule of justice. Unfortunately hostory shows quite plainly that there is normally a vast difference between law and justice as the concepts are applied in this country.
A search is a search is a search and by any other name would still consist of an invasion of privacy. The law can say that a dog sniffing up a ladies skirt or around a person's auto is not a search, but then law can be wrong, both intellectually as well as morally.
Unfortuantely law as practiced here the USA is generally the threat of force or the application of it.
To me the question is why would government feel it necessary to intervene if a lady who is the subject of an invasion of privacy, camera up skirt, just kicks the shit out of the cameraman, or has her boyfriend do it? As for drugs, why is government involved in deciding who does what to their own body?
My opinion on searches and law. Tks for the forum to express it.

Leesa said...

I understand what you mean - I love to see photos of guys with their thingies hanging out, but they probably were "invaded" as well. Unless most of these pics are staged.