Imagine trying to go about your business every day, walking around the city with a stranger dogging your steps, hovering within inches of your face and constantly taking your picture.
How furious would you be if you complained to police and were told you had to tolerate such behavior because there is no expectation of privacy in public?
Reasonable people would argue that there is a difference between observation and intrusion: One expects to be observed on the street; one does not expect to be stalked.
Indeed, the law makes such a distinction. So if stalking is illegal for citizens, why should it be permissible for governments? That is precisely what the federal and local governments engage in via the surveillance cameras installed around Washington — a practice that will become even more invasive after the D.C. government links feeds with thousands more cameras, as it recently announced it will do.
The argument that individuals can have no reasonable expectation of privacy in public needs to be refined in light of modern technology. When cameras recorded what was visible to the naked eye 30 years ago, it was fair to argue that video surveillance was little different from a cop on the street.
But today’s high-tech cameras have superhuman capabilities: pan, tilt and zoom functions that offer 360-degree views, with magnification stong enough to read a cigarette package from a block away. Such capacities allow law-enforcement officers to cross the line from observers to invaders.
Electronic stalking is even more insidious than physical stalking because there is no way to escape it. When a person encroaches too closely, you can call the police; if necessary, you can push him away.
But you have no way of knowing when Big Brother has zoomed in on your face and is photographing and logging your movements.
How can such surveillance be legal? Common law deems it an invasion of privacy to use electronic equipment to see or hear what cannot be detected normally. You can eavesdrop on your neighbors’ conversation; you can’t plant microphones in their house.
Historically, the government was constrained by the same standards.
For instance, in U.S. v. Kim, when FBI agents gathered evidence by training high-powered telescopes on a suspect inside his apartment, the court rejected the government’s assertion that agents observed only what was in plain view, saying they were entitled to observe only what was visible in unaided plain view.
According to the Kim court, the use of magnification violated the constitutional protection against “unreasonable visual intrusions.” Yet Americans in general, and Washingtonians in particular, are subjected to unreasonable visual intrusions every day by ubiquitous surveillance cameras.
If ever the assumption of privacy is reasonable, it is when one is alone. But even if no one else is in sight, you must assume you are being watched. The cameras deprive us of what Justice Louis Brandeis described as “the right most valued by all civilized men: the right to be left alone.”
Courts also have long held that, even in public, individuals have a right to private space. When Jacqueline Onassis filed suit in 1973 against a photographer who was shadowing her, a judge ordered the paparazzo to stay at least 25 feet away from her.
Many states have laws limiting how far protesters must stay away from women entering abortion clinics. Last year a Philadelphia judge ruled that animal-rights activists had to stay 50 feet away from a restaurant serving foie gras. Clearly, merely venturing out in public does not mean that one forfeits all rights to any degree of privacy.
Yet laws must keep up the pace. Perhaps nothing better illustrates the need to reassess a “reasonable expectation of privacy” than recent cases in which courts overturned the convictions of men who held cameras underneath the skirts of unsuspecting girls and took pictures. In both Oklahoma and Washington, judges were forced to rule that no law on the books prohibited such a practice.
Certainly, individuals should be able to expect that they are entitled to privacy underneath their clothing. But unless the law adapts to address the abuses of modern technology, Americans will continue to be exploited by Peeping Toms — and peeping governments.
