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(1.0 point) DNSBL: Received via an IP in dynablock.njabl.org SPAM: SPAM: -------------------- End of SpamAssassin results --------------------- -------- Original Message -------- Subject: RE: [Politech] Steve Schear on video voyeurism, stock options [priv] Date: Mon, 27 Sep 2004 12:25:38 -0400 From: The Unknown Bureaucrat To: Declan McCullagh <declan@private> Hi Declan, I'd rather not post this for attribution. Please call me "The Unknown Bureaucrat" and strip off my header information before circulating it. On the video voyeurism point, Steve raises two points. First he says that existing privacy torts address the problem. That varied greatly by State. <Disclosure> I'm attorney for the government and can't give legal advice to individual members of the public. While I'm a member of other state bars, I no longer practice in NY. I am *not* representing that one can engage in conduct such as is addressed by the bill that he criticizes with impunity under existing law. If you have questions about what federal or state law means or says on this subject, consult a private attorney who can represent your interests. </Disclosure> Second, he questions the constitutional basis for such a law. I'm not sure why he feels that a federal law barring surreptitious recording of audio is constitutional, but that a surreptitious video law would not be. On the first point, it is my understanding that the privacy torts Steve lists are not available everywhere. When I worked in the NY State Attorney General's office some years ago, we received a complaint about a locker-room camera that had no sound. My recollection is that we found our options were very limited. [The AG in NY has a powerful statute available to him, which is Sec. 63(12) of the Executive Law. That law makes it possible for the AG to file a suit to stop repeated and persistent fraud or illegality. The illegality referenced in 63(12) has been interpreted to include violations of any other NY law. So, I looked for another state law that might make this conduct illegal, which could then subject it to attack as a violation of 63(12).] Although the Privacilla link below (which references Prosser on Torts) indicates that there are four common law privacy torts, their applicability depends on the laws of a particular state. (See disclosure above.) As I recall it at the time (and this may have changed in the intervening years), New York's law *only* applied to the misappropriation of the name or likeness of purpose for commercial reasons. Here is the statutory language about misappropriation of ones name or likeness from Civil Rights Law Sec. 50. "Right of privacy. A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor." My recollection is also that the courts have further limited the application of this law to instances where the person whose image is misappropriated is recognizable (i.e., famous). So, if your not famous or if there is no commercial use of the images, then this law may not provide a remedy. See: http://www.legallanguage.com/lawarticles/Clarida013.html It is my recollection that the other three privacy torts described in those articles do not exist in NY. (There are, of course, trespass laws and I believe that there have been bills about video voyeurism. But, I honestly don't know if any of them passed in NY. Again, see my disclosure above.) As I recall it, the federal wiretap laws were also inapplicable because there was no sound being transmitted. So, this seemed to be a problem that required additional legislation before it could be effectively addressed by law enforcement, at least in NY. Steve's second point is that assuming the current federal law does not reach this action and state laws could, why not leave it to the states. Specifically, he questions the constitutional basis for a law barring video voyeurism. To that I respond that this seems to be rather analogous to using an audio recording device to record a conversation without authorization, which is constitutional. Is he suggesting that if I leave a video camera running and it captures both sound and voice then federal law can be applicable (because the sound portion would violate the wiretap laws), but if the sound is off and only video is captured there is some constitutionally significant distinction that can be drawn, which would prevent Congress from acting? -The Unknown Bureaucrat "The views expressed are solely my own and not necessarily those of my employer." _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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