*****SPAM***** [Politech] Unknown Bureaucrat on video voyeurism, state vs. federal law [priv]

From: Declan McCullagh (declan@private)
Date: Tue Sep 28 2004 - 21:02:59 PDT

SPAM: -------------------- Start SpamAssassin results ----------------------
SPAM: This mail is probably spam.  The original message has been altered
SPAM: so you can recognise or block similar unwanted mail in future.
SPAM: See http://spamassassin.org/tag/ for more details.
SPAM: Content analysis details:   (5.7 hits, 5 required)
SPAM: Hit! (2.7 points)  Subject contains lots of white space
SPAM: Hit! (1.0 point)   Received via an IP in dynablock.njabl.org
SPAM:                    [RBL check: found]
SPAM: Hit! (0.4 points)  Received via a relay in dnsbl.njabl.org
SPAM:                    [RBL check: found]
SPAM: Hit! (0.6 points)  DNSBL: sender ip address in in a dialup block
SPAM: Hit! (1.0 point)   DNSBL: Received via an IP in dynablock.njabl.org
SPAM: -------------------- End of SpamAssassin results ---------------------

-------- Original Message --------
Subject: RE: [Politech] Steve Schear on video voyeurism, stock options 
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

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

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 
Politech mailing list
Archived at http://www.politechbot.com/
Moderated by Declan McCullagh (http://www.mccullagh.org/)

This archive was generated by hypermail 2.1.3 : Tue Sep 28 2004 - 21:47:47 PDT