Below is description of a current privacy controversy in Colorado. I invite the VC's readers to supply answers any of the legal and ethical questions.
Facts: Sugar House is a swingers' club, set to open in a Denver area neighborhood on August 25. One of the purposes of the club is to facilitate sexual encounters among members; presumably spouse-swapping is among the faciliated activities.
For purposes of this question, assume that Sugar House is in compliance with all zoning laws (although some people in the neighborhood do not think so). Likewise, assume that Sugar House is not violating any laws. (This assumption sets aside Colorado law by which adultery [sex by a married person someone other than the person's spouse] is defined as a crime, but there is no punishment for the crime.)
KHOW-AM radio host Dan Caplis has urged people in the neighborhood to attempt to drive out Sugar Hill by taking photos and videos of every person entering or leaving Sugar Hill. (The issue is discussed in the last hour of the August 10 show. You can listen via the "Radio Rewind" feature on the KHOW website, which requires free registration.) He argues that clubs such as Sugar House are bad for any neighborhood, because children might walk by, and because the club's purpose is promoting activities which are harmful to society. Caplis has said that he believes that what he is encouraging is legal, and has also said that if he is wrong, he will issue a correction.
Legal questions:
1. Under Colorado and federal law, is Caplis correct? What about the laws of other jurisdictions?
2. Does the answer depend on what the photographers do with with the captured images? If the images are just viewed at home by the person who took them? If the images are distributed for free (e.g., by photocopied flyers, or on a non-commercial website)? If the images are given to the media for publication? If the images are used by people in the neighborhood to identify the customers of Sugar House, and then the images are sent to persons who know the customer (e.g., employers, family)?
Ethical questions:
1. Hypothesizing that the above photo/video conduct is legal, is it ethical?
2. Would the ethical answer change depending on whether the establishment were some other entity which deeply offended several people in a neighborhood? Depending on the neighborhood, some people might be extremely offended by: a Communist bookstore, a white supremacist bookstore, a tavern, a strip club, an adult book or video store, a birth control clinic, an abortion clinic (presume that for the clinics, the photographers use telephoto lenses, so as to comply with bubble laws), a Wiccan religious center, or a gun store. In answering this question, presume that the establishment is fully compliant with all zoning and other laws.
3. If your answer is the photography/video would be ethical for at least one but not every establishment on the list, is there a rationale other than your personal hierarchy of what activities are most detestable? If a person with a different hierarchy of detestation wanted to photograph/film the customers of an establishment which you liked, could you offer any arguments, other than urging him to adopt your own hierachy of values?
UPDATE: Here is a link to a 1995 article by the Colorado law firm Fairfields & Woods. Although the article is mainly about employer surveillance of employees, it does offer some interesting ideas. In terms of statutory law, a video which captured conversations might violate Colorado's wiretap law, if the videographer were concealed from the people who were talking. The relevant torts (for Sugar House customers) might be "unreasonable disclosure of personal facts" and "unreasonable intrusion into the private affairs of another." A key question is whether the publicity or intrusion would be "highly offensive to a reasonable person."
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POPPELL prevailed.
I'd say that in reality it would be treated as if it were perfectly legal and in most cases would be.
2. As far as I can tell, no use would make it more or less illegal. That said, some uses would open the photographer/recorder to civil suits for everything from trademark violations of the Sugar Hill group to defamation of character (the former more likely to win than the later).
Some other states would have more stringent results -- it's a misdemeanor to use a person's voice, photograph, or likeness for advertising or trade purposes in Virginia, for example, and it's possible to argue that this is a trade purpose given that they're trying to put the group out of business.
1. Depends on the basic assumptions. That said, I find it very hard to believe that the harm done by a building full of swingers who keep everything to themselves is more damaging than interfering with the privacy of dozens of consenting adults. The "Rule of Law" makes this more difficult, though, as the Sugar Hill club is implicitly condoning illegal if unpunished acts, which does cause some harm if ignored.
2. I'd say it'd be less ethical for most of the purely idealogical differences, such as abortion, guns, religious centers, or bookstores, and roughly similar for groups which are based on vices with minor distinctions simply because the harm they provide is either more widespread or less widespread.
3. The idealogical groups would be less ethical to photograph simply because they can all be confronted easily on purely rational grounds. Vices are not, usually, so it's the above listed dilemma.
As for contention, the only real things that can be rationally discussed are the levels of harm done. There's a lot of room for debate over these; Wicca for example is one of those things that folk tend to dislike less the more they find out about it (it's associated far too much with illegal behavior and movie-style witchcraft for a con-man's attempt at new-age goofiness), but also wouldn't suffer much from photographers.
So, no legal problems that I can see
I don't see any intrusion of their privacy because they are in a public place as they come and go, and the pictures won't cast them in a false light. The pictures will cast them in true light.
If they are driving into the neighborhood, parking on the street, and walking into the sugar shack then they are not trying to protect their privacy, at least as to their patronage of the business.
In some cases an individual may be treated differently. Celebrity sightings, no matter how mundane, may be widely discussed or even published. The trivial acts of celebrities are considered weighty in some circles, and celebrities are recognized by far more people, so the lack of privacy is again largely a matter of statistics.
The radio host wishes to alter the statistics in this instance because it matters to him. If this is unethical, it should also be unethical to publish a gossip column or to allow some towns to be small. In particular, if it is unethical for residents of Denver to note who enters a swingers' club, I fail to see why the residents of Redstone should not also be so bound, even if it would demand superhuman ability to ignore a swingers' club in such a town.
Anyway, I think Caplis is right that the behavior he advocates, though reprehensible, is legal. Make no mistake about it, though: what he proposes is unethical. Making someone the focus of a photograph without their consent is an assault against them, despite the law's refusal to accept that, especially when the desired effect of that photography is to harass and intimidate. As for them being in public, what of it? The difference between possibly being observed by whatever small number of people are actually there to see you and possibly being recorded by someone there so that an unlimited number of people, unrestricted by time (they can see your picture and learn about your doings days, months, or years after the fact) or place (congratulations, Coloradans, your public activities in Colorado may be seen by someone in Kentucky, or on another continent) is a significant one.
I am not quite sure where the club is slated to open - some areas in the Denver metro area would be much more obliging for a suit here than others, in terms of a jury pool. We are talking some five or so counties, but not sure how many actual judicial districts. Boulder, and then Denver itself would seem hardest to win in, while some of the others would be easier.
I am not sure what you mean by "ethical". I think that it would depend on what set of ethics one would apply. Caplis' as a devout practicing Roman Catholic? Theirs and many of ours as attorneys? As a radio station? The answer very much depends on the set of ethics being applied. The legal ethics question to some extent is tied into the legal questions.
Sorry I missed it. I like the interaction between mostly conservative Caplis and the usually more liberal Silverman. They bring their legal training and experience as trial lawyers to their show, and as a result, often end up with very spirited articulate debates. But I have noticed that when they get into the more esoteric areas of the law (such as in my case, IP), they sometimes seem to wing it, likely to an extent that they wouldn't do in their day jobs as attorneys.
Nevertheless, my understanding is that there are essentially four quasi-privacy torts: intrusion into seclusion; false light; public disclosure of private facts; and appropriation. The first several of these seem to revolve around the reasonableness of the action (and hence, my earlier point on jury pools). My guess is that the strongest would be public disclosure of private facts. Mere taking of pictures might be intrusion, but since the action is in public, that would seem less likely to succeed. And false light would seem unprevailing, since the disclosure of the information would likely not show the persons photographed in a false light. Just taking pictures would seem to be relatively safe - it is what is done with them that might move the action to tortuous.
The appropriation would seem inapplicable since no real appropriation would seem to be taking place. Any rights of publicity would also seem to have the same problem, esp. as the disclosure would seem to be newsworthy.
No doubt we will ultimately hear from some attorneys here who actually practice or teach in this area and know what they are talking about.
After reading an article about the club, I'm guessing it will actually be fairly tame, in which case the attention will fade rapidly.
There is no expectation of privacy when you do something on a public street, such as walking up to and into a business like this. The whiners are really saying, "We want the freedom to go into a swingers' club--but we don't want you to have the freedom to photograph it, and then embarrass us by exposing what we are doing." This is so typically liberal: they want the government to take no action to interfere with their actions, but they want it to take actions to prevent others from enjoying equal freedom. It's just another example of the hypocrisy of liberals in their pursuit of selfishness.
I can see how this might have evolved a century or more ago when photography was only slightly less challenging than rendering a likeness in oils. The photo was artwork that was owned by the photographer, regardless of the content of the photo (much like my wedding photographer owns the copyright to my wedding photos). Now with every tom-dick-harry able to snap away a thousand pictures a day copyright seems less protectable; yet since the photographers in this instance 'own' the images, why is there any debate about what they can do with them?
Hypothetical: Man takes a picture of the mayor entering above establishment:
1 posts picture on his personal web site
2 posts picture in an art gallery for sale (2b ads some random splotches of paint and jacks up the price 10x)
3 renders the image in oil on canvas posting in art gallery
4 photographs the oil/canvas rendering and posts it in the town square?
Are any of these situations protected through being owned by the 'artist'?
If you think all or even most of the people going to this club are a bunch of liberal ideologues, you're kidding yourself. Grow up.
Character is what you do when no one's looking (or taking pictures). If the patron's of the swinger's club are ashamed of what they're doing, then maybe they shouldn't be doing it.
Do you mean unlike, for instance, the hypocrisy of conservatives that oppose and criminalize prostitution for others, but when they help themselves of those services, it is a private matter between themselves, their wives, and God?
"The tort of disparagement consists of the following elements: (1) a false statement; (2) published to a third party; (3) derogatory to the plaintiff's title to his property or its quality, to his business in general or to some element of his personal affairs; (4) through which defendant intended to cause harm to the plaintiff's pecuniary interest or either recognized or should have recognized that it was likely to do so; (5) malice; and (6) special damages."
Thompson v. Maryland Cas. Co., 84 P.3d 496, 507 n.16 (Colo. 2004).
(Off topic but) This is a recent favorite example.
What about the possibility that they see no shame in it themselves, but fear the social reaction? Sadly, there are still numerous places in this country where interracial couples have to keep their relationships relatively secret. Would you tell them to just break up as well?
As for the ethical issues: the radio host is trying to coerce people from ceasing a private practice by making it public. His own "think of the children" argument may be wielded against him in this. Limited recreational adulterous sex is a form of entertainment that may, in some very limited cases, be acceptable for some married couples; however, it sets a bad example for children. Publicizing that some limited group of people (possibly including noteworthy figures that minors look up to and who otherwise would use the privacy of the club to keep from setting a bad example) are in fact having sex outside of marriage, and without further context (EG: the precautions taken against STD, the precautions against preganacy, the precise nature and limits of the marital commitments previously established, the other activities they routinely do to insure the soundness of the marital bond. etc.) acts in "monkey see, monkey do" fashion to set a bad example for the children. "Won't Someone Think Of The Children?!?"
(Yes, there are sometimes ethical uses for some forms of hypocrisy. Neil Stephenson's Diamond Age addresses this nicely at a couple points.)
Despite the name, I suspect the "casual" sex of the swingers has not been undertaken without some prior consideration. Given that this campaign is being coordinated by an announcer over the public airwaves, it seems (where I sit) that the publicity is less likely to change the minds of the relatively few club members, than it is to induce juveniles to imitate the behavior. ("If reverend/principal/councilman Smith doesn't limit sex to his/her marriage, why should I wait until I'm married?") As such, the practice is detrimental to the stability of society, and does not (as far as I see) attempt or accidentally achieve an improvement to society. Ergo, it is unethical.
I would hold that imitation is more likely than behavioral discouragement for a tavern, a strip club, an adult video store (narrowly; on-line sources are a elastic substitute for non-impulse purchases), a birth control clinic, and a gun store. For the first three, context-free imitation (especially by juveniles) of such behavior displayed would be detrimental, which leads me to believe the publicity would be unethical; for the latter three, I deem imitation of the behavior is harmless or beneficial to society. (Yeah, having contraception implies having sex; too much else out there does too, and contraception at least implies having safer sex.) I'd hold publicizing the first three less likely to be ethical, and the latter two more likely.
For a Communist bookstore, since it's one of the major world philosophies, not an immediate danger to juveniles, and relatively unlikely to be imitated, I'd hold the publicity harmless from the above (primary) consideration. As a secondary consideration, while I feel that those who subscribe to any political philosophy ought to be prepared to defend it in rational discussions, the possibility of unlawful discriminatory retaliation is a concern. Since free expression of ideas for rational debate without retaliation (and thus, anonymous expression) is important to a society (and individuals in it) being able to adapt over the long term, I'd hold this to be unethical.
For a Wiccan religious center, the publicity per se, as with the other behaviors not inherently detrimental while imitated (incense isn't that bad for the lungs), isn't a problem. However, since the context is to encourage discriminatory action against those who visit, the surveillance seems grossly immoral and unethical, and potentially even criminal (speech intended and likely to cause criminal religious discrimination against particular targets)... but IAmNotALawyer.
For a white supremacist bookstore, the underlying idea (as usually expressed; measurements on racial differences generally yield deltas between sets smaller than the sigmas withing them) is not rational. The probability of imitation is low, and the benefit of discouraging the practice (increasing tolerance for non-destructive social diversity) high, even where changing minds is of low likelihood. I'd call it ethical in this case.
As to the question of hierarchy, it's not directly based on the detestableness that I perceive, but the degree it is unwise for impressionable minds to blindly imitate, combined with those ideas that lack a rationally-based rationale (so to speak)... which, in turn, leads to the "detestableness".
And a closing piece of random unsolicited advice for the swingers: skilled cross-dressing before going to such a club may make identification much harder... and for some, may prove a turn on of its own. =)
If Mr. Caplis or his followers published images of the electrician or even the piano player, along with assertions that he was a patron of the establishment, then I think the publisher would be liable for ordinary libel.
That's as close as I'll tread to Prof. Kopel's legal questions 1 and 2.Generally speaking, no, it's reprehensible. In general, no, but with at least one exception not on the list. If the videographer and publisher were specifically exposing the activity of individuals who publicly inveigh against the club or its participants but who privately participate or seek to participate, then another ethical consideration takes precedence.
The ethical aspiration that meddling in others' private affairs is wrong is overridden by the greater ethical duty to reveal the truth that a meddler's actions are deceptive and dishonest.My ethical consideration above is independent of the nature of the establishment.My primary argument would be that good manners and ethics will bring rewards that good morals never will. Most people don't like busybodies, even when they agree with the busybody's particular petty concern.
My secondary argument would be that the busybody had better be sure he has nothing in his life he'd rather not see published in front page headlines. If you're going to cast the first stone, you'd better be without sin, lest your target or her friends smite you with a boulder while the rest of us laugh at you and cheer them on.
I have a suspicion that they would be better off moving to places like Idaho, where conservatives dominate the social landscape, and they won't be subject to this kind of pressure.
Exceptions for violation of true privacy (peering in windows) or publicity rights are reasonable but I don't see any exception that should apply in this case.
Ultimately I think people will stop making as big a fuss about pictures on the internet once everyone's embarrassing stunts can be found. It's one thing for your boss to fire you because you were photographed dancing on a table without your shirt when you are the only person in that situation. It's another when there is a picture of him swallowing goldfish and the person in the next booth over is on film having sex in public.
The people in this club aren't doing anything of social harm. The protesters are (would be?) engaged in a campaign of intimidation and deliberate attempt to embarrass people enjoying themselves on private property our of public view.
I mean suppose I decided I didn't like Christians. Would it be acceptable for me to follow them around all day and take pictures of them every time they do something embarrassing? No because it isn't okay to be mean to be needlessly mean
So it is okay for conservatives to visit prostitutes, but not liberals to engage in non-criminal behavior?
Didn't know Idaho was such a liberal bastion for interracial couples. Wow, next you'll tell me that the sky is purple.
Because only liberals swing?
And isn't threatening to photograph and publish an attempt to get them to conform to the conservatives taking the pictures regard as "acceptable behavior"?
this is correct, but notice that in some states laws are used to ban the use of technology to simply RECORD what is already seen/heard/known by the observer.
perfect example is WA state's two party consent rule. i can have a conversation with you. i hear everything you say. i can testify to those words in court (like if you threatened me or spoke to me in violation of a protection order etc.) but i cannot use a TAPE recorder to record what you are saying. this strikes me as absurd.
if i am being sexually harassed at work, i can also testify to that, but i can't RECORD the sexual harassment without running afoul of the law.
i am aware of no laws that affect photographing in the same way they affect audiotaping, fwiw.
that's clearly a matter of complete subjectivity.
the point seems to be this. if you are doing something in public, anybody can photograph you doing it.
period. and in the day and the age of the internet and cell phone video cameras - well, do the math.
you have no right to privacy when you walk around in public.
Whit, I think the problem is that you describe the way things are, which is not the way things should be. I know, at least, that if a referendum came up to ban photographic recording without the subject's consent, I'd vote in favor of it.
you can think of a million examples, but we accept tradeoffs in a free society - being caught in public wearing an ugly outfit, doing a silly walk, etc. is part of living in an open society.
The obvious solution for the swinger's club is to find a place where there can be a truly private entrance. Out in the country, long driveway, high hedge, that sort of thing.
But doesn't one person's freedom have to end where it begins to begins to harm someone else?
I think Calmom's wrong, being photographed doing something is very different from being observed doing it, and the difference makes the photography something akin to an assault.
People should have the right to record anything they see in public with their own eyes. It is a substantial infringement on my freedoms to say that I can't convey the experiences I have just because someone else objects. In particular if I want to go around with a camera taped to my head to help me remember what I did during the day that should be my right and if it's okay for me to take the pictures the first amendment should protect their publication. Agreed. If I were establishing such a club, I'd go to considerable expense to get some privacy at the parking lot and entrance. If one could only see (or photograph) the customers by trespassing, then there would not be an issue.
Of course, such privacy is practical only if access to the car license plate database is restricted to DMV employees and police on government business.
this is true in WA state too. but it still creates a problem. i walk into my boss' office. he starts sexually harassing me. i turn the tape recorder on, and then advise him that i am tape recording.
so, of course he then STOPS. it's ridiculous. it's not an eavesdropping law (which i would support). it says those party to the conversation can't record it.
a domestic violence victim can be getting threatening phone calls. she can testify to it (classic he said/she said). but she can't RECORD them for evidence
no. if you are doing an act in public, and it can be viewed by person X, then person X can also photograph it. if it's embarassing or harmful to you - so what? i mean, it sucks but if there is no privacy being encroached on by being viewed in the first place, then merely RECORDING the viewing shouldn't change things.
"I think Calmom's wrong, being photographed doing something is very different from being observed doing it, and the difference makes the photography something akin to an assault."
that seems illogical to me. if you want privacy, then do something IN PRIVATE. but if it's open to others to see, it's open to others to photograph.
I am not a lawyer and can't speak to whether such actions are legal, but I believe very strongly that they ought to be banned, not only as violations of privacy but because the very act of taking such photos is a threat-by-gesture (that the photo will be used in a way that ruins the life of the person photographed) and therefore constitutes terrorism.
Similarly the broadcaster who urged people to take such photos is inciting terrorism and should be in jail or deported.
As for the question of "swinging" being illegal -- it isn't in any civilized country. Consenting adults have the human right to be left alone about anything they want to do in private. The fact that this right is even questioned in American politics causes our country to be quite correctly viewed as Neanderthals by most of the world.
I have no problem with people recording activity in public, but I'm not convinced that merely traveling from one place to another should be considered public in the same way that doing something on a street corner would be...
EI
There, Clayton Cramer was deadset against the publication of gun owners' identities: "What I object to is the news media using this information to promote theft, harrassment, and in a few relatively rare cases, murder by abusive ex-spouses."
Here, Clayton Cramer has no problem with the publication of alleged swingers' identities: "There is no expectation of privacy when you do something on a public street, such as walking up to and into a business like this."
Yet presumably the gun owners obtained their permit in public and bought their guns in public. The situations aren't identical, but in both cases people engaged in legal behavior are being held out to the public because of that behavior. If anything, I think there's more justification for publishing gun owners names, since there are publicly-available government records of their status. Not surprisingly, there are commenters in each thread who blame evil "libs" for each situation.
I'll note that above I also came to different conclusions in the two cases, although the opposite conclusion of Clayton Cramer in each case, based on my assessement of the likelihood of socially harmful imitation resulting from publicity of the activity. Of course, I don't fit very well on the classical left-right spectrum; I'm in favor of widespread responsible gun ownership, and while I think casual teen sex is generally bad, I'm opposed to other people saying how I run my (adult, disease-free) sex life. While I'm not a big fan of wars, and prefer trying other solutions, I don't inherently object to them — if executed competently.
It's perfectly possible Clayton Cramer has some reasonable grounds for his distinction between the cases, as Kopel inquired. I'd be fascinated to hear what it might be.
My first guess is "reasonable expectation of privacy" grounds as his basis, which does not seem prima facie persuasive for me, but I'm not dead opposed to hearing out. On the other hand, his remark above that "you better work on finding some way to keep your behavior private" falls flat for me. By limiting the activity to an (evidently) regulated club, it would seem they are endeavoring to do so.
For those looking: orginial pair of pieces on publishing Gun owners, and one of Clayton's comments there; for completeness, link to his comment on the current issue above.