A DISCUSSION OF LAW AND JOURNALISM

Ain’t Misbehavin’: Assessing the Right to Surveil Thy Neighbor

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By Tara Krieger

Florida retiree Steve Miller knew that the bags of dog droppings hidden around the perfectly-chiseled shrubbery in his Palm Beach Gardens yard weren’t fertilizer, and he was determined to expose the neighbor he suspected as the culprit.

So he picked up a $400 do-it-yourself security camera and caught “this creep” (as he called him) in the act. He showed the footage to the community head of security, who wrote the guy a citation for improper pet waste disposal, littering, and leash law violations. A year later, the video became a YouTube sensation.

“I decided to have a little fun at his expense,” said Mr. Miller in the narrative of the four-minute clip, which featured a month’s worth of distant shots of the nameless neighbor – who’d since moved away – flinging bagged feces into Mr. Miller’s front yard.

Mr. Miller isn’t the only videographer to have captured his neighbor misbehaving; the Internet (particularly YouTube) is littered with clips of naughty neighbors captured by hidden home surveillance cameras, featuring offenses that include keying cars and stealing.

The New York Times defended the legality of these home videos. “It matters how you’re doing it and why, but generally it’s true that you can film your own property as well as anything that is in public view,” explained David Ardia, director of the Citizen Media Law Project at Harvard’s Berkman Center for Internet and Society. “It’s when you extend your senses into unexpected places, like using a telephoto [lens] to film what’s going on in your neighbor’s bedroom, that you could run into trouble.”

But the Times did not go into detail on the scope of the legality, or the reasoning behind allowing what could be viewed as a blatant invasion of privacy. Here is the fine print.

There are two issues here. The first is under what circumstances private citizens are allowed to set up hidden cameras. The second is whether they can upload unauthorized footage of others to the Internet. At the heart of both concerns is the right to privacy; since the relevant legal doctrines that might apply are so similar, we will discuss them simultaneously.

Europeans view privacy as a fundamental right, more important than most other entitlements granted to individual citizens. Article 8 of the European Convention on Human Rights allows everyone “the right to respect his private and family life, his home and his correspondence.” In Italy, for example, executives at Google were convicted of privacy violations for allowing a user to upload video of a boy with Down’s Syndrome being bullied.

Many are surprised to learn that in America, in contrast, privacy is merely implied in the Constitution, and that federal privacy laws – particularly ones dealing with hidden surveillance – often focus on unauthorized government or commercial intrusion. When it comes to private citizens, First Amendment protection of freedom of expression often wins out

Several states have enacted statutes outlawing various degrees of unauthorized use of surveillance cameras, generally in “private places” – that is, areas where one would have a “reasonable expectation of privacy.” Such a place might include a hotel room or perhaps a fenced-in yard, but not likely the publicly accessible sidewalk leading up to the front yard (to use Mr. Miller’s case as an example). Regardless, Florida has enacted no such law. (Neither has New York, for that matter.)

Invasion of privacy” (or “invasion of right to privacy”) also exists as a common-law tort. The plaintiff has a case if he was wronged in one of four different ways, according to the Restatement (Second) of Torts:

(1) “Unreasonable intrusion upon the seclusion of another,” if the intrusion would be “highly offensive to a reasonable person.” Examples of this offense would be wiretapping someone else’s phone, or peering into someone else’s bedroom with binoculars. Because most of these surveillance cases involve citizens filming on or around their own property, the neighbors can’t really make a case here, because they’re either outside in public view, or perhaps trespassing upon someone else’s space. That Mr. Miller, for one, had the hidden security camera secretly filming his neighbor for a month probably does not make a difference; it was his space to film.

(2) “Appropriation of the other’s name or likeness,” to one’s “own use or benefit.” Posting unauthorized video of neighbors behaving badly to the Internet would be to the “use or benefit” of the person who posted it. But generally this rule is interpreted to apply only in commercial contexts, such as advertisements. Since there’s no direct financial gain from uploading a video to YouTube, this type of behavior probably would not be considered wrongful.

(3) “Unreasonable publicity given to the other’s private life,” if the matter publicized “would be highly offensive to a reasonable person, and is not of legitimate concern to the public.” Establishing a case here involves having one’s otherwise private information, for example, tax data, medical records, or photographs in one’s home, exposed. Going back to Mr. Miller, this rule could not possibly apply. The information was public – he reported his neighbor’s conduct to the community head of security. Additionally Mr. Miller kept the neighbor anonymous, and the camera did not show any close-ups of the neighbor’s face – though because the charges were public record and the events took place in public, it probably would not have mattered.

(4) “Publicity that unreasonably places the other in a false light before the public,” if the false light would be “highly offensive to a reasonable person” and the wrongdoer knew or “reckless[ly] disregard[ed]” that the matters were false. This is similar to defamation – and since the recorded events were true, it likely wouldn’t apply.

On YouTube, the policy regarding uploading of unauthorized video is generally self-regulating (with the exception of copyright infringement). “If you think that a video posted to YouTube violates your privacy,” it says, “as a first step, contact the uploader and let them know.” If the uploader refuses to take down the content, the next step would be to file a “privacy complaint” with the Website’s moderators, who will determine the course of action – removing the video, or perhaps more extreme measures.

“We’re serious about keeping our users safe,” the site says, “and suspend accounts that violate people’s privacy.”

On the video, Mr. Miller explains that he “was courteous enough to wait a year” (until after his neighbor had moved) before posting it to You Tube. He can rest assured that in taking pains to film and show what was on his own property, his revenge against the poop dropper was legal.

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