Updated Privacy Intrusions

A classic intrusion on seclusion case, Hamberger v. Eastman, 206 A.2d 239 (N.H. 1964), involved a couple whose landlord placed a recording device in their bedroom to listen to their conversations and sounds.  The couple’s privacy tort claim sought recovery for their mental distress and humiliation after discovering the device.  The husband explained that he could not perform his normal duties as husband and father.  According to the wife, the experience curtailed the couple’s sex life.

A more recent case reminded me of just these sorts of psychic wounds — embarrassment and shame accompanying feelings of exposure and intrusion on sacred activities — and the ways that networked technologies can exacerbate them.  A Louisiana city planner hid a camera inside his workplace’s urinal to photograph and film coworkers (over 50 men worked at the city planning office).  In July 2011, his co-worker discovered the tiny camera, which had been duct taped to the urinal.  The camera’s memory device contained images of several men with their private parts exposed.  (Check out this video reenactment of what happened). The city turned over the employee to the local police who charged him with video voyeurism.  It’s unclear how long the camera recorded the goings on in the urinal or what the city planner did with the photos and videos captured on the device.

Although the camera-in-the-urinal case involved criminal charges and no tort claims have been filed, it involves just the sort of intrusions and harms in classic intrusion case.  One imagines that some of the city planner’s co-workers felt embarrassed that a co-worker might have recorded their bathroom activities.  More to the point, they no doubt worried about what the city planner did and could do with those videos.  Now, there’s no evidence that the city planner posted the pictures and videos online or in other ways distributed them.  But networked technologies change the stakes of recorded intrusions.  With today’s technologies, memory decay has all but disappeared, at least in the United States.  (See Jane Yakowitz’s Forbes commentary on the proposed European Commissions’s right to delete proposals; I will have more to say on those proposals too, and Viktor Mayer-Schonberger’s Delete is an excellent read).  If the city planner posted the videos on a site like Private Voyeur (or anywhere), then the material could remain indexed and searchable far into the future, an “eternal return” of private embarrassing information.  Of course, posting the information online would implicate another privacy tort — the public disclosure of private fact — whose reach, though narrow, would likely include what happened here (pictures of bathroom activity hardly seems newsworthy).  But it’s important to recognize the changing stakes of privacy intrusions and disclosures in our networked environment and perhaps put into context proposals like that of the European Commission.


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