At-Home Spying: Privacy Wanes as Technology Gains
Surveillance may be legal, but is that the only standard?
Commentary by Gary T. Marx, 28 May 2002, *Los Angeles Times*
[Reprinted with the permission of the author]
Recently in France, a father who was concerned about the possible
mistreatment of his 3-year-old son by a baby-sitter's boyfriend hid a
miniature camera in his home to record any suspicious behavior. The father
found some, but it was not abuse of the child; the camera revealed the
baby-sitter and her boyfriend amorously entangled while the child slept
soundly in the next room.
The father paid a penalty. In France, such videotaping is a violation of
criminal and civil law. The father was arrested and ordered to pay a fine
for invasion of privacy.
Did the father do something wrong? Is there a victim here? As the ubiquitous
advertisements for cameras concealed in teddy bears and other unlikely
places remind us, parents have an obligation to protect their children. A
hidden video camera offers an easy way to do this--to the extent that seeing
is believing. If nothing is found, the responsibly vigilant parents rest
well knowing that the child was not harmed. If something is found, there is
tangible evidence for taking protective and even legal action. Different
privacy standards characterize home and work, as well as areas within
these. The baby-sitter after all was not filmed in her own home but at her
place of work.
Yes, the French parents had alternatives. They could have discussed their
concerns with the sitter, checked to see whether other employers had had
problems with her, banned the boyfriend or simply found another
baby-sitter. If there are some grounds for doubt, why take a chance by
spying? And, as it turns out, the law was on the baby-sitter's side.
In the U.S., the employer largely sets the conditions of work. To use the
French baby-sitter as an example, the camera was in the living room, not in
a bathroom where the expectation of privacy would have been greater. The
place and the video equipment belonged to the parents, and the baby-sitter
willingly came to the home. The images weren't sold on the Internet, used as
blackmail or stolen.
To cast the best light on the father, he wanted to have the evidence in hand
before deciding to fire the sitter. The use of hidden cameras is hardly an
uncommon or exotic means for this. And, had the father been living in the
U.S. instead of France, in most jurisdictions he would have broken no law.
Yet this videotaping, even if well-intentioned and revealing nothing
incriminating, is patently offensive. E.M. Forster captured this well in
noting: "For it is a serious thing to have been watched. We all radiate
something curiously intimate when we believe ourselves to be alone."
Secretly recording people violates their dignity and can put the individual
at an unfair strategic disadvantage.
We assume, or at least morally expect, that under ordinary circumstances
behavior behind closed doors, in darkness and at a distance will be
protected from the eavesdropping of third parties. We also have a right to
assume that interaction and communication are ephemeral and transitory and
are not subject to being captured and preserved through hidden video or
audio means without our knowledge. Another unintended consequence is that
sometimes people seeking specific information--i.e., whether their child is
being mistreated--may observe something even they didn't want to know.
In addition, remotely transmitted signals might be picked up by others in
the vicinity. The behavior of the spy is thus doubly troubling. Not only is
he invading the privacy of those he is watching, but he may unwittingly
enable others to invade as well.
The fact that there is still a legal right to secretly record images in the
U.S. does not mean that it is the right thing to do. We would do well to
learn from the French the general principle of respect for private life, a
principle that holds no matter what new technologies are offered to us that
allow us to spy on others.
Gary T. Marx, a Massachusetts Institute of Technology emeritus
professor, is the author of "Undercover: Police Surveillance in
Comparative Perspective" (Kluwer Law, 1995). Web site: garymarx. net. ["gtmarx" via risks-digest Volume 22, Issue 11]
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