Neighbor Law: Picture You Shopping?

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© Alice Neff Lucan

Adding city-owned surveillance cameras to the Downtown Mall has prompted the American Civil Liberties Union and others to say these cameras will “invade people’s privacy.” The possibility of cameras being added in downtown Crozet also came up at the Crozet Community Association’s January 8 meeting.

Well, guess what: there is no legal claim for invasion of privacy in the Commonwealth. And if we’re talking about cameras that are owned and operated by merchants, there is no tort claim.  When law enforcement gets involved, another body of law surrounding the Fourth Amendment applies, but it is most likely to allow evidence of criminal activity to be taken from a government-owned surveillance video. Few (to none?) of the people bemoaning loss of  “privacy” have explained that it is not a viable legal issue here in Virginia.

The tort, “invasion of privacy,” is a state issue, not a federal constitutional issue. It was an invented tort, created by two law partners in Baltimore in 1890 who were offended when newspaper reporters (allegedly) crept through a hedge to crash a daughter’s engagement party.  They wrote a law review article about the legal concepts and since then, nearly every state has adopted the invasion of privacy tort, but not Virginia and not New York.    “Invasion of privacy” often means that an unwanted third party has taken an embarrassing photograph, intruded into a secluded place where there is a “reasonable expectation of privacy, ” or published intimate information that is not newsworthy. It might be joined with a valid claim for trespass, but no private citizen is trespassing when they are taking pictures from a public thoroughfare.

The General Assembly did pass a law (Virginia Code 8.01-40) that forbids one entity to use another person’s name, face or likeness for “advertising or trade purposes.”  The fact that the legislators had the choice to include other kinds of privacy claims when that law was written means those claims were rejected as law in Virginia, at least according to the Virginia Supreme Court.

There are other types of claims.  For example: if those government-owned Mall cameras record a conversation where the subjects show that they reasonably expected privacy, Virginia Code 19.2-62 (against illegal wiretaps) might be enforced against the merchants or it might be considered a violation of Fourth Amendment rights.

The Fourth Amendment creates a federal right protecting citizens against illegal searches and seizures;  “illegal” usually means that the police have not followed correct procedures.   But there is no “procedure” required when government cameras are installed in public places.

According to a 2011 decision from the Virginia Court of Appeals, “The United States Supreme Court has made it clear that a constitutionally protected reasonable expectation of privacy exists under the Fourth Amendment only if a person has a subjective expectation of privacy and if society recognizes that subjective expectation of privacy as reasonable.”

In a decision in 1984 Supreme Court ruled: “[w]e conclude, from the text of the Fourth Amendment and from the historical and contemporary understanding of its purposes, that an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers.” “Open fields” are the legal equivalent of the Downtown Mall or any other public space.

It is always the case that if you’re in public space, or in a place visible from public space (like your front lawn or at your bedroom window), or in the midst of a police action, there would be no claim for invasion of privacy anywhere.

But let’s say you’re buying a bottle of wine while you’re enrolled in Alcoholics Anonymous and have promised the world you will not drink again.  Casting cautious glances over your shoulder, you sneak into the wine store and place your purchase in a Belk bag. Then that very videotape is used to explain to the public how the surveillance program works and your guilty-looking face is framed against the wine shop sign. Or, if you’re engaged in an affair and are indiscreet enough to make an assignation at a restaurant, then a television crew bursts in to report on health code violations, no matter how embarrassing or damaging those pictures might be, there is no cause of action in Virginia. If you’re under the hair dryer or at the barber shop, you might think those are private places, but in Virginia you would have no invasion of privacy claim.  In those places, the Fourth Amendment might set up an argument against police surveillance, but predicting such an outcome, without supporting case law, would be fraught with peril.

Unlike last month’s discussion on trespass, privacy law is frequently NOT the product of common sense, especially in Virginia where we have no “invasion of privacy.”

Disclaimer: Don’t use this information as legal advice.  Ask a lawyer who takes you as a client and can get your specific facts first hand. The tiniest Circumstance can change any outcome.

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