That’s not the kind of invasion of privacy I want to talk about. I want to talk about the kind of privacy invasions criminalized by an Oregon statute:
[A] person commits the crime of invasion of personal privacy if:Oregon Revised Statutes § 163.700(1).
(A) The person knowingly makes or records a photograph, motion picture, videotape or other visual recording of another person in a state of nudity without the consent of the person being recorded; and
(B) At the time the visual recording is made or recorded the person being recorded is in a place and circumstances where the person has a reasonable expectation of personal privacy.
This post is not about a criminal invasion of privacy case. It’s about a civil case in which an invasion of privacy claim was raised by one spouse against the other. The case didn’t involve photographing a spouse “in a state of nudity”, but it does involve the rather dicey issue of whether one spouse CAN invade the privacy of the other.
The case is In re Marriage of Tigges, 2008 WL 5274401 (Supreme Court of Iowa, 2008). Here, according to the court, are the facts that led to the suit being filed:
Jeffrey and Cathy Tigges. . . . were married on December 31, 1999. Jeffrey surreptitiously installed recording equipment and recorded Cathy's activities during the marriage in the marital home. The equipment included a video cassette recorder positioned above a ceiling, a camera concealed in an alarm clock located in the bedroom regularly used by Cathy, and a motion sensing `optical eye’ installed in the headboard of the bed in that room. Cathy discovered her activities in the bedroom had been recorded when she observed Jeffrey retrieving a cassette from the recorder. . . .In re Marriage of Tigges, supra.
Cathy took [the cassette]. . . .When she viewed the tape, Cathy discovered it revealed nothing of a graphic or demeaning nature. . . . [It] recorded the `comings and goings’ from the bedroom she regularly used. Notwithstanding [that]. . . . Cathy. . . . felt violated, fearing Jeffrey had placed, or would place, other hidden cameras in the house.
Jeffrey filed for dissolution of marriage. In her answer, Cathy alleged she was entitled to compensation for Jeffrey's `. . . violation of her privacy rights’ as a consequence of his surreptitious placement of the video equipment and recording of her activities.
In deciding whether Cathy could obtain compensation for Jeffrey’s videotaping of her, the court had to decide “whether a claim may be brought by one spouse against the other for an invasion of privacy resulting from surreptitious videotaping.” In re Marriage of Tigges, supra. It was no clear if Jeffrey installed the surveillance equipment before or after the couple separated, but the court decided that did not matter:
[W]e conclude Cathy had a reasonable expectation that her activities in the bedroom of the home were private when she was alone in that room. Cathy's expectation of privacy is not rendered unreasonable by the fact Jeffrey was her spouse at the time in question, or by the fact that Jeffrey may have been living in the dwelling at that time.In re Marriage of Tigges, supra.
In finding that Cathy did have a reasonable expectation of privacy in her bedroom, the Iowa Supreme Court relied on reasoning in an opinion by a Texas court in Clayton v. Richards, 47 S.W.3d 149 (Texas Court of Appeals 2001):
`When a person goes into the privacy of the bedroom, he or she has a right to the expectation of privacy in his or her seclusion. A video recording surreptitiously made in that place of privacy at a time when the individual believes that he or she is in a state of complete privacy could be highly offensive to the ordinary reasonable person. The video recording of a person without consent in the privacy of his or her bedroom even when done by the other spouse could be found to violate his or her rights of privacy.In re Marriage of Tigges, supra (quoting Clayton v. Richards).
`As a spouse with equal rights to the use . . . of the bedroom, it would not be . . . an invasion of privacy for a spouse to open the door of the bedroom and view a spouse in bed. It could be argued that a spouse did no more than that by setting up a video camera. . . . It is not generally the role of the courts to supervise privacy between spouses in a mutually shared bedroom. However, the videotaping of a person without consent or awareness when there is an expectation of privacy goes beyond the rights of a spouse because it may record private matters, which could be exposed to the public eye. The fact that no later exposure occurs does not negate that potential and permit willful intrusion by such technological means into one's personal life in one's bedroom.
The Iowa Supreme Court therefore found that Cathy did have a reasonable expectation of privacy in her bedroom:
Even if . . . Cathy was observed by other family members including Jeffrey, who, from time to time, entered the bedroom with her knowledge and consent, she was not in `public view’ and did not forfeit her right to seclusion . . . when she was alone in that room. As we observed in [a prior case], `[p]ersons are exposed to family members and invited guests in their own homes, but that does not mean they have opened the door to television cameras.’ . . . Any right of access to the bedroom held by Jeffrey did not include the right to videotape Cathy's activities without her knowledge and consent.In re Marriage of Tigges, supra.
A New Jersey court reached a very different conclusion in another divorce case. In Colon v. Colon, 2006 WL 2318250 (New Jersey Superior Court 2006), the trial court found that the wife had invaded her husband’s privacy by “placing and using video surveillance cameras” in a room in their house that the husband used as an office. The New Jersey Superior Court disagreed:
The tort of unlawful intrusion of privacy is established by common law in New Jersey. In Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 609 A.2d 11 (1992), the Supreme Court held that `[o]ne who intentionally intrudes . . . upon the solitude or seclusion of another or his private affairs . . . is subject to liability . . . for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.’ . . . The issue of whether the conduct is `highly offensive to a reasonable person’ turns on whether there is a reasonable expectation of privacy. . . . Here the trial judge made no finding that defendant had a reasonable expectation of privacy in the home office, and the evidence is to the contrary, since the office was next to the master bedroom and was used not only by defendant but by plaintiff and the children, who freely entered the room.Colon v. Colon, supra.
It’s a difficult issue, one that’s likely to come in more cases as spouses and people living together become more accustomed to using technology to spy on each other. We’ve talked about it in a couple of my cybercrime classes.
Basically, the question is whether privacy is a zero-sum commodity. That is, the issue is whether I lose my privacy when I share aspects of my life with others, as in when I live with someone else. I don’t think I do . . . or should. In a law review article I wrote several years ago, I researched privacy at English common law, which provided the foundation for the notions of privacy in the face of government action we implement via our Fourth Amendment. I found a few old cases in which courts mentioned that privacy encompassed the inhabitants of a home . . . the family, the servants, etc. Now they, of course, were speaking of privacy against outsiders – non-inhabitants of the home – who sought to find out what was going on, or had gone on, inside.
I wonder whether the activity that became the focus of invasion of privacy claims in these – and other, similar – cases is really about privacy at all. That is, I wonder if the betrayal is the act of installing and using surveillance equipment to record what goes on in a presumptively private place or whether the betrayal is really the act of sharing that information with others . . . with outsiders. Some of the language in the Tigges opinion makes it sound like Cathy Tigges felt it was a betrayal simply for Jeffrey to install the surveillance equipment, but I can’t tell for sure if that was actually the concern that led her to feel she had been “damaged” by what he did.
I guess what I’m saying is that when we share our homes and our lives with spouses, partners and family members, we know, at some level, we are also sharing information about ourselves with them. We also, I think, assume they will not share that information with others – with outsiders – without our knowledge and permission. It’s as if we make a limited surrender of our privacy (which would presumably mean privacy is not a zero-sum commodity but can, instead, exist in degrees) as part of sharing our lives; part of that limited surrender is, I think, an implicit assumption that it is essentially a privileged act. In other words, it’s something like what happens when a client comes to consult a lawyer; the client tells the lawyer all the discreditable information that is relevant to the issue the lawyer is being consulted about, assuming that the lawyer will keep all of that information confidential.
Or maybe that’s not it at all. Maybe the de facto assumption of shared privacy we have in marriages and other relationships has a completely different conceptual basis. Whichever it is, I suspect courts will have to come up with a principled, consistent approach to scenarios like those in the Tigges and Colon cases.