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Tuesday, December 16, 2003  

Law: Camera phones and the expectation of privacy

As longterm readers know, I've had an interest in issues of private and public space since writing a law note on an aspect of the topic years ago. A new form of the interplay between private and public has arisen and it intrigues me. If you bought a new cellphone during the last year (something we all seem to do much too often) there is a high probability it came with a built-in low resolution digital camera. PDAs-plus and enhanced phones are currently the leaders in the wireless communications market. So, you have or will soon will get a cellphone with a camera. You take your phone just about everywhere with you because that's the point of having it. You want to be reachable away from home. One of the places you take your phone is to the health club. Sometimes you chat on it while pumping away on the stationary bicycle or trudging the treadmill. But, one day your gym posts a sign: Cell phones are prohibited in changing and showering areas of this facility. Will you leave your phone in the car or at home?

If a developing trend catches on, the answer is 'yes.' But, why, you ask? The Sunday New York Times explored the topic.

What grabbed my attention," said Alderman Edward M. Burke, "was that TV commercial when the guy is eating the pasta like a slob, and the girl sends a photo of him acting like a slob to the fiancee."

The commercial, for Sprint PCS , was meant to convey the spontaneity and reach afforded by the wireless world's latest craze, the camera phone. But what Mr. Burke saw was the peril.

"If I'm in a locker room changing clothes," he said, "there shouldn't be some pervert taking photos of me that could wind up on the Internet."

Accordingly, as early as Dec. 17, the Chicago City Council is to vote on a proposal by Mr. Burke to ban the use of camera phones in public bathrooms, locker rooms and showers.

There will be no provision to protect messy restaurant patrons. But Mr. Burke wanted to ban the use of camera phones in places where "the average Chicagoan would expect a reasonable right to privacy."

. . .The Chicago proposal, setting a fine of $5 to $500 for offenders, echoes restrictions adopted in several smaller jurisdictions. What remains to be seen is how and when such laws will be enforced.

Would you go phoneless at the gym rather than subject yourself to possible legal action?

It seems to me the decision turns on the reasonableness of such a law. We are less likely to follow rules we find unreasonable, especially when those rules are difficult for the polity to enforce. Lewd and voyeuristic behavior is common enough that I don't doubt some percentage of users of small cameras, whether on a cell phone or not, will use them to take surreptitious photographs of people in revealing clothing or nude. But, is the problem of invasion of privacy by the minority of camera phone users of sufficient weight to justify trammeling what would normally be an individual's decision? And, since an argument can be made that cellphones are inherently intrusive devices, why stop with camera phones? At least one jurisdiction has not.

Trying to distinguish between a camera phone and any other cellphone has also complicated matters. The Elk Grove Park District in suburban Chicago enacted a ban in November that covered the possession of any cellphone - not just camera phones - in park-owned restrooms, locker rooms and showers.

"There is no reason to have a cellphone while you're changing and showering," said Ron Nunes, one of the park district's commissioners. "I'd rather protect the children and the public more than someone who wants to call home and see what's for dinner." Fresh in the town's memory was a 2001 incident in which a man used a fiber-optic camera to secretly take pictures of children in a park shower.

. . .Though they are permitted in gym areas, patrons say they often leave their phones in the car when they work out there because they usually have to use the changing room first, where the phones are not permitted.

Some commentators point out that there could be legal action from the other end of the equation - for example, by the cellphone owner who is unable to make an emergency call because he was forced to leave his phone behind when he entered a protected area.

Others find the legislation currently being passed generally overbroad.

L. Richard Fischer, a Washington lawyer who deals with privacy issues, said the park district's ban goes too far. "People have to pass laws very carefully and recognize there is a broad but flexible standard of reasonable expectation of privacy," he said. "You have to do it very selectively or you really are treading on people's rights."

Perhaps it is time to redefine what a reasonable expectation of privacy is. Considering that most wireless communications are not secure, don't we assume little privacy in regard to our and others' use of the devices? We are all photographed numerous times per day, in public buildings, stores and other businesses. Most of those videos are recycled in surveillance cameras or discarded. Still, we all know we are being watched and recorded. So, again, do we expect privacy in public places? It seems to me that for such laws to be reasonable, it would be necessary to target the kind of behavior society wants to curtail - that which involves secret photography of people for sexual purposes. Though that is the intent behind the laws discussed in the in article in the NYT, none of the statutes are drawn narrowly enough to limit their reach to such situations.

I have more questions than answers to the connundrum of the clandestine camera phone. But, I believe concerns like this one will become increasingly important as high tech devices proliferate and become smaller and smaller.

6:02 AM