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32 Comm. Law. 24 (2016-2017)
Privacy in Public: A Look at Recent Efforts to Recognize Privacy Protections in Public Spaces

handle is hein.journals/comlaw32 and id is 68 raw text is: 








Privacy in Pubc? A Look at Recent Efforts to


Recognize Privacy Protections in Public Spaces

CH4RIS'TINE N. WALZ. AND DANIEL S. BROOKINS


        age taken in public spaces are

P hoto-gaphs and video foot-
        an important tool for report-
        ing on the news. Consider the
following examples from recent news
coverage: photographs of individuals
mourning  at a public vigil video of
police officers stopping an individual
on the street; photographs of protest--
ers outside a campaign rally.
   Journalists rely on the right to
photograph  or record individuals in
public-----a right that has long been
considered well-established.
   However, in recent policy debates,
privacy advocates have taken aim at
this well-established right-advancing
proposals that would provide privacy
protections for images and data gath-
ered in public spaces. Specifically, in
debates over the regulation of drones
and access to footage from police
body cameras, advocates have argued
that privacy considerations should
apply to footage gathered or collected
in public spaces.
   These advocacy efforts, though
currently limited in scope, should be
monitored  and challenged to avoid
establishing precedent for expand-
ing general privacy rights in public
spaces.

Reasonable Expectations of Privacy in
Public Places
The U.S. Supreme  Court has long-
held that there is no reasonable
expectation of privacy in what a
person knowingly exposes to the
public.
   In analyzing the constitution-
ality of searches under the Fourth


Christine N Walz is an associate with
Holland & Knight LLP Daniel S. Brookins
is a third-year student at The George
Washington University Law School. le
was a summoer associate at Holland &
Knight LL,


Amendment,   courts have routinely
found that privacy rights are lim-
itedn public spaces, where conduct
is volu ntarily conveyed to any-
one who  want[s] to look . ...2 For
example, courts have held that there
is no reasonable expectation of pri-
vacy implicated in the following
circumstances:
   * Where  garbage left on a public
     street is searched.3
   * When  private backyards are
     observed with the naked eye
     from a vehicle flying in the pub-
     lic airspace.4
   * Where  movements  from one
     place to another on public thor-
     ouhifarcs are monitored.'
   * Where  tracking devices are
     placed on objects in public and
     monitored only while the device
     is in public view.`
   * Where  data on cell phone
     locations is obtained from
     third-parties.7
   * When  images are contained on a
     mobile device loaned to others.6
   This case law is based on the rea-
soning that [O]ne cannot have
a reasonable expectation of pri-
vacy concerning an act performed
within the visual range of a complete
stranger . . . .
   Similar reasoning has been applied
by federal and state courts to allow
the publication of information or
images gathered in public.' Courts
analyzing claims against publishers
start with the baseline proposi-
tion that if an individual knowingly
exposes information to the public,
then the media can publish it, As one
court has explained:
   On the public street, or in any
other public place, the plaintiff has
no legal right to be alone; and it is no
invasion of his privacy to do no more
than follow him about and watch him
there. Neither is it such an invasion to
take his photograph n such a place,


since this amounts to nothing more,
than making  a record, not differing
essentially from a full written descrip-
tion, of a public sight which anyone
would be free to see.
   Courts have repeatedly applied this
principle to protect imges aond foot-
age recorded in public places. This
reasonp   has precluded invasion of
privacy claims based oin the publica-
tion of iformation or images posted
on social media,1 disclosed in a police
report,' filmed at public events or in
public view,3 or filned in full view of
the public.'5
   The personal nature or even offen-
siveness of the image or footage
captured does not minimize the pro-
tection afforded to the images and
footage.6 In one particularly rel-
evant case, a Southern District of
California court explicitly considered
whether there was a right to privacy
in images of soldiers that had been
posted on the Internet. The court said
there was not and held that plaintiffs
lacked a privacy interest where they
photographed  themselves captur-
ing or detainin< prisoners and then
posted the photos on the internet.
The court reasoned that: Plaintiffs
can take no refuge in their allegation
that they intended that only certain
individuals could gain access to the
web site. An objectively reasonable
person could not expect such pho-
tos to remain private under these
circumstances.
   As these cases demonstrate, indi-
viduals do not have privacy rights in
what they knowingly expose to the
public.

Advocacy Efforts To Create Privacy
Protections in Public Spaces
Yet, despite this body of case law, pri-
vacy advocates have taken aim at this
well-established right.
   Drones: In debates over drone reg-
ulations,20 privacy advocates-led


  Published in Communications Lawye. VoLume 32, Number 2, Spring 2016. © 2016 by the American Bar Association. Reproduced
with permission. Al rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any
means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.


24  I

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