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  • Dean Smith

Privacy in the Digital Age: Part I

Privacy is a fiery topic in our digital age. Most Americans own cellphones with high resolution cameras and social media platforms make dissemination of recorded information simple. It’s a fact of life we’ve developed a bizarre love/hate relationship with. The commonplace nature of our ability to snap pictures or record video doesn’t supersede the law, though, and our government turns a disapproving eye towards the people who violate the proscribed boundaries of privacy.

This article is the first in a series where we’ll take a broad look at privacy as it relates to the home, the public sphere, and the workplace.

The reasonable expectation of privacy is a subject that private investigators tread around cautiously, and professionals are well-versed in the limits of what they can, or cannot, do throughout the course of an investigation.

Reasonable Expectation of Privacy and the US Constitution

The role of the United States Constitution in the reasonable expectation of privacy discussed here is not what many presume. Privacy, as it relates to the constitution, typically involves searches by persons acting on behalf of a city, state, or federal government. In those cases, the expectation of privacy refers to the U.S. Constitution’s sections that detail the legal requirements for law enforcement to obtain search warrants. In order to examine a person’s home or car, for example, for evidence of a crime, law enforcement needs a court’s permission.

Reasonable expectation of privacy as discussed in this article, however, is examined through the common limitations found at the state level of government, where a private citizen compromises the solitude or seclusion of another private citizen.

The States

Although invasion of privacy law varies throughout the country, e.g. an action that’s legal in one state may not be in another, there is a strong commonality between the overarching principles for when and where an individual can have an expectation of privacy.

Expectation of Privacy in the Home

The clearest example of a location where people have a reasonable expectation of privacy is in the home, and one does not have to be the owner to protect their expectation. A tenant who rents their home or apartment, or a traveler who stays in a hotel room, shares this protected right. This includes protection from electronic devices that monitor or record their actions.

We’ll examine the role of audio and “one-party consent” laws in a later article. Thus, these examples pertain to video.

Example One:

We’ll use an easy example for this one. A couple who rents an apartment in a multi-unit building discovers their landlord installed a camera that could record and transmit any video it captured from their bedroom. The landlord breached the couples’ privacy, whether (s)he watched the recorded data or not.

The boundary to this protection begins and ends with the home. If the couple leaves their blinds open, a private investigator can record them from a position outside the building. Since the couple did not close their blinds, their actions within the home are publicly observable to the naked eye, and an investigator can record this activity.

Open blinds, however, do not give an investigator carte blanche. Let’s say their apartment is on the forty-seventh floor of a building. Despite having their blinds open, an investigator would need a drone or telescopic equipment to view their activity — meaning the couple still have an expectation of privacy.

Example Two:

Now, let’s take that a step further.

A spouse suspects their significant other is having an affair, and both are legal owners of their home. The suspicious spouse hires an investigator who installs a hidden camera in home’s living room. Following an out-of-town business trip, the spouse reviews the recorded footage and discovers his partner is having an affair.

While the act of spying on one’s partner is this manner is disturbing, in many states, it’s not illegal. As the home’s registered owner, the spouse can record activity inside their home, despite their partner’s shared ownership. Perhaps most importantly, the recorded footage is legally admissible throughout many jurisdictions of the country.

The same applies to vehicles. Spouse’s who share ownership also share their privacy protections. This means an investigator, or one of the spouses, can install GPS tracking devices, hidden cameras, etc.

A Word to the Wise

Although this type of activity is relatively common when one spouse suspects the other of infidelity, consumers should strongly consider whether they really want this evidence. Oftentimes, such video can upsetting. After all, it’s one thing to suspect, it’s another thing to view a long-time spouse in the passionate embrace of another partner.

Cameras record everything, and you may learn far more than you bargained for. A private investigator who spoke to the Guardian related this experience regarding the matter,

“Then they will ask you to install a camera or listening device, but the results can be upsetting. I was once asked to do this by a man who suspected his wife was having an affair. I got an exact model of the family video recorder and built a camera into it. Very quickly we were able to prove that the client was right and we filmed the wife having sex with a man in the living room. We were all horrified, however, when it turned out to be her son.”

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