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Privacy - Seen vs. Recorded

An interesting case from the Wisconsin Court of Appeals embodies what I believe is a thoughtful and nuanced understanding of privacy. The case is Wisconsin v. Jahnke, 2007AP2130-CR (Dec. 30, 2008).

The case is a criminal prosecution of a man who secretly recorded his girlfriend in the nude, in violation of Wisconsin Statute § 942.09(2)(am). I’ve posted the text of the full statute below. The statute provides that it is a felony to record another person in the nude without that person’s consent “in a circumstance in which [the person] has a reasonable expectation of privacy.” The defendant contended that his girlfriend didn’t have a reasonable expectation of privacy because (as the court characterizes his argument), “she knowingly and consensually exposed her nude body to him while he was secretly videotaping her.” In other words, he argued that since she expected to be seen by him, she lost her expectation of privacy in her nude body.

The court wisely rejected the defendant’s construction of the statute:

Under this construction, Jahnke’s girlfriend’s privacy interest in not being recorded in the nude is left unprotected any time she permits anyone, under any circumstance, to view her nude. If she disrobes in a medical facility and permits medical personnel to view her, such personnel could record her without violating subsection 1 and, of course, later share that recording without violating subsections 2 or 3. It is one thing to be viewed in the nude by a person at some point in time, but quite another to be recorded in the nude so that a recording exists that can be saved or distributed and viewed at a later time.

The dissent raises some interesting arguments involving statutory construction and some prior caselaw. In particular, the dissenting judge points to an earlier decision defining the term “reasonable expectation of privacy” under the statute, holding that it “requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others, and that assumption is a reasonable one under all the circumstances.” State v. Nelson, 718 N.W.2d 168 (Wisc. App. 2006). The majority concluded that the Nelson definition was “incomplete” and that the “statute is plainly directed at reasonable expectations vis-à-vis not being recorded.”

The majority opinion wisely avoids a trap that many courts get into — understanding “privacy” narrowly as absolute secrecy or seclusion. Privacy involves a cluster of expectations involving the nature and extent to which their information is captured, used, and disseminated. It seems quite reasonable to assume that two lovers who see each other nude nevertheless expect privacy. They might be exposing their nude bodies to each other, but what they expect is that nobody else will see them. Since this is a criminal statute, it is important that courts avoid interpreting privacy too liberally, especially in areas where expectations of privacy are muddy. But it seems to me that under this circumstance–the nonconsensual recording of a person in the nude when she is exposing her body only to her boyfriend (rather than walking down a public street in the nude)–expectations are clear that the intended exposure is for the boyfriend’s eyes only.

The opinion is here.

WISCONSIN STAT. § 942.09(2)(am) provides:

Whoever does any of the following is guilty of a Class I felony:

1. Captures a representation that depicts nudity without the knowledge and consent of the person who is depicted nude while that person is nude in a circumstance in which he or she has a reasonable expectation of privacy, if the person knows or has reason to know that the person who is depicted nude does not know of and consent to the capture of the representation.

2. Makes a reproduction of a representation that the person knows or has reason to know was captured in violation of subd. 1. and that depicts the nudity depicted in the representation captured in violation of subd. 1., if the person depicted nude in the reproduction did not consent to the making of the reproduction.

3. Possesses, distributes, or exhibits a representation that was captured in violation of subd. 1. or a reproduction made in violation of subd. 2., if the person knows or has reason to know that the representation was captured in violation of subd. 1. or the reproduction was made in violation of subd. 2., and if the person who is depicted nude in the representation or reproduction did not consent to the possession, distribution, or exhibition.

Hat tip: How Appealing

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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