Say some Peeping Tom or Leering Tina (hey, women can be pervs, too) snuck up to your bedroom window, snapped some un-glamour shots of you in your skivvies and YouTubed it for the world to see—you’d probably want that sonofabitch prosecuted to full extent of the law. Because a man’s house is his castle and his bedroom a sanctum sanctorum; what happens there should stay there.
Now, say, someone prodigiously snaps photos of your nether regions whilst you dance naked during Earth Day at Sunset Park and then puts the pictures all over the Internet: You’d want to nail, er, prosecute that sonofabitch, too (though your legal recourse would probably be as sturdy as the logic you used to justify dancing naked during Earth Day at Sunset Park).
Or, say, you’re a media company that just received crotch shots of a famous celeb—Britney’s beaver, Paris’ puddy tat, Tommy Lee’s schlong—you use the tawdry photos in print or online and the celebrities want to sue, uh, the pants off you.
A bill under consideration in Carson City would make each of the above scenarios a felony. The Peeping Tom/Leering Tina would be treated the same as a recreational photographer and the opportunistic paparazzo. SB10 would make it a felony to videotape or photograph someone’s private areas in circumstances under which there’s a “reasonable expectation of privacy.” Championed by Sen. Barbara Cegavske, the legislation passed in the Senate on a 19-1 vote in March and awaits action in the Assembly. Cegavske got the idea years after hearing reports of a Las Vegas stagehand who recorded showgirls undressing.
But opponents of the bill say it raises more issues than it solves.
The American Civil Liberties Union of Nevada’s concerns are threefold, according to ACLU staff attorney Lee Rowland:
One—“The bill attempts to redefine this murky area of the law regarding a ‘reasonable expectation of privacy.’ This should be determined on a fact-based basis and a case-by-case basis. Judges know what the guidelines are. We shouldn’t leave the door open for people to purposely subject themselves to exposure and then turn around and sue or ask the police to criminalize someone.”
Two—“You have cases where celebrities expose their private parts on accident. But there are those situations where someone is exposing their private parts on purpose. This bill doesn’t differentiate the two. Someone who is in their underwear in their room when someone snaps a picture is afforded the same protection as someone who intentionally flashes themselves to paparazzi.”
Three—“The third problem and biggest concern is for the press. The bill criminalizes a person who publishes a picture. [To avoid breaking the law] the entity receiving the picture would have to determine the mindset of the person who was photographed [whether they wanted to be photographed] and if that person had a reasonable expectation of privacy when the picture was taken. Tabloid magazines are protected under the First Amendment, and this bill could criminalize hundreds of photographs of celebrities in compromising positions. Even the threat of enforcement of this type of law creates a chill on the process of freedom of the press.”
The ACLU wants to amend the bill to address its concerns: “The law would be fine if the reasonable expectation definition stays as is and the there’s no third-party criminalizing the illegal taking of the photograph. We also want to reduce the crime from a felony to a misdemeanor because this is not a viable, long-term solution to prison overcrowding,” says ACLU executive director Gary Peck.
Mark Tratos didn’t write the book on privacy law—but he is writing a case book on privacy rights and publicity and the connection between privacy, publicity and defamation. An adjunct professor of media law at UNLV and a managing shareholder with Greenburg Traurig, the world’s seventh-largest law firm, he says SB10 is simply the latest effort to confront a problem more than 100 years old: how to allay fears that new technologies will continue to erode people’s expectation of privacy.
Back in the 1800s, the telegraph caused consternation—“people were concerned that photographs were transmittable via the wires,” he says. Today, the Internet is the medium of choice for spreading information. Then, as now, he says, “people felt we need an articulated right to privacy because of this new technology.”
“The Internet has increased voyeurism, with people taking photos and videos of people in areas like swimming pools where people have a limited or reduced expectation of privacy. This bill tries to make a distinction where you have a reasonable expectation of privacy: dressing rooms, bathrooms and other places where you think people can’t observe you.”
Tratos agrees with the intent of the ACLU’s objections to the current bill, particularly the issue of enforcement—“I’m always reluctant to develop new laws if you don’t have the ability to effectively enforce them.” He parts ways with the civil liberties group on where to find solid legal direction on privacy expectations.
“The Supreme Court opinion in Bobby Berosini vs. PETA [a PETA official videotaped Berosini beating an orangutan with a hard metal bar before a performance. Berosini sued for defamation and invasion of privacy] said that Berosini didn’t have a reasonable expectation of privacy and that we, as a state, don’t have common-law rights. We have to rely on statutory rights because we don’t have enough cases in Nevada to rely on case law. There’s a real dearth of guidance on a lot of these kinds of issues.”
For her part, Cegavske has said the bill is fine as is.