Fall 1999 Human Rights Magazine

By Erwin Chemerinsky

The law of trespass is based on an unauthorized physical presence on the property of another. The U.S. Supreme Court initially held that wiretapping is not a violation of the Fourth Amendment because it does not involve "entry of the house or offices of the defendant." (Olmstead v. United States, 277 U.S. 418, 464 (1928).) In Olmstead, the Court ruled that there were no Fourth Amendment limits on wiretapping since there was no trespass. Chief Justice Taft, writing for the Court, emphasized that "those who intercepted the projected voices were not in the house of either party to the conversation." (Id. at 466.) Later, though, the Court realized that insisting on a physical presence for a violation of the Fourth Amendment was unduly limiting and that wiretapping is a search within the meaning of the Fourth Amendment. (See, e.g., Katz v. United States, 389 U.S. 347 (1968).)

Quite similarly, today, there is a need to protect people from intrusions through new technologies such as zoom lenses and parabolic microphones. Imagine an aggressive photographer—whether a fan, a paparazzo, the media, or even a stalker—who stands on a ten-foot ladder on a public sidewalk so as to see over an eight-foot wall and with a zoom lens pointed in a window takes pictures of what someone is doing in their home. No trespass has occurred, yet surely that is exactly the kind of intrusion that the law of trespass always has meant to stop. There is simply a need to update the law in this area to deal with the problem

The California Privacy Protection Act of 1998 (Cal. Civ. Code § 1708.8 (West 1998)) does exactly this. Section I of this article describes the Act. Section II explains why I believe it is constitutional. Simply stated, the Act updates the law to take into account "technological trespass." Just as the law of wiretapping needed to change in light of nonphysical intrusions, so must the law of trespass be similarly modified.

The California Privacy Protection Act of 1998

The Act creates new civil liability in only very narrow circumstances. It provides:

A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under the circumstances in which the plaintiff had a reasonable expectation of privacy through the use of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used. (Id. at § 1708.8 (b).)

In other words, for this provision to apply several requirements all must be met: (1) a visual or auditory image must be taken of personal or family activity in which there is a reasonable expectation of privacy; (2) the image must be obtained through the use of a visual or auditory enhancing device; (3) it must be an image that could not have been obtained without the enhancing device except through a physical trespass; (4) the image must have been obtained in a manner that would be offensive to the reasonable person; and (5) the image must have been obtained for a commercial purpose. (Id. at § 1708.8 (j).)Simple examples are illustrative. Imagine a politician receiving bribes in an office and a photographer gains the image through the use of a telephoto lens. There is no liability under the law because the subject was not engaged in personal or family activity. Similarly, imagine a photographer who gets a picture, with a zoom lens, of a politician in a restaurant or a public park in a romantic pose with a staff person. Again, the law would not apply; there is not a reasonable expectation of privacy for what is done in public places. Likewise, if a photographer can obtain the picture without technological enhancement equipmentsuch as when the conduct is visible to the naked eye from a public sidewalkthe statute does not apply.In contrast, the law is meant to apply to the example given earlier of the photographer standing on a ten-foot ladder to see over an eight-foot fence and through a zoom lens takes pictures of family activities inside a home. Technology also now permits hearing of private conversations from great distances. If it is a conversation that otherwise could have been heard only through a physical trespass, listening through technology is likewise made actionable.

The Constitutionality of the Act

The Act is an attempt to carefully balance competing interests: the need to protect the First Amendment activity of gathering pictures and the need to safeguard privacy from technological intrusions. Both, obviously, are important values protected by the Constitution. The law is constitutional because it achieves the compelling goal of safeguarding privacy with minimal offense to the First Amendment.The law applies where there is the highest expectation of privacy: when a person is engaged in personal or family activity, with a reasonable expectation of privacy, and where the image could not have been gained except through a physical trespass or the use of technologically enhanced equipment that is offensive to the reasonable person. The privacy interests in such circumstances are strong. When people are in their homes, engaged in personal and family activity in which there is a reasonable expectation of privacy, they should have the right to shut out the rest of the world.Those who are under intense media scrutiny, whether because of their celebrity or their role in events of interest, are subjected to enormous intrusions on their privacy. To a large extent, this is a necessary cost and consequence of celebrity and of a free press. However, even the most watched celebrities and public figures are entitled to protection of their privacy when they are on private property, such as in their homes. Those of interest to the media can be photographed and recorded when they are in public, but when in private—especially when engaged in personal or family activity—they deserve protection. It was in Olmstead v. United States that Justice Brandeis, in a dissenting opinion, described "the right to be let alone" as "the most comprehensive of rights and the right most valued by civilized men." (277 U.S. at 478 (Brandeis, J., dissenting).)On the other side of the equation, the law only minimally interferes with First Amendment activity. First, the law imposes no restriction whatsoever on the ability of the press to publish what it learns, no matter how the image is gained. The law neither contains a limit on publication nor authorizes courts to restrict dissemination, even if a picture is obtained in violation of the law. The law only authorizes money damages against those who violate its proscriptions.Second, the law creates liability only for trespass and constructive trespass; there is no First Amendment right for the press, or anyone else, to trespass onto property or to do so with advanced technology. The Supreme Court has made it clear that the First Amendment does not give the press the right to violate the law in gathering images. (See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (upholding the ability of the police to search press newsrooms to gather information to aid criminal investigations.))Third, the Act does not single out the press for liability. The California Privacy Protection Act is a general law that applies to anyone who obtains images in the proscribed manner with the hope of selling them. Critics of the law refer to it as anti-paparazzi legislation, but this characterization is incorrect. The law does not single out paparazzi for regulation. Rather, the law applies to all who engage in a particular, specifically defined behavior: using technological enhancing equipment to gain images or sound recordings of personal or family activity that otherwise could not have been obtained except through a physical trespass.The Supreme Court consistently has refused to find that the protection of freedom of the press entitles it to exemptions from general regulatory laws. In Cohen v. Cowles Media Co., 501 U.S. 663 (1991), the Court declared: "Generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news. [E]nforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations." (Id. at 669-70.)Fourth, the Act is content-neutral. A law is content-based if it restricts speech based on viewpoint or subject matter. (See Erwin Chemerinsky, Constitutional Law: Principles and Policies, 759-762 (1997).)The Act is viewpoint-neutral in that it applies to all who engage in the behavior, regardless of their ideology or the ideology of those being photographed. The Act is likewise subject matter-neutral because it does not regulate based on the topic of the story. Whether the press is interested because of political implications or entertainment interest or any other reason, the law applies just the same. The Act is completely content neutral: it defines specific behavior and creates a cause of action against those engaging in it. The content of the ultimate speech is irrelevant.In sum, the law applies where the expectations of privacy are the greatest and where there are only minimal First Amendment interests involved. As such, I believe that the law is clearly constitutional.

Conclusion

Ultimately, as is almost always the case when there is a conflict of constitutional values, there is a need to weigh the interests of the individual and those of the community. The law advances individual privacy, but it does so at a cost to the ability of the community to learn information that it might want to receive. Although any restriction on the gathering of information must be regarded with suspicion and subjected to careful scrutiny, the California Privacy Protection Act of 1998 is very narrow and protects a basic value: the right to be let alone.

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California.