At-Home Spying: Privacy Wanes as Technology Gains
Recently in France, a father who was concerned about the possible mistreatment of his 3-year-old son by a baby-sitter’s boyfriend hid a miniature camera in his home to record any suspicious behavior. The father found some, but it was not abuse of the child; the camera revealed the baby-sitter and her boyfriend amorously entangled while the child slept soundly in the next room.
The father paid a penalty. In France, such videotaping is a violation of criminal and civil law. The father was arrested and ordered to pay a fine for invasion of privacy.
Did the father do something wrong? Is there a victim here? As the ubiquitous advertisements for cameras concealed in teddy bears and other unlikely places remind us, parents have an obligation to protect their children. A hidden video camera offers an easy way to do this--to the extent that seeing is believing. If nothing is found, the responsibly vigilant parents rest well knowing that the child was not harmed. If something is found, there is tangible evidence for taking protective and even legal action.
Different privacy standards characterize home and work, as well as areas within these. The baby-sitter after all was not filmed in her own home but at her place of work.
Yes, the French parents had alternatives. They could have discussed their concerns with the sitter, checked to see whether other employers had had problems with her, banned the boyfriend or simply found another baby-sitter. If there are some grounds for doubt, why take a chance by spying? And, as it turns out, the law was on the baby-sitter’s side.
In the U.S., the employer largely sets the conditions of work. To use the French baby-sitter as an example, the camera was in the living room, not in a bathroom where the expectation of privacy would have been greater. The place and the video equipment belonged to the parents, and the baby-sitter willingly came to the home. The images weren’t sold on the Internet, used as blackmail or stolen.
To cast the best light on the father, he wanted to have the evidence in hand before deciding to fire the sitter. The use of hidden cameras is hardly an uncommon or exotic means for this. And, had the father been living in the U.S. instead of France, in most jurisdictions he would have broken no law.
Yet this videotaping, even if well-intentioned and revealing nothing incriminating, is patently offensive. E.M. Forster captured this well in noting: “For it is a serious thing to have been watched. We all radiate something curiously intimate when we believe ourselves to be alone.” Secretly recording people violates their dignity and can put the individual at an unfair strategic disadvantage.
We assume, or at least morally expect, that under ordinary circumstances behavior behind closed doors, in darkness and at a distance will be protected from the eavesdropping of third parties. We also have a right to assume that interaction and communication are ephemeral and transitory and are not subject to being captured and preserved through hidden video or audio means without our knowledge. Another unintended consequence is that sometimes people seeking specific information--i.e., whether their child is being mistreated--may observe something even they didn’t want to know.
In addition, remotely transmitted signals might be picked up by others in the vicinity. The behavior of the spy is thus doubly troubling. Not only is he invading the privacy of those he is watching, but he may unwittingly enable others to invade as well.
The fact that there is still a legal right to secretly record images in the U.S. does not mean that it is the right thing to do. We would do well to learn from the French the general principle of respect for private life, a principle that holds no matter what new technologies are offered to us that allow us to spy on others.
Gary T. Marx, a Massachusetts Institute of Technology emeritus professor, is the author of “Undercover: Police Surveillance in Comparative Perspective” (Kluwer Law, 1995). Web site: garymarx. net.