Some thoughts about the “expectation of privacy”

Many years ago I sat on the jury for a civil lawsuit between two members of the same biker gang. Throughout the entire trial, they would refer to each other using their biker nicknames, which was nice: they were surely more much memorable than their real names must have been. The plaintiff, “Big Bad Mamma”, HIV positive, and she alleged that she had told another woman, “Tattoo Barbie”, in confidence about her HIV status. A while later there was some kind of internal personal drama going on between Big Bad Mamma and Tattoo Barbie, and as a result Tattoo Barbie (allegedly) spread this confidential information about Big Bad Mamma far and wide across the gang as some kind of mean-spirited retaliation.

The Tattoo Barbie claimed that Big Bad Mamma had revealed her HIV status during one of their biker gang meetings, and as a result–even though the conversation had been a one-on-one conversation on normal conversational tones–she assumed that the information had been public knowledge. Therefore when she happened to “let it slip” in conversation to other members, it was only because she assumed that the other members had already been told, or that Big Bad Mamma didn’t mind them knowing. Regrettably, Big Bad Mamma never overtly said “this is private, please don’t share it” during her conversation with Tattoo Barbie, but claims that it should have been obvious from the overall tone of the conversation that it was a private one-on-one communication.

Our job, as jurors, was to decide whether Tattoo Barbie had, in fact, revealed private information about Big Bad Mamma without permission to the entire biker gang. (Note: some details of this story have been changed, but the most important ones have not.)

The instructions that we got from the judge made it clear that in making our decision, we needed to explore whether it was reasonable for Big Bad Mamma to have an “expectation of privacy” after having mentioned her HIV status in a one-on-one conversation at one of her club’s meetings. If you believe Tattoo Barbie, the fact that the conversation happened in the context of a public meeting lead her to assume that it was public information. The fact that the information appears to have been spread maliciously should technically not be considered in deciding whether this was a privacy breech: either it is reasonable to expect that the information be kept private, or it wasn’t.

What do you think? Did Tattoo Barbie violate Big Bad Mamma’s privacy, or not?

The legal concept of the “Constant Man”

The idea that we can sit on a jury and assess whether it is reasonable to expect something to be private is rooted in the fictional construct of the “reasonable person”.

The Reasonable Person is a legal abstraction meant to represent someone who is thoughtful but not too clever, who is careful but but not perfect. The Reasonable Person is not the average person: for example, the average driver on the road today most likely reads texts while driving even though they know they shouldn’t. The Reasonable Person would do no such thing! On the other hand, an unusually heroic person might jump in and try to save the day when they see a violent crime taking place, but the Reasonable Person is not held to the expectation of that standard (although a Reasonable Person might be expected to call 911 once they have escaped to reasonable safety).

The Wikipedia article on the Reasonable Person traces the idea back to the 1800’s, but in fact its roots can be found in the notion of the Constant Man invented by classical Roman jurists.  Emperor Hardian, who ruled Rome from 117 AD to 138 CE, laid down as a general rule that he would not enforce contracts made under duress; however, it was important then to define what qualified as “duress”. If someone came in and claimed they signed a contract out of fear even though there seemed to be no basis for such fear, it could be a manipulation.

Thus, he invented the idea of the most constant man — homo constantissimus — who is courageous, resolute and steadfast of character: this person is not easily scared and is able to stand up against idle threats or bullying tactics. However, he’s not a superhero: a threat of torture or death would frighten and deter even the most constant man.

This language shows up one thousand years later, in medieval law, as well. Pope Alexandar III (1159 CE – 1181 CE) argued that a boy whose parents used violence to get him to agree to a betrothal did not have to marry the girl in question, because he did not agree to marry her of his own free will. However, when the parents do not use strong enough threats to move “the constant man”, he is in no such luck: any agreement to marriage is considered to be his own choice.

What I find most interesting about this type of legal concepts is that it makes clear how very psychological and culturally relative so many legal standards are. What is considered too strong a threat to resist can and does change over the years, and a law that is framed in terms of what the reasonable man (or “constant man”) would do will adapt to that change.

The same is true for expectations of privacy. What does a reasonable person expect to be private in today’s society? Is the same as what a reasonable person expected to be private in the 1800s? How about in the 1100’s? Certainly not.

So even if you believe privacy is a guaranteed, universal human right… the set of things you can reasonably expect to be universal and guaranteed only exist in the context of a single culture, and a single snapshot in time. What was reasonable yesterday might not be reasonable tomorrow… which somehow makes the promise of it being “universal” feel a lot less meaningful and secure.

My husband’s crazy household projects

Our “Smart Home” has been evolving continuously over the last several years. When we first got Alexa, all she could do was wake us up in the morning and put us to sleep at night with “Thunderstorm Sounds”. Then we put her in control of all of the light switches, so we can happily say “Alexa, all lights off!” after we have crawled into bed, without worrying if we are leaving something on all night by accident. We then added the garage door, the vacuum cleaner, the front door lock, and the thermostat.

Most recently, we added a Ring video doorbell. Now I get an alert on my phone whenever the doorbell rings, and there is an app where I can see every time the door opens and closes. If I am really curious, I can click on the entry in the log to view the video of what was going on in the hallway during that period of time.

“You got home late last night, honey!”

“Oh yeah, sorry, it must have been a little after midnight or something!”

“Actually, it was at 1:34 am… would you like to see the video of you walking through the door?”

Luckily for our relationship, this doesn’t pose an issue; but we can all get a chuckle out of imagining the quarrels between insecure lovers, or between teenagers and their parents, fueled by the fact that something people used to expect to be private (i.e. the time that you sneak in late at night when others are asleep) no longer is. And thinking about that damned new doorbell makes me start thinking more deeply about privacy in our culture: where it is, and where it is going.

In the year 2018 CE, does the reasonable person expect to not be electronically surveilled when entering a building?

Does a reasonable person expect not to be electronically surveilled when walking down the street?

Does a reasonable person expect not to have Alexa listen in on their late-night pillow-talk with their spouse?

(dramatic whisper: are you sure about that?)

 

We have a legally guaranteed right to privacy in this country… just as long as it is reasonable to expect it.

Isn’t that nice?



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