Tag Archive for 'privacy'

Dangers of Flying Drones in Public Places

A University of Kentucky law student, Payton Wilson, allegedly crashed a drone equipped with a high-powered camera, into a stadium suite. The incident occurred during the UK season football opener against Louisiana-Lafayette in early September 2011. Wilson is charged with wanton endangerment. Endangerment is the act of exposing someone or something to danger, harm, or peril.

In Kentucky, an individual is guilty of this crime in the first degree when showing an extreme indifference to human life. The conduct may cause substantial death or serious injury to someone. Wanton endangerment is a second degree charge when the individual’s conduct creates substantial danger of physical injury.  Drone

Wilson allegedly endangered the lives of military parachutist delivering American flags and a game ball to the pre-game show. The University of Kentucky’s police chief claimed it was very dangerous to operate a remote-controlled, non-piloted aircraft where there’s a lot of people. Wilson faces up to one year in jail.

A recent LegalMatch blog discussed drone technology and privacy issues. The task of determining whether or not a person could use a drone is currently left up to local jurisdictions.

Sports Injury is Any Injury Occurring at a Sporting Event

The criminal act of flying a drone in a stadium and having it crash into a suite poses another legal issue. If the drone had caused serious injury to someone sitting in the suite, would the injured bystander be allowed to sue?

In tort law, often referred to as personal injury law, an individual can sue a company or another person because harm or injury suffered. The defendant in this situation could be University of Kentucky and/ or Wilson.

A plaintiff’s injury caused by a drone crashing into a stadium suite is considered a spectator sports injury. This type of injury arises out of:

  • An inherent hazard or risk of watching a sport
  • Actions of a third party, sports team employee, or another spectator
  • Hazardous defects to the equipment or arena that is unrelated to the sports event

Most spectator sports injuries aren’t successful because of assumption of risk. Assumption of the risk occurs when a person knows of the risks and dangers involved in a particular activity and voluntarily accepts those risks and dangers. For instance, a baseball player hits a foul ball. The ball travels into the stands and hits a spectator, breaking his nose. The spectator is liable for his own injuries. He knew there was a possibility of getting hit by a foul ball. He accepted the risks and went to see the game.

A drone crashing into a suite isn’t something a spectator would expect to occur while at a game. If one of the suite spectators was injured by the drone, he would have a legal claim to sue UK. He didn’t assume the risk of a drone injury.

Negligence is the Failure to Use Care an Ordinary Person would Use in Similar Circumstance

An individual injured by a flying drone would have a personal injury claim based on negligence. Negligence is the failure to use the amount of care an ordinary person would use in the same or similar situation. The standard of care can be based on an ordinary person, reasonable prudent person, or one with special skills. The exact “person” used to determine negligence depends on the circumstances. For instance, a doctor would be someone with special skills.

Negligence assumes an ordinary person like Wilson would use an amount of care to prevent harm when flying a drone. The plaintiff would have to show the defendant had a duty not to cause any injury while flying the drone.

Once a plaintiff can show a duty, the next element is breach of duty. Breach of duty refers to a person violating his duty not to cause harm. The person is in violation of his duty because he knows he’s putting another individual at risk or foreseen there was a risk in his activity. An individual injured after the drone crashed into the stadium suite is an example of a breach of duty to keep people safe.

For an act to be negligent, there must be a cause-in-fact, or cause of the accident. A plaintiff can show the defendant is liable in two ways:

  • Indirect, or proximate cause
  • Direct, or actual cause

If Wilson was sued, he’d be the direct cause of the accident because of the “but-for” test. But for Wilson, the plaintiff would have never been injured.

Once a plaintiff can successfully show those three elements, he’d have to prove damages. To receive money, the plaintiff must have incurred some damage or loss as the result of the defendant’s failure to exercise care. Damages include physical injury and/or financial loss.

It’s not know whether drone that hit the stadium suite caused injuries or not. Any individual injured by a drone would have to consult a lawyer to determine if the other person was liable for any injuries suffered.

What You Should Know about StingRay Cell Phone Surveillance

What Is the StingRay Tapping Device?

A new device called StingRay Tapping Device enables the police and the government to track cell phone communications. The StringRay is a box that electronically connects to local cell phone towers. It then simulates the cell phone tower, and in turn prompts signals from cell phones attached to the tower.

cell phone tower stingray trackingIf the police can connect to hundreds of citizen’s phones, what stops them from tapping into the general population’s phones?

StingRay’s Use by Police

From 2007-2014 in Tallahassee, FL, the city police used the StingRay in more than 250 investigations. This means they used it in about 40 investigations per year, in a city where the population is only 186,000. Even if the police are using the StingRay just to find criminals, are they taking advantage of this power and relying on it too much?

In one of these cases, a drug deal gone wrong lead the police to use the StingRay to track down the location of the suspect. Tadrae McKenzie and a couple of friends robbed a dealer of weed and money in a parking lot and fled the scene. Police found his whereabouts about a week later and he was arrested.

During the trial, McKenzie’s defense team became suspicious that a secret surveillance tool was used because there was no evidence that would lead the police straight to McKenzie’s home. The judge then ordered the police to show the device. They did in fact use a StingRay.

The FBI has declared there is no mandate for court warrants to be used when connecting a StingRay to a cell phone tower. They decided the device does not violate our Fourth Amendment and it is lawful for the police to track communications of suspects. The Obama Administration stands by this. The administration has declared that citizens have no privacy in public areas.

Senator Questions the Use of StringRay

Recently, Florida Senator Bill Nelson gave a speech to the Senate about the threat that StingRay poses to consumers’ privacy. “It’s time for us to stand up for the individual citizen of this country and their right to privacy,” said Nelson. The Senator also send a letter to FCC Chairman Tom Wheeler, requesting certain explanations regarding the nature of the company behind StringRay.

Peeping Toms Can Legally Take Photos up Women’s Skirts

Hey ladies, you know that creepy guy who tries to peek up your skirt ? Well it’s now legal for him to take a photo of you as well.

upskirt photos legalOne such creep, Christopher Hunt Cleveland, was arrested last June at the Lincoln Memorial on two counts of attempted voyeurism. Park police were suspicious of Cleveland when they spotted him taking photos of women on the steps above him rather than the giant statute of the bearded man. When police searched Cleveland’s camera and car, they found several hundred photos of women’s “private parts.”

At this point, most would expect a plea bargain if not an outright conviction. Unfortunately for decent people, Cleveland’s lawyer convinced Judge Juliet McKenna to suppress the evidence. Judge McKenna ruled that Cleveland’s photographs could not be used as evidence against him because “there is no evidence Mr. Cleveland positioned his camera in any way or employed photographic techniques or illumination, so as to capture images that were not already on public display.” In other words, the photographs were inadmissible as evidence because somehow the women’s crotches were already visible to the naked eye. Score one for the perverts.

Halfway across the country, the Texas Court of Criminal Appeals came to a similar, although slightly different, conclusion. Ronald Thompson was arrested in 2011 after he was caught taking underwater pictures of children in swimsuits. Although police couldn’t charge him with child pornography (the children were clothed), they did try to convict him under a statute which prohibited improper photography or visual recording acquired in public for sexual gratification.

In an 8-1 decision, the Court ruled that the law banning improper photography for sexual gratification violated the free speech clause of the Constitution. The Court agreed that the law was trying to protect citizens from dirty sexual thoughts, but regulation of thoughts is exactly what the First Amendment is designed to protect against.

Is It Always the Woman’s Fault?

Although the two cases and the outcomes were similar, the two courts took two different paths to arrive at these disturbing results. Internet commentators have condemned both rulings as cases that destroy women’s privacy. The outrage is understandable, but criminal prosecution isn’t the route society should take to stop this kind of behavior.

The D.C. Court ruled that the voyeur’s photos were not evidence of a violation of the law because the pictures were not depictions of anything illegal. Judge McKenna didn’t rule that women have no privacy, but that their privacy had not been violated. Indeed, it would be odd if the judge had ruled that women have no privacy because Judge McKenna is only a trial level judge without the authority to make that kind of ruling. Moreover, Judge McKenna is a women; it’s hard to argue that “male privilege” was a factor when the decision comes from a judge who might one day be on the wrong end of her own ruling.

The Texas case is a different beast altogether. Unlike Cleveland, Thompson was already guilty of violating a law. The Appeals Court overturned the law his conviction was built on because the law itself violated free speech. The free speech argument is particularly clever because it subtly shifts the focus of the case from the women’s privacy to the defendant’s right to express himself. In D.C., women’s privacy wasn’t violated. In Texas, women’s privacy was a secondary concern.

What Now?

If criminal prosecution isn’t the answer, what is? Free speech only limits government action. If you feel your privacy has been violated, you’re free to bring a lawsuit yourself. Such a lawsuit could produce a court order to make the pervert stop. The problem is that the camera guy would have to take pictures of the same woman repeatedly for her to bring suit, and voyeurs like Cleveland target different women every day.

On the other hand, if someone like Thompson is taking pictures at a private facility like a water park, the business itself can ban the pedophile from entering. If someone is taking pictures of you or you see someone taking pictures at a restaurant or private park, you should definitely complain to management and/or the owners.

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Can a No Trespassing Sign Keep Police Away?

Can No Trespassing Signs Prevent the Police from Entering Your Property for a Search and Seizure?

There are many misconceptions about a person’s right to be free of unreasonable search and seizures, especially when it concerns searches of private residences.

Can a No Trespassing Sign Keep the Cops Away?One common mistaken belief is that no-trespassing signs will keep the police off private property if they don’t have a warrant. Similarly, it is also a common belief that even if the police have a warrant, they must knock before entering a home or even announce themselves as the police. Surprisingly, none of these actions by the police are covered under the protections of the 4th amendment.

So What Does the 4th Amendment Protect Against?

The 4th amendment’s protection against search and seizure is the bedrock of all law concerning the search and seizure of a citizen’s person or property. It was the unfettered discretion and abuse of the police power that led to 4th amendment protection. It is important to be familiar with the exact phrasing, in order to appreciate the limitations of the police’s power to enter a home or search one’s property. The 4th amendment states that:

“the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

However, over the last century, it has been the job of state and federal courts to interpret these words and create exceptions. As the challenges to searches make their way through the courts, such as the police entering property despite the presence of no-trespassing signs, the courts consistently rule against the suspect. Below is more explanation to this complicated area of law.

What Can Keep the Police from Searching My Property?

The law states that there is an intrinsic right of people to enjoy an “expectation of privacy.” This means that, generally speaking, the police are not permitted to enter one’s home without a warrant. If they have a proper warrant there is very little one can do to challenge a search.

When it comes to merely entering a person’s property to speak with a suspect, the courts have recently ruled that the police may enter without a warrant. The reasoning is that the general public has an implied license to knock on a door without actually entering and, therefore, the police can as well. Unfortunately, a no trespassing sign is not enough to revoke the right. However, there have been a few successful challenges to the “implied right” to enter the property. The suspect may be able to keep their right to privacy to keep the police from walking on the property at all by:

  • locked gate
  • call box or a sign with a telephone number directing the visitor to police to call first
  • Guard dogs if there is a sign announcing they are present

Finally, the police can actually enter a home or property without a warrant, if certain conditions exist. Exceptions to the 4th amendments warrant requirement include:

  • Open Fields Doctrine – any open or undeveloped property that is not intimately used for dwelling (including curtilage.) An example would be the suspicion that the suspect is growing marijuana in a wooded area. They can enter the area without a warrant.
  • Abandoned Propertywhen the owner does not maintain possession of the property
  • Consent – when the owner or person in possession of the property voluntarily gives their consent. The police do not need to inform the owner of this right. Also, recently the Supreme Court ruled that if a person is arrested and refuses to give their consent, they can ignore that consent and search if the remaining occupant gives consent.
  • Exigent Circumstances – immediate action is necessary. The time it will take to obtain a warrant could lead to the evidence will be destroyed, death or escape.
  • Plain View – the police can seize any item they have probable cause to believe is associated with criminal activity that he sees in plain view. This item can be seized even if it is not named in the warrant and will likely be added to the suspect’s charges.

Do I Need Legal Advice?

If your home has been searched and you feel that your expectation of privacy has been violated, you should immediately contact an experienced criminal law attorney. Even if the police try to use one of the exceptions to the requirement of valid warrant, an attorney will help ensure that you put forth the best defense possible.

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Behind Texas Court’s Decision to Strike Down “Upskirt” Photography Ban

The recent Texas Court of Criminal Appeals ruling regarding “upskirt” photography – pictures taken covertly under women’s skirts in public and without their consent – has understandably drawn much outrage. The case has been widely described as ruling that it is legal to take these kinds of photos, which has generated a great deal of shock and anger.

texas court upskirt photo banThe court’s ruling did strike down a statute that would have outlawed this practice under the First Amendment’s Free Speech protection. However, a closer examination of the court’s decision and the statute in question demonstrates that this outcome was, more than anything, the result of extremely poor statutory drafting on the part of the legislature.

A law is unconstitutional under the First Amendment when it is overly broad. That is, even if the law aims to achieve a permissible purpose, if the language used encompasses substantially more conduct than intended, the law is unconstitutional.

The portion of Texas Penal Code Section 21.15 (the “improper photography or visual recording” statute) that was called into question was subsection (b)(1), which stated photographing or electronically recording a person is a crime if the photo or recording “is made without that person’s consent” and “made with the intent to arouse or gratify the sexual desire of any person.”

The State Attorney argued that the First Amendment did not apply because the statute did not target the “speech” (the photograph), but rather the “act” (the taking of the photograph). The State Attorney further argued that, even if the First Amendment did apply, the statute was limited by the consent requirement and, thus, not overly broad.

Under the State Attorney’s interpretation, if the photograph is of an area that is not exposed to the public, (such as a photograph taken up a woman’s skirt) the improper-photography statute criminalizes the behavior, if done with the requisite intent (to arouse or gratify sexual desire). However, if the photograph is of an area that was exposed to the public, (such as a photo of a woman wearing a swimsuit) the statute does not apply.

The State Attorney is bending over backwards to make this statute work, essentially asking the court to approve of an entirely different version of the statute than what is “on the books.” The argument that the act of photography (as opposed to the photo itself) is not a form of speech that invokes the First Amendment is nonsensical; and the State’s interpretation of the term “consent” is extremely broad.

The Defendant argued that, while the legislature has a legitimate interest in prohibiting “upskirt” photography, the statutory language used “fails to distinguish those situations from merely photographing a girl in a skirt walking down the street.” The court seemed to agree.

It is possible for a court to “save” an overly broad statute by utilizing a narrow interpretation. However, the Texas court felt that the “narrow interpretation” offered by the State Attorney – narrowing the statute, ironically, by using a broad definition of “consent” – was not possible in this case.

The court had previously construed “consent” as meaning “an actual or real agreement after thoughtful consideration,” and felt that the idea that a person consents to be photographed by merely appearing in a public place ran completely counter to this definition.

The court was concerned that imposing a definition of consent as broad as the one proposed by the State Attorney, when no such definition was provided in the statute, invaded the legislative domain and diminished the incentive for the legislature to draft narrowly tailored statutes in the first place. The court was also concerned that a very broad definition of “consent” might be a dangerous concept that, if utilized in this case, might be expanded to apply in other scenarios.

The court concluded by agreeing that a person being photographed in an area not exposed to the public, such as up a skirt, did violate the State’s legitimate interest in privacy, but pointed out that the statute in question was overly broad and did not even contain language addressing privacy concerns.

The court used the next subsection of the statute – Section 21.15(b)(2) – as an example of a provision narrowly tailored to address privacy interests: It is a crime to photograph or record a person in a bathroom or private dressing room. The court also offered some examples of ways that the legislature could have tailored the statute to make it less broad; such as requiring a person’s privacy interest to be invaded or prohibiting specific activities, such as “upskirt” photography.

These suggestions raise the question: Why did the legislature choose to focus on the sexual gratification of the perpetrator, rather than the privacy interest of the victim? What if the intent of the photography was not sexual gratification, but instead to mock or humiliate the victim? Should that victim be entitled to any less legal protection?

The court repeatedly refers to the statute as “protecting an individual from being the subject of someone else’s sexual desires,” stating that this is an unattainable goal. In fact, the statute was actually intended to protect individuals from dissemination of invasive photographs of their body parts by strangers. Clearly, the “sexual gratification” language in the statute confuses this purpose.

Thus, after a closer look, this case seems to illustrate the importance of a carefully drawn statute more than it does the ambivalence of the court towards privacy. It does not appear that the court is declaring “upskirt” photography legal or in any way condoning the behavior. The problem is that the legislature drafted a statute that was overly broad, while simultaneously failing to encompass situations in which personal privacy is invaded with non-sexual motives.

What is needed is a statute that encompass the entirety of the behavior the legislature is seeking to prevent, without also encompassing a wide variety of other behaviors.