Sex, Truth and Video Tapes: The Case of the French Babysitter
Longer version of
an article in the
Los Angeles Times
, May 28, 2002, titled “At-Home Spying:
Privacy Wanes as Technology Gains: Surveillance may be legal, but is that
the only standard?”
By Gary T. Marx
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, although not in the United States,
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.
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 And, had the father been living in the
U.S. instead of France, in most jurisdictions he would have broken no law.
In the U.S. the employer, under the employment at will doctrine, largely
sets the conditions of work. Babysitters are supposed to sit not lie.
The use of hidden cameras is hardly an uncommon or exotic means.
It is not unreasonable to expect that this could happen. In most U.S. jurisdictions
secret videotaping breaks no law. Since the Supreme Court’s Katz decision,
the “reasonable expectation of privacy” has at least two meanings 1) reasonable
given the context and what the technology is widely known to be capable of
as believed by the subject of the invasion and 2) reasonable as consistent
with societal values. It is by the latter standard that non-judicially approved
secret audio taping (whether by one of the parties or, a third party) fails.
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
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
Such cases remind us of the ironic potential of secretly gathered knowledge.
If some knowledge is good, more is not always better. Many modern surveillance
technologies get it all with their vacuum cleaner sweep. Beyond information
overload, the technology may reveal things the user does not want to or is
not entitled to know. In face-to-face encounters we deal with this by averting
the eyes or pretending not to hear. A recording does not offer that discretion.
Even with good intentions it may be difficult to control. If an unencrypted
wireless video camera was used as was likely, it would be possible for anyone
with the right equipment to record the images up to several blocks away.
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
United States does not mean that it is the right thing to do. In 1968 when
Congress finally passed strong legislation regulating wiretapping (almost
100 years after the invention of the telephone!), it made no mention of visual
recordings. Perhaps that was because the bulkiness of the 35 mm camera (then
the common means of taking pictures) offered a warning that a recording was
being made. Now with lens no larger than a pin hole, that doesn’t automatically
happen. Visual images should be accorded the same, or given their greater
invasiveness, even stronger protections than is the case for sound recordings.
In the U.S. we tend to adopt a reactive approach in which each new technology
such as the miniature video camera is unrestricted in its’ application, unless
a crisis generates specific protective legislation. We would do well to learn
from the French the general principle of respect for “private life” and the
Germans respect for “personhood”. Such principles hold that no matter what
new technologies are offered that allow spying 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: www.garymarx.
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