Modern technology has many benefits, but one potential downside concerns its effect on individual privacy. A bill scheduled for a hearing this morning in the Massachusetts legislature seeks to protect one aspect of privacy — the right to be free from being videotaped in our own backyards. Daniel Medwed, Northeastern University law professor and GBH News legal analyst, joined Aaron Schachter on GBH's Morning Edition to talk about the proposed “backyard privacy” bill.
Schachter: Let’s start with the basics. Who proposed the bill and what is it about?
Medwed: Representative Joseph McKenna is the chief sponsor of the bill, and it is scheduled for a hearing later this morning in the judiciary committee. Here’s what it would do, if enacted in its current form: Any owner or tenant of residential real property would have the right to sue anyone who sets up a camera on adjoining property for the purpose of taping or taking photos of activities in the backyard without their consent and with the intent to harass, annoy, alarm or threaten. And that lawsuit could result in the award of monetary damages. Those are the key features.
Schachter: Lots of questions here. What about security cameras? Many people have cameras for surveillance purposes and some of those devices presumably capture images in a neighbor’s backyard. Would that behavior fall under the bill?
Medwed: No, and here’s why. The law is defined quite narrowly. First, the camera must be set up for the purpose of capturing images of backyard activities; A homeowner could claim that a security camera did not have that purpose, that its purpose was to safeguard the home. Second, the person must have the intent to harass, annoy, alarm or threaten those subject to the backyard images — and that is a high bar to meet. So I think security cameras, for the most part, wouldn’t fall under this potential law. Also, it’s important to keep in mind that this law would just set up what’s called a private civil right of action — a right to sue someone in court. It wouldn’t create a new criminal offense.
WATCH: Daniel Medwed on "backyard privacy" bill and security cameras
Schachter: Daniel, what about law enforcement? I imagine the police sometimes use video technology to capture images of backyard activities. Would that be covered by this law?
Medwed: No, it wouldn’t. The language of the law specifies that it “shall not apply to any law enforcement personnel engaged in the conduct of their authorized duties.” The key phrase there, I think, is “authorized duties.” Just because you’re a law enforcement officer [it] wouldn’t give you license to film your neighbors in violation of this law — only if you are authorized to do so, that is, you’ve gone through the appropriate processes to make sure you’re in compliance with the Fourth Amendment and internal policies.
Schachter: What about front yards? I find it curious that the law only addresses backyard activities. Any thoughts on that?
Medwed: That’s an interesting question. I often tell my students that legislation is like a piece of sausage — we see it in its nice, tidy casing but don’t really know what’s inside and how it was exactly produced. My hunch is that the drafters here realized that including front yards would be a tough sell to the legislature and eventually perhaps the courts. To be sure, we have a privacy interest in our front yards — and the comings and goings of our front doors — but, unlike backyards, our front yards typically face a public street and we all have diminished expectations of privacy in public spaces.
It’s possible, though, that front yards could be included in a future iteration or amendment of this bill. Last year our Supreme Judicial Court expressed concerns about the police using long-term “pole cameras” to track visitors to and from a private residence, so there is precedent for the idea that we have some expectation of privacy even in the front of our homes.
