When is Privacy Violated?

The rapid pace of technology developments continually raises questions as to what is “privacy” and when is it “violated”?  The ability to identify privacy violations will likely be a moving target, but a court in Iowa has made one contribution, at least with regards to the “unreasonable intrusion upon the seclusion of another” prong of an invasion of privacy tort.

In a bizarre case in which an insurance agent, apparently investigating a female employee whose performance had deteriorated, placed a camera in the company’s unisex bathroom.  This was after the camera showed nothing after being hidden in the reception area but after the agent found a hypodermic needle in the employee parking lot.  The employee and another female employee found the the bathroom camera and called the police.

The agent was aquitted of criminal charges, presumably because he could demonstrate that the camera didn’t work and he captured no footage so there was nothing for him to view.  This is the defense that got the invasion of privacy civil case thrown out of district court.  However, upon appeal up to the Iowa Supreme Court, the court found that the test for invasion of privacy was not whether the camera worked and the footage was viewed but whether or not a reasonable person could believe that their privacy was invaded. 

The court was specifically interested in the use of electronic devices in invasion of privacy cases.  In its review of electronic devices and invasion of privacy history, the court noted that the tort is based on upon the shame and indiginity that occurs when there is intrusion onto a person’s isolation and personal control.  The court noted that it is the intrusion itself that is the tort, not the type of information shared or if any information had been shared at all.

In this instance, the fact that the camera was capable of working, and had worked in the past from a different location was sufficient for the women to continue with their civil suits.  The court also ruled that “the act of intrusion is complete once it is discovered … because acquisition of information is not a requirement.”   However, while this may be the law in Ohio, other states, such as North Dakota, Oregon and Pennsylvania, require that there be actual an collection of something, such as a recorded conversation, before there could be a finding of an intrusion upon a right to privacy.

It will be interesting to see if cases such as this will have an impact on privacy on the Internet

The Court ruling can be found at: http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20111223/08-1927.pdf