This morning’s Boston Globe reports on the criminal prosecution and college disciplinary proceeding simultaneously pending against two Wentworth Institute of Technology male students who had the bad sense (and bad grace) to videotape two female Massachusetts College of Art and Design students having an intimate moment in bed in a dormitory within all-too-easy sight range. The video ended up on Wentworth’s file sharing system and was widely disseminated around the city, although it is believed that a friend of the videographers was responsible for that.

Massachusetts law does not criminalize the surreptitious video recording of unsuspecting people; currently, only secret audio recording is a crime. However, Massachusetts does have a more general “peeping Tom” statute that has formed the basis for the pending prosecution. And Wentworth, being a private college, can penalize such conduct under any number of rubrics. So, it’s pretty clear that these two morons will not get away with their indiscretion.

            This said, one has to admit that defendant David Siemiesz, one of the Wentworth juniors being prosecuted, had a bit of a point when he told the Globe’s Maria Cramer: “This all would have never happened if their windows were closed” and if the shades were drawn and the lights turned out. Sometimes a peeping Tom takes affirmative steps to evade another person’s privacy measures, but in this case the viewing was easy.

            One is reminded of an attempt by the administration of the University of Pennsylvania a few years ago to discipline a student who, from his dorm window, photographed a student couple who were making love in a dorm room across a courtyard. The lovebirds not only were taking no steps to protect their privacy, but were seemingly reveling in the exhibitionism of the moment, as the female of the couple was pushed up against the window while the male did his thing – all obviously meant for the eyes of the passers-by in the busy courtyard below.Campus disciplinary officials, facing an outcry in support of the student photographer, dropped the investigation.

            The Wentworth case seems to be in the middle: The two women were not seemingly trying to advertise their tryst, but they did not take adequate and simple steps to try to protect their privacy either. The two “Toms” did not have to take any extraordinary steps in order to peep. So it’s not quite as clear-cut a criminal “peeping Tom” case as one might suppose, or wish. Still, the betting here is that Wentworth will take severe action – if for no other reason than that the two male students embarrassed the institution. But the prosecutors likely will be a bit more moderate.

The ACLU has found itself a strong test case for determining whether a student’s right to privacy is violated when he or she is “outed” to the community by their school. A principal in Memphis, Tennessee, apparently in order to cut down on public displays of affection in school, asked her staff to put together a list of school couples, both straight and gay, and then posted that list publicly, thereby outing an untold number of student romances, including that of a 17-year old gay student, who is now suing for damages. It is a somewhat complex case, from a legal point of view, not only because gay and straight couples were treated equally by the overbearing principal, but because the gay couple obviously was sufficiently public about their romance to broadcast it within the school community and end up on the list. So from the point of view of a complaint for discriminatory treat, and for violation of privacy, they might have an uphill climb.

The ACLU took on a similar case in 2005, involving a student in California who was outed when her principal called her mother and complained about her kissing and holding hands with a female classmate in school. In that case, a federal judge that the student had "sufficiently alleged a legally protected privacy interest in information about her sexual orientation.”

Regardless of how one feels about the privacy of students inside the schoolhouse gates, one has to acknowledge the bizarreness of this war on cuddling. Surely there are more pressing concerns in our public schools than too much affection – especially of the reciprocal, monogamous sort. It causes one to wonder why schools aren't spending more time and energy teaching the kids math.

The New York Times is reporting that a group from Princeton has developed a way of reading encrypted data off of computer memory by literally freezing the data in place -- with liquid nitrogen -- before the data, in temporary storage, is erased. Private data thieves or government investigators could easily bypass sophisticated cryptographic systems with a cheap can of compressed air, potentially exposing private materials to unauthorized eyes. If the government were to use this technique to get around data security during sneak-and-peek operations, it would raise powerful fourth amendment concerns -- especially in the wake of a recent federal court ruling "that forcing [a] suspect to disclose [his encryption] password would be unconstitutional." (The Volokh Conspiracy has a good discussion of that ruling here.) Of course, the government theoretically has as much to fear from this development as citizens do -- at least where the computer memory is physically accessible -- since the bypass is uncommonly cheap and easy.

Harvey and I have an article on Simon Glik in today's Phoenix, following up on some of the post-trial coverage we've featured on this blog. In the piece we argue that the legislature needs to change the state wiretapping law in order to better guarantee robust citizen oversight of police and other public officials.

Over at the law blog Concurring Opinions, Daniel Solove points to an AP article reporting that “Amtrak will start randomly screening passengers' carry-on bags this week in a new security push that includes officers with automatic weapons and bomb-sniffing dogs patrolling platforms and trains.” Solove sees a parallel between this and the New York subway’s security push, which he says was “largely symbolic.” As the head of Amtrak said, “[t]here is no new or different specific threat” that led Amtrak to add the new security measures, lending credence to Solove’s conclusion. It’s not clear what effect random searches of passengers’ carry-on bags will have beyond simple deterrence, though that seems to be offset by the apparent decision not to screen checked bags. Forcing people to undergo random warrantless searches of personal property makes me a little queasy – and more likely to take Greyhound next time I’m going to New York.

    This past weekend, my research assistant James Tierney and I published an op-ed in the Massachusetts Lawyers Weekly about the dubious arrest and prosecution of local attorney Simon Glik under the state "wiretapping" statute. The op-ed (and the news article that David Frank of the Lawyers Weekly wrote to accompany our piece) lays out the facts in some detail, but here's a summary: 

    While walking down Tremont Street, Boston, last October, Glik stopped when he saw police officers arresting a teenaged boy in what he later found out to be a drug arrest. Glik says that at the time he thought the cops were being overly harsh, so he pulled out his cellphone camera and, from a distance of about ten feet, began recording video (and audio) of the arrest. Holding the cellphone at arms length, and at eye level, Glik slowly walked back and forth recording the incident until the cops noticed him and determined that Glik was recording audio. At that point, they arrested him and sought a complaint for wiretapping, disorderly conduct, and aiding the escape of a prisoner from an officer.

    Why "wiretapping"? As we explain in the op-ed, the Massachusetts statute criminalizing unauthorized electronic eavesdropping and establishing procedures for lawful government wiretaps, 272 M.G.L. § 99, is vaguely worded and covers the secretive audio recording of oral communications -- in other words, speech. In 2001, Massachusetts' Supreme Judicial Court issued an opinion in Commonwealth v. Hyde upholding the wiretap conviction of a motorist who surreptitiously recorded his interaction with a cop during a traffic stop.

    But § 99 and Hyde both explicitly name secrecy as one element of the wiretapping crime. As we note in the op-ed, “[e]ven the Hyde majority explained that recording an interaction with the police would not have violated the law had ‘the defendant … held the tape recorder in plain sight.’ That Glik did nothing wrong, from either a legal or ethical standpoint, seems clear to us.”

    Glik appeared in Boston Municipal Court on Tuesday morning for a motions hearing. His attorney, June Jensen of Wayland, Massachusetts, argued a motion to dismiss all three charges. (The Commonwealth agreed to drop the charge for aiding the escape of a prisoner, since the term prisoner facially did not apply to the fact pattern.) Relying on Massachusetts case law and statutory text, she argued that § 99 required not just an element of secrecy but also that the recording actually have captured intelligible speech or voices. Furthermore, she argued that according to case law, 272 M.G.L. § 53, which proscribes disorderly conduct, is not triggered when there is a legitimate purpose behind the act that caused the disturbance. “When the purpose of the conduct is to record an arrest,” Jensen argued, “the conduct is legitimate.”

    In turn, the Commonwealth put up embarrassingly weak, convoluted, and non-responsive rebuttals to Jensen’s arguments. With regard to the wiretapping charge, even though Glik held the cellphone out at arm’s length and at eye level, the cops had their backs to Glik, so the recording was “secret” until they turned around and saw the camera, according to the prosecutor. Similarly, the Commonwealth argued that it didn’t matter that the police report did not contain any information to demonstrate that any speech was recorded – nor indeed that any recording had been made at all – since it was sufficient that Glik told the cops that he was recording audio. The judge posed a hypothetical: had the judge himself stopped on the street to record the arrest, and had he been holding up a cellphone that had no camera or technical ability to record anything, but had told the cops that he was recording audio – the only fact relied upon by the Commonwealth in its complaint against Glik – would the Judge be liable for wiretapping under the Commonwealth’s theory? Well, the prosecutor said, yes.

    As for the disorderly conduct charge, which requires that “the defendant either intended or recklessly created … a risk of public inconvenience, annoyance or alarm,” Alegata v. Commonwealth, 353 Mass. 287, 304 (1967), the Commonwealth argued that there was probable cause to issue a complaint for disorderly conduct because Glik had annoyed the cops. Police are not the public, of course, so the Commonwealth then argued that because the videotaping had occurred on a busy city street at rush hour, it was reasonable that Glik would have created a public annoyance.

    The judge took the motion under advisement, saying he would decide on the motion in a week’s time, and setting the next hearing date for March 12. If one wishes to know why Massachusetts and Boston find themselves in such woeful financial straits these days, it’s useful to begin by examining how our police officers, prosecutors, and, therefore, judges as well, spend their time. Nonetheless, the civil liberties aspects of this case are considerably more disturbing that the specter of such a senseless waste of the public treasury.

    We will be following the case in the Phoenix and on this blog, so keep an eye out for a report once the judge decides on the motion to dismiss.

    (With thanks to James Tierney for his report of the hearing.)

By Harvey Silverglate

I was reminded of the convoluted mish-mash that First Amendment law has become (thanks, in large measure, to courts not taking seriously the First Amendment's admonition that the legislature "shall make no law ... abridging the freedom of speech, or of the press") after I read Geoff Edgers' article in yesterday's Boston Globe.

Edgers reports that painter Kurt Kauper's paintings of iconic athletes in the nude – including Boston Bruins hockey players Bobby Orr and Derek Sanderson, among others – have been featured at important art institutions and in prestigious galleries. Edgers is careful to report that these paintings derived solely from the artist's imagination; neither Orr nor Sanderson, nor Kauper's other "subjects," actually posed for the painter, whether nude or clothed. One theme running through Edgers' profile of Kauper and his work is whether the subject of such an imaginary portrait has any legal claims or rights against the artist.

Boston entertainment and copyright lawyer George Tobia, Jr., told Edgers that "there's a First Amendment right to artistic expression," and that as a result Kauper (and other artists with similar subjects in mind – or on canvas) might realistically encounter a legal problem were he to try to exploit the athlete's image for commercial purposes, such as by reprinting the image on t-shirts or post-cards and then selling them. But merely to paint the image of a public figure – and presumably to sell the painting, though Tobia does not address this – is constitutionally protected.

While Tobia correctly notes the First Amendment's protection of art, the answer isn't as simple as the Globe's summary of his explanation makes it seem. Imagine an artist who paints a portrait of a clergyman in his birthday, where the artist has extrapolated, from the clergyman's clothed image, what he might look like nude. Would the painter be liable for defamation if he did not make it sufficiently clear, in some way, that the clergyman subject did not actually appear in the flesh for a nude portrait? It's reasonable to think that a professional athlete might not have as strong a defamation claim as a clergyman; after all, some athletes would proudly display their various physical endowments to their adoring fans – more so, one assumes, than clergymen. This factor is especially strong in today's media- and publicity-heavy society, in which the image of the athlete's body is indelibly linked to his or her performance. But it's possible to consider counterexamples – Red Sox pitcher Curt Schilling might be one – who cultivate a "family values" image more than a "virile jock" image. For Schilling, his reputational interest against nude images of himself could conceivably make a stronger case in a defamation lawsuit than the reputational interest of, for example, Olympic swimmer Michael Phelps.

For Phelps, whose work attire consists of goggles and a Speedo, any reputational interest in avoiding (fictional) "revealing" images of his (imagined) body would likely be undermined by the fact that a Speedo doesn't leave much to the imagination. He would be hard-pressed to argue that a nude portrait, even where the artist failed to note that the subject did not pose in the buff, would alter any "family values" aspect of his image or reputation (as it presumably would in the Schilling example) substantially more than a Sports Illustrated portrait of him in a Speedo would. Of course, this is an extreme example, as Orr and Sanderson wore pads and jerseys, not performance swimwear. But it's easy to picture how similar scenarios might play out.

And while Attorney Tobia is correct in noting that the painter could be in trouble if he were to put the athlete's picture on a post-card and capitalize on the subject's fame – assuming there is a market niche for nude portraits of famous athletes, even when the specific contours arise from out of the painter's imagination – there are more subtle questions that could arise. What if the painting were featured in a museum exhibition, and the athlete's nude image were on the cover of the show's catalogue, which was then reproduced thousands of times and even sold commercially, as some museum show catalogues are?

The fact is that intellectual property, as well as defamation law, poses real headaches to artists seeking to exercise their artistic freedom – which is protected, in theory, by the First Amendment. Photographers have long experienced this problem – taking a photograph of a street scene and then receiving a letter from the lawyer of some subject standing on the street, captured in the photograph, seeking either compensation or a cease-and-desist order against circulation of the photograph. But these threats to artistic freedom, arising in particular out of street scenes, are frequently without merit. Photographers may find solace in a recent New York court decision, Nussenzweig v. DiCorcia, in which the court threw out a privacy lawsuit and agreed that street photographs, which clearly identify a man walking down a street and were taken without the subject's permission, are protected by the First Amendment even when they are later sold – so long as they were taken as art, and not intended to advertise a product or sell something other than the image itself. To that end, the court noted that "first amendment protection of art is not limited to only starving artists."

Some states provide more onerous restrictions on artists than others, usually under the guise of protecting the subjects who are claiming a property right in their own image or likeness. California, for example, has a robust "right of publicity", which people can invoke in order to control how their image is used. (This is no surprise, given the number of movie stars in that state who vote and make campaign contributions.) However, other courts around the country have limited the right to control one's image as a means of controlling publicity, given the obvious tension with the First Amendment's protection of free artistic expression. In 2003, a California court rejected rock guitarists Edgar and Johnny Winter’s lawsuit against D.C. Comics for publishing a comic book that depicted their bodies as being half-man, half-worm. The court explained that the comic book contained "not just conventional depictions of [the Winter brothers] but contain significant expressive content other than plaintiffs’ mere likenesses."

The defamation problem, coupled with the "right of publicity," are legal issues that could give legitimate artists like Kauper headaches. Life might be easier if the courts interpreted the First Amendment's admonition that "Congress shall make no law ... abridging the freedom of speech" as meaning, literally, none at all. But it's simply not that easy. After all, the Constitution's copyright clause provides for laws granting the creators of intellectual property a legal ownership interest in that property. The occasional conflict between First Amendment rights, copyright interests, and an individual's private property right to his or her own image has caused many a judge to scratch his head, and many a lawyer to offer advice hedged with qualifications.

It is all too true that when it comes to questions of constitutional rights, the devil (or the angel, as the case may be) can be in the details. This seems the case with the new Boston Police Department initiative that would allow police officers to visit homes where they receive a tip that a minor might have hidden a gun, or where the parent suspects such and is willing to ask for police intervention. The police would ask the parent to sign a waiver granting them permission to search the home and take the gun away. At first glance the program struck me as laudable in its creativity and fully constitutional because of its voluntary nature, and because of the assurances by the police that no one would be prosecuted for possession of the gun. But upon closer inspection, there are too many unanswered questions about how this program would work in practice, and the ACLU of Massachusetts should be commended for taking the lead in raising these complex questions.

Perhaps the single greatest flaw with the BPD program is that it does not offer unconditional amnesty for firearms found, although the Boston Globe article on the program seems to suggest otherwise. Instead, as Boston NOW has more clearly articulated, the department reserves the right to prosecute if a ballistics test on any gun found indicates that the weapon was used in an unsolved crime.  One can only imagine the grief and regret a parent would feel if his or her child is prosecuted and sent to jail because, in the hopes of protecting the child, the parent encourages police to enter the home and seize a firearm. Similarly, police officials have not done an adequate job of reassuring homeowners that they will turn a blind eye to evidence of any other illegal activity they may discover during their search, such as the presence of illegal drugs. It is absolutely essential that parents understand that prosecution can indeed follow for anything and everything except the actual possession of a gun and that they have a constitutional right to deny police entrance. If parents are being asked to waive their constitutional protection against search and seizure, then that waiver has to be both knowing and voluntary.

Long experience causes me to lack sufficient confidence in Boston Police to make clear that homeowners have a right to deny a search request and to avoid intimidation when arriving on a doorstep. I’m skeptical that parents who do waive the privacy rights attaching to the home will have done so knowing the full implications of such a waiver. This sort of program, which gives police an end run around the age-old search warrant mandate, could become frequently abused because it is so much more convenient and expedient than obtaining a warrant. After all, an anonymous tip is not a sufficient basis for obtaining a search warrant, and so the police should be willing, for the public safety, to grant unconditional assurances that whatever is found in the house will not be used as the basis of a prosecution.

And so, while at first glance this “voluntary” search program has a certain allure to it, Harvard Law Prof Charles J. Ogletree, Jr. is probably correct when he noted in the Globe that “this is a decision that, if approved, the community will come to regret it.”