Wednesday, September 16, 2015

Assume Everyone is Watching

Rockwell released "Somebody's Watching Me" in 1984. The refrain in that tune repeatedly returns to "whose watching" and "whose watching me?" The answer in our post-smartphone world is more likely that not "everyone." Privacy has given-way in the new millennium. People are in the public eye constantly. Almost certainly in the world at large, and some even suspect their devices of invading their privacy in the expected privacy of their homes and offices (watch for cell phones wrapped in aluminum foil). 

Some of that privacy erosion is voluntary. I remember when people valued their privacy and their "personal" life and space. Today, a great many people share every detail of their lives in an ongoing narrative on social media platforms like Facebook, Instagram, Reddit, Twitter, and more. I imagine there would be anger and incredulity if government forced people to share photographs of each morsel they ate, but given a  social media platform, some do so happily.  

I recently had the opportunity to deliver a talk to a group of judges regarding social media. I used as examples some recent news events. 

With all that has gone on in Baltimore this year, much has been seen on video. The original arrest of Freddie Gray is all over the web. Then there was rioting and demonstration. Two correctional officers, the police essentially, were charged with looting based on surveillance video. 

Video in a police shooting in South Carolina made the news also. We live in a world where cameras are everywhere. Still and video shots are being obtained in volumes barely conceivable thirty years ago. Some claim that hundreds of thousands of pictures are uploaded to the Internet each minute. One estimate is that 880 billion photos were taken in 2014 (that is 125 photos for each of the approximately 7 billion people on this planet). Amazing how many shots we will take when there is no film or development cost (for you millennials, you can look up both "film" and "film development" in your Funk and Wagnalls). 

It can be an event like the recent pool party in Texas. This video supported anger in a community, and ultimately led to a police officer's resignation. It does not have to be violent, a couple in Florida was recently convicted "of lewd and lascivious behavior" based in large part on a "a video shot on a bystander's phone that showed . . . the canoodling couple."

There are many examples of video being presented in legal cases. Many will remember last year when people began dumping five-gallon buckets of ice water over their heads "to raise money for ALS." Well the NY Daily News reports that a California police officer was filmed lifting just such a bucket last year. From that video, investigators now allege that she "exaggerated her injuries to collect disability benefits." Combined with an earlier claim,"she collected an estimated $117,000." The officer faces up to six years in jail if convicted. Just for reference, a gallon of water is about 8 pounds, so a 5-gallon bucket as described in this story might weigh as much as 40 pounds.

A year ago, the news was circulating about a young woman in a beauty pageant, seeking the "Miss Toyota Long Beach Grand Prix" title. According to ABC, a video surfaced on You Tube of "the 22 year-old strutting onstage in high heels." However, she was "collecting workers' compensation benefits at the time on a foot injury." She had informed her employer "that she couldn't work." Her father last year disagreed with the charges, saying "it's absolute cr*&." One station headlined the story "Beauty, bravado . . but no brains." The outcome of the case was reported this month on WorkCompCentral. After pleading guilty, she was sentenced to 36 months probation, a fine of about $1,000, restitution over $5,000, and 50 hours of community service. 

Recording equipment is everywhere. Privacy has become less and less expected in society. It seems in today's world, you have to expect that at any particular moment you are being recorded in audio, video or both. 

In many states it is perfectly legal to record conversations. According to the Reporters Committee for Freedom of the Press, the twelve states that forbid recording without all parties consent are "California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington." That leaves a great many states in which such recording is apparently fine. 

Florida woman was accused of committing a felony when she was pulled over by a traffic officer and she recorded the resulting verbal exchange on her cell phone. While the officer accused her, she has not been charged with a crime. She has decided to sue the officer. Her lawyers claim that "state law is clear that police have no expectation of privacy when performing their duties." 

But is it legal to film people? In April, a police officer in California took exception to being recorded. An onlooker was recording on her phone when an officer "grabbed her phone and tossed it to the ground." This could have been a "he said/she said" dispute about whether she was interfering with the officer, or "in the way." However, she was "fortunate that someone on the other side of the road was filming her as she tried to film the officers." That recording "shows clearly the aggressive approach" of someone now identified as a U.S. Deputy Marshal. 

For now, it appears to be legal to film people in public in America. Not so in Spain. A recent post on the Stir documents a woman fined almost $900 for taking and posting a picture of a police care illegally parked in a handicapped spot (her caption "park wherever you bloody well please and you won't even get fined"). In their defense, Police say "they needed the parking space." They were not responding to a life-threatening call, but "respond(ing) to a vandalism report." They fined the woman for posting the photo because it "harmed their honor."

We have recently replaced some signage in our offices. Our hearing rooms have signs that remind people that proceedings in those rooms are recorded. We make audio recordings of our hearings and trials. Expect that. It is part of what we do when we have a hearing. 

I recently had an anecdote related to me about a mediation proceeding. I am still not certain whether this story is about a workers' compensation mediation. It seems one of the participants in this mediation later disagreed with others about what occurred at the conference. When the dispute escalated, this person claimed to have a recording of the mediation. As the story was told to me, the mediator then reminded everyone that such a recording (without everyone's knowledge) might violate the law and the mediation privilege. Hearing this, the participant that had claimed to have such a recording then recanted and claimed to have been bluffing, and denied making any recording. 

As the disagreement in that case did not proceed to a hearing, it remains conjecture whether such a recording ever existed. I have pondered how a judge in a workers' compensation hearing might react to such a recording taken in a mediation. Would it matter if the person who made the recording later published it on the Internet? Would the legality of recording be the deciding factor, or would the mediation privilege be the end of the analysis? An interesting problem. 

Assume you are being recorded. As the Marshal learned in California, even the person recording someone may also be recorded. Rockwell asks "I wonder who's watching me now," or "am I just being paranoid?" 

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