Much ado about newsgathering: personal privacy, law enforcement, and the law of unintended consequences for anti-paparazzi legislation.

• Author: Morton, Andrew D.

Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.(1)

INTRODUCTION: BALANCING THE INDIVIDUAL RIGHT TO PRIVACY WITH LEGITIMATE LAW ENFORCEMENT SURVEILLANCE

Horror, not humor, brought actors Michael J. Fox and Paul Reiser to testify before a hearing of the United States House Judiciary Committee last summer.(2) Fox described the "mercenary tactics of tabloid photographers" who turned his wedding into a "nightmare" as helicopters recklessly jock-eyed for position above the ceremony, then "fired away with high-powered cameras" on the couple's honeymoon suite.(3) When Reiser's son was born prematurely, disguised journalists infiltrated the hospital with hidden cameras to steal a photo of the infant, and after returning home, the child was photographed in the privacy of the family's backyard by "resourceful" journalists with telescopic lenses, and "strangers with video cameras camped outside."(4)

In response to the perception that such newsgathering activities have become unacceptably intrusive, legislators on both the federal and state level have devised an innovative solution to supplement existing tort liability for invasions of privacy--liability stemming from the use of "enhancement devices." Such devices include zoom lenses or high-powered microphones, which enable the observer to capture an image from distances not possible without the sophisticated surveillance technology.(5) By essentially extending the common law notions of trespass, the legislative proposals would impose liability for observations that violate an individual's "reasonable expectation of privacy"(6) as defined by evolving societal norms.(7)

Despite these worthy efforts to recognize and codify the importance of an individual right to privacy, society maintains a legitimate countervailing interest in the reasonable efficacy of law enforcement. Each legislative approach thus contains a specific exemption from liability for surveillance by state law enforcement officials. Hence, although ostensibly drafted to apply as a statute of general application to anyone who might disrespect personal privacy through the use of enhanced photography or voice recordings,(8) subsections in the legislative text of both congressional bills(9) and a California statute imposing liability for unwelcome enhanced surveillance(10) expressly exempt law enforcement surveillance.

What these law enforcement exemptions fail to recognize is that, pragmatically speaking, an individual's conception of what constitutes a "reasonable expectation of privacy" against police surveillance should parallel her "reasonable expectation of privacy" against observation from newsgathering activities of the media. Consequently, these legislative efforts to expand the zone of privacy with respect to intrusions from private actors, such as representatives of the media, cannot be accomplished without imposing the same restrictions on state actors engaged in law enforcement activities. Simply put, the identical test for creating liability for offensive surveillance, regardless of the affiliation of the offender, in practice must carry the same legal meaning.

This Comment argues that by invoking the precise language of the Supreme Court's Fourth Amendment "reasonable expectation of privacy" test to trigger liability, the legislative responses to overaggressive newsgathering by the paparazzi inevitably will be limited in application, or, in the alternative, will restructure and narrow the scope of permissible law enforcement surveillance activity as defined by contemporary Fourth Amendment doctrine. To that end, this Comment first provides a summary of the judicial, legislative, and constitutional efforts to codify the right of personal privacy in American law. Additionally, the discussion chronicles the tension between the individual right to privacy and the First Amendment freedom of the press. In particular, Part I of the analysis examines the various congressional proposals(11) and a recently enacted California statute(12) purporting to address the intrusive and aggressive newsgathering tactics of some members of the media.

Part II offers a historical discussion of Fourth Amendment jurisprudence and the scope of legitimate law enforcement surveillance that does not rise to the level of a "search," which triggers Fourth Amendment review and requirements. Specifically, the analysis examines the development of the modern judicial application of the "reasonable expectation of privacy" test to determine the presence of a Fourth Amendment search, as first articulated by Justice Harlan more than thirty years ago in the seminal case of Katz v. United States.(13)

Finally, Part III integrates the Fourth Amendment "search" analysis with legislative efforts to expand the scope of personal privacy, illustrating the unintended consequences of either limiting the applicable scope of these legislative efforts to curb paparazzi newsgathering, or restricting permissible warrantless surveillance activity by law enforcement agents. The Comment concludes that the law enforcement exemption provisions contained in the California privacy protection law and congressional proposals fundamentally are at odds with contemporary Fourth Amendment "search" analysis. Because both the legislative text of the intrusion offense and the judicial language of the constitutional search test employ the same "reasonable expectation of privacy" element, an evolving interpretation of one necessarily must affect the judicial application of the other. In the end, these legislative attempts to sequester an expanded zone of privacy from surveillance by state officials likely will result in unintended consequences for either proponents of the legislation, or for members of law enforcement engaged in warrantless surveillance activity.

1. THE RIGHT TO PRIVACY IN AMERICAN LAW TRADITIONS

   Over one hundred years ago, in perhaps the most renowned and cited of all law review articles, Samuel Warren and Louis Brandeis set out to establish a common law protection for the right to privacy.(14) This century has witnessed volumes of literature on this subject, each creating subtle nuances and unique iterations for defining the precise scope and origin of the right. Many scholars have chosen to wax philosophical, precluding any semblance of a consensus regarding the legal nature of the right to privacy initially contemplated by Warren and Brandeis.(15)

   In the midst of this academic debate surrounding the legal state of privacy rights, and catalyzed by recent events such as the tragic death of Princess Diana while in flight from paparazzi(16) photographers, a legislative effort is underway to promulgate and enforce laws to restrict offensive, intrusive newsgathering. In doing so, the legislatures--federal and state--are endeavoring to force outward the zone of personal privacy protection enjoyed by private citizens by enhancing civil and criminal liability against those engaging in offensive surveillance activities.

   Since 1996, anti-paparazzi legislation has been introduced in both chambers of Congress,(17) and in September, 1998, California became the first state to enact a law specifically targeting intrusive newsgathering by the media.(18) The fundamental motivation behind the proposal of these statutes is a desire to protect individuals--particularly public figures such as celebrities--against intrusions of personal privacy by overaggressive paparazzi reporting and tabloid journalism.

   This Part will begin by exploring the constitutional, judicial, and legislative development of privacy law, and addressing the variety of forms that the concept of privacy can take. Next, the discussion will analyze the competing interests of individual privacy rights and newsgathering activities by the media. Finally, it will examine the congressional and state legislative responses to the allegation that the press has emerged as a formidable threat to individual privacy rights(19) in an age of sophisticated information technology.(20)

   1. The Development of Constitutional Privacy Rights

      The United States Constitution contains no express right to privacy. Nevertheless, the medieval English common law proposition that a person's "[h]ouse is his [c]astle"(21) has been incorporated as a central tenet of American legal principles since the colonial period.(22) Until the late 1960s, the Supreme Court handed down decisions grounded in these early common law origins in an attempt to strike a workable balance between an individual's personal privacy interest and society's law enforcement interest in permitting the detection of illegal activity.(23) Over the last thirty years, however, the Court has begun to find a constitutionally protected right to privacy embedded in an interpretation of the First,(24) Third,(25) Fourth,(26) Fifth,(27) and Fourteenth(28) Amendments to supplement existing common law guardianship.(29) This common law and constitutional mosaic furnish the judicial bedrock of personal privacy rights today.

      Since the early 1970s, another source of privacy rights has emerged to augment the federal judicially and legislatively ensured minimums--the amendment of state constitutions to incorporate a fundamental right of personal privacy.(30) As suggested by Justice Brandeis's dissenting opinion in New State Ice Co. v. Liebmann,(31) expansive protection of privacy rights on a state level has emerged as the "laboratory" for "novel social and economic experiments without risk to the rest of the country."(32) Following the dramatic Supreme Court decision in Katz v. United States,(33) many states amended their constitutions to incorporate a version of the Fourth Amendment(34)...