Can You Bug Your Own Cellphone?

Posted on Categories Computer Law, Privacy Rights3 Comments on Can You Bug Your Own Cellphone?

This recent post over at Consumerist caught my eye: A person loses his cell phone. Before he lost it, he set it up to blind-copy him on all emails sent from the cell phone. Let’s assume for the sake of argument that he did this (as the post recommends) as a “pretty brilliant low-tech security solution for tracking down a lost/stolen phone or laptop.” Pretty soon, someone finds the cellphone and begins using it, evidently with no attempt to locate the owner. The readers of Consumerist are collectively able to track the finder down within 55 minutes and get him to promise to return the phone, which he actually did.

Naturally, I had the same reaction to this story that anyone else would: Is that a violation of the Wiretap Act?

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Wisconsin Court of Appeals Decides Important Video Privacy Case

Posted on Categories Privacy Rights1 Comment on Wisconsin Court of Appeals Decides Important Video Privacy Case

Over on Concurring Opinions, Dan Solove reports on a recent Wisconsin Court of Appeals case involving Wisconsin’s video voyeurism law, Wis. Stat. § 942.09(2)(am). The case is State v. Jahnke, 2007AP2130-CR (Dec. 30, 2008). Wisconsin is one of a number of states that have adopted such statutes, which generally bar videotaping someone without their consent who is in a situation in which they have a “reasonable expectation of privacy.” Wisconsin’s version makes a violation a Class I felony.

Dan comments on the heartening aspect of the opinion, which is that it avoids the “trap” of assuming that privacy is all or nothing. In Jahnke, the defendant recorded his then-girlfriend as they were having sex without her permission. She obviously consented to being viewed naked by the defendant, but did not consent to it being recorded. The issue before the court was whether the girlfriend had a “reasonable expectation of privacy” under the statute.

The majority said yes, and Dan cogently explains why that’s a good outcome as a policy matter. But of course, judges don’t usually get to make policy decisions, they make interpretation decisions, and their power to interpret is cabined by all sorts of rules. That’s where the dissent, authored by Judge Charles P. Dykman, veers off from the majority opinion.

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Privacy Interests in Extremis

Posted on Categories Criminal Law & Process, Privacy Rights, Wisconsin Court System, Wisconsin Criminal Law & Process1 Comment on Privacy Interests in Extremis

In a fascinating case decided this week, the Wisconsin Court of Appeals affirmed the suppression of a video recording apparently showing a husband having sexual intercourse with his wife, a stroke victim who was unconscious and lived in a nursing home.  See State v. Johnson (Appeal No. 2007AP1485-CR, 9/11/2008).  The husband was charged with second degree sexual assault, a class C felony, which can result in imprisonment up to 40 years.  The offense occurs when a defendant “has sexual contact or sexual intercourse with a person who the defendant knows is unconscious.”  Wis. Stat. § 940.225(2)(d).  The statute further provides that “A defendant shall not be presumed to be incapable of violating this section because of marriage to the complainant.”  Wis. Stat. § 940.225(6). Continue reading “Privacy Interests in Extremis”