Law Review: Is videotaping prostitutes in your home a violation of their right to privacy?
Most of us know it is unlawful to surreptitiously record a conversation – like a phone call – without the knowledge of all parties to the conversation. A perfect segue to: Do prostitutes have a right of privacy if they are videotaped in someone’s home by the homeowner?
CONSTITUTIONAL RIGHT OF PRIVACY
Article 1 of the California Constitution explicitly deems privacy as an inalienable right: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursing and obtaining safety, happiness, and privacy.” Seems simple enough.
INVASION OF PRIVACY ACT
In 1967, the Legislature adopted the California Invasion of Privacy Act to protect against eavesdropping on private communications with more increasingly sophisticated devices.
Section 632 of the Privacy Act imposes liability on “[every] person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying recording device to eavesdrop upon or record the confidential communication…” That is pretty clear; however, what is a confidential communication?
A confidential communication can be summarized as “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereof, but excludes a communication made in a public gathering…or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”
So, you ask, what does that have to do with prostitution. In our case The People v. Michael J. Lyon, a prominent Sacramento resident, Mr. Lyon had a bad habit of eavesdropping and videotaping prostitutes that he brought into his home. Sick.
DO PROSTITUTES HAVE A RIGHT OF PRIVACY?
Lyon defended the State’s criminal charges arguing that prostitutes had no reasonable expectation of privacy in their communications during sexual encounters at his residence. i.e. a prostitute’s communications during prostitution activities do not qualify as protected “confidential communications.” Since prostitutes should reasonably expect that they will be videotaped for various reasons, including security purposes such as to discover theft or drug use. A real stretch to me.
VIDEO CAMERAS EVERYWHERE
The Third District Court of Appeal distinguished between cases where video cameras were installed in public or quasi-public spaces within sight and hearing of co-workers or visitors or the general public, and on the other hand, in a semi-private office or a bathroom or bedroom.
The Court concluded that the expectation of privacy of a prostitute in Lyon’s home “is not relinquished or forfeited simply because a prostitute is involved.” Of course.
Being that Lyon was a repeat offender and was on probation for a similar eavesdropping conviction, the Court of Appeal upheld the jury conviction of Lyon and the trial court’s sentence of 6 years and 4 months in prison.
I am writing about this case because I often get asked whether it is legal to secretly tape record a phone call or other confidential communication. Now you know.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.
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