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William C. Altreuter
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Friday, December 13, 2013

Fridays are law days (sometimes) here at Outside Counsel. Today, People v. Piznarski, in which the Third Department determines that New York's unlawful surveillance statute (Penal Law § 250.45 is properly applied in circumstances where sexual activity is consensual, but is surreptitiously recorded. The defense had argued that the statute was merely intended to cover straight up voyeurism. Nice try, creep.

The law of privacy all starts with Warren and Brandeis, but where it goes from there is what's interesting. In much of Western Europe privacy is treated as a civil right, but in the US the courts floundered a bit trying to figure out what this thing was. Perhaps because the law of torts was in early flower that's where they looked first, but proved to be stoney ground, and ultimately the concept took hold primarily in the Fourth Amendment, and in the penal law. Funny how that goes-- it is, for me, oddly reminiscent of the way law in Marxist societies is chiefly penal. Can't have a law of contract, because private contracts are illegal. Can't have a law of tort, because offenses against individual are offenses against the body politic, and are therefore crimes. Can't have a law of privacy, because-- say, what have you got there, Comrade? 

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