ABA Journal


Privacy Law

Secretly taping johns is not a privacy violation, state’s top court says

Feb 20, 2013, 11:59 am CST


Let me get this straight: because private property is being used for an illegal purpose, all protections from surveillance, both public and private, disappear? Not in the America I grew up in.

By publius on 2013 02 20, 3:53 pm CST

Yeah, it does kinda seem like bootstrapping, doesn't it? If you're doing something illegal, the Fourth Amendment no longer applies?

This is a disturbing trend among our courts. In a January 2013 article of our very own ABA Journal, the Cincinnati-based 6th Cicuit Court of Appeals said it's OK for the government to track us using our cell phone signals without a warrant. (See "Call Ahead: Officers Use Cellphone Towers to Spot Offenders")* The court's reasoning was that since the cell phones were being used for a criminal purpose, there was no 4th Amendment problem with the police using the signals emitted by the cell phones to track the users.

By that logic, I guess if you're using your home to store drugs, the cops no longer need a warrant to bust in.

*(The above-referenced ABA Journal article can be found here: )

By emjaycee on 2013 02 20, 5:32 pm CST

@ 1, 2

It's not government surveillance, it's surveillance and taping by a private citizen. So no 4th Amendment Constitutional issues.

The only issue was whether it was a crime (invasion of privacy) to record the sexual activities with a prostitute without the participant's knowledge (at least without the businessman's knowledge, I assume the prostitute was aware of the taping?).

By df on 2013 02 20, 6:26 pm CST

@3, you are correct that there is a difference between public and private surveillance. But here the decision is described as having turned on whether or not there is a reasonable expectation of privacy, a concept that appears in both fields. The fact that society at large disapproves of what you are doing should, if anything, increase your expectation of privacy when you are participating in frowned-upon conduct on the premises of those who make it their business to enable such behavior. They know society frowns on it, and therefore arrange for it to be done in private, no?

Emjaycee's analogy to the storage of controlled substances in one's own home seems sound to me. Youd do it at home because you know you would get into trouble of some sort if you did it publicly. Therefore, anyone who comes into your home to partake or procure should reasonably expect that your home is private.

By publius on 2013 02 20, 6:47 pm CST

Well, I don't see any social harm from this decision. As presented, the guy was charged with a state law crime. Somewhere in that statute must have been embedded the concept of a reasonable expectation of privacy. Not clear that is the most suitable standard for invasion of privacy, since it stemmed from a concurrence in a 4th Amendment case, and has always presented issues there since often forces we may not like can destroy an expectation of privacy. But if the Maine legislature decides this was an improper outcome, it can alter the statute.

It might conclude that letting citizens record criminal acts by other citizens without those other citizens knowing it was being done was actually in societies' best interest, might it not? After all, these tapes are going to be evidence in the prostitution trial of Ms. Wright, aren't they? And, one supposes, the trials of all of the identifiable Johns? Or do they get a pass.

Or at least the legislature might conclude that it should not be criminalized? Should the police come into possession of the recordings, as here, they could round up a lot of lawbreakers. Many considerations run through legislative heads.

This is not a case of the

By Walt Fricke on 2013 02 21, 12:41 am CST

Most businesses these days have security cameras taping our every move. Prostitution is a business and a particularly high risk one for the prostitutes. Customers of houses of prostitution should expect that they are being surveiled and taped. The legality of the business is irrelevant to this issue.

By W.R.T. on 2013 02 21, 6:15 pm CST

When women finally got the right to vote, instead of embracing their newly found emancipation and freedom as fully enfranchised Americans, they turned around and deprived their fellow Americans of precious freedom and personal safety with their votes. These newly-minted female despots decided to outlaw gambling, alcohol, drugs and prostitution, demanding our government to unprecedentedly step in and force all Americans to conform to the behavior these women selfishly desired.

As a result of this arrogant government intrusion and control of human behavior, our government started collecting the taxes necessary to fund the policing and enforcement of the so-called "moral" behavior of all Americans. Not only were many families and individuals devastated by the enforcement of these new laws that created criminals overnight where none existed before, but the extraction of money from the economy to enlarge the size and might of government led to our economy being deeply harmed. All because women got the right to vote and then decided to boss their fellow Americans around.

Of course everyone knows that prostitution has been with us since the dawn of history, and has provided women with the ability to survive when no other form of income is available. There is absolutely nothing wrong with getting paid for sex - the only thing wrong is the enforcement of some people's moral beliefs on everyone else who do not share those particular beliefs. Creating criminals where there were none before automatically puts otherwise innocent women at risk for being killed and hurt for no good reason.

Prohibition kills, no matter what is being prohibited. The black market for sex is despicable and immoral beyond all reason, and should be abolished by legalizing prostitution and undoing the vast damage Prohibition has done to us all. It is time to get rid of making prostitution a crime, and bring all women back into the light and protection of civil society. Women who think selling sex is a crime are themselves maliciously hurting their fellow sisters, and are far more immoral than any prostitute trying to make an honest living as women have done for millennia.

By sunforester on 2013 02 22, 5:06 pm CST

Men should not have sex on tape or bare the consequences!

By Tom on 2013 02 27, 11:28 am CST

So if you enter a bathroom stall with the sole intent of shoplifting, you have no expectation of privacy from the peering eyes of the owner? What about those folks who just want to go to urinate? Isn't the purpose of the law to protect the innocent, even if it means criminal wrongdoing is not discovered?

By CT Lawyer on 2013 02 27, 12:10 pm CST

Lost in the commentary is the underlying question of why this guy was recording the events at all ... prurient interest, blackmail, leverage/protection against public authorities?

By TJB on 2013 02 27, 12:55 pm CST

1. Most people having sex in a bedroom expect privacy - especially when the sex is illegal, as publius noted. The idea that there is no expectation of privacy in this case is bizarre.

2. @5 - The decision permits prostitutes to film sex with unknowing johns. The obvious purposes are pornography and blackmail. So you do not see any harm from that?

3. @6 - There are lots of security cameras in hallways. But most court decisions do not permit security cameras in bathrooms and bedrooms where there is a reasonable expectation of privacy. Most people are fine with hallway cameras but would feel violated if there was a security camera in either bedrooms or bathrooms they frequent.

4. @7 - While your comments smack of sexism, you actually seem to make a good point - this decision seems motivated by a blind hatred of prostitution, to the point of ignoring the other social bads like porn and blackmail that the decision promotes.

By woodenstick on 2013 02 27, 1:16 pm CST

I find it interesting that it was published in the "Bangor" newspaper!

By Ellis on 2013 02 27, 2:30 pm CST

Unclean hands doctrine ( no pun intended).

By Ozzie on 2013 02 27, 3:17 pm CST

No, we don't use government resources to protect people from the consequences of their illegal actions. I do not want my money spent prosecuting someone who indvaded the privacy of people while they were committing crimes. We don't arbitrate disputes between criminals.

Comment #11 above states, "The decision permits prostitutes to have sex with unknowing johns." Ahem, I think they probably know. From your other comments, methinks you need to retake some law school classes.

By Oort Cloud on 2013 02 27, 3:46 pm CST

#7, that was a very interesting perspective, one at many will initially eract against, but should stop and consider the history. I recently read an interesting article in Smithsonian, and saw a PBS special on prohibition, each explaing the political dynamics of passing a Constitutional amendment that the general public clearly opposed.

As for the court's decision, it was clearly punitive and reactionary, and lacked critical thinking, but it makes great fodder for academic (that's Greek for unrealistic) discussion:

If the "businessman" sells the tapes, do the johns get royalities for his "using their likeness for profit"? (never called it a "likeness" but it's kinda cool).

If the camera had its sound on, are you getting into illegal taping of conversations, and all the ethical quadaries?

A hotel can put security cameras in the hall and elevator (where, if you surf the net, you will find that some guests forget they have no privacy there...). So under this ruling, why can't they put them in the rooms, too? What if they promise only to watch the tapes of unmarried couples, adulterers, and in some states, those engaging in "those" acts?

And if the hotel manager catches on tape the acts of an illicit relationship, can he sell them on the pay-TV adult channels to other guests? How about live feeds?

What about the john who hires the girl for company and doesn't "do anything" (yes it happens a lot); can he sue? Because this decision isn't really about expectation of privacy; it's about forfeiture of privacy.

What if the john is also the girl's lawyer--is atty/client privilege waived? Violated?

By Hadley V. Baxendale on 2013 02 27, 3:59 pm CST

It should be noted that the encounters were taking place in a rented, commercial space -- a Zumba classroom, purportedly -- rather than a private residence. The owner of the property was "not amused."

By Miel D'Rodilique on 2013 02 27, 4:42 pm CST

I think we need to know the specific language of the Maine statute.

In California, under PC 647 (j)(1) it's illegal to look or record through a peephole or uses a camera, camcorder, blah, blah, blah, ... [into] the interior of a bedroom, bathroom, changing room, fitting room, etc. OR THE INTERIOR OF ANY OTHER AREA IN WHICH THE OCCUPANT HAS A REASONABLE EXPECTATION OF PRIVACY (sorry for shouting, no bold available).

Assuming the Maine statute is similar to California, seems like the question is the john's reasonable expectation of privacy. My gut feeling is that it's never prudent to expect privacy when visiting a whorehouse. But I don't understand the Maine court discussion about whether the activity is "sanctioned by society." Why take the issue in that direction?

By Matlock on 2013 02 27, 4:59 pm CST

wow, 46 counts. Alexis must be hot.

By doofus on 2013 02 27, 6:09 pm CST

Comment removed by moderator.

By USSR on 2013 02 27, 6:58 pm CST

stick with me; it's relevant:
A guy comes home from work and find his wife packing. "I'm leaving and going to Kennebunk, where I read that I can make $400 a night doing what I do for you for free!" she says.

He starts packing, and she asks him what he's doing.
"I'm going, too. I want to see how you live on $1,200 a year."

By Hadley V. Baxendale on 2013 02 27, 7:17 pm CST

#11 - the reason I see no harm in the Maine court's decision is that it is based on statutory interpretation. If the Maine legislature decides that this unleashes private invasions of privacy which it did not intend, it can just amend the statute. I think state legislatures are far more likely to pay heed to how their courts interpret their work than our Congress, and to act to bring things to where they think they should be.

Where I see real and permanent harm is in the decisions of our U.S. Supreme Court on what the limits are or are not on the powers of governments. Like most, of course, I rail against decisions I don't like and see as harmful for our society, and applaud those I agree with. But this Maine decision has nothing to do with constitutions. As others have noted, the U.S. Constitution only grants rights which have been interpreted as rights to privacy against government action. It does not constrain private conduct, which is exactly what is at issue here.

I am somewhat dubious that the taping was done with an eye to resale as porn. Easy enough to find "actors" who will consent to the taping, and an obvious actress. Blackmail might fit - I'll release this on U Tube if you don't pay might have even more impact than I'll tell your wife or post it on a blog somewhere.

But isn't there a fly in that ointment? If Ms. Wright knew about it, wouldn't she think she might be at risk if it showed up on the internet? But, as we all know, motive is seldom an element of a crime.

For the record, I looked up what the press had to say about this, and see that all identifiable johns (most of them? all of them?) have been charged, and most have already pled. Whatever one's views about prostitution might be, here the men are not being spared while the women are prosecuted.

By Walt Fricke on 2013 02 27, 8:33 pm CST

@14 The quote in #11 was, " film sex" not, "have sex". While woodenstick may have a differing opinion, his thoughts are at least relevant to the discussion. Yours on the other hand merely display an inabiltiy to read.

By The taxman on 2013 02 27, 10:35 pm CST

Oort Cloud, way to misquote another commenter and then attack the comment!

Oort misquoted “woodenstick” as saying “The decision permits prostitutes to have sex with unknowing johns”, and then sarcastically says “Ahem, I think they probably know.”

In fact, woodenstick said “The decision permits prostitutes to FILM sex with unknowing johns.”

Big difference!

By emjaycee on 2013 02 27, 10:36 pm CST

(Looks like The Taxman beat me by a few seconds!)

By emjaycee on 2013 02 27, 10:50 pm CST

To: The Taxman and emjaycee

It says, "sex with unknowing johns" -- an "unknowing john" is one who does not know that he is a John -- it has nothing to do with being an unknowing subject of a film. He might have said, "john's who are unknowingly filmed," or "john's who are unwittingly starring in a movie."

By Oort Cloud on 2013 02 27, 11:11 pm CST

When I can't go ack to sleep in the middle of the night, I'll pay more attention to the Zumba commercial on TV. This story gives whole new meanings to the moves of Zumba participants.

By Realist on 2013 02 27, 11:44 pm CST

Come on, Oort, you're just being obtuse. The phrase used was "The decision permits prostitutes to film sex with unknowing johns." Obviously, the word "unknowing" was in reference to the johns' knowledge of being filmed, not to whether or not they were "johns".

By emjaycee on 2013 02 28, 7:22 pm CST

Sounds kind of petty. I wonder what court's position would have been if one of them 'johns' were their colleague. There is an awful lot of lonely unhappy judges out there. Some go through life and die without ever having a good sex. Maybe out of fear to be videotaped?

By Anna Gray on 2013 03 01, 12:04 am CST

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