Outside the Beltway

Nude Photos of Jennifer Aniston

James Joyner · Wednesday, December 7, 2005 · 4 comments

CrimProf Blog’s Jack Chin (link via Glenn Reynolds) reports,

Nude Photos of Jennifer Aniston can’t possibly be “illegal” if taken from a lawful vantagepoint with commercially available and commonly used equipment, can they? At least, they cannot violate a “reasonable expectation of privacy”, right? But lawyers who filed a lawsuit described on The Smoking Gun say otherwise. This matter is slightly reminiscent of a U Penn student who photographed some other students in flagrante delicto, and then distributed those photos. At first the enterprising photographer was subjected to disciplinary proceedings, but the charges were ultimately dropped.

Commenter CMN advises, however,

Be careful not to equate the test for what constitutes a search under the 4th am with standards for common law tort liabiilty. I don’t think the factors you’ve enumerated above are necessarily dispositive. Someone climbing a tree on a public street to look through your window with binoculars may be tortiously invading your privacy even though they are in a public place using readily available equipment. The reasonable expectation of privacy doesn’t turn solely on what is possible, nor I think would we want it to. If the photographer is right in claiming that she was readily visible to the unaided eye from the street this will certainly help his case, but just because you can make something out with the unaided eye doesn’t mean it’s not an invasion of privacy to take zoom lens photos of it.

Daniel Solove agrees,

Does Aniston have a reasonable expectation of privacy? I believe she might very well have a good case. She was at her home, and it appears as thought Brandt had to be very far away in order to take the photos. Some might glibly say that if people want privacy at home, they should just shut their windows and never wander into their yards. But with today’s powerful zoom lenses, should we really have to live with our blinds constantly pulled down? Unless we protect people from the use of this kind of technology, it will interfere with their freedom upon their own property.

I believe that it is formalistic to conclude that people lack an expectation of privacy whenever it is possible for a person to be seen or heard. We can even expect privacy in public at times. When we’re in a restaurant, we might expect small snippets of our conversations to be overheard by people at tables immediately surrounding us. But this doesn’t mean, however, that we expect to have our conversation recorded from afar with a parabolic microphone. If we buy medication at a drug store, we expect that the person at the check out counter will see it, but we don’t expect the information about what we buy to be publicized to the world. For additional arguments, Helen Nissenbaum has written extensively on why people can expect privacy in public.

For those more interested in the aesthetic than the legal aspects of this issue, a commenter at Chin’s post helpfully provides a link to not-safe-for-work photos of a nude woman who may or may not be Jennifer Aniston and a delightful discussion of various related issues. Solove also provides a perfectly safe-for-work photo of Aniston.