House votes to criminalize the recording of someone who has an ‘expectation of privacy’

By Jeffrey A. Roberts
CFOIC Executive Director

Privacy concerns posed by drones and other emerging technologies prompted initial passage in the Colorado House on Friday of a bill that would make it a crime to photograph or record someone who has a “reasonable expectation of privacy.”

“If you’re going to use (a recording device) in an abusive way to invade someone’s privacy, I am not going to stand for that,” said Rep. Polly Lawrence, the Littleton Republican who introduced HB 15-1115. “And that’s what this bill addresses.”

As amended, the measure would create a class 3 misdemeanor for “knowingly and intentionally” photographing or otherwise recording another person without consent in situations where that person has a reasonable expectation of privacy.

Both the Colorado Press Association and Colorado Broadcasters Association are concerned the bill doesn’t adequately define the conditions under which a photographer potentially could be prosecuted. The Professional Private Investigators Association of Colorado has similar concerns (all three organizations are CFOIC members).

“I really have to listen to a First Amendment argument,” said Rep. Su Ryden, D-Aurora, speaking against the bill. “I feel it’s premature and that we need more discussion before we put a new crime into our statutes.”

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Rep. Daniel Kagan, D-Cherry Hills Village, argues against HB 15-1115

Rep. Daniel Kagan, who argued against HB 15-1115 during a House Judiciary Committee hearing, was again the most vocal opponent of the bill. The Cherry Hills Village Democrat said that taking a photograph of someone who has a reasonable expectation of privacy should possibly be a civil offense, but not a crime.

Kagan noted that, appropriately, it’s already a crime to photograph someone’s private parts without consent when that person is in a private situation. “But when you’re taking a photograph of somebody throwing a frisbee for their dog in their backyard, which is fenced and they have a reasonable expectation of privacy, yeah, it’s annoying, but let’s not make it a crime.”

The bill, Kagan said, “leaves it up to juries and prosecutors to decide whether you have a criminal record for life because you took a picture of someone without their consent under circumstances where they had a reasonable expectation of privacy. That is a law too far, a crime too broad.”

Calling Lawrence’s bill ‘very forward thinking,” Rep. Joe Salazar, D-Thornton, noted that common law already allows for tort claims for invasion of privacy. A criminal statute, he argued, would discourage people – “and we know there’s a lot of sick individuals out there” – from using high-resolution cameras on drones and other devices “to peer upon a person who has a reasonable expectation of privacy.”

“We should criminalize that conduct.” Salazar said.

Follow the Colorado Freedom of Information Coalition on Twitter @CoFOIC. Like CFOIC’s Facebook page. Visit CFOIC’s legislature page to track bills in the General Assembly that could affect the flow or availability of information in Colorado.

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