Editorial: Taking a photograph shouldn’t be a crime

From The Daily Sentinel (Grand Junction):  A bill originally intended to curb drone use from invading people’s privacy has morphed into a beast of law that could criminalize the simple act of taking a photograph.

The Colorado House of Representatives passed House Bill 1115 on third reading Tuesday. It now heads to the Senate where we hope lawmakers will do a better job of scrutinizing the implications of this excessive bill.

The bill makes it a crime to knowingly and intentionally photograph or record anyone without their consent if there is a reasonable expectation of privacy.

But what is a reasonable expectation of privacy? Legal scholars wrestle with this question, especially as it pertains to the U.S. Constitution’s Fourth Amendment prohibition against unreasonable search and seizure. Fourth Amendment protection only applies to searches by the government and only in instances where defendants first establish that they had a reasonable expectation of privacy.

Surveillance by private parties isn’t subject to Fourth Amendment provisions. HB1115 expects ordinary cell-phone carrying citizens to know how the legal lines are drawn and what constitutes a reasonable expectation of privacy — even if the courts can’t say with absolute certainty.

Teens, with their proclivity for capturing images and video footage to be used in a variety of ways via social media, are particularly susceptible to being charged with a crime. The bill’s language doesn’t require malice, or harmful intent. The simple act of taking a photograph or making a recording without consent, when there is a reasonable expectation of privacy, is a Class 3 misdemeanor.

Existing Colorado law already contains provisions for civil remedies if people are harmed by invasion of their privacy. If the Senate doesn’t kill this bill outright, it should at least affirm that a civil remedy is available.

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