($$$) Privacy vs. Parenting: Parents lose

[The Preacher]

http://story.news.yahoo.com/news?tmpl=s ... l_snooping

First off, this is a state law, but I am going to extrapolate for purposes of discussion. And second, the AP sucks at reporting this type of thing so I'm going with what I've got. Lawyers, feel free to add and mock where appropriate.

So where is the line between parents' right to monitor their children's activities and the children's right to privacy? I'm only a new parent but I'll be damned if my son thinks that he should have unfettered privacy. Not only is it "my house", it's my responsibility to ensure that he is safe and one manifestation of this will undoubtedly be monitoring his IM and email (although completely on the sly I hope). The reason I bring up these two examples is that the ruling speaks about "communications", not just phone conversations.

OTOH, if this "child" was 18, then I might agree that my responsibilies have perhaps reduced some and he should not be monitored like a prisoner. And what of the rights of the person on the other end of the receiver?

But what if my child is Dylan Klebold. I eavesdrop on his conversation with his friend Eric Harris. I hear what they are about to do and, given that it is my child, I call the police and "detain" my son. Now nothing can be done because these two had an expectation of privacy on my phone line?

Or what if a pedophile was IM'ing my 13yr old daughter? I've been logging her IM so that I could review it and discover that they are going to have a "rendezvous". I call the cops and they can't do anything because I illegally monitored her activities? Sure I can talk to my daughter, explain what could have happened and "save" her. But what about the next girl?

I have no answers, only questions. But, without knowing much about law, the quick and dirty version of this frightens me.

Edit for Silj

[$iljanus]

I'm not a lawyer and not even a parent yet. But I don't understand why the law was interpreted in this way in regards to a minor, especially since minors seem to have no expectation of privacy in, for example, schools. Certainly, there will be parent-child relationship issues when a parent rightly or wrongly breaches their child's privacy. But why is this being legislated?

[Defiant]

Was the judge ruling on whether or not it was illegal for her to overhear the conversation, or whether it's inadmissible as evidence?

[The Preacher]

Was the judge ruling on whether or not it was illegal for her to overhear the conversation, or whether it's inadmissible as evidence?

The ruling was (seems to be?) that because it is illegal to monitor communications without the consent of both parties, the evidence was inadmissable. Perhaps they would allow evidence against her own child, just not the other party. But the law is quite clearly written that it requires both parties' consent.

[$iljanus]

Perhaps they would allow evidence against her own child, just not the other party. But the law is quite clearly written that it requires both parties' consent.

Ahh, so perhaps if the daughter was going on a killing spree it would be admissible but not against any co-conspirators on the other end of the phone line. Interesting. I don't really watch Law and Order so if any real life lawyers can chime it that would be cool.

We should have some kind of batsignal for attracting the lawyers on the forum to a thread. Like this perhaps:

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Edit: Thanks Preacher! A new forum calls for new traditions, I say!

[Austin]

We should have some kind of batsignal for attracting the lawyers on the forum to a thread. Like this perhaps:

$$$

LOL

[Mr. Fed]

$$$

You're going to need another 422 of those per hour, plus another 25,000 as a retainer.


This is one of a number of state laws that makes recording, or eavesdropping on, a conversation illegal. Usually this forbids both one party to a conversation recording it without the other party's knowledge (that's what Monica Lewinsky's former friend got in trouble for) or recording or eavesdropping upon the phone conversation of two other people without their knowledge or consent.

Many such laws have provisions that any conversation so recorded or overheard is inadmissible. I suspect that the AP story is somewhat misleading, in that the recording of the conversation violated such a statutory provision and not a right to privacy per se. (That's because the right to privacy usually restrains the government, not third parties, and suppression of evidence based on the actions of people who are not government agents is usually premised on some specific statutory provision, not on constitutional or common-law rights).

I'll see if I can find the opinion.


Edit: Here is the opinion. As I suspected, it holds that the eavesdropping violated the state law and was thus inadmissible, not that it violated some free-floating right to privacy. The discussion of whether the defendant had a reasonable expectation that the discussion would be private is relevant to the legal question of whether the conversation was private within the meaning of the statute, not whether he has some non-statutory right to privacy.

The court also refused (correctly I think) to make up a "kids" exception to the statute.

[Exodor]

We should have some kind of batsignal for attracting the lawyers on the forum to a thread. Like this perhaps:

$$$

Smart Lawyer Talk

Holy crap - it works!

[$iljanus]

The court also refused (correctly I think) to make up a "kids" exception to the statute.

Nice bit of information in that link. Loved reading the various examples that the state tried to throw in and the reasons why they weren't valid.

So if I'm interpreting this correctly, the evidence was thrown out due both parties in the conversation were overheard without consent, violating the state statute on easedropping. This was done by electronic means via the mom using the cordless phone base to tap into the conversation. What would be the ruling if the mom was passing by the door and overheard just the daughter's side of the conversation? Would I be correct in saying that since that communication was not monitored by electronic means it would not have violated the statute? What if the daughter was on a speakerphone and the mom wandered by the door?

[The Preacher]

I'm going to read that link a little later on, Mr. Fed, but I have a question in the meantime:

Is there any place that laymen can get good analysis on these types of rulings? Because I really can't stand the glossing over that the AP, et.al. do on these rulings (thus my exaggerated caveats at the beginning). Would that the AP had reporters that actually understood what they were reporting (this goes for the sciences, too).

[Mr. Fed]

Siljanus:

As I read the statute (set forth in the linked opinion), you are correct -- if the mom overheard the conversation by some means not involving electronic devices, it doesn't violate the statute. Overhearing one side of the conversation does not use a device, as required by the statute. If the daughter was using the speaker function, one could make a (fairly bad) argument that listening in was "using" a device, but in that circumstance I think a court would find that there was no expectation of privacy in a conversation that could be overheard so easily.

Preacher: there are a number of blogs that have good legal analysis. The Volokh Conspiracy is itself good, and has many links to legal blogs (among them "How Appealing", a great blog about appellate litigation and rulings).

I agree that coverage of legal issues generally sucks. On the CBS News feed on radio this morning, they presented this case as the [img]mother[/img] having "lost the case" in the Supreme Court because she violated the kids' "right to privacy." The statute was not mentioned. This was misleading and, in fact, boarderline legally illiterate; the mother was not a party to the criminal case.

[Exodor]

I agree that coverage of legal issues generally sucks. On the CBS News feed on radio this morning, they presented this case as the [img]mother[/img] having "lost the case" in the Supreme Court because she violated the kids' "right to privacy." The statute was not mentioned. This was misleading and, in fact, boarderline legally illiterate; the mother was not a party to the criminal case.

GMA discussed the ruling this morning and presented it as if all parents had suddenly lost the right to supervise their children.

There was no mention of the actual ruling - that evidence gathered via eavesdropping is not admissable in court. Instead, it was dramatized as the loss of parents rights and "a victory for rebellious teenagers."


Stupid Television.