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Homes are private places, even if the public has "visual access"

posted by:Alex Cameron // 10:12 AM // January 28, 2005 // Digital Democracy: law, policy and politics

The Supreme Court of Canada has just released reasons in an interesting privacy case. The the accused was charged with committing an indecent act in a public place - masturbation in this case - under the Criminal Code. However, the accused had engaged in this act in his own home. The question the Court has to answer was whether the man's home was a "public" place because his activities were in view of the "public" through his windows - his neighbours were the ones who saw him and reported him to the police.

In a short unanimous judgement, the Court held that the man's home was private and that it did not become "public" merely because others could peek in. Citing the language of the Criminal Code, Justice Fish wrote the following for the Court: "The living room of his private home was not a place 'to which the public (had) access as of right or by invitation, express or implied'." The Court held that "access" in this provision of the Criminal Code meant physical access, not "visual access". Because the public did not have physical access to the accused's home, it was not a public place for the purpose of this offence.

This ruling turned on the particular wording of the Criminal Code. However, it will be interesting to see whether this case influences more broadly the interpretation of public vs. private spaces in future cases.

Full decision here

Media report here

Comments

This may provide grounds to challenge the Court's earlier decision that thermal imaging equipment which allows police to "look inside" a private dwelling place can be conducted without a warrant. Seems to me you can't have it both ways - if "peering out" doesn't change the status of the place as "private", then "peering in" shouldn't either.

Posted by: Valerie Steeves at January 28, 2005 03:06 PM

Hi Valerie. I'm probably about as happy as you with the thermal imaging decision. That said, however, I'm not sure I see the inconsistency between it and the present decision. The underlying principle suggested in the present decision is that a place is public just in case others have legitimate physical access to it. So, the neighbors couldn't complain that the individual was doing something offensive in a public place, because they had no legitimate physical access to that place (his home), even if they had legitimate visual access. But this principle might be said to be what's doing the work in the thermal imaging decision as well: home-owners can't complain that that their homes are being turned into public places by the use of the thermal imaging, because the use of such imaging only provides for legitimate visual access, not legitimate physical access.

Maybe our target should be that underlying principle. I'm pretty sure it's false, in fact. And I suspect a suitable replacement -- a true criterion of publicity -- would clarify both what's wrong with the thermal imaging decision and what's right about the present one.

Posted by: David Matheson at January 29, 2005 01:18 AM

I was thinking that, if a "public place" is "any place to which the public have access as of right or by invitation, express or implied", then a “private place” by analogy, includes a place where there is no open invitation to the public to access. That reinforces the common sense view that a dwelling house is a private place independent of the fact people can peer through the walls. You’re completely right, in the sense that Tessling was decided on the fact that the technology only picked up on external heat, as opposed to penetrating the walls themselves. It just seemed to me that this decision was helpful because it doesn’t determine the level of privacy by the ability to peer in, and instead relies on the general understanding that a private place is one that’s not open to the public by intention (as opposed to technological impregnability).

Posted by: Valerie Steeves at January 31, 2005 12:48 PM

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