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C . The Rules of Privacy and Intervention

The classic concept that "a man's house is his castle"13 clearly conveys the erroneous impression that each individual has the absolute right to privacy of all deeds committed within the walls of his own home. Modern law does not recognize such a concept at all, and the modern right to privacy is more centered around the question of whether or not the authorities had a good reason to invade the privacy of the home rather than any form of an actual right to privacy. No man has a right to violate the laws of the land. If the authorities have "probable cause" to believe that a crime is being (or has been) committed, the right to privacy disappears. No intelligent individual would entertain the notion that a mass murderer ought to be tolerated because the murderer always commits the murders in the privacy of the murderer's own home. Modern technology makes available many different means to invade the privacy of the home without actually physically entering the dwelling unit itself, beginning with simply calling on the telephone. The key issue then is to develop a set of rules which encourages intervention in those situations where harm is probably occurring and discourages intervention in those situations where harm is probably not occurring (and/or where it not necessary to intervene to procure evidence of past harm in order to prevent future harm through potential repetition). The rules must take into account human fallibility, the strong desire of individuals not to be interrupted in their (now rare) private moments, and the strong desire of society to prevent harm from occurring, or at least apprehend the perpetrators. These concepts are inherently in conflict with one another, and it thus becomes the ongoing goal of society to create a new balance of these goals whenever new methods, procedures, and/or technology allow it.

Privacy is a most precious commodity to most people. Everyone, from the small child to the oldest adult, feels the need to have a private space in which one can feel safe and secure, and in which one can perform whatever private acts give one pleasure. It is very disturbing to many people to think that they might be under surveillance during these private moments. Obvious intrusions would never be accepted by society. Whatever compromise is reached must include the maximum amount of respect for individual privacy that is possible under the circumstances. To the extent which the privacy of any individual is invaded, particularly when the purpose is routine surveillance, all information gathered must be kept in the strictest confidence, except to the extent that criminal activity is detected and a prosecution results. Furthermore, the policy should be to keep routine surveillance to an absolute minimum, unless the principal occupant(s) of the residence under surveillance consent to a more intrusive surveillance on a regular basis. In those cases, it should be made clear to those occupant(s) that they are consenting to increased surveillance in return for increased security, and that, as stated above, the information gathered will be protected.

Most modern thinkers now believe that the key to preventing serious harm from occurring is to intervene at the earliest possible stage. The most serious examples of where "the system" is blamed for some harm usually involve several break-downs where somebody simply did not want to get involved in what appeared to be a "marginal" situation for justifying intervention.14 Our present society has made the consequences of erroneous intervention so severe that people fear to intervene unless the situation absolutely demands intervention. In turn, the authorities frequently comment upon individuals who do intervene by stating that it is very dangerous to intervene, and the proper course of conduct is to call the authorities rather than intervening personally. However, most people know that calling the authorities will result in a late response, if any proper response at all is generated, and that there can be significant harm to anyone who does get involved, especially if the intervention turns out to be unwarranted.15 Still, the authorities cannot respond if nobody even bothers to call them.16 The key concept here, which is a derivative of the Golden Rule, is that you are your "brother's keeper,"17 because you would surely wish for another to intervene if you were the one suffering the harm and could not protect yourself. Accordingly, you must be prepared to intervene to prevent harm to others and to prevent others from harming still others. If you know of harm occurring, or even if you have a sufficiently strong suspicion of harm occurring, it is your duty to intervene by, at a minimum, notifying the proper authorities.

In determining the proper course of intervention, it is necessary to remember the restrictions implicit in the Freedom Dogma and the Mutual Duty Dogma. Individuals have a right to act freely, and a right to not be subject to unnecessary restrictions upon their freedom. Thus, if an intervention determines that no harm is imminent, then it is the duty of the intervenor to apologize for the interruption and withdraw as rapidly as is possible. If the intervention determines that only harm to the individual is imminent, then the limits of intervention allow the individual to be notified of the actual or potential harm, and to be "remonstrated" about the consequences, but the individual who is in full possession of all necessary faculties, including wisdom and maturity, may not be prevented from intentionally incurring personal harm. A parallel concept is that one individual may harm another with the consent of the other, so long as the consent is freely given and the consenter is also in full possession of the necessary faculties, etc.18 On the other hand, if the intervention determines that another is to be unwillingly harmed, then the intervenor has the duty to prevent that harm, if it is possible to do so, and to report the situation to the proper authorities for them to take any appropriate action necessary to resolve the situation.

One ongoing debate which is occurring right now in our society is the debate over whether or not society ought to require its police to make an arrest whenever they are called out on a "domestic violence" call. The debate is seriously pursued because the proponents can clearly show that such intervention makes a substantial cut in the risk of further violence, at least as a result of that particular incident. However, if arrests are forced, the long term consequences can be extremely devastating,19 especially since expansions in information technology make immediately available to anyone who can pay the price a complete arrest history on anyone who is ever arrested for any reason (except, currently, juvenile arrests). A careful study of the problem produces a set of guidelines which ought to be implemented by our society. First, no arrest information should ever be made public unless a criminal conviction results from the arrest. If the prosecuting attorney declines to prosecute, or if the case is dismissed, or if the defendant is found not guilty, all records of the arrest and prosecution ought to be required to be destroyed (after the time for any appeal has expired), with a statutory penalty for any failure to destroy those records.20 Second, for any domestic violence situation, an effort ought to be made to determine which party (or parties) instigated the violence, which party (or parties) perpetrated the violence, and which party (or parties) acted in self defense. Each party ought to be offered the option of forced incarceration for the other party (or parties) with the clear understanding that if their request for the arrest of the other party is found by the court to be frivolous, a jail sentence for false arrest will be immediately imposed upon the party making the frivolous request for the arrest of the other party. Each party ought to be required to report to some sort of domestic violence counseling program. At no time should police officers in the field be forced to make a determination of who is telling the truth and who is not. The officers should be vested with absolute discretion to arrest either or both parties based upon their initial determination of the facts of the particular situation, combined with the information gleaned from the interviews and arrest requests of the parties. However, those officers ought to be required to arrest the other party (or parties) when there is any substantial physical injury to one of the parties, unless they are absolutely convinced by the facts which they determine that the injury was inflicted during an act of self defense. Also, regardless of whether or not an arrest is made, the parties ought to be required to immediately find separate dwelling quarters, with the police using an automatically issued "domestic violence restraining order" to effect that result. Arrest is also mandatory for any party who has violated any existing domestic violence restraining order. Any party to a domestic violence incident who is not arrested must be cited under a "cite and release" program. The citation should require all parties to appear at the same court hearing so that the judge may enter any orders which appear appropriate at the time of the hearing, and arraign any party who appears to have engaged in criminal activity.

The proliferation of various forms of home security systems clearly indicates that many individuals are very worried about their personal security inside their own homes. The question arises as to whether society has a right, or even a duty, to use similar devices as part of a general plan of surveillance to prevent criminal activity. Where security cameras are used to examine what is going on in various locations, crime is clearly minimized in those locations, and the security cameras lead to a relatively high rate of catching the criminals.21 As voice response technology develops further,22 it seems a natural consequence that this technology will be incorporated into security systems for the home. When that occurs, a person really can "call for help" when they are home alone. The real question arises when you ask whether or not the authorities should be able to snoop around electronically in homes where nobody has called for help. Assuming that privacy concerns can be satisfied, perhaps by requiring the signing of permission slips in advance, it would appear that they should be allowed to do this, but they should be absolutely prohibited from intervening (or in any way making their "presence" known) unless the activity which is being overheard constitutes evidence of a "felony" type of crime, particularly where the "felony" is a crime of violence.

Any society must strive to balance competing goals. The goals at issue herein are fundamentally in conflict with one another due in large part to irreversible trends in technology. A thousand years ago, there were very few crimes a person could commit in their own home, basically limited to inflicting personal injury or death upon another person. In those days, such crimes were somewhat easier to detect and solve because the limits of transportation implied that both the criminal and the victim would remain relatively near the crime scene, and that the victim would usually be at least an acquaintance of the perpetrator. Modern transportation has allowed criminals to kidnap a randomly selected victim, transport the victim to a place of concealment, perform various unspeakable acts upon the victim, including murder, and then dispose of the body of the victim many miles away.23 With such criminals, the best time for authorities to detect the crime and intervene is when the criminal and the victim are together in a home (or perhaps an automobile). If a notification to authorities was triggered each time when some electronic device detected a gunshot, a scream, or some other highly suspicious (and loud) noise,24 it should be possible to at least rapidly catch the criminal(s), if not preserve the life and/or health of the victim. While the best security would result from allowing the authorities to snoop around at random (through a network of electronic bugs), the potential for abuse of various sorts would seem to be far too great to adopt that as a standard operating procedure for the inside of homes.25 At a minimum, such a process would require the development of a new morality among both the citizens and the security forces.26 In any case, the cost of a large professional security force also seems prohibitive. The best answer is to simply encourage all individuals to "get involved" with their neighbors and to become their own security patrol.27 This kind of security patrol costs nothing (or nearly nothing), and is far more likely to detect criminal activity than is some affordable professional security patrol (i.e., or modern police force). The authorities would then activate any available electronic devices (including the telephone) upon notification from the public that something suspicious seemed to be occurring. This seems the best balance of all of the values.

13 Sir Edward Coke [1552-1634], Third Institute [1644]. The complete quote is "For a man's house is his castle, et domus sua cuique tutissimum refugium." The Latin portion translates as "One's home is the safest refuge for everyone," and is taken from the Roman Pandects [books of Roman civil law compiled under Emperor Justinian in about 533 a. d.], Book II, Title IV, De in Ius Vocando. A similar thought was expressed by Philip Massinger [1583-1640] in his play The Roman Actor [1629], Act I, Scene 2, "I in mine own house am an emperor / And will defend what's mine."

14 Since our present society expects "the authorities" to intervene, budget constraints in the associated civic organizations frequently are cited as a contributing factor.

15 Such as a lawsuit for false arrest, etc.

16 The most notorious example of this phenomena would be the murder of Kitty Genovese, who was brutally murdered within the hearing of an entire neighborhood, many of whom admitted hearing her long, loud, and chilling screams for help. Nobody called the police. It seems that nobody wanted to get involved in what appeared to be a "boy-girl" fight.

17 See Genesis 4, verse 9. After Cain killed Abel, God asked Cain: "'Where is Abel your brother?' And [Cain] said, 'I do not know. Am I my brother's keeper?'"

18 A derivative of this concept would be the right to assisted suicide.

19 Technology may eventually prevent the arrested party from getting any job at all.

20 The sole reason for the statutory penalty is to limit the damages which can be awarded to a person injured by the erroneous failure to destroy arrest records. Accordingly, at a minimum, a maximum statutory penalty should exist when a government agency fails to destroy the records. Private companies who distribute such information are another matter, and they should not be protected by maximum damage limits.

21 The security cameras at banks lead to the catching of all but a very few bank robbers, sooner or later.

22 For example, you can now get a voice activated remote control for a television set.

23 The recent killer of Denise Huber appears to have been caught only because he elected to keep the victim's body in a freezer rather than disposing of it in some way.

24 But the noise detector must be able to discriminate against common loud noises, such as sonic booms from aircraft and/or other common noises, including televisions.

25 This is especially true if the individual who is being snooped on happens to be well known for any reason. Tapes of a celebrity "in bed" with somebody would bring a really high price, and thus the temptation for abuse seems to outweigh the value of the security. However, this balance might well change if (or rather, when) technology would allow the remote sensors to be monitored by impersonal electronic equipment which is explicitly programmed as to which sounds are of interest to law enforcement officials and which sounds are not.

26 It would seem that people would need to be basically insensitive to the viewing and/or even the recording of their nudity and/or intimate acts within their own private spaces.

27 If neighbors are perceived to be part of the "extended family" of the person, snooping by those neighbors is automatically perceived as less intrusive than snooping by a faceless representative of authority. Also, the neighbors would be more aware of the habits of each individual, and would thus be less prone to issue false alarms. Still, we must guard against the tendency of neighbors in our present society to not want to get involved in squabbles between neighbors.

Copyright 1994-1999 by the Agnostic Church

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