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Wednesday, June 25, 2008

Privacy, property, and North Oaks

First, the good news: The city of North Oaks, Minnesota, is an entirely private city. Did you get that? The whole city is private property. It's all private. From the city website:

"Approximately 4500 residents call North Oaks home.  Because residents' properties extend to halfway across the road, all residential roads in the City are private and for the use of North Oaks residents and their invited guests only.

"The City owns no property.  With residents owning the roads, the North Oaks Home Owners' Association owns the park and recreation areas and trails throughout the City."

Second, the weird-ish/interesting news: Google has been asked to take down the street view feature for North Oaks. Since the roads are private property, and the homes obviously are, and everything in the city is private, Google was asked to take down all of their pictures of the city. At the risk of being charged with trespassing. The mayor said:

"It's not the hoity-toity folks trying to figure out how to keep the world away," said Mayor Thomas Watson. "They really didn't have any authorization to go on private property."

Now, for the questions: I understand that you can't physically be on someone's property without their permission. But what if Google had figured out a way to get long-distance camera lenses, and take street view pictures of the streets and homes without ever being on any North Oaks property? Would that be fine?

We should disentangle two related issues; those of privacy and those of private property. Some people think that private property captures privacy. Like this: Facts and replicas (visual or otherwise) of or about me and things I own are my property. For anyone to use those facts or replicas without my permission violates my property rights to those things. "Privacy" is just a special instance of the broader "private property."

If this were true, then whatever principles guide our theory of property should guide our view on this particular case (and other cases of "privacy-as-property"). But it might not be true. Privacy may be distinct from private property, even though many principles that cover private property may overlap with the principles that guide us in deciding on privacy issues.

Here's a special case that might give you some food for thought when deciding the City of New Oaks case: Broadcast signals from radio stations (and wi-fi signals for internet access) pass through our property. They do so, in many cases, without our permission. Someone broadcasts a message, that message passes through my property (including, so I've been told, my body), and then continues on. Some homes tune in, some don't.

Question: Is this a violation of private property? (True, I can't detect it. But I can't always detect a trespasser either, and we still think that it's wrong, even if undetected. Let us suppose that it is also completely and entirely harmless, would that be a reason to allow it? But the undetected trespasser that does no damage to anything at all still counts as violating my property rights, and thus, on most views, does something wrong quite apart from harm. So maybe that won't work either.)

Posted by P.M. Jaworski on June 25, 2008 | Permalink


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Google displays the pictures and generates revenue, so there is likely a case to be made. I've heard of some others asking to have their property blanked out on Google Earth.

The radio and microwaves issue makes me dizzy to think about it. It seems we have no right to use the signals even when they are actually invading our bodies.

Posted by: dp | 2008-06-25 8:15:21 PM

Without involving the argument of whether light is waves or particles, it seems clear that viewed from a point not physically on one's property does not engage that person's property rights.

The issue of privacy is separate.

When I mail a letter it is a private communication between myself and the party it is addressed to. When the addressee receives the letter it becomes their property and they may share it as they see fit.

Regardless of a claim to free speech, ham radio operators must have a licence to broadcast from their private property.
If the government owns the radio bands does it then follow they own the visual light bands as well and that they are not, in fact, private property?

Posted by: Speller | 2008-06-26 6:59:45 AM

This is kind of like the judge who disallowed the use of infrared cameras to spot grow-ops even though the cameras were not mounted on private property and they were completely passive in nature. These instruments do not see through walls or dig things up; they merely capture infrared radiation that at the point of intercept is not on private property. Ditto for radio transmissions (which includes cordless and cellular phones). Fear of the state sure feeds some odd neuroses.

The matter in this case is simple. If the photos were taken on private land by residents or invited guests, there is no trespass. If the photos were taken by means of telephoto lenses (which should be obvious to anyone with photography training, as the perspective will be compressed), there is again no trespass. Only if the photographer(s) were on land without permission is there trespass. Of course the mere publishing of the photos is not trespass in any case; at worst, they're EVIDENCE of past trespass.

As for the right to privacy, in the U.S. at least, there is none. It is a legal fiction. Of course, the most screamingly funny irony of this entire episode is that since the property in question is private, it's up to the individual owners to speak up or seek damages, not the mayor.

Posted by: Shane Matthews | 2008-06-26 7:39:06 AM

If they don't want to be photographed by a satellite, then they really ought to put a roof over the city. It's not Google's fault if they flaunt themselves in the open air.

Posted by: ebt | 2008-06-26 12:27:57 PM

The demographics of North Oaks are interesting:

"The racial makeup of the city was 93.33% White, 0.31% African American, 0.15% Native American, 4.61% Asian, 0.03% Pacific Islander, 0.57% from other races, and 1.00% from two or more races. Hispanic or Latino of any race were 1.21% of the population.

The median income for a household in the city was $149,158, and the median income for a family was $152,380. Males had a median income of $100,000 versus $47,019 for females. The per capita income for the city was $72,686. None of the families and 1.9% of the population were living below the poverty line, including no under-eighteens and 9.6% of those over 64. North Oaks is listed among the highest-income places in the United States."

And Minnesotan Democrats generally, chose Obama over Clinton in the primaries. The white, liberal, hypocrite, status-seeking Homo Monetarus is an interesting creature.

Posted by: DJ | 2008-06-26 1:04:16 PM

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