The Senate Judiciary Committee of the Hawaii legislature just voted to approve the “Steven Tyler Act” (SB465), an anti-paparazzi law named after the Aerosmith lead singer, who personally showed up to testify in favor of the bill at a hearing today.  The Tyler Act, which apparently was prompted by Tyler’s experience with paparazzi near his Maui home, attracted written testimony from an assortment of celebrities including Britney Spears, Neil Diamond, Tommy Lee, and Avril Lavigne.  My favorite testimony letter was Ozzy Osbourne’s because it had a little cartoon drawing of Ozzy in the bottom right corner.

Cartoon from written testimony on SB465 by Ozzy Osbourne, 2/6/13

The final fate of the Tyler Act remains uncertain, but now that it’s taken an important step forward, I thought I’d share my thoughts on the bill in its current form.  (The Tyler Act isn’t exactly related to technology law, but I’m blogging about it because I also practice in First Amendment, privacy, and media law.)

It’s important to understand that the Tyler Act mimics California’s anti-paparazzi law (which is currently facing its own legal challenges).  As much as legal commentators panned the California law, the Tyler Act should attract its fair share of criticism, if not more, because its language is much more loose and vague.  And that’s not good when it comes to writing a law.  You know the Aerosmith song “I Don’t Wanna Miss a Thing”?  Well, there are quite a few things the Tyler Act misses.  Here are some examples.

The centerpiece of the California law is the creation of a new tort called “constructive invasion of privacy.”  This kind of invasion of privacy is “constructive” in that it doesn’t require the defendant to have physically trespassed onto the plaintiff’s property.  Use of a “visual or auditory enhancing device” is enough.  So, a person using a telephoto zoom lens to snap pictures of J-Lo on the balcony of her home could be liable for invasion of privacy without having stepped foot onto J-Lo’s property.  The idea is that use of devices to intrude into someone’s private space is just as invasive as physically entering into their space.

The Tyler Act uses the term “constructive invasion of privacy,” but it doesn’t exactly track the theory behind the tort.  Here’s the main liability section of the Tyler Act:

A person is liable for a civil action of constructive invasion of privacy if the person captures or intends to capture, in a manner that is offensive to a reasonable person, through any means a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy.

See any reference to “visual or auditory enhancing device”?  There is none.  The Tyler Act says a person could commit a constructive invasion of privacy “through any means.”  A cheapie disposal camera would do it.  So would the audio recording app on your iPhone.  And if devices lacking in any “enhancement” feature do the trick to capture a “visual image, sound recording, or other physical impression of another person,” query whether there was an invasion of personal space, constructive or otherwise.  (Note that if an invasion into private space truly occurred, even in the absence of a physical invasion, Hawai‘i law already provides a remedy through the common law tort of intrusion into seclusion, which is a form of invasion of privacy.)

But the problems with the Tyler Act don’t stop there.  The Act applies when the plaintiff is engages in a “personal or familial activity.”  That language also appears in the California law, which is defined as “intimate details of the plaintiff’s personal life, interactions with the plaintiff’s family or significant others, or other aspects of the plaintiff’s private affairs or concerns.”  Cal. Civ. Code § 1708.8(l).  The definition excludes “illegal or otherwise criminal activity ….”  The meaning of “personal or familial definition” is pretty vague even with that definition, but at least the California law includes a definition.  The Tyler Act doesn’t!  It’s anyone’s guess what “personal or familiar activity” means under the Tyler Act.

Similarly, the Tyler Act doesn’t define “offensive” or “reasonable expectation of privacy.”  Nor does it contain an exception for publicizing matters of “legitimate public concern,” unlike the California law.  This is problematic because it imposes liability for conduct not remotely resembling the opportunistic antics of paparazzi.  Suppose a celebrity’s Kauai mansion catches on fire, spreading flames to her neighbor’s homes.  The celebrity rushes out to the sidewalk with her kids, watching as firefighters put out the blaze.  A photojournalist arrives on the scene and takes a picture of the celebrity and her kids from across the street.  He then sells the photo to a local daily newspaper, which uses it alongside a front-page article about the fire.  That’s hardly TMZ-style content, but under the vague language of the Tyler Act, the photojournalist and newspaper could be sued for constructive invasion of privacy.

Now, you might ask, why would the newspaper be liable?  That’s because the Tyler Act says:

Any person who transmits, publishes, broadcasts, sells, offers for sale, uses any visual image, sound recording, or other physical impression, or who subsequently retransmits, republishes, rebroadcasts, resells, reoffers to sell, or reuses any visual image, sound recording, or other physical impression that was taken or captured in violation of this section shall constitute a violation of this section if:

(1)  The person had actual knowledge that the visual image, sound recording, or other physical impression was taken or captured in violation of this section; and

(2)  The person received compensation, consideration, or remuneration, monetary or otherwise, for the rights to the unlawfully obtained visual image, sound recording, or other physical impression.

(Emphasis added)

Imposing liability for publishing information obtained in violation of the Tyler Act runs into First Amendment problems.  Under Supreme Court precedent, the First Amendment protects speech that publishes the contents of a communication that was illegally intercepted as long as the publisher itself did nothing illegal to obtain the communication.  See Bartnicki v. Vopper, 532 U.S. 514 (2001).  Even more troubling is the Tyler Act’s authorization of courts to issue injunctions against future violations of the Act.  Since publication of information obtained in violation of the Tyler Act could itself violate the Act, a court could literally issue an order “halting the presses.”  That’s called a prior restraint, which is regarded by courts as the most offensive of First Amendment violations.

There are other problems with the way the Tyler Act is written – like the absence of an exception to liability for actions taken in a legitimate law enforcement investigation, or the fact that the Act is not limited to actions taken in Hawai‘i (unlike the California anti-paparazzi law, whose applicability is limited to actions within California) – but I think the point is made well enough.  Although the Tyler Act is well-intentioned, more thought and care needs to go into making it a clear, constitutional law that doesn’t inadvertently turn well-meaning fans, reporters, and publishers into law-breakers.