Unlawful Surveillance and Invasion of Privacy
The Penal Law prohibits a number of forms of electronic invasions of privacy. First, Penal Law Section 250.05 makes it a Class E felony to eavesdrop on another without his/her consent. It specifically prohibits wiretapping, the mechanical overhearing of a conversation (such as secretly listening in on a telephone conversation), or intercepting or accessing of an electronic communication (such as an e-mail).
The other common crime in this chapter of the Penal Law is Unlawful Surveillance. It occurs generally when a person installs or uses a hidden camera to view, record or broadcast a person without their consent while they are dressing or undressing, or using the bathroom or changing room, or when their sexual or other intimate parts of their body are exposed. One highly-publicized recent case of Unlawful Surveillance involved a public defender at the Legal Aid Society who was convicted of using a hidden camera to take video footage of his female colleagues while they were undressing. The attorney, Peter Barta, was disbarred from the practice of law following his felony conviction. Details of that case are available here. Interestingly, this charge may also apply to cases where a person videotapes a consensual sexual encounter without the person’s knowledge. For example, Diana Bianchi, the teenaged mistress of Christie Brinkley’s ex-husband Peter Cook, recently considered lodging
a criminal complaint of Unlawful Surveillance in the Second Degree against Cook for allegedly videotaping their sexual trysts. The crime is a Class E felony, and can be a Class D felony for repeat offenders.
The crime of Dissemination of an Unlawful Surveillance Image occurs when a person knowingly distributes these sorts of unlawful images. Recently, Erin Andrews, an ESPN sportscaster, was the apparent victim of just such a crime when nude photos of her, taken through the keyhole of a door, were posted on the internet. The crime can be a misdemeanor or a felony depending on whether the unlawful images were sold for profit, whether the disseminator was the person who created the images, and/or whether the person accused of the crime is a repeat offender.
Key Penal Law Provisions:
- Eavesdropping, PL 250.05
- Unlawful surveillance in the second degree, PL 250.45, a class E felony
- Unlawful surveillance in the first degree, PL 250.50, a class D felony
- Dissemination of an unlawful surveillance image in the second degree, PL 250.55, a class A misdemeanor
- Dissemination of an unlawful surveillance image in the first degree, PL 250.60, a class E felony