Managing Your Expectations of Privacy

By now, we have all heard about a particular public incident involving a Coldplay concert, a KissCam, and the CEO and HR Director of tech company Astronomer. This incident exploded on social media due to the abnormal response from the individuals caught on the kiss cam, along with the discovery of their professional connection and exposed affair. Public exposure like this tends to raise the question of “what should my expectations of privacy be, if I am in public?” Today we are going to explain what your expectation should be, and its legal backing.

Privacy Expectations in a Public Setting

Let’s start off broad and explain what expectations are for privacy in public. While there is no one law that states you cannot have an expectation of privacy in public, it is an established idea from various laws.

1. The First Amendment of the U.S. Constitution: The First Amendment specifically covers video recording in public, and it is considered a form of expressive conduct.
   1. Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)
      The court determined that individuals have a constitutional right to record public officials in public places, reinforcing the idea that recording in public is lawful.
   2. Fields v. City of Philadelphia, 862 F.3d 353 (3rd Cir. 2017)
      This case reinforced the First Amendment right to record in public spaces, even without a clear purpose.
2. The Fourth Amendment of the U.S. Constitution: The Fourth Amendment protects against unreasonable searches and seizures, which may make you wonder how this is connected to privacy in public. Various courts have upheld the idea that there is no reasonable expectation of privacy in public.
   1. Katz v. United States, 389 U.S. 347 (1967)
      The court stated that “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”
   2. United States v. Knotts, 460 U.S. 276 (1983)
      The court upheld the warrantless use of tracking devices, reasoning that the defendant was traveling in public view, so no reasonable expectation of privacy applied.
3. Wiretap and Surveillance Laws: Video recording in public (video only--no audio) is generally legal in all 50 states, unless it is used for harassment or stalking.
4. Tort Law: Recording in public is considered lawful unless it is intrusive or defamatory.

Privacy Expectations at a Coldplay Concert in Massachusetts

Since this incident took place at a concert in Massachusetts, let's dive in a bit more on those specific spaces.

Privacy Law in Massachusetts:

• Under Massachusetts law, recording video without sound is permissible in places where people do not have a reasonable expectation of privacy.
• Massachusetts is a two-party consent state, so recording video WITH sound (even in public spaces) is only permitted if both parties consent. 

Privacy Expectations at a Concert:

• When you purchase a concert ticket, there are typically privacy policies present that include consents to being photographed, recorded, or otherwise documented.
  • An example would be TicketMaster, a popular ticket-purchasing website:
    “You grant the event organizers the right to use your image, likeness, actions, and statements in any live or recorded audio, video, or photographic display or other transmission, exhibition, publication or reproduction… without further authorization or compensation.”
  • Another example would be the venue this concert took place at, the Gillette Stadium:
    “When you visit our location or attend or participate in an event at our location, we may capture your image, voice and/or likeness, including through the use of CCTV cameras and/or when we film or photograph you in a public location. You should therefore expect to be filmed or photographed when you are in a public location.”

For this specific scenario, the recording of these two individuals is considered lawful due to the stadium privacy policy, as well as with constitutional backing. The only area where questions may arise would be at the Massachusetts State Law level, since they are a two-party consent state. If this incident took place at some other public location, such as a coffee shop, this law would be very relevant to determine whether or not there are legal implications. With this concert taking place at the Gillette Stadium, which clearly states that by attending that venue you consent to being filmed or photographed in that location, the two-party consent law isn’t relevant.

Privacy in public can be tricky to navigate, but a good rule of thumb is to expect limited privacy when you are in a public space. For anyone who plans on engaging in… extracurricular activities… maybe don’t do it in public if you don’t want to get caught!