Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Tuesday, August 1, 2017

Privacy: Through the Rear Window

1954, a prophet foretold many of our current dilemmas in privacy law and policy. His name was Alfred Hitchcock. And the prophecy was his film, Rear Window.

In the movie, photographer L.B. “Jeff” Jefferies (played by James Stewart) finds himself with a broken leg and confined to a wheelchair. Stuck at home, but with plenty of telephoto lenses at his disposal, Jeff amuses himself by watching the world go by through the rear window of his apartment. His attention is increasingly drawn across the courtyard to the windows of his neighbors, whom he observes with deepening curiosity.

One night, Jeff hears a scream come from a nearby apartment occupied by a troubled couple, Lars Thorwald (played by Raymond Burr) and his wife. Later, he sees Thorwald take numerous nocturnal trips in and out of his building, always carrying a large sample case. The wife having vanished from sight, Jeff comes to believe that Thorwald murdered her, cut her into pieces, and is systematically disposing of the body.

Jeff involves his girlfriend Lisa, his visiting nurse Stella, and his policeman friend Lt. Doyle in his efforts to prove that Thorwald killed his wife. Thorwarld figures out what Jeff is up to and comes after him. Help arrives in the nick of time, saving Jeff from the murderous Thorwald, although not quickly enough to keep Jeff from falling out of the rear window and breaking his other leg.

Rear Window came out in 1954, decades before we started worrying about the high tech surveillance state, how the Internet monitors our behaviors, and the collection and dissemination of big data. But when I recently watched the film I was struck by how poetically it anticipates the dilemmas we now face.

On one hand, the film shows us the advantages of closely observed human activity. In one of the film’s subplots, Jeff watches over a young female neighbor who becomes increasingly desperate and potentially suicidal. And, of course, it is only through Jeff’s surveillance that the police are able to arrest Thorwald, a character played by Raymond Burr with such brilliant menace that he seems like the very embodiment of creepiness.

On the other hand, Jeff has some creepiness of his own.

Lt. Doyle cautions Jeff that there are parts of other people’s lives we’re not meant to see. He’s right, of course, but Jeff keeps watching anyway. The habit of surveillance is more easily got than got rid of.

Also, although some of Jeff’s snooping ends up serving a greater social good, along the way he takes in a lot of information that serves no higher end than his own idle curiosity. Like many systems of data capture, his telephoto lenses sweep with stunning overbreadth and without discretion.

Further, for all his looking out, Jeff does not want people looking in. At one point when Lt. Doyle is visiting Jeff he notices Lisa’s open suitcase with her lingerie visible. Jeff bristles at the intrusion.

And one of the most chilling moments in the film occurs when Thorwald, realizing that he’s been watched, peers across the courtyard and through the rear window into Jeff’s apartment. Jeff draws violently back into the shadows, the observer recoiling at the thought of being observed.

Of course, Jeff can look through all of these windows because his neighbors opened them to get some fresh air during an oppressively hot summer. And we might say that by doing so they assumed the risk that someone would get a glimpse into things they normally keep hidden from the world at large. It’s like a cinematographic representation of agreeing to a website’s privacy terms.

Indeed, it calls the same sorts of questions. Do these people realize how much of their privacy they’ve surrendered? Do they understand that someone is watching them through the enhanced capacities of a telephoto lens? Is the opening of the windows a reasoned calculation, or an act of blind trust, or a capitulation to the realities of comfort and convenience? It is, after all, easier to throw open the window and take your chances than it is to try to protect your privacy—so it was in 1954, so it is today.

There is surely a required reading list for those interested in privacy law and policy. In an upcoming blog post, I will review a book that I think belongs on that list: Privacy Revisited: A Global Perspective on the Right to Be Left Alone by Professor Ronald J. Krotoszynski, Jr., of the University of Alabama School of Law.

But perhaps there should be a required “watching list”—the pun is intended—as well. If so, then in my judgment Rear Window should be near the top. Cue it up and grab your popcorn—but only after you’ve drawn the shades. 

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