This post was also written by John Hines, and Frederick Lah.

Just how much privacy are we entitled to in public places, such as public highways and buses, classrooms, restaurants, or even on the Internet? While we expect to lose some sense of privacy when we move into public spaces, does this mean that we should be subject to being recorded (and subsequently publicized on a site like YouTube) anytime we are in public? Two recent cases involving the recording of police officers highlight the debate surrounding these questions.

Back in April 2010, motorcyclist Anthony Graber was charged with violating Maryland’s wiretapping laws after he used a camera in his helmet to videotape a state trooper brandish his gun while stopping Graber for speeding. To see the YouTube Video, please click here.  The Maryland court dismissed the charges, providing that “[i]n this rapid information technology era in which we live, it is hard to imagine that either an offender or an officer would have any reasonable expectation of privacy with regard to what is said between them in a traffic stop on a public highway.”

Later, in March 2011, the ACLU, on behalf of Khaliah Fitchette, filed a complaint against the City of Newark, N.J. after Fitchette was handcuffed and detained for using her smart phone to record two police officers deal with a disorderly man on a bus. Fitchette was allegedly detained for two hours in the back of the squad car but no charges were filed against her. Fitchette’s phone was seized by the police and the video was deleted. The complaint alleges violations of the Fourth Amendment and Fitchette’s First Amendment right to record and disseminate the video. A decision has not yet been made on the case.

These two cases illustrate the debate over whether police officers should be subject to being filmed or recorded while performing their duties. On the one hand, some would argue that a free and open society ought to tolerate and even encourage the rights of citizens to record and publish the activities of their public servants, especially police officers; indeed, some might argue that recording arrests and other demonstrations of police power may help reduce the incidence of abuse and unlawful invasion of individual rights. On the other hand, there is a legitimate concern that being recorded and subsequently publicized might have a chilling effect on an officer’s willingness to act swiftly in critical situations and thereby jeopardize public safety and welfare.

On a deeper level, though, the reluctance that some police officers feel about being taped may serve as a visible demonstration of the reluctance that many people feel about their lack of “public” privacy. As new technologies with recording capability continue to become more widespread, anyone of us is subject to being recorded anytime we step out into public. What’s more is the reality that such recordings may be uploaded onto YouTube and publicized to the world at the press of a button. As Harvard Law Professor Jonathan Zittrain notes in one of his books , “[C]itizens can quickly distribute to anywhere in the world what they capture in their backyard … The presence of documentary evidence [ ] creates the possibility of getting fired or disciplined where there had not been one before … As our previously private public spaces, like classrooms and restaurants, turn into public public spaces, the pressure will rise for us to be on press conference behavior.”

Similarly, as Internet marketing companies continue to find new ways to track and utilize consumer information, how much privacy should people be entitled to as they browse the Internet? For example, there have been a number of lawsuits over the past year brought by consumers against companies for their use of Flash cookies / Local Shared Objects (“LSOs”). The suits generally contend that companies, without permission, use Flash cookies / LSO to track and follow consumers as they browse the Web. While each of these suits involve individualized questions of fact, collectively they raise important social (and political) considerations on this issue of “public” privacy. Despite the fact the Internet is largely considered to be a public place — whether as a forum to exchange ideas or as an online marketplace — these lawsuits show that people still feel entitled to a sense of personal privacy as they use the Internet. Perhaps the disconnect lies within our society’s continued reliance on the Warren and Brandeis standard of the “right to be left alone.” Some scholars have suggested that that standard no longer applies and that the relevant standard should instead be on preventing tangible harms that might result when data is entrusted to a third party.

Whether we are entitled to some sense of “public” privacy is a debate that addresses important public policy considerations that go to the heart of how we control what others think of us and how we maintain control over our ability to shape and manage our identity, reputation, and personal information. There is obviously no easy answer. The only thing that is clear is that there is no specific state or federal legal scheme designed to address this issue. As Congress and State legislatures continue to wrestle with these questions, we will continue to monitor.