Comment by mindslight | Hacker News Reader

Comment by mindslight | Hacker News Reader

(spoiler/answer warning for those who haven't yet taken the test at the end)

HN-pertintent question on #8 -

The test question describes a scenario in which a businessman's location is broadcast on TV against his wishes. The possible answers for why he doesn't have a claim are "because he did not suffer harm" and "because it was newsworthy".

Meanwhile, given the current trends of (face recognition, phone cameras, wifi tracking, license plate readers, and even credit bureaus themselves) I would have expected the actual answer to be closer to "because the TV station can record and broadcast whatever the fuck they want" (phrased more appropriately for a bar exam, of course). At least this seems to be the general principle referenced whenever private sector mass surveillance is discussed.

Each of these activities does have its own confounding factors (commercial/non, business relationships, governmental support, public/private broadcast), but essentially creates a similar situation where an individual is broadcast against their wishes, and whether their activities are newsworthy is questionable. And the only goal of much private surveillance is to cause financial harm to the surveilled.

What exactly gives? The only plausible resolution I've thought of is that since the case law is not settled, these two opposing concepts are actually fighting and it's not as cut and dry as we think (which would imply that stating it as settled is supporting anti-privacy). But I'm interested in any other explanation.

Because the question is not about general law principles. It is testing to see if you know the tort of public disclosure of private facts and if you know about the right of publicity.

Importantly, let me be more clear:

* The definition of "newsworthy" in this case is a term of art, not a matter of "it is not newsworthy in the same way that stories about the hulk are not newsworthy." Newsworthy, in this instance, does not mean meritorious as a subject of news, but merely of public interest. In this case, yes, it is newsworthy. This is the way courts use this word in this context.

* Case law is very, very resoundingly settled on this matter. Activity you conduct in public can be recorded and broadcast for a huge variety of purposes - end of story. The only really restricted purposes, in fact, are those that imply sponsorship or endorsement, or are injurious as a matter of libel - meaning there is a material falsehood. This question is structured, specifically, to see if the reader knows about the laws of libel and publicity - truth is a defense to libel (this is a true recount of facts occurring in the broadcast of the footage) and newsworthiness is an exception to violation of rights of publicity (which are typically only violated when implying sponsorship or endorsement).

The reason the questions don't make sense, then, is for the very reason that a lot of people don't respect what lawyers do (note: I am in now way implying you do not - you have put time and thought into your response and I found it very stimulating! I am talking in general) - because though we use english as the language of practice it does not mean we use the commonly used english definitions of those words in the legal context. Here, in this context, without knowing a fair amount of law, you wouldn't know that there were specific privacy rights being dealt with and that "newsworthy" is a term of art. In other words, the question being asked is absolutely no less technical than the question on mortgages - except that mortgages are so esoteric no one accidentally mistakes understanding mortgages for the mere fact that they are explained in english words. If I could go back in time, I'd write laws in camelcaps to make it clear that the legal definition of newsWorthy is different than the lay meaning of newsworthy.

> This question is structured, specifically, to see if the reader knows about the laws of libel and publicity

How would one's answer change if they had never heard of these concepts? For this question, these topics only come up to be ruled out. I can see these things tripping someone up if they know enough about the concepts to involve them, but not enough to see that they don't apply, and perhaps this is the only point.

> not mean we use the commonly used english definitions of those words in the legal context

IMHO "newsworthy" as a term of legal art doesn't seem far off from "newsworthy" in the common vernacular, just a bit more formalized and specific. I think the problems arise when someone attempts to stretch the lay meaning of the word to justify something (say equating newsworthy with gossip-worthy).

On the other hand (and this is opening up a whole nother can of worms), I would say that there is merit to idea that words in laws should be interpretable as plain English instead of being defined arbitrarily by previous cases. The law should be written such that the average person can read and understand it themselves with a modicum of effort - being forced to hire a professional and expend considerable resources to answer fundamental questions about what one is permitted to do is itself a violation of equal protection and an erosion of the very idea of the rule of law.

>How would one's answer change if they had never heard of these concepts?

I am not sure who 'they' are, but ignorance of the law is no excuse - especially in the bar exam.

I believe the questioner is asking more about what alternative answers laypeople might choose that an educated lawyer would reject?

>it's not as cut and dry as we think

That line sums up the entirety of law. I say it all the time and it should be a saying every potential client should be familiar with...the correct answer to any legal question is always: maybe. If a lawyer tells you anything but, they are selling you on something/telling you what you want to hear/etc...

The bar exam is not necessarily composed of 3 wrong choices and 1 correct answer. A bar exam question is typically comprised of 2 wrong answers and 2 right answers, then it becomes a question of what is the best answer out of 2 correct answers. It is not uncommon either for the bar to ultimately void a question and/or revise the scoring to reflect multiple answers as correct, and this is after countless lawyers vetted these questions...it is not easy.

Well as is the case for any decentralized system, perspectives can differ wildly.

But a major purpose of written law is to attempt to get everyone on the same page ahead of time so that decisions are predictable (otherwise it would be a lot simpler to just have "judges" that resolved each dispute without regard for precedent).

What you've said is very practical - a lawyer can't really guarantee some arbitrary action is fine but can only recommend the most prudent course of action. But this conservatism arises from the legal system's limits, not an ideal to strive for - a person deciding what to do really does want to know the individual merit of each action, so that they can choose according to their personal utility function.

Yeah it did seem like the weakest reason, but I guess the idea is that you generally could be sued if you just took the picture of a random businessman and revealed he was going somewhere other than he told his boss, but if you otherwise had a good reason, you'd be okay. But my initial reasoning was, "you don't have an expectation of privacy against being seen as you leave an airplane".

I was confused more about the first question (a school board restricting public schools to those who had been resident one year), because I was trying to reconcile my answer with "well, I know state colleges can charge different rates to in- and out-of-state students" and "well, I can see [this level of] education being a fundamental right in a state constitution, I don't know if being one at the federal level".

> you generally could be [successfully] sued if you just took the picture of a random businessman and revealed he was going somewhere other than he told his boss

But is this actually true? (I interpreted you as meaning "successfully sued", as anyone can be sued for anything)

We're not quite at the point where location surveillance companies are selling data B2C directly to the boss. But it's only the mechanism of harm that differs - influencing subjects to make suboptimal decisions and overcharging consumers are these companies' explicit goals!

Not advocating it, just saying the most plausible reason they might have had in mind. I was going to compare it to the case of following someone around, which could be called harassment (and which the businessman might argue), but he would have the defense that "even if I followed these hijacking victims too closely, my presence there was getting something that has a public interest".

Agree though -- I still don't see why you need a legal defense for "filming people as they leave a plane".

I would advocate it if it were actually a thing, since it would create an individual avenue of action against private mass surveillance. I just haven't heard many exceptions to unfettered recording and aggregation (these are all I can think of: expectations of privacy in a handful of places, two-party consent for audio recording, actor/model releases, theories of copyrighting building facades).

Instead we're left with only the possibility of regulating the large-scale behavior, which is a political non-starter in the US.

Not a lawyer: in this case it was newsworthy, and out of the applicable defences that's the strongest.

Definitely not a lawyer: So I can film whatever I want if it's newsworthy?

It's a stronger (sounds better) defense if it holds up, but it's also rebuttable.

My question is not about whether this answer is the right choice, but about the creation of the answers. Bar exams focus on abstract concepts, so if the general lack of privacy in public spaces is such a thing, I would have expected it there.

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