The Case of the Bugged Bedroom

Carl and May Hamberger lived in Gilford, N.H. (pop. 2,000), in a rented house belonging to Chicken Farmer Clifford C. Eastman. When they found their bedroom bugged with what they claim was a listening-recording device wired to Eastman's house, 500 feet away, the Hambergers each filed $50,000 damage suits against their landlord for "willfully and maliciously" invading their privacy. Hamberger said he was so "greatly distressed" that he needed medical care, "and is still unable to properly perform his normal and ordi ary duties as a father and a husband." His wife claimed corresponding injuries.

According to Defendant Eastman, the gadget was there simply to monitor a cellar pump that supplied water to his 18,000 chickens. But whatever the facts, the trial judge did not attempt to probe them; he sent the case straight to the New Hampshire Supreme Court for guidance on a crucial question of law: since New Hampshire is devoid of statutes or court precedents defining the right of privacy, did the Hambergers have a case?

Landmark Article. As the law goes, privacy is virtually a brand-new right. Until 1890, no U.S. or British court had ever granted relief expressly for "the right to be let alone." Then came a landmark article in the Harvard Law Review by two young Boston lawyers, Samuel D. Warren and Louis D. Brandeis (the future Supreme Court justice). As they saw it, the modern press had become so snoopy that modern man was being subjected to "mental pain and distress far greater than could be inflicted by mere bodily injury." Their insistence on privacy as a new legal right became an outstanding example of legal scholarship influencing the courts.

In 1902 the New York Court of Appeals warily rejected the idea in the case of a pretty girl whose picture had been used without her consent to advertise a flour company's wares. The New York legislature soon changed that rule by a statute allowing damages for such invasions of privacy. And in 1904 the Georgia Supreme Court set the controlling judicial precedent by ruling in favor of a young man whose picture was similarly used by a life insurance company. Today, the right to privacy is specifically rejected in only three states (Texas, Wisconsin, Rhode Island); it is recognized in some form or other in about 20 states, and is slowly emerging in nearly all the others, mostly by court precedents but often by statutes.

Speaking for a unanimous court, New Hampshire's Chief Justice Frank R. Kenison has now added his state to the pro-privacy roster by upholding the Hambergers' right to "recover damages to the extent that they can prove them" in a fact-finding trial. But to set that precedent, Justice Kenison had to tackle a tough question: What does the right to privacy include?

Beyond Decency. After 300-odd cases, said Kenison, U.S. law identifies four kinds of privacy torts, or wrongs:

> Intrusion upon physical and mental solitude.

> Public disclosure of private facts.

> Publicity that puts the plaintiff in a false public light.

> Misappropriation of the plaintiff's name or likeness.

The latter three torts often conflict with the constitutional rights of free speech and press, but in the Hambergers' case, the applicable tort of intrusion requires only "the invasion of something secret, secluded or private pertaining to the plaintiff." As for bugged bedrooms, ruled Kenison, "this is the type of intrusion that would be offensive to any person of ordinary sensibilities."

Such intrusion goes "beyond the limits of decency," said the judge, and Defendant Eastman could not avoid the suit by arguing lack of proof that anyone ever heard the bedroom sounds. The tort of intrusion does not require "publicity and communication to third persons, although this would affect the amount of the damages."

In short, ruled Kenison, the Hambergers do have a right to have their case heard in New Hampshire. "If the peeping Tom, the big ear and the electronic eavesdropper (whether ingenious or ingenuous) have a place in the hierarchy of social values, it ought not to be at the expense of a married couple minding their own business in the seclusion of their bedroom."

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