SHOULD ANIMALS HAVE A RIGHT TO PRIVACY?

NDON KEIM BACKCHANNEL 01.25.1612:00 AM Should Animals Have a Right to Privacy? | Backchannel https://www.wired.com/2016/01/should-animals-have-a-right-to-privacy/?mbid=social_twitter_onsiteshare via @backchnnl A radio-collared female wolf from Oregon’s Minam pack.OREGON DEPARTMENT OF FISH AND WILDLIFE Last August a male bottlenose dolphin swam into a tributary of New Jersey’s Raritan river. It was an unusual place for him to be. Bottlenose dolphins are saltwater creatures; they generally avoid rivers unless they’re old and sick, as was this dolphin. After trying unsuccessfully to guide him back to sea, wildlife rescuers decided that saving the dolphin was impossible. Rather than prolonging his misery they euthanized him. There the sad tale might have ended but for a journalist curious about why the dolphin died. She filed a public-records information request for the autopsy results. New Jersey’s Department of Agriculture declined to share them, citing the dolphin’s right to medical privacy. This was deeply weird. While a great many people consider animals to be persons — not the same as us, necessarily, but obviously thinking and feeling beings — no governmental institution has ever formally recognized personhood outside Homo sapiens. Sign up to get Backchannel's weekly newsletter. In legal terms, personhood means an ability to possess rights. Courts in the United States have so far rejected every such claim, including high-profile lawsuits filed in neighboring New York state by the Nonhuman Rights Project, which argued that four chimps held in miserable conditions have a right to live somewhere decent. Even that bare-minimum ask was too great, yet here the state of New Jersey seemed to affirm dolphins as people. Some observers wondered if it might set a precedent. The short answer: Almost certainly not. New Jersey did technically treat the dolphin as a person, but apparently they just didn’t think it through. “New Jersey in particular has shown very little interest in pushing its animal legal envelope,” said animal law professor David Cassuto when I asked for his thoughts, and indeed the state quickly said it made a mistake. It’s hard to imagine that loophole surviving a legal challenge; it would be revoked as soon as it hit a judge’s desk. That’s probably for the best. A common rebuttal to giving legal rights to chimps is that animal rights claims would multiply and become impossibly messy. One can certainly imagine how a right to animal medical privacy could get frivolous. It could also be abused: “All the pigs in our factory died of this weird new flu, but the Cheap Bacon Megacorporation CEO feels it’s important to respect their privacy at this difficult time.” That said, the notion that animals ought to have some sort of privacy rights isn’t crazy. In some ways, society is already looking in that direction. Primatologist Catherine Hobaiter, at the University of St. Andrews, notes that human researchers make distinctions between public and private space. People can expect to be observed at a baseball game, but not in our bedrooms. She wonders if it’s possible to extend that consideration to the wild chimps she studies. David Favre, an animal law scholar at Michigan State University, voiced a resonant note when I asked him about these ideas. “I’d want to think of it in the sense of a child,” he said. “Even though they may not have a specific understanding of the idea of privacy, when do we know it’s in their better interest to have privacy to protect them from the big bad world around us?” He mentioned the Detroit Zoo’s installation of private spaces in their chimp habitat. “If you want to take into account their psychological well-being, it could entail the idea of not always having humans look at you.” Of course, chimps are extremely intelligent. It’s perhaps easier to entertain privacy for them, humanity’s closest living relative, than for a salamander or groundhog. What about other animals? Favre thinks it’d be something to take on a species-by-species basis. At the very least, we shouldn’t just assume it’s our Darwin-given privilege to barge into their lives with cameras and data-gathering equipment whenever we feel like it. Which is something to consider, given our extraordinary powers of intrusion into both animal and human lives. Camera traps, GPS collars, landscape-scale acoustic monitoring, wildlife drones: we collect more animal information that ever. Here we should expand privacy beyond its psychological condition — not living under someone else’s intrusive eye — and privacy as protection against the consequences of information-gathering. While non-hunting-related surveillance of animals is usually done for the greater good of populations and species, there’s growing criticism of methods that harm individuals in the process. Witness the outrage over a tracking collar that appeared to choke a polar bear (which may or may not have been the case, but it’s not an unusual occurrence.) In that context, privacy is intertwined with physical protection. Related issues also emerged in the infamous “monkey selfie” lawsuit, decided earlier this month when a federal U.S. court ruled that a monkey who’d used a photographer’s camera didn’t own the resulting snapshots, which went viral. The notion of a monkey being entitled to copyright protection earned some ridicule, yet the underlying tensions have crossed the mind of many wildlife photographers, including myself: Who benefits from my photographs? What am I imposing on the subjects? What’s in it for them? These questions might sound academic, but if photography affects an animal’s fate, they’re not. I stopped putting out camera traps after someone stole a memory card from one I’d installed near a hard-to-find animal trail used by the area’s small mammals. My camera revealed their otherwise hidden route; that knowledge could be used to harm them. These issues are especially relevant now. The ubiquity of digital recording and distribution tools, and the internet-winning delight people take in watching animals, means that ours is a society in which just about everyone produces or consumes animal images. We’re all implicated in the consequences of their production. The creatures depicted are not generic stand-ins. They’re individuals making their way in the world, just like us. How might animal privacy become a legal right rather than a cultural custom? Should it? I don’t know. Those are complicated questions. But I do know that, a few days ago, walking in a park at dusk, I saw two raccoons curled up together on a branch atop an old, hollow tree that was probably their home. By all appearances it was a quiet, intimate moment, perhaps even a private one. I stopped to take photos. Through the lens I saw them looking at me. In retrospect, I wish I’d kept my camera in its bag.