Mailbag for June 17, 2011

In today’s mailbag we have a follow-up question about the legal ramifications of psychic powers.  We’ve discussed some of these issues already, including hearsay, Fourth, and Fifth Amendment issuesliability for and the unintended consequences of causing amnesia; and more recently liability for causing others to commit crimes.  Astute reader Tim had three questions about some areas that we haven’t addressed yet, or at least not fully.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Surface Thoughts

Tim first asks “Is picking up the ordinary surface thoughts of another person a form of illegal intrusion?”  It’s important to emphasize that we’re talking about a private actor here.  A government psychic would generally need a warrant in order to read even someone’s surface thoughts (i.e. what they are thinking of right then) because if there is anywhere a person has a reasonable expectation of privacy it’s their own thoughts.  But what about a private actor like Professor X?  If X-Men: First Class is anything to go by then he does it all the time to chat up women in bars.  Is he breaking the law or just slightly sketchy?

First, let’s define some terms.  Since by “surface thoughts” we mean what the person is thinking of at the moment, the psychic isn’t causing any changes in the subject’s brain or body by reading those thoughts.  In other words it’s non-invasive.  It’s more like a very precise long-distance EEG.  The best real-world comparisons might be eavesdropping, which is generally legal—if impolite—although the eavesdropper may be breaking the law in other ways, such as trespassing.

Taking our cue from eavesdropping we can turn to the law of privacy, which we’ve talked about before in a four part series.  The best fit seems to be intrusion, discussed in the first part of the series.

Intrusion can be summarized as follows: (1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff’s solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person.  Moreover, courts have held that the right to privacy includes psychological & emotional solitude and the intrusion can occur in a public place.  Seee.g., Phillips v. Smalley Maintenance Svcs, Inc., 435 So.2d 705, 711 (Ala. 1983) (holding “one’s emotional sanctum is certainly due the same expectations of privacy as one’s physical environment.” and “the ‘wrongful intrusion’ privacy violation can occur in a public place, when the matter intruded upon is of a sufficiently personal nature”).  Finally, most reasonable people would probably consider having their mind read to be a highly offensive intrusion, especially if the thoughts read were personal or private.

II. Deeper Thoughts and Memories

The second question was about deeper thoughts (i.e. actively plumbing the depths of the subject’s mind or forcing them to recall memories).  This is probably just a more intense form of intrusion, particularly in the case of forced recall (i.e. the subject is not just being passively scanned but rather actively experiencing the memories).  That begins to enter the next category.

III. Mind Control and Memory Alteration

Now we shift gears from mere intrusion to outright assault or battery.  Because of the way the brain works, anything a psychic does that actually affects the mind of the subject must necessarily affect the subject’s physical neurons.  That’s definitely the way it works in the DC universe, as well, as Doctor Mid-Nite testified in Manhunter vol. 3.

If the alteration is harmful or even merely offensive then that’s a battery in tort terms because battery only requires an intentional harmful or offensive contact, which does not have to be a literal touching of the defendant’s body to the plaintiff’s.  For example, many jurisdictions have held that intentionally blowing tobacco smoke at a person can be a battery.  See, e.g., Leichtman v. WLW Jacor Communications, Inc., 92 Ohio App.3d 232 (1994).  Even something as incorporeal as a laser is also capable of touching a person.  Adams v. Commonwealth, 534 S.E.2d 347 (Ct. App. Va. 2000) (Adams is a criminal assault and battery case but the principles are applicable to tortious battery).

And speaking of criminal assault and battery, as we discussed in the comments on the amnesia article, these kinds of psychic attacks may qualify.  In the comments we discussed Missouri law, but it is not unique.  In Virginia, for example, “battery is the actual infliction of corporal hurt on another (e.g., the least touching of another’s person), willfully or in anger, whether by the party’s own hand, or by some means set in motion by him.”  Adams, 534 S.E.2d at 350.  Affecting even a single neuron would seem to qualify as “the least touching of another’s person,” and a psychic attack is definitely “some means set in motion by [the psychic].”

These kinds of psychic attacks may also be grounds for a claim of intentional infliction of emotional distress, especially if the forced actions, forcibly recalled memories, or implanted memories are extreme or outrageous.

IV. Conclusion

Psychics should be careful of how they use their powers.  There are many possible defenses, including consent, necessity, and self-defense and defense of others.  But intruding into another person’s private thoughts or reaching out and touching their mind is not something to be undertaken lightly.

That’s all for this week!  Keep your questions coming in!

7 responses to “Mailbag for June 17, 2011

  1. Would a telepath be able to claim that others where projecting their thoughts into the telepath’s mind without the telepath’s consent or control? Would that be a legal defense against a charge of intrusion, or even give the telepath grounds for some countersuit, Ie, Could having everyone in range screaming in your mind be considered an attack on the telepath?

    • There might be legal differences established between ‘passive’ and ‘active’ telepathy*, as it could very well be impossible for a passive telepath to not pick up those thoughts. As for picking up thoughts that could be troubling to the telepath, I imagine that would depend on whether or not the person making the thoughts was aware that the telepath could read those thoughts and if they could be shown to be deliberately trying to hurt the telepath.

      *Passive telepathy being telepathy that simply picks up thoughts from other people without attempting to and active telepathy being telepathy that requires the telepath to deliberately attempt to read a person’s mind.

  2. I think the definition of reading “surface thoughts” is generally taken to be a passive sensing process, akin to using a passive antenna to detect a ship by its radio or heat emissions as opposed to actively sending out a radar beam. So your surface thoughts are just your psionic radio leakage, as it were, the stuff that a telepath can “hear” you thinking about just by being around you.

    A lot of fiction about telepaths establishes that they naturally pick up such broadcast thoughts from other people without even trying, and have to train themselves to tune it out in order to avoid being inundated by mental noise. I suppose that choosing to lower one’s psychic “shields” could be seen as an active effort to intrude on others’ private thoughts, but no more so than taking your headphones out of your ears and letting yourself listen to conversations around you. Although the difference is that someone who’s talking in public doesn’t have the same reasonable expectation of privacy that someone who’s thinking in public would, assuming that person is unaware that there’s a telepath in proximity.

    On the other hand, sometimes the phrase “surface thoughts” can be applied more literally. A keen observer can essentially “read minds” by paying close attention to body language and expression. This is how alleged psychics generally operate. So it could be argued that a telepath passively reading surface thoughts isn’t being any more invasive than a keen, Sherlock Holmes-level observer would be. Although that might depend on the specific information obtained by the reading. If it were specific names, dates, images, etc., that would be beyond what a keen observer could deduce.

  3. The passive collection of surface thoughts makes me wonder about something more “mundane” – super-hearing. Say two people are talking in their basement, but Superman can hear them clearly from a mile away. They likely expect their conversation to be private, but if Superman, out on a public street, just happens to hear them… What then?

    The follow-up is, put a police-officer with super-hearing in the same situation. Would he, walking down a public street and hearing two people planning a crime a couple miles away, indoors, in a locked room, expecting privacy be… I’m not even sure – usable in any way? It seems a stretch from the normal “plain sight” exceptions, but do those actually have to apply to the standards of an average person, if the super-cop is only using his innate, passive senses? Dogs practically have super-scent, and the evidence of them smelling things humans could not is usable.

    • They’ve talked about this before. If Superman hears a crime in progress he can stop it. If Superman hears a crime being planned he can come back later when the crime is in process. If Superman listens to two people making love then he’s being a pervert.

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  5. As several people have pointed out, basic telepathy is, in essence, a mental “ear”. The TP “hears” surface thoughts as clearly as the rest of us hear audible sounds (assuming we’re not hearing impaired).

    A person who sat down next to someone in the Food Court at the mall and started talking to a friend on the phone about (whatever) would not have any basis, I would think, for an invasion of privacy claim against the person next to him, as the speaker knew he was there, was human, and presumably fully capable of hearing the spoken word. If the speaker is foolish enough to talk out loud about some private matter, on HIS head be it.

    Now a telepath on the other hand, might be a different issue. In most superhero universes, telepaths are rare, and there is no outward sign (such as ears) to visually mark a telepath. That means that the “speaker” has a reasonable expectation that what he “says” in his head cannot be overheard, and therefore no need to “hush himself up” mentally.

    NOW there might be a privacy claim involved. And that’s why, for example, in certain fictional universes like Babylon 5, telepaths are required to wear distinctive uniforms AND clearly visible badges to advertise their presence.

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