If the Feinstein-Hatch proposal becomes law, the photographer can be sued for damages and made to pay the plaintiff's attorneys fees and expert witness fees. This clearly chills her exercise of First Amendment rights. We may need to consider narrowly drawn, carefully circumscribed legislation concerning developing new technologies such as hidden or off-site listening devices and certain types of enhancing photographic equipment. We many need to reexamine and strengthen laws designed to protect the right of privacy generally. It is highly unlikely, for instance, that the FBI would devote much of its personnel and resources to enforcing such dubious legislation.
Law making by public relations is simply the wrong approach to serious First Amendment issues.
Moreover, aside from its vulnerability on First Amendment grounds, the bill's sponsors undoubtedly know that it faces a stiff Supreme Court challenge based on Congress's lack of authority to enact legislation regulating purely local conduct. The purported goal of the ill-fated measure is undoubtedly admirable, but the means are clearly wrong. One more federal criminal law with long mandatory prison sentences is not the answer. There are better ways to regulate the type of paparazzi behavior that society may properly prohibit - ways that do not lessen the protections offered by the First Amendment or further federalize our criminal law.