While that penumbra may well be where these photographs should have remained, this couple had a reasonable expectation to privacy with regard to their cell phones, even though they inadvertently left them in a public place.

To say that this couple is assuming risk, and therefore should essentially swallow their damages with a spoonful of sugar… because they’ve taken nude pictures is a bold assertion — one, in fact, that leaves me wondering where you would draw the line.

If you’re in your bedroom having sex with your partner… and your drapes weren’t completely closed, and somebody was able to get a peek of you going at it hot and heavy with his nice new DSLR camera — would you consider that free game, too?

Essentially — there’s a pervert who exploited photographs taken by a husband, of a wife… for his pleasure — retained them in a personal place, in which he had a reasonable expectation of privacy… and somebody violated that… you’re supporting the violator.

Thankfully, in a case like this, the court will likely consider the reasonable person standard. It’s reasonable to look at the phone numbers to see if you can contact the person… it’s reasonable to call and alert the owner as to the location of the phone… I dare say, however, that posting nude photographs of somebody’s wife to the internet without that wife’s permission… is a bold violation of that pesky reasonable expectation of privacy assured to us by that pesky technicality called the Constitution.