Victim Privacy and Police Disclosures

videotape.jpgIn Anderson v. Blake (10th Cir. Nov. 14, 2006), the U.S. Court of Appeals for the 10th Circuit decided a case involving a rather egregious violation of a person’s constitutional right to information privacy. A victim was raped while unconscious, and she subsequently found a video of her rape. She reported the rape to the police and gave them the video. The police officer promised her that the video would remain confidential, but the officer later disclosed the video to a television station, which aired the video but at least concealed the victim’s identity.

The victim sued the police for disclosing the video. In Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court held that the Constitution protects an individual’s “interest in avoiding disclosure of personal matters.” This right, which protects information privacy, is derived from the more well-known constitutional “right to privacy,” which protects fundamental life decisions. Although the Supreme Court said little else about the constitutional right to information privacy, a majority of federal circuit courts recognize the right.

The 10th Circuit panel held that the plaintiff’s case could proceed. The court concluded that the plaintiff had a privacy interest in the information: “If a person has a legitimate expectation of privacy in a diary, in undressing before a guard, or in answering questions concerning sexual history, certainly a person has a reasonable expectation that a video of his or her rape will not be aired to thousands in a public news broadcast.” The government can nevertheless disclose private information if it “can demonstrate a compelling interest and if it uses the least intrusive means of disclosure.” The police argued that the video had evidentiary value and it would surely be played at the public trial of the rapist. However, the court concluded:

That private information has evidentiary value in a criminal prosecution does not give the government carte blanche to disclose the information in any manner it wishes prior to trial. As we said in [Sheets v. Salt Lake County, 45 F.3d 1383 (10th Cir. 1995)] concerning the diary: “To turn a diary over to a limited group for what one perceives to be a limited and proper purpose is quite different than inviting publication of the material.” Id. at 1388. Thus, whether a particular government need and a particular manner of disclosure are sufficient to overcome the expectation of privacy is necessarily a question of degree. Just because disclosing private information at a possible criminal trial is justified by the evidentiary nature of that information, it does not follow that disclosing the same information on a television news broadcast is similarly justified.

The court’s reasoning strikes me as quite sound. Often courts get bogged down in rather simplistic notions of privacy, concluding that any possible disclosure of information can extinguish a privacy interest. Here, however, the court was much wiser, recognizing that the nature, extent, and purpose of the disclosure are critical factors in the analysis.

Hat Tip: How Appealing

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2 Responses

  1. Howard Wasserman says:

    I agree with Dan’s conclusion. A few questions/comments:

    1) I will be curious to read the opinion to see what the court said about qualified immunity–whether it was so clearly established that this conduct violated the Constitution that no reasonable officer would have done it.

    2) The television station could not have been sued for receiving and broadcasting the tape, under Bartnicki v. Vopper (2001), a case that is having some far-reaching effects in counter-balance rigorous protection of information privacy.

  2. Howard,

    1) Yes, the court also concluded that the police didn’t have qualified immunity.

    2) I believe that the victim tried to also sue the television station but lost in a separate court decision based on the rationale that the video was of legitimate public concern. Part of the court’s reasoning in this regard was that the victim’s identity was obscured in the video. Had things been otherwise, however, I think that the case might have come out differently, as there is a widespread media norm not to reveal the identities of rape victims — and if the consensus of the mainstream media is that rape victim identities aren’t necessary for a story, then I think that this would support the conclusion that the information isn’t of public concern.