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Death Scene Photos and Privacy

In Newsweek, Jessica Bennett tells the tragic story about a family being harassed by the spread of death-scene images of their daughter, who was killed in an automobile accident. The photos of Nikki Catsouras were particularly gruesome — Nikki was decapitated in the crash. According to the article, soon after the crash, photos taken by the California Highway Patrol started circulating on the Internet:

Two weeks later, Lesli’s brother, Geoff, got a call from a neighbor. “Have you seen the photos?” he asked. Apparently, photos of the crash scene were circulating around town, via e-mail. Soon they showed up on Web sites, many of them dedicated to hard-core pornography and death. A fake MySpace page was set up in Nikki’s name, where she was identified as a “stupid bitch.” “That spoiled rich girl deserved it,” one commenter wrote. “What a waste of a Porsche,” announced another.

The family filed a formal complaint about the photos’ release, and three months later, they received a letter of apology from the California Highway Patrol. An investigation had revealed that the images, taken as a routine part of a fatal accident response, had been leaked by two CHP dispatchers: Thomas O’Donnell, 39, and Aaron Reich, 30. O’Donnell, a 19-year CHP veteran, had been suspended for 25 days without pay. Reich quit soon after—for unrelated reasons, says his lawyer. Both men declined requests for comment, but Jon Schlueter, Reich’s attorney, says his client sent the images to relatives and friends to warn them of the dangers of the road. “It was a cautionary tale,” Schlueter says. “Any young person that sees these photos and is goaded into driving more cautiously or less recklessly—that’s a public service.”

Apparently, the two California Highway Patrol officers took the pictures and improperly circulated them to others. The photos then started spreading like a virus around the Internet.

The conduct of the anonymous people spreading the photos over the Internet was despicable. From the complaint:

An individual sent an e-mail to Christos Catsouras with the subject line “Woo Hoo Daddy,” whereupon Christos Catsouras opened it, only to read the e-mail message stating “Hey Daddy I’m still alive,” with the graphic and horrific images of Decedent’s uncovered decapitated remains displayed immediately next to the message. . . .

An individual sent an e-mail to Plaintiffs with the subject line “Fletcher Jones,” which is a Mercedes-Benz dealer in Orange County, California, whereupon Christos Catsouras opened it, only to see the graphic and horrific images of Decedent’s uncovered decapitated remains displayed on the e-mail message. . . .

Over 2,500 Internet websites have been identified throughout in the United States and the United Kingdom which have posted the graphic and horrific images of Decedent’s uncovered remains, and all of them have done so without the permission, authority or consent of any of the Plaintiffs.

The family brought suit against the California Highway Patrol, alleging, among other things, that it violated the family’s constitutional right to information privacy. In Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court stated that the constitutional right to privacy protected two “different kinds of interests” — (1) “the individual interest in avoiding disclosure of personal matters” and (2) “the interest in independence in making certain kinds of important decisions.” The first interest has become known as the constitutional right to information privacy. Most federal circuit courts have recognized the constitutional right to information privacy, including the 9th Circuit.

But the trial court threw out their claim. In a pithy order, the court declared that no duty exists between the highway patrol officers and the family members. The case is currently on appeal.

This reasoning strikes me as incorrect. I’m quoted in the Newsweek article, but here’s an elaboration of my argument as to why the court got it wrong.

The California Highway Patrol owes a duty to all citizens to not violate their constitutional rights. This includes the Catsouras family’s constitutional right to information privacy.

The constitutional right to information privacy provides protection if a person has a privacy interest, if government officials violated that interest by disclosing personal information, and if the privacy interest isn’t outweighed by the government’s interest in disclosure. All of these elements are met.

Families have a privacy interest in death-scene photos of deceased relatives. In National Archives and Records Admin. v. Favish, 541 U.S. 157 (2004), a Freedom of Information Act case, the U.S. Supreme Court declared:

We have little difficulty . . . in finding in our case law and traditions the right of family members to direct and control disposition of the body of the deceased and to limit attempts to exploit pictures of the deceased family member’s remains for public purposes. . . .

In addition this well-established cultural tradition acknowledging a family’s control over the body and death images of the deceased has long been recognized at common law. Indeed, this right to privacy has much deeper roots in the common law. . . . An early decision by the New York Court of Appeals is typical:

It is the right of privacy of the living which it is sought to enforce here. That right may in some cases be itself violated by improperly interfering with the character or memory of a deceased relative, but it is the right of the living, and not that of the dead, which is recognized. A privilege may be given the surviving relatives of a deceased person to protect his memory, but the privilege exists for the benefit of the living, to protect their feelings, and to prevent a violation of their own rights in the character and memory of the deceased. Schuyler v. Curtis, 147 N.Y. 434 (1895). . . .

As the Supreme Court notes, many courts have held that families have a privacy interest in photos of deceased relatives in cases involving common law privacy torts. Given the extensive legal recognition of such a privacy interest, it is reasonable to conclude that such an interest would exist in the context of the constitutional right to information privacy.

Once a privacy interest is identified, the government has a duty to avoid unwarranted disclosure of personal information unless there is a countervailing interest that outweighs the privacy interest. In the Catsouras case, the disclosure of the photos was clearly unwarranted. The police department punished the dispatchers for the disclosure, indicating that the disclosure was not condoned. These facts indicate to me a rather compelling case under existing law that the California Highway Patrol is liable for violating the Catsouras’s constitutional right to information privacy.

The Catsouras family has only sued the California Highway Patrol, but I believe that they would also have a case for intentional infliction of emotional distress against some of the individuals who engaged in some of the more egregious behavior such as targeting the family with emails with the pictures (as described in the complaint above). To be liable under this tort, a defendant’s conduct must be “extreme and outrageous” and cause “severe emotional distress.”

It is clear that people cannot be punished merely for disseminating the photos, since they were leaked by the government. See Cox Broadcasting v. Cohn, 420 U.S. 469 (1975). But some of the conduct alleged in this case — people deliberately contacting members of the Catsouras family and assaulting them with the images — goes beyond the umbrella of First Amendment protection in Cox.

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

If you are interested in privacy and data security issues, there are many great ways Professor Solove can help you stay informed:
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