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In 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

Originally Posted at Concurring Opinions

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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.

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