A Right to Privacy

By James Hellegaard

If they were two boxers slugging it out in the ring, the notion of privacy would appear to be on weak legs, up against the ropes and fighting in vain against the formidable and persistent opponent that is the publicʼs desire for access to information.

Around the world, people are consuming information like never before, gobbling up all they can and asking for more as everyone from media outlets to courts of law try to keep up with the voracious and insatiable demand.

All of which begs questions that have been tossed around for centuries: Do we really need to know all of this? Do we have a right to know? Is anybody being hurt by this information being out there, and if so, does anybody really care?

Judge Jacqueline Griffin (JD 75) of the Fifth District Court of Appeals of Florida has spent the last few years on the Florida Supreme Court Committee on Privacy and Court Records, at the end of which, over her “continuous and strenuous objection,” the majority of that commission made the recommendation that court records should henceforth be put on the Internet to allow public access to electronic court records.

“At the end of the day I think that Iʼve concluded that privacy is something that is highly subjective,” Griffin said. “What is one personʼs privacy is another personʼs stock-intrade— information that they want, and they want to sell it or use it for whatever purpose they have. Itʼs everybody elseʼs entertainment.”

Griffin spoke these words at the first annual Center for Governmental Responsibility Symposium (CGR) on “Privacy Law: Perspectives of National Security, the First Amendment, the Media, and the Individual,” held earlier this year at the Levin College of Law. Other speakers included Mike Foley, Hugh Cunningham Professor in Journalism Excellence at UFʼs College of Journalism & Communications; Gregg D. Thomas (JD 76), attorney at Thomas & LoCicero in Tampa; Judge Anne C. Conway (JD 75), U.S. District Judge for the Middle District of Florida; and Fletcher N. Baldwin, Jr., Chesterfield Smith Professor of Law and director of the Centre for International Financial Crime Studies. Jon Mills, UF Law dean emeritus and CGRʼs founding director, moderated the discussion.

“Privacy as a concept is probably vestigial,” Griffin said. “Thereʼs so much information out there about every single human being that thereʼs probably going to be an avenue to find this information if anybody just looked for it.” Conway agreed. In federal courts, everything is required to be electronically filed and placed on the Internet. “One of our big issues is redacting personal information and whose responsibility it is,” Conway explained. “The lawyers donʼt want to do it. The court doesnʼt want to do it. The court reporters donʼt want to do it. And somebodyʼs got to do it.”

COMPLEX ISSUES TO CONSIDER 

While perhaps timeless, these conflicting issues have lost none of their urgency. More recently, two more fighters have entered the ring—security and the Internet—ganging up on privacy and making for an apparent mismatch.

“Security is at the top of everybodyʼs agenda,” said Mills, who has studied privacy issues and been involved with legal cases in this area throughout his career as well as chaired the Florida Supreme Court Committee on Privacy and Court Records. “There are a number of reasons that we invade privacy. Security is top of the list. In some cases we intrude on privacy to protect our sense of morality. We have a whole series of reasons why we authorize invasions.”

To launch the symposium discussion, Mills presented several real-life scenarios, including cases that touched on issues of privacy:

■ A case in which an expectation of privacy in the seclusion of oneʼs own bedroom was not considered reasonable when the individual was involved in a lesbian relationship and in a child custody fight with her husband.

■ A medical examiner who allowed a cable network film crew to follow him to a hotel room where a woman had been thrown to her death from the balcony by her husband, who then died when he fell or jumped. The film crew recorded the crime scene, including the womanʼs dead body, and the next morning shot photos of the nude bodies.

■ President George W. Bush, who late last year issued a “presidential signing statement” related to a Postal Service bill, which said a subsection of the Postal Accountability and Enhancement Act “provides for opening an item of a class of mail otherwise sealed against inspection.”

Baldwin sees the Postal Accountability and Enhancement Act as “the final nail in the coffin”—the latest in a series of invasive steps taken in the wake of 9/11 by the Bush Administration to trample on individual privacy rights in the name of national security and the ongoing war on terrorism. Baldwin called Bush “the poster child for mission creep,” a term used to describe the expansion of a project or mission beyond its original goals.

“It goes on and on,” Baldwin said. “Itʼs so embarrassing that if you wrote this as a law exam they would throw you out of the room. Police states donʼt even go this far. The principle in each of these acts and beginning with the Patriot Act is to ignore the third branch of government. Theyʼre trying to keep out the judges. The attorney general in speaking to this act and the Military Commissions Act, in effect, said the federal judges ought to take note that theyʼre secondary in this war against terrorism.”

EARNHARDT FAMILY SPEAKS UP

Those concerned with privacy have scored the occasional victory, however, perhaps most notably in 2001 when the Florida Legislature passed a law known as the Earnhardt Family Protection Act. The bill, named for NASCAR legend Dale Earnhardt, who died when his car crashed into the wall of the final lap of the 2001 Daytona 500, made autopsy photographs, video and audio recordings confidential. Violators could be charged with a third-degree felony that could be punishable by jail time and up to a $5,000 fine. Mills, one of the lawyers who represented the Earnhardt family, said they were concerned that photos from Earnhardtʼs autopsy would be published in newspapers or websites.

“They donʼt care whether The New York Times doesnʼt publish it but the National Enquirer does,” Mills explained. “The damage to the family is the same.”

Still, some have problems with the law, including Thomas, a media lawyer whose clients must struggle to abide by it. Thomas noted that the push for the law came about after the Orlando Sentinel wanted to review the photos of Earnhardtʼs autopsy specifically to examine the damage to his neck in an effort to determine whether Earnhardt may have survived had he been wearing a Head And Neck Support (HANS) device, which was used by only six drivers in the 43-car field in the Daytona 500 that day.

“So the purpose for looking at the photograph or looking at Dale Earnhardtʼs dead body was totally legitimate,” Thomas said. “And for 50 years in Florida, as long as weʼve had a photographer, the press has had access to autopsy photographs, and never once, not one abused situation.” Griffin, who sat on the case, said the Earnhardt family was unique in its ability to get the Florida Legislature, which has control over public records, to enact a statute that retroactively forbade the publication of the photographs.

“What the media accomplished was to make far more confidential that which historically had not been confidential,” she said. “My position has always been that the media runs the risk—through its enthusiastic support of Internet access to court records and all of this—that the Legislature, as these things come to their attention, will enact more legislation that will make these things completely confidential.”

STANDARDS QUESTIONED

Still, the game has changed, or rather, come full circle. The days of Ben Franklin and the “citizen journalist,” Thomas pointed out, eventually gave way to huge media conglomerates. Now, with the proliferation of personal Internet sites and the blogosphere, weʼre in some ways back where we started. But does that necessarily mean the rules of journalism are also changing?

“Media ethics is not an oxymoron,” Foley said. “I believe that in responsible newsrooms—and maybe there are a dwindling number there, I donʼt know—but every bit of information is weighed on its own. Do we publish this? Does this meet our standards? There are no standards on the Internet … and thatʼs a very grave danger.”

While many may assume the media will publish just about anything to draw readers or viewers or clicks to their websites, Foley believes otherwise. Many more photos and stories come to the attention of editors that are never published. In the race for profits, compassion still has a fighting chance.

“These are debated and debated, and one editor will argue one thing and another editor will argue another thing,” Foley said. “And finally it gets down to the executive editor and then he lies awake all night with his stomach hurting. Does the public need to know this? Itʼs all public record. But does the public have to know this? Do I ruin all these peopleʼs lives?”