No Constitutional Right to Information Privacy from Police Disclosure of Sexual Assault Victim Information to the Press
On June 15, 2020, the U.S. Supreme Court declined to take up the issue of “qualified immunity” of law enforcement officers for alleged misconduct, leaving in place the doctrine that says that even when police commit egregious misconduct, those impacted have no right to sue unless they can prove not only a violation of their Constitutional rights, but that the police officer or agency acted in a way that “existing precedent must have placed the statutory or constitutional question beyond debate.” The officer’s actions must be prohibited by “clearly established” law. As a practical matter, this means that unless there is a case that specifically says that police are not permitted to do something (like shooting an unarmed citizen, killing a dog, beating a person who is not resisting, etc.) the officer and the department are not subject to being sued – even if the actions are objectively unreasonable and even unlawful. Most of the qualified immunity cases involve allegations of the inappropriate use of force by police. However, a recent case involving the TV show “19 Kids and Counting” extends this doctrine to police breaches of the right to privacy. But the case goes beyond explaining why police are immune from violations of privacy law, with the federal appeals court opinion that, at least in that court, “The constitutional right to informational privacy … is dead,” and questioning whether it ever existed.
In December of 2006, the Arkansas State Police Child Abuse Hotline received an anonymous tip that Josh Duggar, of the TV show “19 Kids and Counting,” had molested his younger sisters Jill, Jessa, Jinger, and Joy, along with another unnamed individual, at various times in 2002 and 2003. The State and County police investigated the allegations, conducting “confidential” interviews with the potential victims, and promised them that whatever they said would not be disclosed. When a tabloid filed a FOIA request with the police, the police provided a “redacted” copy of the investigative report – redacted in the sense that it did not name the names of the alleged victims of Josh Dugger’s assault, but gave their addresses, and descriptions such as “Duggar’s then five year old sister…” When the tabloid published the police reports with the names of the alleged minor victims, there was an immediate public backlash, with the blogosphere responding with “spiteful and harsh comments and harassment.” An Arkansas judge, in a classic case of closing the barn door after the horse has been stolen, ordered the Offense Report expunged from the public record, ordered all copies destroyed, and ruled that interviews and information about the sexual assaults were not subject to FOIA disclosure. Arkansas law provided that a law enforcement agency shall not disclose to the public information directly or indirectly identifying the victim of a sex crime except to the extent that disclosure is required by law, necessary for law enforcement purposes; or permitted by the court for good cause. The Duggar children alleged that the unauthorized and unreasonable disclosure to the media of their names and the facts related to their sexual assault by Josh Duggar caused them severe emotional distress and sued the State and County law enforcement agencies. The lower Court and the original federal appeals court refused to dismiss the charges on the ground of qualified immunity, but a panel of the court reversed and on June 15, held that the police could not be sued for releasing the information because the right to information privacy had never been “clearly established” and may not exist at all.
Privacy Generally
The right to “information privacy” that is, the right not to have information about yourself collected for one purpose used for another purpose without some legitimate basis is both a new right and an ancient one. The idea that someone has some kind of “property” or similar right in information about themselves is a new one in U.S. law — with the first explicit “information privacy” law probably being the Fair Credit Reporting Act in 1970. On the other hand, the right to privacy — that is, the general right to be left alone — is embedded in other areas of the U.S. Constitution, including the Fifth Amendment’s right not to be compelled to produce evidence against oneself and the Fourth Amendment’s right “to be secure” in one’s person’s, places, houses and effects. Information privacy rights are also reflected in ancient tort doctrines like “intrusion into seclusion” – a right not to have intimate facts (true or false) published about oneself, or “false light” – a right of a non-public person to protect their reputation. Other ancient torts include misappropriation of name or likeness, trespass to chattels, public disclosure of private facts, and the intentional or negligent infliction of severe emotional distress. In addition to these tort claims, there are hundreds of laws, regulations, and contractual obligations — including many State constitutional provisions — which establish rights to informational privacy. Indeed, the Arkansas law with respect to disclosure of information about sexual assault victims is one of them.
So the Court had to determine whether the right of a potential victim of sexual assault not to have their identity improperly disclosed to the media was a right that was so “clearly established” as to overcome the immunity granted to the State and County police.
The Eight Circuit Court of Appeals decided that it was not. In fact, the Court concluded that, as a matter of federal constitutional law, there is no right to information privacy. Since the Constitution does not guarantee information privacy, the violation of that privacy does not rise to a constitutional violation, and the immunity protects the police from liability for disclosure.
The Court discussed the history of information privacy claims in the U.S. Supreme Court, from a New York law requiring pharmacies to disclose information about those prescribed controlled drugs, to President Nixon’s assertion that the law requiring him to produce the Watergate tapes violated his privacy rights, or a law requiring NASA employees to have a background check. The Court then went through a litany of cases in which it had permitted disclosure of personal information and had found no right to sue for disclosure of things like a police chief’streatment for stress, the release of photo of son’s body following suicide, or the disclosure of list of “survivalists” denoting membership in organizations like the Ku Klux Klan. Based on this record, the Court concluded that the right of information privacy not only is not “clearly established” but that it likely does not exist at all. While the Court recognized that other federal circuit courts had recognized a right to information privacy and had dismissed claims of immunity for violation of that right, including courts in a third of the federal circuits, since the Court in the 8th Circuit had not conclusively ruled that the right to information privacy existed, the Arkansas police did not violate an established right in that Circuit.
More than simply questioning whether the right of information privacy is “clearly established” at least two judges on the panel went further, noting:
The constitutional right to informational privacy in the Eighth Circuit is dead. Some believe it never lived. In any event, in this age of digital information, where the government may possess massive amounts of personal data, the protection of twenty-two million people from wrongful disclosure of intimately private information by government officials now lies squarely in the hands of the state legislatures… Perhaps that is where it belonged from the start, given that the federal constitution is silent on the matter and the United States Supreme Court has yet to conclude that a constitutional right to informational privacy exits.
The ruling of the Court goes beyond the question of whether police departments, prosecutors and other government agents in Minnesota, Iowa, North Dakota, South Dakota, Nebraska, Missouri, and Arkansas can release intimate information about crime victims with impunity and immunity because the Constitutional “right of information privacy” has not been “clearly established” in federal courts in those jurisdictions. The Court explicitly rejects that such a right exists, defying the rulings to the contrary in Courts in the Second, Third, Sixth, and Tenth Circuits, and various district courts as well.
So for now, whether you have a right to information privacy, and whether you can sue government agents for violating that right depends on whether you are in New Jersey or Minnesota, Colorado or Arkansas. Perhaps it is time for the U.S. Supreme Court to not only determine the parameters of the “qualified immunity” doctrine, but to go further and decide what privacy rights are conferred by the U.S. Constitution – at least as far as data is concerned.
Mark Rasch is an attorney and author of computer security, Internet law, and electronic privacy-related articles. He created the Computer Crime Unit at the United States Department of Justice, where he led efforts aimed at investigating and prosecuting cyber, high-technology, and white-collar crime.