Missouri case could test the definition of 'privacy' in the Smartphone era
Greitens case could test the definition of 'privacy' in
the smartphone era
By Kevin McDermott St. Louis Post-Dispatch February 24, 2018
In 1994, officials in Buffalo, Mo., made a discovery that
sent shock waves through the tiny town: The owner of a local tanning salon had
hidden a camera in the latticework above a dressing area, and had videotaped
more than 100 women and girls in various states of nudity.
Then came the aftershock: Authorities initially said they
couldn’t charge the man with any crime. There was nothing on Missouri’s books
specifically prohibiting what he had done.
That scandal helped create the law under which Gov. Eric
Greitens was indicted Thursday. Because of the tanning salon case and others,
it has been illegal in Missouri for more than 20 years to take a person’s photo
without permission when that person is in a state of undress in a place where
there is a “reasonable expectation of privacy.” If that picture is transmitted
to a computer, it goes from misdemeanor to felony.
The big question going forward is whether what Greitens
allegedly did — photographing a semi-nude paramour without her permission
during an otherwise consensual sexual liaison — can be prosecuted under that
law.
In a filing last week, Greitens’ legal team insisted it
can’t.
“The law ... applies to situations such as voyeurs and
peeping toms who take photographs in locations such as restrooms, tanning beds,
changing rooms and bedrooms,” Greitens’ attorney, James F. Bennett, argues in
the motion to dismiss that he filed late Thursday, hours after Greitens was
indicted and booked in St. Louis.
The law, Bennett argues, was never meant to apply to
situations “where individuals involved were jointly participating in sexual
activity.”
That assessment of the law’s provenance is beyond debate.
The tanning salon scandal from Buffalo and other incidents of the time —
including the late rock star Chuck Berry’s earlier settlement of more than $1
million to dozens of women who sued him over a hidden camera in a bathroom at
his restaurant in Wentzville — were clearly the impetus for Missouri’s current
invasion-of-privacy statutes.
But an underlying issue, which legal scholars debate, is
to what extent a prosecution has to take into account why a law was passed, as
opposed to merely what it says.
“Is the prosecution going beyond the intent of the law to
such a degree that the judge will strike it down ... or is this just a creative
use of a law that’s on the books?” asked Sandy Davidson, an attorney who
teaches communications law at the journalism school at the University of
Missouri-Columbia.
The seeds for last week’s indictment were planted when
Greitens’ 2015 extramarital affair with his hair stylist and related
allegations were reported in area media on Jan. 10, the night of his State of
the State speech.
The allegations came from the former husband of the
woman, who surreptitiously recorded her admitting the affair to him while they
were married. She said in the recording that, during a consensual sexual
encounter in Greitens’ St. Louis home in which she was bound, blindfolded and
partly undressed, Greitens took a photo of her without her consent and
threatened to distribute it if she exposed the affair.
When the story broke, Greitens made a public statement
admitting the affair but denying the rest of the allegations. The alleged
threat isn’t part of the grand jury indictment announced Thursday by St. Louis
Circuit Attorney Kim Gardner’s office.
The Buffalo case had what most people would call a just
outcome: Though unable to prosecute the tanning salon owner on nonexistent
privacy laws at the time, officials were able to convict him on child abuse
laws, since some of his victims were underage.
It was an example of prosecutors using a law in a way
that wasn’t intended, in the effort to get their guy. Which is exactly what
Greitens and his attorneys claim Gardner’s office is doing now — but with
motivations this time of partisan politics rather than justice.
“With today’s disappointing and misguided political
decision, my confidence in our prosecutorial system is shaken, but not broken,”
Greitens, a Republican, said in a written statement after being released on his
own recognizance Thursday night. “The people of Missouri deserve better than a
reckless liberal prosecutor who uses her office to score political points. I
look forward to the legal remedies to reverse this action.”
Gardner, a Democrat, “will not be playing political games
during this process or litigate this case in the media,” her office said Friday
in a written statement. “These personal attacks, while disappointing, will not
distract her from her duty to serve justice and the citizens of this community.
... Both the Governor and the victim deserve their day in court.”
Woman talking?
The indictment against Greitens is only 104 words long,
and the defense motion to dismiss is mostly focused on legal precedent and
interpretation.
But together, the two filings hint at several new pieces
of information about the case:
• Greitens’ lover, whom the Post-Dispatch and other media
outlets have refrained from naming because she has consistently declined to
talk to reporters, is apparently talking to prosecutors.
The indictment references her by her two initials in
describing the allegations, and lists a person with the same two initials as
being among the three witnesses.
• The allegation that Greitens snapped a photo of the
woman — which Greitens hasn’t previously admitted to, and which his legal team
at one point outright denied — appears to have happened.
“No violence. No picture taken. No threat of blackmail,”
Bennett, Greitens’ attorney, wrote in an email to reporters last month, one day
after Greitens acknowledged the affair.
But Bennett’s nine-page defense motion filed last week
doesn’t deny that a photo was taken, and in fact is focused almost entirely on
making the argument that taking such a photo in those circumstances isn’t
illegal.
• Prosecutors might not have a copy of the alleged photo.
And they might not need one.
The defense motion doesn’t focus on whether the photo was
semi-nude and nonconsensual (two elements required to prosecute under the law)
— except to broadly claim, in a footnote, that there is an “absence of proof of
those elements.” Since Greitens’ lover alleges on the audio tape that she
witnessed him snap the photo, her testimony alone may be the evidence
prosecutors are relying upon.
That wouldn’t necessary stymie a prosecution. “If a
victim says, ‘He held me up at gunpoint and took my watch,’ you don’t have to
have the watch,” says St. Louis attorney Gonzalo Fernandez.
• Prosecutors don’t appear to be claiming that Greitens
distributed the alleged photo to another person.
The law sets several possible conditions that make
invasion of privacy a felony, including if a person “disseminates or permits
the dissemination” of a compromising photo “to another person.”
But the indictment doesn’t mention that part of the law.
Instead, it cites a different part that outlaws transmitting such photos “in a
manner that allows access to that image via computer” — an element that
arguably could be invoked almost any time a modern cellphone is involved.
“I’ve got an iPhone, my iPhone backs up to the ‘cloud,’
it’s pretty cool,” says Fernandez. “If (Greitens) has a phone that backs up to
some kind of backup service, I think that would satisfy the language of the
law.”
Defining ‘privacy’
The question of whether such a photo was “transmitted” is
what differentiates misdemeanor invasion of privacy — and its possible one-year
sentence — from the Class D felony version facing Greitens, which can mean up
to four years in prison.
But Greitens’ attorneys argue that even a misdemeanor
charge wouldn’t hold water.
Bennett, the attorney, declined to discuss the case
Friday. But in his motion to dismiss, he argues that a key element necessary to
prosecute — that the alleged invasion of the woman’s privacy happened in a
place where she had a “reasonable expectation of privacy” — doesn’t apply to a
consensual sexual liaison in her lover’s house.
That argument is laid out in language that, whatever help
it might provide Greitens legally, could haunt him politically.
“When a person engages in sexual activity with another,
there is no possible argument that either participant could be ‘without …
concern that the person’s undress was being viewed’ by another person,” Bennett
writes, citing a legal definition of the expectation of privacy.
He adds: “The whole point of the sexual activity is to be
viewed by the other person and to jointly participate in private activity.”
The motion also argues that any visit to the common areas
of another person’s home, “regardless of the relationship” between the two
people, negates the expectation of privacy. In that instance, the motion notes,
there is “an obvious expectation” that the visitor will be viewed by the
homeowner and “even recorded on devices used for routine security.”
Whether that argument persuades a court that the
indictment misuses the law could determine whether the case goes forward — and
may even have implications for future invasion of privacy cases.
“It’s interesting,” said Davidson, the Mizzou
communications law professor. “Often we’ve had legislation that is not crystal
clear and has to have judicial interpretation, and it looks like that’s what
we’re going to see.”
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