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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