The District of Columbia appeals court ruled that an agent for the Drug Enforcement Administration could not sue the agency for releasing a video showing him shoot himself in the leg while lecturing children on gun safety.

The agent claimed the DEA violated his privacy rights. -db

From the Courthouse News Service, January 27, 2012, by Rose Bouboushian.

Full story

A grieving family is suing Hustler Magazine for $20 million after the magazine published nude photos of a model who was murdered by her husband.

Hustler is claiming that the model was a public figure and newsworthy. -db

From the  Daily Mail, January 26, 2012, by Daily Mail Reporter.

Full story

A Santa Monica math teacher lost a lawsuit in a California appeals court to keep a sexual harassment complaint against him private.

The court found substantial public interest in the release of details of the investigation into a parent’s charge that the teacher sexually harassed his thirteen-year-old daughter. The charge was not fully substantiated. -db

From the Metropolitan News-Enterprise, January 25, 2012, by Kenneth Ofgang.

Full story

Europe is considering a new law that would require Internet companies like Amazon and Facebook to obtain consent from consumers to  use their personal data.

The law would force companies to delete personal data forever at the consumer’s request or face fines for failing to comply. -db

From The New York Times, January 23, 2012, by Somini Sengupta with reporting from Kevin J. O’Brien.

Full story

The American Civil Liberties Union and the Electronic Frontier Foundation are set to file an appeal concerning the U.S. government’s attempts to obtain Twitter records in their investigation of WikiLeaks.

The ACLU and EFF are seeking to prevent the government from sealing records of their efforts to obtain private information of Internet users without a warrant. -db

From a press release by the Electronic Frontier Foundation, January 20, 2012.

Full release

A U.S. district judge will hear arguments on a challenge by the Sacramento Bee to the sealing of arguments in a legal dispute between the federal government and Sierra Pacific Industries over how a 2007 wildfire began and who should pay for the destruction.

Sierra Pacific disputes the contention that the fire was sparked by a bulldozer owned by  one of their contractors. -db

From the Sacramento Bee, January 19, 2012, by Denny Walsh.

Full story

The U.S. Department of Housing and Urban Development will get another chance to protect the identity of informants in the investigation of a real estate kickback scheme in Hawaii.

HUD had lost a round in an Hawaiian court when a three-judge panel said the agency failed to explain why it redacted the names of informants in documents requested under the Freedom of Information Act. -db

From the Courthouse News Service, January 18, 2012, by Tim Hull.

Full story
 

An agent for the U.S. Drug Enforcement Administration lost a ruling in federal appeals court when the court ruled that  a video that went viral of his accidentally shooting himself during a public lecture did not violate the  Privacy Act.

The agent claimed that the video was part of an investigation into the shooting and was private. -db

From The Reporters Committee for Freedom of the Press, January 18, 2012, by Rachel Bunn.

Full story

The Electric Freedom Foundation is suing the Department of Transportation for its records on drones operating in U.S. airspace. EFF claims the drones are used for surveillance of U.S.  citizens and are a matter of great public concern. -db

From The Washington Post, January 13, 2012, by Jason Ukman.

Full story

A federal judge in Washington, D.C. found that the Justice Department could not withhold files from the nonprofit Citizens for Responsibility and Ethics of their criminal investigation of U.S. Rep. Don Young of Alaska.

The Justice Department did not file any charges against Young and withheld the files on privacy grounds. -db

From the Anchorage Daily News, January 11, 2012, by Richard Maurer.

Full story

Graduate students are developing software that could be used to protect whistleblowers, human rights advocates, and hackers. -db

From The New York Times, January 3, 2012, by Nicole Perlroth.

Full story

The 8th Circuit U.S. Court of Appeals ruled that a court could force a reporter to testify in a lawsuit against plastic surgeons.

A woman brought the lawsuit against her plastic surgeons who gave her partially nude photos to  the reporter who worked for a Missouri newspaper. -db

From The Reporters Committee for Freedom of the Press, January 4, 2012, by Chris Healy.

Full story

The 9th Circuit Court of Appeals was unimpressed with the lawyer of Sheriff Joe Arpaio, trashing her argument that the sheriff was not liable under the First Amendment for his attacks on The Phoenix New Times.

The lawyer failed to recognize that their appeal vacated an earlier opinion setting aside an argument about conspiracy. The lawyer was unprepared to answer the court’s questions concerning that issue. -db

From the  Courthouse News Service, December 16, 2011, by David Tartre.

Full story

A Gawker reporter is suing the National Archives and Records Administration for information about how former President George W. Bush and his vice president, Dick Cheney tried to shape public opinion during their tenure.

The reporter is not seeking the Bush administration documents protected under law from disclosure but rather the identities of those who sought records. -db

From the Courthouse News Service, December 1, 2011, by Adam Klasfeld.

Full story

The  Tennessee judge presiding over the lawsuit over the return of an adopted 9-year-old boy to Russia ruled that the court documents be unsealed.

A court memo indicated that there were no facts presented to justify sealing the case and that the 9-year-old was living in Russia far from the harsh light of publicity about the case. -db

From The Reporters Committee for Freedom of the Press, November 23, 2011, by Kristen Rasmussen.

Full story

The Los Angeles Unified School District is thwarting the public’s right to know how teachers rated in value-added evaluations saying that the disclosures would be “embarrassing and painful” to teachers.

Parents have the right to know how students are faring under their teachers argues Jim Newton in an op-ed in the Los Angeles Times. -db

From an op-ed in the Los Angeles Times, November 28, 2011, by Jim Newton.

Full story

The FBI has refused a Freedom of Information Act request for documents relating to the use of an inside informant on the work of  Common Ground Relief, a group dedicated to Hurricane Katrina relief and critical of the Bush administration’s response to the disaster.

The FBI said releasing the documents would violate the privacy of its informant. -db

From the Courthouse News Service, November 23, 2011, by Sarina Canfield.

Full story

The U.S. Supreme Court has allowed disclosure of signatures for a Washington referendum to overturn a law granting domestic partners the same rights as married couples.

The opponents of gay marriage had argued that they would be subject to threats, harassment and reprisals if the signatures were released to the public. -db

From the Courthouse News Service, November 23, 2011, by Barbara Leonard.

Full story

A federal district judge in San Jose ruled that a blogger does not have to reveal his identity to the Art of Living Foundation that promotes spirituality lessons of Ravi Shankar. The blogger had published criticisms of the foundation along with one of  their manuals, an act that the foundation said infringed its copyright.

The judge said that so far the blogger’s First Amendment rights outweighed the foundation’s interests. -db

From The Reporters Committee for Freedom of the Press, November 17, 2011, by Chris Healy.

Full story

An investigation by ProPublica showed how one doctor through his complaints was able to remove a medical malpractice database from public access.

A Kansas doctor with a history of malpractice suits  was able to enlist the American Medical Association and the Health Resources and Services Administration (HRSA) to protect his privacy interests after a reporter had requested an interview. Days after he had written the HRSA to complain his privacy was affected by the reporter, the agency removed the National Practitioner Data Bank from the public domain. -db

From ProPublica, November 10, 2011, by Marian Wang.

Full story

A New Jersey elementary school teacher may lose her job for calling her students “future criminals.” An administrative law judge said she should be fired.

The teacher intended that her comments be seen only by  her Facebook friends. -db

From a commentary in Mobiledia, November 11, 2011, by Janet Maragioglio.

Full story

The presiding judge of the Los Angeles Juvenile Court plans to open court hearings to the public by the end of the month in an attempt to bolster public confidence by improving accountability and transparency.

The court deals with child abuse and neglect and foster care placement. Many social workers oppose the plan out of concerns for the privacy and the children. The proceedings would be presumed open unless someone objects or a judge decides to close them. -db

From the Los Angeles Times, November 9, 2011, by Garrett Therolf.

Full story

The Obama administration reversed its policy to block access to information on malpractice settlements and discipline taken against doctors but set some conditions that journalists do not like.

The administration said that information from the National Practitioner Data Bank could not be reposted or used with other information to identify a doctor. The administration had taken down the data bank because a Kansas reporter had used the information to track down a doctor with a record of malpractice but never disciplined by the state. -db

From the Federal Times, November 10, 2011, by Sarah Chacko.

Full story

A woman is suing a documentary maker for portraying her as a rapist and prostitute 30 years ago when she followed her fiance to England. The woman said she granted interviews with the filmmakers on the belief that they were making a film on paparazzi.-db

From the Courthouse News Service, November 7, 2011, by Matt Reynolds.

Full story

Fame has its drawbacks as another female celebrity appears nude on the Internet in a photo that appears to be fake. The Celebrity Jihad posted a photo of a topless blonde woman under the headline, “Taylor Swift Topless Private Pic Leaked?”

The site says it is satirical and admits to publishing fiction and fact. Swift’s team has contacted the site, but it is not known if they have plans to sue.  -db

From The Washington Post, October 31, 2011, by Sarah Anne Hughes.

Full story

Internet publishers may face a deluge of lawsuits in Europe after the European Court of Justice ruled that individuals can sue for invasion of privacy in each country where the offensive information can be accessed.

“Publishers, though, should not be subject to stricter laws than would apply if the court action was taking place in the country in which they are based,” reports Out-Law.com.

From Out-Law.com, October 26, 2011.

Full story

Q: Can the police legally use hidden cameras to videotape interactions with the public without the public’s consent? Not just in public–where there may be less of an expectation of privacy–but at an apartment or home entrance?

A: You pose an interesting question.

A provision of California’s Penal Code imposes penalties for “intentionally and without the consent of all parties to a confidential communication … eavesdrop[ping] upon or record[ing] the confidential communication [by means of any electronic amplifying or recording device], whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio.” Penal Code § 632

(a) (full text below in italics). The term “person” in the statute is defined to include “an individual acting or purporting to act for or on behalf of any government or subdivision thereof,” which would seem to include law enforcement personnel. Penal Code § 632 (b).

Note, however, that there are a number of carve-outs related to law enforcement, including one specifying that § 632 does not prohibit police officers from “overhearing or recording any communication that they could lawfully overhear or record prior to” the enactment of § 632 in 1967. Penal Code § 633.

Another carve-out provides that “[n]othing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m.

Nothing in Section 631, 632, 632.5, 632.6, or 632.7 renders any evidence so obtained inadmissible in a prosecution for extortion, kidnapping, bribery, any felony involving violence against the person, a violation of Section 653m, or any crime in connection therewith.” Penal Code § 633.5.

A more detailed analysis of the circumstances under with a police officer would be permitted to secretly record communications is, unfortunately, beyond the scope of this service, which is focused on First Amendment and government access issues.

It is probably worth noting, however, that law enforcement personnel might have room to debate whether a conversation between a police officer and a member of the public that took place in the course of the officer carrying out his or her official duties could reasonably be considered “confidential,” even if it took place in the citizen’s home.

That determination might be highly dependent on the particular circumstances surrounding the event. See People v. Maury, 30 Cal. 4th 342, 386 (2003) (“The term confidential communication as defined in Penal Code Section 632, [subdivision] (c) includes only those communications carried on in circumstances that would reasonably indicate that any party to the communication desired it to be confined to the parties thereto.”).

(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

(b) The term “person” includes an individual, business association, partnership, corporation, limited liability company, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording the communication.

(c) The term “confidential communication” includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

(d) Except as proof in an action or prosecution for violation of this section, no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.

(e) This section does not apply (1) to any public utility engaged in the business of providing communications services and facilities, or to the officers, employees or agents thereof, where the acts otherwise prohibited by this section are for the purpose of construction, maintenance, conduct or operation of the services and facilities of the public utility, or (2) to the use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of a public utility, or (3) to any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility.

(f) This section does not apply to the use of hearing aids and similar devices, by persons afflicted with impaired hearing, for the purpose of overcoming the impairment to permit the hearing of sounds ordinarily audible to the human ear.

Cal Pen Code § 632

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

A Baton Rouge high school student sued school officials for suspending him and throwing him out of the honors club for criticizing a teacher on Facebook. The student made the comment from his home and removed it before school the next day.

The boy’s parents contend that the comment was intended as a joke and created no disturbance at the school so should be protected under the First Amendment. -db

From the Courthouse News Service, October 25, 2011, by Sabrina Canfield.

Full story

Health reporters got a kick in the rear recently when the Obama administration withdrew a public database about doctor malpractice, writes Justin Silverman for the Citizens Media Law Project.

The move came after a number of reporters used the national database to write stories about how their state regulators were reluctant to discipline doctors for malpractice. -db

From the Citizens Media Law Project, October 20, 2011, by Justin Silverman.

Full story

A federal judge in California ruled that writers and producers of  “The Hurt Locker,” a film about bomb-disposal in Iraq, were protected by the First Amendment in presenting important information about a public issue. A soldier sued the film-makers for benefiting from his identity without permission.

“The court found, however, that on-screen depictions of the lead character were sufficiently ‘transformative’ to bring the material within the scope of First Amendment protection,” writes Kristen Rasmussen for The Reporters Committee for Freedom of the Press.

From The Reporters Committee for Freedom of the Press, October 14, 2011, by Kristen Rasmussen.

Full story

The Los Angeles County police union is fighting the Los Angeles Times over the newspaper’s quest for pension information that the union claims if made public could endanger the lives of retired officers.

In a lawsuit filed in Superior Court, the union argued that in pitting the public’s right to know against legitimate safety issues, the law must come down in favor of protecting law enforcement officers. -db

From the Courthouse News Service, September 23, 2011, by Matt Reynolds.

Full story

The Tri-City Healthcare District is asking a court to stop the San Diego Union-Tribune from publishing what they say are “privileged and confidential communications.” Tri-City accidentally provided the records in response to a public records request.

The contents of the communications are not known, but among other things, Tri-City is upset that the Union Tribune used the communications to make another public records request. -db

From the Courthouse News Service, September 21, 2011, by Matt Reynolds.

Full story

The U.S. 2nd Circuit Court of Appeals ruled for a second time that a suit could proceed that challenged a Congressional law allowing the National Security Agency to electronically spy on citizens without a probable-cause warrant.

The case may finally come to trial unless the Obama administration uses the state secrets privilege to kill the lawsuit. Federal judges have not often ruled against the government in those instances. -db

From Wired, September 21, 2011, by David Kravets.

Full story

Newspaper associations and public interest groups are protesting a move by the Obama administration to withhold a data bank created by Congress in 1986 to assist hospitals and state licensing boards to check doctor’s records for discipline and malpractice.

The records had been useful in creating laws to protect the public as reported by Blythe Bernhard and Jeremy Kohler in the St. Louis Post-Dispatch.”The Post-Dispatch used the public file last year in an investigation of the lax and secret system of doctor discipline in Missouri. The investigation led to a new law that gives the state healing arts board more power and gives patients more information about their doctors,” they wrote.

From the St. Louis Post-Dispatch, September 15, 2011, by Blythe Bernhard and Jeremy Kohler.

Full story

After a state appellate court ruled that the Sonoma County Employees’ Retirement Association could not refuse the Santa Rosa Press Democrat’s requests under California Public Records Act for pension figures for county government retirees, the pension fund board acceded to the requests.

In withholding the information, the pension fund board was complying with a 1937 law which stated that the records were confidential and not for release to the public. -db

From the Santa Rosa Press Democrat, September 15, 2011, by Brett Wilkison.

Full story

The Internet era has eroded a Supreme Court decision (Department of Justice v. Reporters’ Committee) allowing governments to deny rap sheets requested under the Freedom of Information Act. Now it is possible to tap into a national database provided by the federal courts to obtain the information.

In an opinion a federal judge has even acknowledged the possibility of using the national database, a sure indication that that privacy exemption has been seriously weakened. -db

From a commentary in Politico, September 7, 2011, by Josh Gerstein.

Full story

The Superintendent of a Texas high school denied an Al Jazeera journalist access to students at a high school football game. The reporter wanted to ask students about how 9/11 affected their lives.

First Amendment advocates said that the school had the right to control the press at a school function so long as it was even handed in denying access to all media outlets. -db

From the Amarillo Globe-News,  September 7, 2011, by Kevin Welch.

Full story

President Barack Obama has done nothing to fulfill his promise to curtail warrantless spying and in fact wants Congress to renew powers given to the federal government to conduct the surveillance.

Writing a commentary for Wired, Ryan Singel quotes Julian Sanchez of the Cato Institute on the effectiveness of the spying, “We have become so accustomed to talking about the balance between civil liberties and security that we begin to assume that the more our liberties are invaded, the more secure we are, when there is very little evidence that is the case.” -db

From a commentary in Wired, September 11, 2011, by Ryan Singel.

Full story

A federal appeals court ruled that the U.S. Department of Justice must release case docket information in criminal cases where the government used cellphone location tracking data without a warrant.The American Civil Liberties Union used the Freedom of Information Act starting in 2007 in a bid for the information.

The ACLU was concerned that the warrants were not supported by probable cause and contravened a U.S. Supreme Court ruling from 1989. -db

From The Reporters Committee for Freedom of the Press, September 7, 2011, by You-Jin Han.

Full story

A  superior court judge ruled that the Los Angeles Times had the right to identities of sheriff’s deputies involved in fatal shootings. The union for the deputies had contended that the names were private personnel information and to release them would create safety issues.

The judge said public interest was paramount and ordered the sheriff’s department to pay The Times‘ legal fees of $173,000. -db

From the Los Angeles Times, August 31, 2011, by Victoria Kim.

Full story