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Push for privacy shouldn't come at expense of other freedoms
Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director
03.07.10

Beliefs about the right to privacy are colliding ever more frequently with claims of free expression in a Web-wired world.

From a courtroom battle about an Internet video in Italy to a fight over gun-permit records in Indiana, we’re debating worldwide and locally exactly what’s private today, and how that concept is weighed against the long-proven benefits of free expression and public information.

An Italian court recently convicted three Google executives of violations of that nation’s privacy laws because of a 2006 video posted on Google Video that showed a teenager with Down syndrome being bullied by a group of children. Italian law requires the consent of everyone pictured before a video can be posted online — something lawyers for the U.S.-based company said would be impossible for services such as Google Video or YouTube.

Google representatives, in noting they would appeal, said the ruling threatened nothing less than the “very freedom that the Internet has brought about” worldwide. One online writer put it another way: “Google was not any more responsible here than the postal service would be for delivering a ransom note.” But the Italian prosecutor said the convictions sent a clear signal that “a company’s rights cannot prevail over a person’s dignity.”

Notions of privacy even in the afterlife may hinge on the outcome of a lawsuit involving Hustler magazine. The U.S. Supreme Court on March 1 turned down an appeal by Hustler — supported by two prominent journalism groups — seeking to end a lawsuit stemming from the 2008 publication of 20-year-old nude photographs of a woman killed in 2007 by her husband.

The woman’s family maintained that immediately after the photo shoot the woman asked the photographer to destroy the photos, and that Hustler’s use of the pictures — contrary to the magazine’s claim — had little to do with “newsworthiness,” an exception that generally shields publications from privacy claims.

But the Supreme Court let stand an 11th U.S. Circuit Court of Appeals ruling that found last June that even a notorious death doesn't permit publishers to print any images they may obtain. The appellate court said the photographs “were neither related in time nor concept” to the news of the crime and thus didn’t qualify for the exception.

In a “friend of the court” brief, two journalism groups said the 11th Circuit should have applied publicity considerations rather than privacy laws to the case. The groups also said newsworthiness must be given the widest possible definition by the courts so that judges won’t sit, in effect, as editors on every news judgment, and publications won’t be hit with myriad lawsuits challenging the use of virtually any photo connected to a crime or potentially embarrassing situation.

Meanwhile in Pennsylvania, school officials seeking to track down missing laptop computers last year remotely activated embedded webcams without telling the students — and now face a class-action lawsuit and an FBI investigation into whether the action violated privacy and federal wiretap laws. The American Civil Liberties Union, in support of one student reportedly photographed in his home in November, said the school system’s use of the secret webcams should be compared to an illegal search.

And in Indiana, the legislature has sent the governor a bill that would make secret the names of those who hold “handgun carry” permits, echoing disputes over the availability of such information in states ranging from Tennessee to Virginia. Generally, disclosure has become controversial after online publication of the names and other information in a state database.

Advocates of keeping the information secret cite fears that gun owners will be targeted by thieves who would use the information as a burglary road map. News organizations and others cite the value of public inspection of such records, both to individuals who want to know where firearms are located near homes or businesses, and to those who want to double-check the state permit process. Some publications have found officials have improperly approved permits for convicted felons or others.

Privacy began finding a definition in law more than a century ago, with the idea of an emerging right “to be let alone,” voiced most prominently in an 1890 article co-authored by future Supreme Court Justice Louis Brandeis.

The Age of the Internet has connected the world to us and us to the world in an unprecedented way in just the last 10 years. More information about us likely is available, in more places, accessible by more people, than ever before. At times, we may have a desire to be “let alone.”

But legislators, judges and others need to balance that individual wish against the positive results seen over time — so necessary for the vigorous exchange of information among self-governing people — that come from disclosure, transparency, news and public information.

Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., Washington, D.C., 20001. Web: www.firstamendmentcenter.org. E-mail: gpolicinski@fac.org.


Related

Supporters of sealing Tenn. gun database seek very same records

AP study finds that list of more than 257,000 handgun-permit holders was recently requested by state Republican Party and direct mail contractor that has done work for GOP. 11.03.09

Justices allow lawsuit against Hustler to proceed

High court won't review 11th Circuit ruling that magazine had no right to publish decades-old nude photographs of woman after she was killed by her husband, wrestler Chris Benoit. 03.01.10

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