Friday, March 27, 2015

Nudity, Privacy and the Prostitute

After a jury convicted Charles Adams “of capturing a representation that depicts nudity without the knowledge or consent of the person who is depicted nude in violation of Wisconsin Statutes § 942.09(am)1,” he appealed.  State v. Adams, 2015 WL 1034741 (Wisconsin Court of Appeals 2005).  
More precisely, Adams was convicted of “videotaping his sexual activity with a prostitute.”  State v. Adams, supra.
The Court of Appeals begins its opinion by explaining how, and why, Adams came to be charged with this offense:
Adams relies on the facts set forth in the amended criminal complaint. Police executed a search warrant of Adams's truck and found numerous electronic video recordings of Adams engaging in sexual activity with various women. In the video that is the subject of Adams's conviction, police recognized the location as a hotel at which Adams had stayed between October 26, 2010, and November 25, 2010.

Police had a tip regarding the identity of the woman in the video, and when police met with her she identified Adams as a man who had hired her for sexual activity in November 2010 at that same hotel. The video shows the woman nude and involved in sexual activity with Adams.

It appears that the activity was captured via a laptop computer that was on a desk or dresser. The woman did not consent to the recording.
State v. Adams, supra.
The Court of Appeals began its analysis of Adams’ arguments on appeal by noting that
Wisconsin Statutes§ 942.09(2)(am)1 prohibits anyone from (1) video recording a person in the nude, (2) without that person's knowledge or consent, (3) in circumstances where the nude person has a reasonable expectation of privacy, and (4) when `the defendant knew or had reason to know that the nude person did not know of and did not consent to the recording.’ State v. Jahnke, 2009 WI App 4 316 Wis.2d 324, 762 N.W.2d 696 (Wisconsin Court of Appeals 2008). Application of a statute to undisputed facts is a question of law we review without deference to the circuit court. State v. Jahnke, supra.  

Additionally, statutory interpretation presents a question of law we review de novo. See State v. Nelson, 2006 WI App 124, ¶ 18, 294 Wis.2d 578, 718 N.W.2d 168 (Wisconsin Court of Appeals 2006).
State v. Adams, supra.
The first argument Adams made in his appeal was that “the woman did not have a reasonable expectation of privacy while nude in the hotel room with him because she was a prostitute and Adams was paying her to engage in sexual activity.” State v. Adams, supra. Unfortunately for him the Court of Appeals did not buy his argument:
Permission to be viewed in the nude does not mean permission to be recorded in the nude, see State v. Jahnke, supra, and permission to engage in sexual acts with someone does not mean permission to record that person in the nude.

`By placing limits on the ability of others to record, the statute protects a person's interest in limiting, as to time, place, and persons, the viewing of his or her nude body. It follows that the pertinent privacy element question is whether the person depicted nude had a reasonable expectation, under the circumstances, that he or she would not be recorded in the nude.

State v. Jahnke, supra. That Adams and the woman were engaged in the crime of prostitution does not mean that the woman relinquished her reasonable expectation of privacy under Wisconsin Statutes § 942.09(2)(am)1.
State v. Adams, supra.  In a footnote, the Court of Appeals pointed out that
[a]lthough a person who engages in commercial sexual activity has no constitutional right to privacy to shield their activities from government intrusion, City of Madison v. Schultz, 98 Wis.2d 188, 295 N.W.2d 798 (Wisconsin Court of Appeals 1980), the statute does not incorporate the constitutional right to privacy, but rather a right to privacy as commonly understood by its terms, State v. Nelson, 2006 WI App 124, 54, 294 Wis.2d 578, 718 N.W.2d 168 (Wisconsin Court of Appeals 2006).  

We need not balance the government's interest in law enforcement against a person's right to privacy because it is not the government that is invading that right. State v. Nelson, supra.
State v. Adams, supra. 
In other words, the Court of Appeals is explaining that there is a difference between the 4th Amendment right to privacy, which protects citizens’ privacy from unjustified intrusions by law enforcement or other government agents, and the common law or statutory right to privacy that arises under state statutes and that protects citizens’ privacy from invasion by other citizens.  For more on that, check out Wikipedia’s entry on privacy law in the United States.
Next, Adams argued that
he was justified in videotaping the woman without her consent because she was a prostitute and might, during their illegal sexual encounter, overdose on illegal drugs or accuse him of battery. Adams contends he needed the videotape to defend himself against a potential false accusation of abuse or an appearance of involvement in a drug overdose.

In effect, Adams argues that there is an exception or defense to the reasonable expectation of privacy prong of the statute when an offender has a legitimate reason to videotape a nude person without that person's consent. See State v. Nelson, supra.
State v. Adams, supra. 
The Court of Appeals goes on to explain that
Adams's reliance on the `legitimate reason’ language in State v. Nelson, supra, is misplaced. The Nelson court said that the evident purpose of Wisconsin Statutes § 942.09 is to penalize those who invade the privacy of persons who are depicted nude `when the offenders have no legitimate reason for doing so.’ State v. Nelson, supra.

But the court quickly added that `the legislature has already made the judgment that, in the circumstances described in the statute, the offender does not have a legitimate interest in capturing representations depicting nudity.’ State v. Nelson, supra.

Nelson did not add a `legitimate reason’ exception to the reasonable expectation of privacy prong of the statute. And Adams's reasons do not provide factual or legal support for any such defense. It is no defense to prosecution for a crime that the victim was also guilty of a crime. Wisconsin Statutes § 939.14.

Recording someone nude in violation of § 942.09(2)(am)1 in order to protect against possible adverse scenarios is not a legitimate reason or defense. Furthermore, there is no evidence that Adams made the recording for the purpose of self-protection.
State v. Adams, supra. 
Finally, the Court of Appeals “briefly address[ed]” Adams’
half-hearted argument that the woman consented or relinquished her expectation of privacy because the laptop computer that was recording her was in view. Adams raises this issue for the first time in his reply brief. See Schaeffer v. State Pers. Commission, 150 Wis.2d 132, 441 N.W.2d 292 (Wisconsin Court of Appeals 1989) (argument raised for first time in reply brief generally not considered).

Furthermore, the jury found that there was no knowledge or consent, and Adams does not challenge that finding or raise any sufficiency of the evidence argument.
State v. Adams, supra. 
You can, if you are interested, read more about the case, and see a photo of Adams, in the news story you can find here. You can also read more about the case in the story you can find here.

Wednesday, March 25, 2015

GoDaddy, the Teamsters Union and Defamation

This post examines a recent opinion from the U.S. Court ofAppeals for the Second Circuit:  Ricci v. Teamsters Union Local 456, 2015 WL 1214476 (2015). The court began its opinion by explaining that
[p]laintiffs Peter and Barbara Ricci (“the Riccis”) bring this action pro se against, LLC (`GoDaddy’) and the Teamsters Union Local 456 (the `Union’ or the `Teamsters’), alleging that false statements about the Riccis in a Union newsletter were republished on a website hosted on GoDaddy's servers.

As relevant here, plaintiffs sue GoDaddy for defamation; they sue the Teamsters for retaliation in violation of sections 7 and 8 of the National Labor Relations Act (`NLRA’), 29 U.S. Code §§157158(b)(1)(A), and for breach of the NLRA's implied duty of fair representation. 
Ricci v. Teamsters Union Local 456, supra. 
Next, the court notes that this
case arises out of a dispute between Peter Ricci and the Teamsters Union 456. According to the Complaint, Appellant Peter Ricci has been a Teamster Union member since 1983. . . . In September 2002, Mr. Ricci attended a meeting in which he was asked to speak in support of a fellow union member, Eddie Doyle. . . . Mr. Ricci declined to do so. . . . Shortly thereafter, Mr. Ricci began having employment problems, which he believes was retaliation by Mr. Doyle for not speaking on his behalf at the September 2002 independent review board meeting. . . .

Almost ten years later, on August 22 and 23, 2012, unidentified individuals allegedly associated with the Teamsters Union Local 456, not GoDaddy, distributed newsletters to unidentified union members, which [the Riccis] contend contained defamatory statements about them and their family members. . . .  

No specific details regarding the statements have been alleged. The newsletters were subsequently posted by an unidentified third party on two websites registered by someone with no affiliation to GoDaddy. . . . GoDaddy did not author or post the allegedly defamatory material. . . .
Ricci v. Teamsters Union Local 456, supra. 
The brief filed on appeal on behalf of Teamsters Union Local 456 adds the following:
Ricci was a truck driver member of . . . Teamsters Local 456 from September 7, 1983 to December 6, 2012. . . . Teamsters Local 456 is a `labor organization’ . . representing truck drivers in Westchester County, New York and providing, through Local 456 Taft-Hartley employee benefit funds, various pension, welfare and other benefits to covered workers, retirees, and their dependents via collective bargaining agreements with employers and trust and plan documents.

[The Riccis] commenced this action July 8, 2013. . . . The Complaint, inter alia, contained indeterminate causes of action . . . seeking 5 million in damages from the Teamsters Local 456 for purported retaliation and defamation arising from Peter Ricci's alleged decision to refrain from assisting Local 456 by speaking at a membership meeting in 2002. . . .
Brief and Appendix for Teamsters Union Local 456, Ricci v. Teamsters Union Local 456, 2014 WL 6721023.
The Riccis filed their lawsuit in the Supreme Court of New York but Teamsters Union Local 456 moved it into a U.S. District Court, pursuant to a process allowed by federal law. Ricci v. Teamsters Union Local 456, supra.  The Teamsters Union and GoDaddy then moved to dismiss the suit pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failing to state a claim upon which relief can be granted.  Ricci v. Teamsters Union Local 456, supra. 
The U.S. District Court Judge who had the case granted both motions to dismiss, which effectively ended the Riccis’ lawsuit. Ricci v. Teamsters Union Local 456, supra.  They appealed the dismissals, and in this opinion the Court of Appeals is reviewing the correctness of the U.S. District Court Judge’s rulings.  Ricci v. Teamsters Union Local 456, supra. 
In its opinion, the Court of Appeals explains that the Riccis
do not allege that GoDaddy had any role in creating the allegedly defamatory newsletters. To the contrary, their complaint repeatedly alleges that the newsletters were drafted and distributed by others. See Complaint ¶ 9 (alleging that `Teamsters Union Local 456’ is `the creator of the newsletters’); see also id. ¶ 10 (alleging that GoDaddy (eventually) `decided to reveal the . . . identity of the publisher and creators of the newsletters’).

As to GoDaddy, the only allegations in the complaint are: (1) GoDaddy hosted a website that published the allegedly defamatory newsletters, see id. ¶¶ 9–10; (2) GoDaddy `refused to remove the newsletter’ from its servers, id. ¶ 9; and (3) GoDaddy `completely refused to investigate Barbara Ricci's complaints,’ id. None of those allegations are disputed by the parties.
Ricci v. Teamsters Union Local 456, supra. 
The court began its analysis with the dismissal of the Riccis’ claim against GoDaddy, explaining that
[a]ccepting as true all of the allegations in the complaint, GoDaddy is immune from the Riccis' defamation claims under a provision of the Communications Decency Act of 1996: `[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.’ 47 U.S. Code § 230(c)(1). Preemption is express: ‘No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.’ 47U.S. Code § 230(e)(3).

The Riccis seek to hold GoDaddy liable as a `publisher or speaker’ of allegedly defamatory statements authored by someone else-that is, “another information content provider.” 47 U.S. Code § 230(c)(1). So if GoDaddy is being sued in its capacity as a provider of an `interactive computer service,'  d., it is immune from defamation liability under the Communications Decency Act.
Ricci v. Teamsters Union Local 456, supra. 
The Court of Appeals went on to explain that the statute
defines `interactive computer service’ expansively, to include `any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.’ 47 U.S. Code§ 230(f)(2). This wording has been construed broadly to effectuate the statute's speech-protective purpose:

`Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. . . . Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum. . . .

None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. . . .Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages. Zeran v.
America Online, Inc., 129 F.3d 327 (U.S. Court of Appeals for the 4th Circuit 1997). In short, a plaintiff defamed on the internet can sue the original speaker, but typically `cannot sue the messenger. Chicago Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (U.S. Court of Appeals for the 7th Circuit 2008).
Ricci v. Teamsters Union Local 456, supra. 
The Court of Appeals then noted that
[w]e have never construed the immunity provisions of the Communications Decency Act, but other courts have applied the statute to a growing list of internet-based service providers. See, e.g., Klayman v. Zuckerberg, 753 F.3d 1354 (U.S. Court of Appeals for the D.C. Circuit 2014); Doe v. MySpace, Inc., 528 F.3d 413 (U.S. Court of Appeals for the 5th Circuit 2008); Chicago Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., supra.

That includes GoDaddy. See Kruska v. Perverted Justice Found. Inc.,  2008 WL 2705377 (U.S. DistrictCourt for the District of Arizona 2008) (`GoDaddy, as a web host, qualifies as an interactive computer service provider under the CDA.’).

We join this consensus. The Riccis allege only that GoDaddy `refused to remove’ from its web servers an allegedly defamatory newsletter that was authored by another. These allegations do not withstand the Communications Decency Act, which shields GoDaddy from publisher liability (with respect to web content provided by others) in its capacity as a provider of an interactive computer service.
Ricci v. Teamsters Union Local 456, supra.  The court therefore found that the District Court Judge did not err in dismissing the Riccis’ claims. Ricci v. Teamsters Union Local 456, supra. 
It also affirmed the court’s dismissal of the Riccis’ “labor law claims against the Teamsters Union” because it found they were
all barred by the six-month statute of limitations in the NLRA. See 29 U.S. Code § 160(b)see also DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151 (1983). The last event referenced in the complaint took place on December 6, 2012, when Peter Ricci left the Teamsters Union. Even assuming the statute did not begin to run until then, the complaint, which was filed on July 8, 2013, was about a month late.
Ricci v. Teamsters Union Local 456, supra. 

Monday, March 23, 2015

The Stolen Car, the Abandoned Cell Phone and Privacy

After Adrian Samalia was convicted of possessing a stolen motor vehicle in violation of Washington state law, he appealed.  State v. Samalia, 2015 WL 968754 (Washington Court of Appeals 2015).  The court begins its opinion by explaining how the prosecution arose:
Yakima Police Officer Ryan Yates was on patrol when his vehicle license plate reader indicated he had passed a stolen vehicle. Yates confirmed the vehicle was stolen by radio and then followed the vehicle that stopped shortly thereafter. The driver got out of the vehicle and faced towards Yates. The driver would not obey Yates' command to get back in the vehicle and fled. Yates pursued the male driver but he got away.

Yates returned and searched the car, partly to help identify the driver. He found a cell phone on or in the center console. Not knowing who the phone belonged to, he called some phone numbers found in the cell phone's contacts section. He spoke to Deylene Telles who agreed to meet him.

Yates reported to his sergeant what happened and gave the phone to him. The sergeant met with Telles and called her cell phone from the abandoned cell phone. Her cell phone displayed Samalia's name and picture. The sergeant gave the name to Yates, who located Samalia's picture in a police database. Yates then identified Samalia from the database picture as the fleeing man who had been driving the stolen vehicle.
State v. Samalia, supra.
After he was charged, Samalia
moved unsuccessfully to suppress the cell phone evidence. . . . From the above facts, the trial court concluded the cell phone was abandoned, therefore, Samalia no longer had an expectation of privacy in it. Following a bench trial, the court found Samalia guilty as charged. 
State v. Samalia, supra.
On appeal, Samalia argued that the trial court judge erred by denying his motion to suppress “evidence obtained from his cell phone” because he argued that “the evidence was constitutionally protected and could not be accessed without a warrant.” State v. Samalia, supra.  The Court of Appeals began its analysis of his argument by noting that
[u]nder the Washington Constitution, article I, section 7, `No person shall be disturbed in his private affairs . . . without authority of law.’ Our Supreme Court recently held private affairs include information obtained through a cell phone. State v. Hinton, 179 Wash.2d 862, 319 P.3d 9 (2014).

Additionally, the Supreme Court of the United States recently noted, `[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life[.] The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.’ Riley v. California, 134 S. Ct. 2473 (2014).

A warrantless search violates article I, section 7 unless it falls under one of `”a few jealously guarded exceptions.”’ State v. MacDicken, 179 Wash.2d 936, 319 P.3d 31 (Washington Supreme Court 2014) (quoting State v. Afana, 169 Wash.2d 169, 233 P.3d 879 (Washington Supreme Court 2010)).
State v. Samalia, supra.
The Court of Appeals goes on to explain that
[s]earching voluntarily abandoned property is an exception to the warrant requirement. State v. Evans, 159 Wash.2d 402, 150 P.3d 105 (Washington Supreme Court 2007); see also State v. Reynolds, 144 Wash.2d 282, 27 P.3d 200 (Washington Supreme Court 2001) (law enforcement may retrieve and search voluntarily abandoned property without a warrant or probable cause). `Voluntary abandonment is an ultimate fact or conclusion based generally upon a combination of act and intent.’ State v. Evans, supra (citing 1 Wayne R. LaFave, Search and Seizure § 2.6(b), at 574 (3d ed.1996)).

`”Intent may be inferred from words spoken, acts done, and other objective facts, and all the relevant circumstances at the time of the alleged abandonment should be considered.”’  State v. Evans, supra (quoting State v. Dugas, 109 Wash. App. 59236 P.3d 577 (Washington Court of Appeals 2001)). The question is whether the defendant relinquished his reasonable expectation of privacy by discarding the property. . . . The defendant bears the burden of showing he had an actual, subjective expectation of privacy and that his expectation was objectively reasonable. State v. Evans, supra.
State v. Samalia, supra.
The court also pointed out that a
critical factor in determining whether abandonment has occurred is the status of the area where the searched item was located. State v. Hamilton, 179 Wash.App. 870, 320 P.3d 142 (Washington Court of Appeals 2014). `Generally, no abandonment will be found if the searched item is in an area where the defendant has a privacy interest.’ State v. Hamilton, supra.

Here, the search area was an unattended stolen vehicle Samalia had been driving and had fled from when a police officer approached and directed him to return to the vehicle. A suspect's hasty flight under these circumstances is sufficient evidence of an intent to abandon the vehicle. See U.S. v. Tate, 821 F.2d 1328 (U.S. Court of Appeals for the 8th Circuit 1987) (suspect who fled unlocked vehicle parked on public road abandoned expectation of privacy); see also Kurtz v. People, 177 Colo. 306, 494 P.2d 97, (Colorado Supreme Court 1972). . . .  (items seized from vehicle were admissible based on the abandonment of the vehicle, the flight of the accused from the scene on foot, and the fact the accused remained at large at the time of the search). Thus, the status of the area searched shows abandonment. We conclude, Samalia did not have a privacy interest in the searched area.
State v. Samalia, supra.
It went on to note that
[w]e next look to the reasonableness of the officer's actions and Samalia's intent. Intent may be inferred from words spoken, acts done, and other objective facts, and all the relevant circumstances at the time of the alleged abandonment should be considered. State v. Evans, supra. The question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy so that its seizure and search is reasonable within the limits of article I, section 7.
State v. Samalia, supra.
The Court of Appeals then applies these principles to the facts in this case:
Yates spotted and followed a stolen vehicle until it stopped. The driver saw the officer, ignored instructions to remain in the vehicle, fled, and, evaded pursuit. The officer reasonably returned to the vehicle to search for evidence of the driver's identity and continue his pursuit. Samalia's flight from the stolen vehicle under these circumstances shows his intent to abandon the vehicle, including its contents.

Citing State v. Hinton, 179 Wash.2d 862, 319 P.3d 9 (Washington Supreme Court 2014) and Riley v. California, supra, Samalia incorrectly argues a warrant is always required to search a cell phone. In Hinton, police confiscated a cell phone from an arrestee. State v. Hinton, supra. The cell phone received calls and messages at the police station leading to Hinton's arrest and controlled substance conviction. The Hinton court held, `We find that the officer's conduct invaded Hinton's private affairs and was not justified by any authority of law offered by the State.’ State v. Hinton, supra.  
State v. Samalia, supra.
The court goes on to explain that in the Riley case, the U.S. Supreme Court
concluded the search incident to arrest exception to the warrant requirement does not apply to digital data on a cell phone in an arrestee's possession. Riley v. California, supra. But, the Riley court reasoned `other case-specific exceptions may still justify a warrantless search of a particular phone.’ Riley v. California, supra. Specifically, the Riley court noted the `well-reasoned’ exigency exception, `to pursue a fleeing suspect,’ as a case that may excuse a cell phone search warrant. Riley v. California, supra.

Samalia's case is distinguished from Hinton and Riley because the cell phone was not seized from Samalia's person during his arrest, but was found abandoned in a stolen vehicle. Voluntarily abandoned property is an exception to the warrant requirement. State v. Evans, supra.

The use of the cell phone in Mr. Samalia's case comes within both the Evans exception and the exigency exception to pursue a fleeing suspect recognized in Riley. Moreover, the use of Samalia's cell phone was attenuated because the cell phone information used to get his name came from Ms. Telles' cell phone, not the abandoned cell phone, and the officer used the name to identify Mr. Samalia from existing police records. Further, the police were unsure who owned the abandoned cell phone.
State v. Samalia, supra.
The Court of Appeals therefore held that
[g]iven our reasoning, we conclude the officer did not require a warrant to use the abandoned cell phone in the manner described here. Further, a warrant was unnecessary under Riley because the abandoned cell phone was used to pursue the fleeing suspect.

Finally, the use of the abandoned cell phone was too attenuated because the information leading to Samalia's identification in a police database came in the form of a name appearing on Ms. Telles' cell phone.

Therefore, we hold the trial court did not err in denying Samalia's . . . suppression motion concerning his identification. Given our analysis, we do not reach the State's arguments concerning standing, ownership of the cell phone, and the State's right to impound the stolen vehicle.
State v. Samalia, supra.  (As Wikipedia notes, “hot pursuit” of a fleeing felon is an exception to the 4th Amendment’s default requirement that police obtain a warrant before searching property or seizing a person.)
One of the Court of Appeals judges dissented, explaining, in part, that
[n]o reported Washington decision has directly addressed whether a citizen relinquishes his reasonable expectation of privacy in the data on his cell phone by leaving the phone behind at the scene of a crime. In my view, the Gunwall to Jorden line of cases,  . . .  collectively compel the conclusion that the voluminous private information likely to be found on a cell phone remains protected by article I, section 7 of the Washington constitution even when the phone is left behind in a place where the defendant has no privacy interest. Requiring a search warrant will assure that there is probable cause to believe that the defendant is involved in criminal activity and that evidence of the criminal activity can be found in the data on the cell phone. In this case Yates presumably would have been able to demonstrate probable cause to a magistrate, as long as he first spoke to the owner of the stolen car and confirmed that the phone did not belong to her or some innocent prior passenger.

The only other exception to the warrant requirement for the data on Samalia's cell phone identified by the majority is the exigency exception that it notes was recognized in Riley. . . . But Riley holds that obtaining a warrant to search data on a cell phone should be the rule because `data on the phone can endanger no one.’ Riley v. California, supra. While recognizing that the exigent circumstances exception will be available in some cases, the Court observed that the exception `requires a court to examine whether an emergency justified a warrantless search in each particular case.’ Riley v. California, supra.

Here, the State did not argue that exigent circumstances existed nor did the trial court find any. . . . The only crime as to which Yates had probable cause was Samalia's possession of a stolen car, and the stolen car had been left behind. There was no evidence that Samalia was armed, was suspected of any other crime, or otherwise presented a danger.

State v. Samalia, supra (Judge Siddoway, dissenting).