Wednesday, February 04, 2009

"Stigma Plus"

This post isn’t about a cybercrime case. It’s about what I think is an interesting issue concerning the use of online postings to shame some people and thereby deter others from following their example.

Here are the facts that led to the filing of this civil case:
On or about June 10, 2008, petitioner, with no prior arrests or convictions, was arrested and charged by the Nassau County Police Department and the Nassau County District Attorney's Office with a violation of the Vehicle and Traffic Law (VTL) § 1192.2 (`DWI') and § 1192.4, (`DUI'). The allegations are that petitioner was operating a motor vehicle with a .09 Blood Alcohol Level (.08 is the legal limit) as well as operating a motor vehicle while under the influence of drugs. . . . [O]n August 1, 2008, the DUI drug charge was dismissed as the urine test for drugs was negative. . . [A] plea of not guilty has been entered but there has been no disposition or conviction on the remaining DWI count. . . .

One week after petitioner's arrest, . . . the COUNTY EXECUTIVE . . .posted the name and arrest picture of petitioner on the County website, embedded in a press release. By letter . . . petitioner demanded that the COUNTY EXECUTIVE remove her name and picture from the `Wall of Shame’. . . . [Petitioner argues] that the posting of her name and picture onto the `Wall of Shame’ has caused, and continues to cause, . . . public humiliation, great embarrassment, potential loss of employment, unwarranted telephone calls and emails . . . all without a prior finding of guilt. Counsel for petitioner argues that the `Wall of Shame’ is a form of punishment that is beyond the authority of the COUNTY EXECUTIVE to impose . . . and violates the United States and New York State Constitutions by depriving petitioner of due process. . . .
Bursac v. Suozzi, 22 Misc.3d 328, 868 N.Y.S.2d 470 (Supreme Court, Nassau County New York 2008).

The court began its analysis of the due process claim by noting that both the U.S. and New York Constitutions state that no one can be deprived of “life, liberty or property” without due process of law. The County Executive (I don’t know why the court put that title in all caps in the opinion) relied on a U.S. Supreme Court case, Paul v. Davis, 424 U.S. 693 (1976), in arguing that the posting was not a denial of due process:
In . . . an effort to address a serious problem of shop lifting, the Police Chief of the Louisville Kentucky Division of Police alerted local merchants of possible shoplifters who might be operating during the 1972 Christmas season by distributing fliers containing the names and photographs of persons who were arrested during the years 1971 and 1972 or who had been active in various criminal fields in high density shopping areas. At the time . . ., [Davis] was facing a charge of shoplifting and had not been convicted. Shortly after distribution of the flier, the charge was dismissed. In a suit against the Police Chief . . ., Davis asserted that the circulation of the flier publicizing his arrest for shoplifting violated his right to due process, inhibited him from entering business establishments and seriously impaired his ability to find future employment. . . . The U.S. Supreme Court [held] that reputation alone does not implicate any `liberty’ or `property’ interest sufficient to invoke the protection of the due process clause, and that something more than simple defamation by the state official must be involved to establish a constitutional claim.
Bursac v. Suozzi, supra. Under the Davis decision, in order to constitute a due process violation “government conduct which has the effect of stigmatizing an individual must be coupled with additional governmental action which affects or alters an individual’s legal status also known as `stigma plus’.” Bursac v. Suozzi, supra. The New York Court of Appeals has applied the same principle to the due process guarantee in the state constitution.

The Bursac court found that “publication of an arrest picture and identifying information is permissible under certain circumstances except when the circumstances amount to `stigma plus.’” So the issue was whether the posting on the Wall of Shame constituted “stigma plus.”

The County Executive argued that “information posted on the `Wall of Shame’ is a matter of public record which is being made `more public’ by posting it on an Internet website, and he analogizes the posting to disclosure under FOIL [New York’s freedom of information law].” Bursac v. Suozzi, supra. The Burac court found that this argument “overlooks that FOIL is designed to give guidance to the keeper of records on how to respond to a request for information and requires the government agency to balance the private interest against the public interest that would be served by disclosure of the personal information, before the information is provided.” Bursac v. Suozzi, supra. It cited cases in which New York courts denied FOIL requests for criminal case information on the groundst it was private; the court also noted that one New York court denied a company’s FOIL request for “the birth dates of all Department of Correction detainees” because posting the information on a website would permit “`the virtual unrestricted and undetected gathering of personal data on an individual in violation of his personal privacy right’”. Bursac v. Suozzi, supra.

The court noted in deciding whether to order disclosure of information under FOIL, a court had to balance the need for “open disclosure by a government agency” against “the unwarranted invasion of a person’s privacy” and whether releasing the information would “deprive a person of a fair trial or impartial adjudication.” Bursac v. Suozzi, supra.
None of these protections or avenues for review . . .are present when the government agency voluntarily promotes and publishes arrest records, containing names, pictures and identifying information, on an Internet website with unlimited access to the public, which may affect a legal status and impose specific harm by being available to, inter alia, search engines, credit agencies, landlords and potential employers, for a lifetime, regardless of the underlying outcome of the case. It is the scope and permanency of public disclosure on the Internet by a governmental agency that distinguishes the County's `Wall of Shame’ from traditional and regular forms of reporting and publication such as print media. The COUNTY EXECUTIVE's campaign of publicizing DWI arrest serves a legitimate purpose but the use of specific identifying information on the Internet, with its endless implications, is of concern to the Court.
Bursac v. Suozzi, supra. The Bursac court therefore held that the County Executive's
actions, in publishing and maintaining the petitioner's name, picture and identifying information embedded in a press release on the County's Internet website, which results in limitless and eternal notoriety, without any controls, is sufficient to be the `plus’ in the `stigma plus’ due process analysis in the case at bar. The Court finds that the petitioner's due process rights have been violated.
Bursac v. Suozzi, supra. It therefore directed the County Executive to remove the petitioner’s information from the Wall of Shame, and entered a permanent injunction barring the posting of the information at some subsequent date. Bursac v. Suozzi, supra.

It seems to me that tactics like this Wall of Shame are an evolved twenty-first century analogue of the medieval (and post-medieval) practice of putting rule violators in the stocks, where they could be mocked by others (and have others throw things at them, too, which adds a dimension missing here). Personally, I don't find the twenty-first century versions of the stocks particularly objectionable, as long as the person has been convicted of something. Whether the tactic is particularly effective in discouraging rule violations by that person and/or others who see what happened to that person is, I suspect, still uncertain.

1 comment:

David A. Schumann said...

With the medieval stocks, the person was shamed for a limited period of time, then it ended. I would liken the "Wall of Shame", if no limit was placed on the public display, as more akin to a "Scarlet Letter" tatooed on a prominent location of the offender, since potential employers, family and aquantences could find this posting far into the future.