Privacy and the Criminal Arrestee Or Suspect: in Search of a Right, in Need of a Rule Sadiq Reza

Maryland Law Review Volume 64 | Issue 3 Article 3 Privacy and the Criminal Arrestee or Suspect: in Search of a Right, in Need of a Rule Sadiq Reza Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Constitutional Law Commons, and the Criminal Law Commons Recommended Citation Sadiq Reza, Privacy and the Criminal Arrestee or Suspect: in Search of a Right, in Need of a Rule, 64 Md. L. Rev. 755 (2005) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol64/iss3/3 This Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. MARYLAND LAW REVIEW VOLUME 64 2005 NUMBER 3 © Copyright Maryland Law Review 2005 Articles PRIVACY AND THE CRIMINAL ARRESTEE OR SUSPECT: IN SEARCH OF A RIGHT, IN NEED OF A RULE SADIQ REZA* ABSTRACT Criminal accusation stigmatizes. Merely having been accused of a crime lasts in the public eye, damaging one's reputation and threat- ening current and future employment, relationships, social status, and more. But vast numbers of criminal cases are dismissed soon after arrest, and countless accusations are unfounded or unprovable. Nevertheless, police officers and prosecutors routinely name criminal accusees to the public upon arrest or suspicion, with no obligation to publicize a defendant's exoneration, or the dismissal of his case, or a decision not to file charges against him at all. Other individuals caught up in the criminalprocess enjoy protections against the public disclosure of their identities-sexual assault complainants,juvenile offenders, grand jury targets, and others. The Supreme Court has endorsed these protections, and also upheld restrictions on the dissem- * Associate Professor, New York Law School. Gene Cerruti, Steve Ellmann, and Don Zeigler commented graciously and indispensably on drafts, and Robert Blecker, Mariana Hogan, Rick Matasar, Carlin Meyer, Denise Morgan, Beth Noveck, Michael Perlin, Tanina Rostain, Ruff Teitel, Harry Wellington, and numerous other colleagues, including those at a New York Law School Faculty Scholarship Workshop at which I presented this work at an earlier stage, contributed valuable thoughts and support. New York Law School also, through Deans Rick Matasar and Harry Wellington and Associate Dean Steve Ellmann, supported summer research generously and patiently. Gia DiCola, Jessica Lupo, and Preethi Sekharan provided first-rate research assistance, Grace Lee helped with library materials, and Helena Lonergan and Doris Alcivar added excellent administrative support. This Article is dedicated to the memory of Allison Berger, a devoted and tireless first research assistant on it; and to my wife, Nawal Nour, for her equally generous and patient support. MARYLAND LAW REVIEW [VOL. 64:755 ination of arrest records. All of these protections are grounded in privacy doctrine-specifically, informational privacy, of common- law origin. In this Article, ProfessorReza argues that the same privacy right should attach to arrestees and suspects, and government actors should accordingly be presumptively required to withhold the identities of arrestees and suspects until a judge or a grandjuiy has found probable cause of guilt, unless an arrestee or suspect requests otherwise. The argument moves from common-law privacy doctrine through a cluster of doctrines that are rarely addressed concurrently: the Supreme Court's government information cases; the common-law access doctrine; and the First Amendment doctrine of access to the courts. Professor Reza also offers a sample statute to protect this privacy right, and explores ramifications of such protection. Introduction ................................................... 757 I. INFORMATIONAL PRIVACY AND THE CRIMINAL PROCESS ...... 768 A. Protection Under the Public Disclosure Tort: Reid, Briscoe, and the Restatement of Torts ............... 775 B. Pockets of Informational Privacy in the CriminalProcess . 780 1. Sexual Assault Complainants ....................... 780 2. Juvenile Proceedings .............................. 784 3. Accusees in Quasi-CriminalProceedings ............. 787 4. GrandJury Proceedings ........................... 789 5. Arrest Records .................................... 791 II. ARTICULATING A RIGHT FOR ARRESTEES AND SUSPECTS .... 795 A. The Probable Cause Standard.......................... 796 B. Reasons for Naming .................................. 802 1. Public Safety ..................................... 802 2. Evidence Gathering............................... 803 3. Protecting the Accused ............................. 805 4. "Informed Living" ..... .......................... 807 5. Public Oversight .................................. 809 C. The Non-Newsworthiness of Names ..................... 809 1. Government Information Doctrine .................. 811 2. Common-Law Access Doctrine...................... 821 3. ConstitutionalAccess Doctrine ..................... 826 a. Experience and Logic ......................... 831 b. OverridingInterests ........................... 837 c. Case-by-Case Findings, Narrowly Tailored Means ............................................ 8 45 4. Public Disclosure Tort ............................. 847 III. PROTECTING AND EXPLORING THE RIGHT ................. 857 A. Protecting the Right .................................... 857 B. Exploring the Protection ............................... 866 C onclusion .................................................... 872 2005] PRIVACY AND THE CRIMINAL ARRESTEE OR SUSPECT 757 What's in a name?' My reputation, Iago, my reputation.2 The right of a man to the protection of his own reputationfrom un- justified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being-a concept at the root of any decent system of ordered liberty.3 INTRODUCTION Privacy is all the rage. Hardly a day passes without some public hand-wringing over a hot issue of privacy;' meanwhile, new legislation to protect "private" information proliferates,5 academic symposia on privacy abound,6 and the Practising Law Institute has now held the 1. WILLIAM SHAKESPEARE, THE TRAGEDY OF ROMEO AND JULIET, act 2, sc. 2, 1. 43 J.A. Bryant, Jr. ed., Signet Classics 1964). 2. WILLIAM SHAKESPEARE, THE TRAGEDY OF OTHELLO, THE MOOR OF VENICE, act 2, sc. 3, 11.. 262-63 (Alvin Kerman ed., Signet Classics 1963). 3. Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring). 4. See, e.g., Bill Broadway, When Calls for PrayerTrample PersonalPrivacy; DisclosingDetails of Members' Health Could Pose Legal Problem for Churches, WASH. POST., Apr. 24, 2004, at B9 (discussing potential liability of churches for disclosing information about the health of individual members); Bob Davis, The Outlook: As Jobs Move Overseas, So Does Privacy, WALL ST. J., May 10, 2004, at A2 (suggesting that privacy concerns could inspire opposition to outsourcing of jobs that involve handling confidential medical and financial records); Edi- torial, Privacy in Peril, N.Y. TIMES, Feb. 14, 2004, at A18 (criticizing subpoenas issued to hospitals by the Justice Department seeking patient records containing information about abortions for the Department's defense of lawsuits against the Partial Birth Abortion Act of 2003); Howard Pankratz & Steve Lipsher, BryantJudge Apologizes to Accuser's Kin; Comments in CourtFollow Posting of Alleged Victim's Name on Web, DENV. PosT, Aug. 1, 2004, at C5 (discussing the third inadvertent disclosure of information about a sexual assault complainant in a high-profile case and the consequent alleged invasion of the accuser's privacy); Katharine Q. Seelye & David E. Rosenbaum, Privacy of Wife's Fortune Casts a Shadow Over Kerry, N.Y. TIMES, Apr. 25, 2004, at A26 (discussing the effect on a presidential candidate of his wife's desire not to release her tax returns); Megan Yeats, Letter to the Editor, Give the Olsen Twins Some Privacy, USA TODAY, June 29, 2004, at 12A (criticizing a newspaper for publish- ing an article about a young television actress's eating disorder). 5. See, e.g., Consumer Privacy Protection Act of 2005, H.R. 1262, 109th Cong. (protecting personal information disclosed in commercial transactions); Federal Agency Protec- tion of Privacy Act of 2005, H.R. 2840, 109th Cong. (requiring federal agencies to consider the impact on individual privacy when promulgating rules); Personal Information Privacy Act of 2003, H.R. 1931, 108th Cong. (protecting individuals against unauthorized disclosure and misuse of Social Security numbers and other personal information); Stop Taking Our Health Privacy (STOHP) Act of 2003, H.R. 1709, 108th Cong. (restoring privacy protection standards for individually identifiable health information). 6. See, e.g., Enforcing Privacy Rights Symposium, 54 HASTINGS L.J. 751 (2003); Sympo- sium, Modern Studies in Privacy Law, 86 MINN. L. REV. 1097 (2002); Privacy and the Law: A Symposium, 67 GEO. WASH. L. REv. 1097 (1999); Symposium, Privacy, 68 Soc. REs. 1 (2001); Symposium, The Effect of Technology on Fourth Amendment Analysis and Individual Rights, 72 Miss. L.J. 213 (2002). MARYLAND LAW REVIEW [VoL. 64:755 sixth of its new annual institutes on privacy law.7 Much of the agita- tion stems from the extraordinary capabilities and perceived dangers of the computer age,' but scholars of all persuasions

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