10 May 2001

See site where contested information is posted: http://www.justicefiles.org

Date: Thu, 10 May 2001 17:11:40 -0700
From: "Johnson, Bruce" <[email protected]>
Subject: Judge Alsdorf issues ruling in JusticeFiles.org case
To: [email protected]

Judge Alsdorf's decison, issued earlier today, is attached.

___________________

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING

CITY OF KIRKLAND, et al.,

            Plaintiffs,

        vs.

WILLIAM SHEEHAN et ux. et al.,

        Defendants.

No. 01-2-09513-7 SEA

MEMORANDUM RULING
RE:  PLAINTIFFS' MOTION FOR INJUNCTIVE RELIEF

Defendants operate a website critical of law enforcement personnel.  Their website contains not only substantive political argument but also lists of names, addresses, birthdates, telephone numbers, Social Security numbers ("SSNs") and other personal information concerning law enforcement personnel and their relatives.

Plaintiffs assert that this publication of their personal information invades their privacy interests and is causing them continuing injury.

Plaintiffs have therefore asked the Court to issue preliminary and permanent injunctive relief prohibiting the publication of these lists.

In response, defendants argue that their activities are protected by the First Amendment to the United States Constitution and therefore cannot be prohibited.

1. The Question of Privacy

As a matter of logic and common sense, the degree of an individual's privacy is necessarily a reflection of two distinct matters:  the amount of access others have to his or her personal information, and the extent to which others may be able to disseminate or otherwise act upon any information to which they do obtain access.

Both parties agree that this case is at the frontier of internet law, and that publication of private information on the internet may demand a form of analysis different from that historically applied in the United States to questions of privacy.  This Court must therefore briefly examine the development of case law concerning privacy.

(a) The Historical Treatment of Privacy

Our Founding Fathers appear to have given little direct thought in the writing of the Constitution to any need to take action to protect one's privacy from other citizens. At that time, citizens were effectively required to keep their distance from each other through the basic and relatively simple laws of trespass and of libel.  While neighbors may then, as now, have known all there was to know about their neighbors, scant information about the general populace was held by governmental entities. What little information the government had compiled could generally only be accessed by clerks with quill pens working their way through musty books and ledgers.

Even if private information were acquired in that day by a citizen, it could be disseminated principally by walking down the street and talking to whoever would listen, or providing the information to a printer who could only set the type letter by tedious letter.  As a practical matter, therefore, real-life barriers protected personal information from being invaded or broadly published by others.  Widespread dissemination to strangers would generally occur only when the matter was of public interest.

In the case of full-blown political speech, including that which might divulge personal details on a particular opponent, there were similar natural barriers to its spread.  Rabble-rousing words once uttered on the corner or from the top of a soapbox disappeared on the wind, remaining only in the ears of those few who may have been inspired to action or remaining on the pages of a newspaper or pamphlet whose life-span would be directly controlled by the physical problems inherent in distribution and retention. At that time, the theory was that there was a marketplace of ideas.  Speech was to be free.  Those ideas that survived would be those whose inherent worth or value were recognized and accepted by the general public.  The remaining or unworthy ideas would die a natural death. This was a search for truth which rested on the premise that when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

(Abrams v. United States, 250 U.S. 616, 630 (1919)(Holmes, J., dissenting).)

In such a setting, when addressing the question of how best to establish a democracy and protect individual freedom, the Founders focused on the rights of the people against the government, not their privacy rights against other citizens.  In the Fourth Amendment, for example, they affirmed the citizens' right "to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures [by the government]."  In the Third Amendment, they limited governmental power by restricting the quartering of soldiers in private homes without the consent of the owners. In the First Amendment, they prohibited the government from making any law "abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The Founders said nothing about being free from the prying eyes of other citizens.

(b) The Internet's Impact on Privacy

Speech is not today limited to the human voice.  Nor is it limited to media such as paper, tape or film, whose dissemination is affected by their physical natures.  It takes place in countless electronic forums, not only on radio and television whose transmission waves themselves may quickly dissipate, but also on what is commonly called the "worldwide web." Government agencies, businesses and electronic media and service providers accessible on the internet can create a permanent record of almost anything that is said or done by any citizen, one which can be instantaneously disseminated around the world and still remain accessible to be retrieved virtually indefinitely.

Except for those Americans who are homeless or who are migrant workers, and those who choose to live as hermits, we all leave electronic footprints identifying ourselves and recording virtually every activity we undertake.

The Founders never directly addressed that which they could not contemplate: these pervasive modern-day public and private means of electronic intrusion into a person's home and daily life, particularly the emergence of electronic records recording the details of an individual's every action. When accessed, such information can be published around the world upon the click of a button.  This continuing assault on privacy and individual autonomy was unimaginable two hundred years ago.

2.  The Issue for this Court

No challenge is raised at this time to the legality of defendants' prior access to plaintiffs' private information.  The only question presented in this Motion is whether plaintiffs can, by asserting a right to privacy, stop the dissemination of any or all personal information that has come into the defendants' hands.

(a) Washington State Law Addresses Only the Question of Access to Information

In the State of Washington there is a Constitutional provision which appears to address privacy.  Article 1, Section 7, which was adopted in 1889, states simply, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."  This Constitutional provision has been interpreted as relating solely to possible governmental intrusion into private affairs.  See, e.g., State v. Myrick, 102 Wn.2d 506 (1984).  It therefore provides no assistance in resolving this dispute. Washington State statutes provide certain limits on the right of others to gain access to private information when it is held by governmental entities. RCW 42.17.310(1)(b) provides generally that government agencies may not disclose information that would "violate...the right to privacy" of governmental employees and public officials.  RCW 42.17.310(1)(u) proscribes disclosure of residential addresses and telephone numbers of agency employees and volunteers.

Washington case law is similarly limited.   See, PAWS v. University of Washington, 125 Wn.2d 243 (1995) (preventing a private entity from obtaining access to certain personal information of employees who worked with animals when conducting scientific research); and Tacoma Public Library v. Woessner, 90 Wn.App. 205 (Div. II, 1998) (limiting access to personal information).

On its face, each case and each statutory provision deals only with what the government is authorized to do when requested to provide a private person or entity access to personal information pertaining to another.  None addresses the extent to which an individual who has apparently lawful possession of private or personal information may, consistent with the First Amendment to the United States Constitution, be enjoined from  disseminating that information.

(b) Federal Constitutional Law Focuses on First Amendment Rights

When dealing with alleged invasions of one citizen's privacy by another citizen, federal courts have generally analyzed the issues only from the point of view of the First Amendment. As a general proposition, restraints on speech are presumed to be unconstitutional. See, e.g., Vance v. Universal Amusement Co., 445 U.S. 308 (1980).  Thus, courts focus on the question of whether there has been proof of a compelling governmental interest which can overcome the First Amendment right.  See, e.g., The Florida Star v. B.J.F., 491 U.S. 524, 541 (1989).

While there are readily accepted remedies after the fact, such as monetary damages for libelous or other wrongful speech, injunctions are rarely granted to stop the exercise of free speech except in those rare circumstance where it poses an immediate danger to others, such as uttering direct and credible threats to kill or injure.  Injunctions are allowed for speech that is "directed to inciting or producing imminent lawless action and is likely to induce or produce such action."  Brandenburg v. Ohio, 395 U.S. 440, 447 (1969).  In the absence of evidence of such threats, speech generally cannot be enjoined, however repugnant, offensive or distasteful it may otherwise be.

When issuing rulings which explicitly focus on and protect a citizen's right to privacy, the Supreme Court has referred to privacy as being found in a "penumbra" surrounding the First, Third, Fourth, Fifth and Ninth Amendments. See, generally, Griswold v. Connecticut, 381 U.S. 479, 483-5 (1965). However, even these discussions of privacy have generally arisen only in the context of a citizen's right to be free from governmental intrusion (as, for example, in Griswold, the right to be free from government intrusion in family reproductive decisions). These Supreme Court decisions do not address a citizen's right to privacy from other citizens.

In the recent ruling issued in Planned Parenthood of the Columbia/Willamette, Inc., et al., v. American Coalition of Life Activists, et al.,      F.3d      , 2001 WL 293260 (9th Cir., 2001), the Court of Appeals for the Ninth Circuit dealt with the question of injunctive and monetary relief against persons and organizations  running a website captioned the "Nuremberg Files" on which were published photographs, addresses and other personal information on doctors and others who provided or supported abortion services.  This website struck through the names of those who had been murdered and grayed out the names of those who had been wounded.  In that case, both injunctive relief and damages had been granted in the federal trial court.  The Court of Appeals reversed,  holding that political speech "may not be punished just because it makes it more likely that someone will be harmed at some unknown time in the future by an unrelated third party." (Id., at p. 3, citing Brandenburg v. Ohio, supra.)

The Supreme Court characterized that website's statements as "pungent, even highly offensive" and as approving of violence but the Court found no threat of "imminent" harm.  The Court explicitly declined to decide whether the First Amendment would protect defendants from a suit for invasion of privacy,  Ibid., p. 4, fn. 10.

In Capra v. Thoroughbred Horse Racing Ass'n. of N. Am., Inc., 787 F.2d 463, 465 (9th Cir.), cert. den. 479 U.S. 1017 (1986), the Ninth Circuit Court of Appeals ruled that even protecting the identity of a witness participating in the federal Witness Protection program is not by itself enough to overcome the First Amendment.

In sum, the First Amendment prevails except where there is proof of a compelling interest which can overcome it.

3. May Plaintiffs Obtain Injunctive Relief?

The Court must now analyze the facts of this case.

(a) The Nature of Defendants' Speech

This case arises from defendants' listing of detailed personal information relating to the law enforcement personnel of the City of Kirkland and of other jurisdictions, including not only the names of these individuals, but addresses, dates of birth, telephone numbers, SSNs, their spouses' names and other similar information.

Plaintiffs object that these listings are causing stress to them and their families, and have required them to enhance security measures and expend funds in response.  This is not an unreasonable reaction.  Defendants agreed that they intend to cause at least some degree of fear and apprehension in the minds of law enforcement personnel when they stated at the close of their primary web page on April 25, 2001:

So the next time anyone in our criminal justice system takes any action, we hope they think of this site first, then act knowing that they too are locatable and accountable at a much more personal level than ever before and in doing so, treat every citizen, criminal and hero alike with the utmost respect and dignity.  That is the kind of attitude can (sic) only foster respect and cooperation between all members of our great society.

(See, Exhibit A to Decl. of Sheehan, at p. 3; emphasis added.)

Defendants' site offers to remove this personal information pertaining to police officers in any jurisdiction that will officially "admit" that police officers are public officials, that will agree to accept service for officers, and that creates a civilian review board having a certain composition.  (Ibid., at p. 4.)  This suggestion of a willingness to trade back plaintiffs' privacy for certain policy changes could be argued to bear some resemblance to blackmail.

(b) The Nature of Plaintiffs' Privacy Interest

Privacy rights are implicated when personal information is published or disseminated, it is highly offensive to a reasonable person, and the matters are not of legitimate concern to the public.  See, e.g., Reid v. Pierce County, 136 Wn.2d 195 (1998).  Defendant Sheehan's counsel conceded in oral argument that defendants' publication of plaintiffs' personal information is highly offensive to reasonable persons.  Defendants themselves acknowledge on their web-page that some might find their listings to be "objectionable...tasteless...an invasion of privacy... [or] shocking." (See, Ex. A to Decl. of Sheehan, at p. 2.)  They argue that they have posted the information "so that it may be used in conjunction with legal processes and for general information  we as employers require in order to supervise our public servants."

Defendants argue that even if their speech is otherwise objectionable, it is not truly private because plaintiffs have waived their objections by allowing such information to be recorded by others.  The Court rejects this argument.  Participation in modern society is not to be taken as a voluntary blanket waiver of privacy.  None of us has a choice of moving from this millenium to a different time.  No evidence has been presented by defendants demonstrating a specific affirmative act of waiver of privacy by any plaintiff herein as to any of the information published by defendants.

Defendants also argue as to their speech that it is free of charge, that it is political, and that it should not be given less protection than is available to internet credit/location/search services which are commercial.

It is true that defendants' site is free, and is available world-wide.  That necessarily means that at any time anybody anywhere in the world could obtain access to plaintiffs' private information.  It is hard to conceive of a broader invasion of privacy than freely disseminating the information to the entire world and rendering it instantaneously accessible to all.

In contrast, while the commercial services or speech may be argued to have a lower ranking than political speech in the pantheon of the First Amendment, the commercial dissemination of personal information and thus the invasion of privacy is naturally more limited. A person generally has no access to private information on a commercial site unless he identifies himself and pays for the service, and in some cases verifies the purpose of his access.

In terms of privacy, the dissemination of personal information by commercial enterprises is more limited than the dissemination by defendants.  Moreover, these sites are not unfettered.  They are carefully regulated.  See, e.g., the Federal Fair Credit Reporting Act,  15 U.S.C.  Sec. 1681 et seq.. Simply put, such sites may invade privacy, but they do so to a lesser degree.

(c)  Does the First Amendment Protect Defendants' Speech?

The immediate question for this Court is similar to that addressed in Capra, supra.  Can a publication, which defendants concede to be something of an infringement on privacy, be considered to relate to a matter of legitimate interest to the public, and in that manner pass muster?

Upon the facts presented to date in this case, reprehensible though some may find defendants' proposed bargain to be (trading privacy for policy changes), it is clear that defendants' utterances are indeed political speech.  In NAACP v. Claiborne Hardware Co., 458 U.S. 886, 929 (1982), the Supreme Court ruled that publicly reading the names of persons who disregarded a boycott and threatening that they would be "disciplined" and saying "we're gonna break your damn neck" could be viewed as intending to create a fear of violence but was not sufficient to grant relief because the speaker had not thereby "authorized, ratified or directly threatened" acts of violence.

In this case, as in numerous others, in the absence of a credible specific threat of harm, the publication of lawfully obtained addresses and telephone numbers, while certainly unwelcome to those who had desired a greater degree of anonymity, is traditionally viewed as having the ability to promote political speech.  Publication may arguably expose wrongdoers and/or facilitate peaceful picketing of homes or worksites and render other communication possible.

However, Social Security numbers are different from addresses and telephone numbers.  The blanket identification of the Social Security numbers of a group of people, without more, does not provide a similar opportunity for or otherwise facilitate or promote substantive communication.  It cannot reasonably be disputed that at its core the SSN is simply a government-originated identifying number.  It is a key or a tool, created by the government and unique for each individual.  Access to an individual's SSN enables a new holder to obtain access to and to control, manipulate or alter other personal information.  See, e.g., Greidinger v. Davis, 988 F.2d 1344, 1353-54 (4th Cir., 1993).  In effect, access to an SSN allows a person, agency or company to more efficiently and effectively search for and seize information and assets of another, a power originally available only to the government and one which was subject to direct Constitutional restraint.

On its face, the SSN is a tag or an identifier which at best has only a distant possibility of a substantive communicative purpose. Keeping Social Security numbers private is a compelling interest for the government and citizens alike.  As the Supreme Court of our State noted in PAWS, supra, at 254, "the disclosure of a public employee's Social Security number would be... not of legitimate concern to the public."  There may be situations involving specific individuals where the publication of a Social Security number could relate to a public issue and therefore constitute substantive speech, but defendants have presented no such facts here as to any individual plaintiff.

(d)  Injunctive Relief

This Court has concluded that on the facts presented so far to this Court defendants' dissemination of legally obtained private addresses and phone numbers and similar private information is speech protected by the First Amendment, and may not be enjoined.  However,  plaintiffs do have the right to protect their Social Security numbers from further dissemination:  there is a compelling interest in keeping Social Security numbers private;  the disclosure of that information is highly offensive to the reasonable person; it is not of legitimate concern to the public; and waiver has not been proved as to any plaintiff. Thus, as to Social Security numbers, plaintiffs have met their burden of proving (1) a legal or equitable right, (2) as to which there is a well-grounded fear of immediate invasion, and (3) the acts complained of have resulted and will result in actual and substantial injury.  Kucera v. State, 140 Wn.2d 200, 209 (2000).

The Court will issue an injunction directing the removal of all SSNs from defendants' web site.

4.  May plaintiffs seek other forms of relief?

This case was filed recently.  No significant discovery has occurred. Damages may be available to a plaintiff who proves that the defendant had the specific intent to cause the plaintiff severe mental or emotional distress by his invasion(s) of the plaintiff's privacy.  Planned Parenthood, supra,  at p. 4, fn. 10. See also, Tompkins v. Cyr, 995 F.Supp. 664 (N.D. Tex., 1998).

This Court  does not yet have a record on which any finder of fact could determine whether that level of specific intent could be proved in this case.

The parties are therefore to prepare for trial, and to develop evidence concerning all of plaintiffs' legal and equitable claims of injury and defendants' defenses thereto.

        IT IS SO ORDERED this 10th day of  May, 2001.

_______________________________

                                                Judge Robert H. Alsdorf

                                        KING COUNTY SUPERIOR COURT