The decision by a St. Louis grand jury to indict Gov. Eric Greitens for felony invasion of privacy has raised a number of legal issues.
Missouri law requires two things to happen in order for the crime of invasion of privacy to take place. First, someone has to “knowingly photograph or film another person, without that person’s knowledge and consent, while the person being photographed or filmed is in a state of full or partial nudity. Second, the person being filmed has to be in a place where they have a reasonable expectation of privacy.
The act of simply taking the photo would be a misdemeanor. What brought Greitens’ case to the level of a felony was, according to the indictment, the fact that he “subsequently transmitted the image contained in the photograph in a manner that allows access to that image via a computer.”
State law says a person is in a place where they can expect privacy if he or she would reasonably believe that they could undress in private without having to worry they were “being viewed, photographed or filmed by another.” Examples include a dressing room at the mall, or a bathroom at a restaurant.
The law doesn’t include a definition of the word “transmitted,” and it’s also not in the instructions a judge would read to a jury. A standard dictionary says the verb transmit means “to transfer from one person or place to another.” And this is is an area that gets a little fuzzy with current technology.
Today, a picture that someone takes on his or her phone is almost always automatically uploaded to the cloud. That, arguably, means a photo can be accessed by a computer, which is an element of the felony charge. But is syncing to the cloud the same thing as transmitting?
The short answer is, we don’t know, because the appeals courts in Missouri haven’t had a chance to answer the question.
“Not a lot of cases under this statue get appealed because the charges are relatively minor,” said Bradley Young, an attorney at Harris Dowell Fisher and Young. “But if you look at the intent of the law, simply uploading it to the cloud would not be sufficient as long as the person who’s taking the photograph is still the only one who views it.”
Dov Fischer, an adjunct professor of law at Loyola Law School in Los Angeles, agreed with Young’s analysis.
“Transmits implies that I’ve done something that makes it possible for someone else to do it on a computer,” he said. “It doesn’t seem to contemplate that I took the photo for my own reasons, and that technology stores it on the cloud without intentions to distribute it.”
But Bryan Cave partner Richard Finneran, a former federal prosecutor, had a different take.
“The word knowingly appears in the statute next to the word photographed. But that same word isn’t there next to the word transmit,” he said. “So it’s possible that a court would conclude that even if that was done unintentionally, that might nonetheless satisfy that transmitted element of the statute.”
We don’t know what the governor used when he allegedly took the photo. The woman with whom he had the affair says she saw a flash, but because she was blindfolded, she could not tell whether the governor was using his phone or another camera. So the governor may have had to do something to get the photo onto a computer where someone else could see it.
Greitens has admitted to the affair, and though the woman has never commented publicly, she has not denied it. That fact, and where the alleged photograph was taken, are central to the defense that Greitens’ attorneys are mounting.
Their argument is basically this: generally speaking, in a sexual relationship, partners want to see each other nude or semi-nude. The woman knew that Greitens was looking at her, and consented to that happening.
“There is no definition of ‘reasonable expectation of privacy’ that would apply where the person is aware of being viewed by the other person, but is not aware of the photograph,” attorneys Jim Bennett and Edward Dowd wrote in a motion to dismiss the charges filed late yesterday. “The statute clearly criminalizes only photographing and videotaping where a person does not believe that he or she is being viewed by another.”
Sandy Boxerman, a shareholder at Capes Sokol and the chair of its white collar criminal practice, agreed with that analysis.
“I think the intent of the legislature was sort of to cover the peeping Toms or the hidden camera in the bathroom-type situation,” Boxerman said. “When you ask if this is the standard defense, I’m not sure this type of prosecution is even standard.”
Bryan Cave’s Finneran also felt the government may have a difficult time proving the woman was in a place where she had a reasonable expectation of privacy.
“There’s a question of whether or not that element can be satisfied by the example of a private home where a person knows that their state of undress is being observed,” he said.
Legally, no. The government still has to prove the same thing to get a conviction.
However, it may explain why the prosecutor, Kimberly Gardner, brought the case to the grand jury when she did. Prosecutors have to charge cases under the laws in effect at the time of the alleged crime — here, that’s March 21, 2015. At that time, the statute of limitations on invasion of privacy was only three years — or March 21, 2018.
But even if it had passed the legislature and Greitens had signed the bill into law before he was indicted, he couldn’t be charged under it. The U.S. Constitution forbids laws from being applied to crimes that were committed before those laws took effect.
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