Bruce Maiman

Viewpoints: Privacy laws in conflict with criminal acts

Published: Tuesday, Mar. 12, 2013 - 12:00 am | Page 11A
Last Modified: Tuesday, Apr. 2, 2013 - 11:40 am

You and I have wrestled with difficult privacy issues before but a recent episode at Linden High School outside Stockton invites further discussion.

After a string of thefts from student backpacks during gym class, sophomore Justine Betti decided to hide in a locker to discover the culprit. She made her discovery, but as she told News 10, "I told people and nobody believed me."

She next hid in a locker using her cellphone to video the thief in action. She propped up another cellphone in a second locker to get two angles.

If you're at all familiar with this story you know by now that the person captured on video was the gym teacher.

Betti and some friends took the video to her principal. According to Betti, the principal said he'd investigate it "and he told us to delete the video." She didn't.

The unnamed suspect, reportedly a longtime teacher and well liked, is on administrative leave. The school district is investigating, but they've not commented beyond that and since the story broke in late February there have been no new developments.

The public reaction from readers and viewers who caught the story, as you might expect, was visceral. "Fire the teacher!" "Fire the principal for attempting a cover-up – destroying evidence and such!" "The teachers union will do everything it can to protect that teacher's job!"

Rarely do you see such online reaction with near unanimous approval from other readers.

Here's the problem: California has strict laws about eavesdropping. Recording any confidential communication, including a telephone call or wire communication, requires the consent of all parties. While video has fewer restrictions and limitations than audio recordings, courts have consistently banned secret video recordings in locations such as bathrooms, locker rooms, changing rooms, and bedrooms – anywhere one expects a heightened level of privacy.

Bottom line: Betti's video evidence is inadmissible. Evidence obtained in violation of state and federal wiretapping and recording laws cannot be used as evidence in court. She could testify as to what she personally observed, but then it comes down to her word against the teacher's. The principal's testimony about what he saw also could be suppressed because he was informed only by evidence obtained illegally.

You see where we are here?

"You have a society on the one hand saying it's good to catch thieves coupled with everyone's right not to be photographed impermissibly," attorney Albert Ellis, a senior partner at Hakeem, Ellis & Marengo in Stockton, tells me. "The higher good has to be the protection of those privacy rights even though it's sometimes repugnant when we look at a factual situation and know that an injustice has been done."

The Fourth Amendment, the spirit of which many state privacy laws mimic, follows the general rule that it's better for guilty people to go free than for one innocent person to be jailed by the government. The high school incident isn't a Fourth Amendment violation since Betti was acting as a private citizen. The problem is that it's a crime to use a recording device in a locker room. Whatever evidence prosecutors bring forward if charges are brought against the teacher, the video almost certainly won't be allowed.

What's more important here: getting the conviction or protecting privacy?

It brings us back to familiar conflicts regarding our own notions of privacy and the law. We want it our way; the law must follow a different path. Was the teacher caught red-handed? Yes. Can the video be used? No. The gathering of any criminal evidence cannot violate privacy rights protected by the law. How serious are we in our allegiance to that fundamental concept?

"We have to act in a way that is not just emotional but reasoned under the law," Ellis says.

Perhaps that's the message for the students: Not that "a bad guy got away with it," but that the law, while imperfect, is always paramount, even when the result frustrates us.

A Solomonic solution: Perhaps the teacher is fired but not prosecuted. The atmosphere is so poisonous that in no way could the teacher continue working at the school without that terribly distracting specter looming in the background.

The principal who told the girl to delete the video? He could always say he was trying to protect her since she violated California law by surreptitiously videotaping the teacher – admittedly, a different kind of cover-up. Though one wonders how he'd have reacted had the video caught a student going through those backpacks, or his wallet?

Such ethical inefficacies and complexities only compound our erratic attitudes about privacy and the law. We like the law when it affirms our notions of right and wrong. When it doesn't, we tell lawyer jokes.

Bruce Maiman is a former radio show host who lives in Rocklin. Reach him at brucemaiman@gmail.com.

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