The Modern Penny Dreadful: Public Prosecution and the Need for Litigation Privacy in a Digital Age

• Publication year: 2021

96 Nebraska L. Rev. 281. The Modern Penny Dreadful: Public Prosecution and the Need for Litigation Privacy in a Digital Age

The Modern Penny Dreadful: Public Prosecution and the Need for Litigation Privacy in a Digital Age

Jennifer A. Brobst(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 282

II. Cybercrime and the Social Impact of Loss of Privacy . . . 285

III. Balancing Constitutional Rights of Transparency with the Need for Anonymity in the Courtroom ............. 290
A. Anonymous Juries ................................. 294
B. Jane Doe Motions and Disclosure of Litigant and Witness Identities ................................. 296

IV. Limitations on the Right of Public Access to Court Proceedings ........................................... 302
A. Bans on Recording Devices in Court ............... 303
B. Closing the Courtroom ............................ 306

V. Public Records and Privacy-Related Exemptions ....... 309

VI. Not So Private Rights of Action ....................... 315
A. Statutory Remedies ............................... 315
B. Defamation ....................................... 316
C. Invasion of Privacy ................................ 316
D. Employee Harassment ............................. 317

VII. Conclusion ............................................ 318

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"I used to go to trial a lot. . . . You can get more out of a trial and the sadness in it and the poignancy in it than you could ever imagine." -Murder Mystery Author, Mary Higgins Clark(fn1)

I. INTRODUCTION

In the last two decades, cyberstalking, cyberbullying, and related crimes have offered new legal remedies for Internet use that causes harm to others.(fn2) From the first 1990s cyberstalking offense to the revenge porn statutes enacted in over thirty-four states today, the criminal justice system continues to support and expand criminalizing Internet misuse as a form of interpersonal violence and aggression.(fn3) Constitutional First Amendment and overbreadth claims have not yet posed a significant challenge to this trend.(fn4) Although expanded

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criminalization seeks to enhance justice for crime victims, it may also aggravate invasions of privacy for cybercrime victims through the resulting public record of court proceedings. Without adequate privacy protections, cybercrime victim witnesses in particular may be dis-incentivized to cooperate while offenders intent on humiliating and intimidating victims are able to use the court as a tool of abuse.

Protected by immunity and strict statutory interpretation of public records laws, government actors take little responsibility for the subsequent release of information about victims of computer crime obtained through official investigation and litigation.(fn5) The subpoena power of legislators and prosecutors to combat cybercrime and related offenses, such as human trafficking, reach deeply into the private worlds of vulnerable crime victims of all ages.(fn6) While some victims may consent to such intrusions, particularly when filing parallel civil actions for cyberstalking,(fn7) others may have their privacy invaded without their consent by both perpetrators and the government through public prosecution. Moreover, injunctive relief is elusive, particularly in Internet-distribution cases, where the risk of distribution of information grows exponentially and internationally even if the primary perpetrator is convicted and incarcerated.(fn8) If, in the creation of legal sanctions for interpersonal cybercrime, there is little assurance of a personal benefit for most victims of crime, then the benefit to society through prosecutorial deterrence should at least be clear and well-defined, and ensure minimal harm to the victims themselves.

Pseudonym and anonymity policies, developed prior to the Digital Age, are disfavored based on constitutional protections afforded the

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defendant and the ensured integrity of the criminal justice system.(fn9)Remedies for undue intrusion or negligent storage of evidence by the government during or after litigation may be negligible or involve yet more privacy intrusions through additional litigation.(fn10) Crime-victims'-rights advocates on the national stage continue to struggle to find acceptable legal remedies for victims of cybercrime in the courtsystem.(fn11)

Today, individual perpetrators and their accomplices can easily purchase a portable drone with a miniature camera for less than one hundred dollars(fn12) to spy on the lives of others outside the courtroom

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or quietly turn on their cellphones to record testimony and images of victim witnesses inside the courtroom. They can threaten victims repeatedly online with words and images from anywhere across the globe, sometimes turning a major profit from the abuse through extortion or even advertising.(fn13) And yet, in addition to such violations, cybercrime victims bear substantial personal-safety risks in relying on the court system for assistance. Courts today are more public than ever, some experimenting with live streaming their proceedings(fn14) or permitting public live blogging during trial.(fn15) It is imperative that the judicial system remain steadfast in its obligation to protect vulnerable categories of crime victims in a Digital Age while ensuring access to justice for defendants and witnesses alike.(fn16)

II. CYBERCRIME AND THE SOCIAL IMPACT OF LOSS OF PRIVACY

Cybercrime offenses address Internet-based conduct presumed to be harmful to individuals. What is less clear is the legislative and judicial perception of the risk of harm to society in general from online intrusions on privacy or the dissemination of greater amounts of information through the Internet. Morbid fascination with court dramas and true crime remains pervasive in modern entertainment, with little consideration by the judiciary of its impact on the willingness of actual crime victims to cooperate with the justice system. The courts

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express little concern regarding the impact of unsavory information and images on the public at large. As the U.S. Supreme Court concluded in 2011 in Brown v. Entertainment Merchants Ass'n, the social impact of a digital or information age remains uncertain, particularly when it involves fictitious content:

In the 1800's, dime novels depicting crime and "penny dreadfuls" (named for their price and content) were blamed in some quarters for juvenile delinquency. When motion pictures came along, they became the villains instead . . . . For a time, our Court did permit broad censorship of movies because of their capacity to be "used for evil," but we eventually reversed course. Radio dramas were next, and then came comic books. Many in the late 1940's and early 1950's blamed comic books for fostering a "preoccupation with violence and horror" among the young, leading to a rising juvenile crime rate. But efforts to convince Congress to restrict comic books failed. And, of course, after comic books came television and music lyrics.(fn17)

The Internet permits rapid, wide dissemination of information about both fictitious and actual events. Rather than restrict the medium of distribution due to its reach, speed, and potentially greater impact, the courts have instead focused on the content of information sent online and the intent of the sender. Following the Court's rationale in Brown, the evolutionary march of technology-including exposure to mass information-has a negligible, or at least unknown, influence on the general well-being of society. Victims of crime may disagree.

For example, the Court has held that state restrictions on virtual child pornography may violate the First Amendment, while pornography involving real children constitutes a criminal offense not subject to the protection of free speech.(fn18) Given that content-based restrictions on speech are narrow exceptions under the First Amendment,(fn19) the likelihood that persons who consider themselves to be cybercrime victims will be treated as such by the courts is rendered more remote. Such restrictions include permitting content-based restrictions "only for a few historic categories of speech, including incitement, obscenity, defamation, speech integral to criminal conduct, so-called 'fighting words,' child pornography, fraud, true threats, and speech presenting some grave and imminent threat the Government has the power toprevent."(fn20)

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True crime as modern entertainment-in the form of revenge porn websites, reality law-enforcement and court television, some live-streamed court blogs, and artistic or comic digital renderings of litigants and their stories-all bear the familiar voyeuristic and opportunistic tones of the original penny dreadful.(fn21) "In 19th-century America, cheap pamphlets disseminated all sorts of popular culture to a mass audience, everything from religion and politics to sex and violence. Publishers understood that, like today, sensationalism sells. Murder trials provided sensational content, and especially murder trials where women were the victims or the accused."(fn22) What protection government is willing to provide to those subject to exposure in the court system is based in part on value judgments of what constitutes real harm worthy of intervention.

The historic concerns that do exist regarding risks of public exposure for litigants, witnesses, and jurors have related to interference with the administration of justice and public safety,(fn23) and eventually financial risks associated with harm to reputation. For example, the Fifth Circuit Court of Appeals in United States v. Brown justified the empaneling of an anonymous jury and continued maintenance of anonymity after the trial's conclusion: "Very real threats were posed by excessive media coverage, by the trial participants' eagerness to manipulate the News Media...