WHAT SHOULD WE KNOW AND WHEN SHOULD WE KNOW IT?

By William Fisher

Here, dear readers, is a snap quiz:

What do all of the following have in common?

A young man is one of several people arrested for assaulting others in New York City’s Central Park after the city’s annual Puerto Rican Day parade in
2000. Police released the man soon after his arrest upon concluding that a victim had been mistaken in identifying him as one of the wrongdoers? But, meanwhile, police reveal his name and address.

In Texas, police report that a woman is accusing a star wide receiver for the Dallas Cowboys of raping her, only to declare the allegations discredited two weeks later and charge the accuser herself with the crime of making a false complaint? Meantime, the football player is publicly named.

The U.S. Department of Justice names two men as “persons of interest” – Richard Jewel, who was suspected in the bombing of Centennial Olympic Park in Atlanta in 1996, and Steven Hatfill, a scientist suspected of stealing anthrax from a government lab in 2001, and sending it to prominent politicians and others. The Department of Justice invites journalists to witness their search of Hatfill’s home. Neither was ever charged with a crime.

Two Arab-Americans, Sobhi Abulhassan and Ali Houssaiky are arrested and charged in Marietta, Ohio, with soliciting or providing for an act of terrorism and with money laundering – they bought 600 cell phones – but a county prosecutor says there is not enough evidence to go forward with those charges. Meantime, he announces their names to the public and the media.

Three Texans -- Adham Othman, Louai Othman, and Awad Muhareb -- are stopped by police with about 1,000 cell phones in their van and local prosecutors charge them with collecting or providing materials for terrorist acts and surveillance of a vulnerable target for terrorist purposes – blowing up the bridge that links Michigan's Upper and Lower peninsulas. But in short order, both Michigan state police and the FBI say they are tourists rather than terrorists when they photograph the Mackinac Bridge. But the men are named and kept in custody.

What these situations have in common is that the names of these people were released to the public and the media by government officials, and before there was any judicial finding of probable cause. The result was that their privacy was invaded, they were stigmatized, and their reputations were severely damaged.


The question raised by these and many other similar cases is why a person accused or suspected of a crime has no right to prevent disclosure of that fact at least before some threshold point such as a judicial finding of probable cause?

This question is being raised by a prominent legal expert, Prof. Sadiq Reza of the New York Law School, who is proposing legislation to protect the privacy rights of the accused.

He asks, “Why should police routinely name arrestees and suspects, before charges have been reviewed by a judge or magistrate, when the allegations might be unfounded or the case dismissed, but an accusee’s reputation can be permanently damaged, his name forever tarnished by the accusation, and a cloud of suspicion left to loom over his personal and professional life? Why is the naming decision, and the power to trigger its harmful consequences, left to the discretion of law enforcement officials, rather than regulated by statute or judicial authority?”

The disclosure of suspects’ identities is standard operating procedure among justice and law enforcement authorities throughout the United States. Attorneys General, US attorneys, and police authorities, regularly call high-profile press conferences to announce the names of people who have been arrested or are under suspicion – though the charges against these people are often later dropped or substantially reduced, in which case the authorities customarily remain silent.

Is this necessary ? Is premature disclosure of a suspect’s name part of the public’s right to know? Whose interest does it serve? What would the public have lost if it didn’t know the names of the alleged bombers of the Mackinac Bridge? Other than titillating tabloid readers and viewers of cable television?

Does it have to be this way? If these events took place in Britain, for example, the media and its audiences would be told something like, “A person is in custody and is assisting the police with their inquiries.”

The reason for the difference is that Britain, having no Constitution, has no Bill of Rights and ergo no first amendment guaranteeing freedom of speech. The US Constitution is committed to the people’s right to know.

But this right is not absolute. Our Constitution also contains other rights that have been interpreted as competing with the right to know. One of these competing rights is the right to privacy.

Prof. Reza thinks that by focusing exclusively on the people’s right to know, we are ignoring the right to privacy. And he is proposing that we re-balance these competing rights.

He says, “Criminal accusation stigmatizes. Merely having been accused of a
crime lasts in the public eye, damaging one’s reputation and threatening 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.”

He adds that other individuals caught up in the criminal process enjoy protections against the public disclosure of their identities -- sexual assault complainants, juvenile offenders, grand jury targets, and others. Professor Reza argues that the same privacy right should attach to arrestees and suspects, and government
actors should be required to withhold the identities of arrestees and suspects until a judge or a grand jury has found probable cause of guilt, unless an arrestee or suspect requests otherwise.

Professor Reza says that, ironically, the right to privacy was one of the arguments the Department of Justice put forward to justify withholding the names of hundreds of individuals arrested and detained on immigration charges following the attacks of September 11, 2001. “Every so often a government official invokes this interest in not naming an accusee of some kind; but the interest apparently arises only when officials decide it should,” he adds.

Professor Reza believes the right to privacy should not be left to the discretion of law enforcement officials but should be a matter of law. He proposes that the privacy interests of arrestees and suspects be recognized and protected by legislation that forbids the public naming of arrestees and suspects by government officials until there is a judicial finding of probable cause of guilt, unless an arrestee or suspect requests publicity -- in which case disclosure should be required.

He offers a model statute to ensure the right to privacy. Such legislation “would forbid government officers and employees to identify publicly arrestees or suspects until a judge, magistrate, or grand jury finds probable cause of guilt, unless an arrestee or suspect requests otherwise; declare ‘non-public’ those portions of government records that identify arrestees or suspects until such a
probable cause finding or request is made; require public officials to notify arrestees and suspects of their right to anonymity or publicity; and require public officials to identify any detained arrestee who so requests, absent a countervailing law enforcement interest.”

The added provision requiring the government to name arrestees upon their request completes the privacy protection by fully vesting the choice between privacy and publicity in the hands of the interested individuals, in keeping with the core purpose of informational privacy; it also provides a protection against “secret” arrests. The legislation terminates the privacy protection at a point that is well-established as a threshold for the deprivation of other rights in the criminal
process: a judicial finding of probable cause.

In the days and weeks after the terrorist attacks of September 11, 2001, the Department of Justice rounded up as suspected terrorists hundreds of Arabs and other Muslims, as well as many South Asians who “looked Middle Eastern” to the DOJ. The DOJ Inspector General found that many were held in solitary confinement in prison-like conditions, were denied access to lawyers, and some were physically abused.

Given the post-9/11 mindset, it is doubtful that the Ashcroft Justice Department would have revealed the names of those detained, even if there had been a law placing that decision in the hands of those in jail. But at least there would have been a legal framework that might have provided the detainees with a court remedy for false arrest.

As those cases turned out, there was not a single prosecution for any terror-related offense. Many of the detainees were deported for relatively minor visa offenses. And it took the American Civil Liberties Union years and a suit under the Freedom of Information Act to discover the identities of those who were imprisoned. The same is true of prisoners at Guantanamo Bay, Cuba.

“Privacy is all the rage,” Prof. Reza says. “Hardly a day passes without some public hand-wringing over a hot issue of privacy. Meanwhile, new legislation
to protect ‘private’ information proliferates.” But “Much of the agitation stems from the extraordinary capabilities and perceived dangers of the computer age. And the attacks of September 11, 2001 have only fed the frenzy, with fresh concerns about government surveillance and the privacy of personal information of various kinds.”

No doubt, if the U.S. media – in particular our so-called cable news channels and our hysterical tabloids– has been reading this piece, they will by now be frothing at the mouth, on the brink of apoplexy, and noisily rattling their First Amendment sabers.

But Prof. Reza’s proposal, he says, “does not run afoul of the First Amendment because it applies only to government actors…and it commands only what the Supreme Court has repeatedly advised states to do to protect the privacy of individuals named in government proceedings and records: withhold the information from the public.”

Because Prof. Reza’s proposal would apply only to public authorities, it would leave the press and public free to name arrestees and suspects. But they’ll have to obtain the names themselves from the detainees’ lawyers or from leakers. If they achieve that, it will be up to their journalistic ethics and professionalism to decide to publish or not.

Which means Prof. Reza’s proposed law would not completely solve the problem, but it would sure be a step in the right direction.