University of Connecticut School of Law
In forthcoming work, I argue that this common-law privacy right should indeed attach to individuals arrested for or suspected of crime.9 I also argue that support for the right exists in a variety of judicial, statutory, and other sources, and that legislation to formally protect the right is warranted and constitutional. The reasoning is simple: being publicly named in connection with criminal allegations is stigmatizing, and the resultant personal harm-social, professional, emotional, other-lasts, and is difficult to justify when it is visited upon someone who is acquitted of the charges or against whom the charges are dismissed. Equally troubling is that criminal arrestees and suspects are routinely named by police officials, before a judge, or even a prosecutor, has considered the charges or the evidence underlying them. I therefore urge, in the criminal context, legislation that (1) forbids government agents from identifying arrestees or suspects until at least probable cause of guilt is found by a judge or grand jury, unless the arrestees or suspects request otherwise, and (2) declares those portions of government records that identify arrestees or suspects "nonpublic" until such a finding is made. Such legislation would resemble some of the statutory provisions that now protect the identities of sexual assault complainants from public disclosure in some thirty states." The proposal is, ultimately, for a right of temporary anonymity for criminal arrestees and suspects, waivable by the arrestees or suspects themselves and expiring at a threshold that is well-established as a trigger for the deprivation of rights in the criminal context: a judicial determination of probable cause of guilt.
Seen through this lens, the withholding of the names of the criminal accusees among the post-9/11 detainees by the DOJ on privacy grounds before a probable cause determination is reached is justifiable. Indeed, the stigma of criminal accusation can only be greater with respect to post-9/11 detainees, particularly those charged with crimes related to the September 11 attacks, given the horror of that day and the breadth and intensity of the public's attention to the ensuing law-enforcement efforts. Similar reasoning could support withholding the names of post-9/ 11 detainees accused only of immigration violations. The DOJ has in fact based its privacy argument on the very stigma and related harms that post-9/11 immigration detainees might suffer from being named in relation to post-9/11 lawenforcement efforts." But the DOJ's argument is problematic for several reasons. First, the DOJ's decision to withhold the names of post-9/11 immigration detainees does not rest on the wishes of the detainees; the DOJ refuses to name them whether or not they wish to be named. While many detainees might prefer anonymity, the latest reports suggest that at least some might wish to be named.12 And although DOJ. officials state that detainees can "name themselves" if they wish, all indications are that the government has significantly impaired detainees' ability to do just that, by limiting detainees' access to lawyers, family members, telephones, and other means of communication with the public. 13 By deciding on its own not to name detainees, and by impairing detainees' ability to name themselves, the DOJ thus does not necessarily advance a legitimate privacy interest of the detainees, but it certainly inverts one: the essence of personal privacy is an individual's ability to control information about himself. Moreover, with respect to any detainee who wishes to be named, FOIA's personal privacy exemption does not justify withholding his name since naming him would not, by definition, invade his privacy. Finally, and most disturbing, the latest reports suggest that the DOJ's privacy argument, along with the DOJ's other arguments for withholding detainees' names, has worked to deprive detainees of a plethora of procedural rights that are basic to our notions of due process and protected by domestic and international rules. 14 In this way detainees' privacy interest has not only been inverted, but perverted. In the end, the impression is inescapable that the DOJ has withheld the names of post-9/11 detainees not to protect personal privacy but to promote government secrecy. Whatever justifications there may be for such secrecy, the result has been an unprecedented and unacceptable degree of official non-accountability with respect to the detainees.
This Article accordingly argues that post-9/11 immigration detainees may indeed have a privacy interest that justifies the withholding of their names, but the DOJ has deprived them of that interest by deciding on its own to withhold the names and substantially impairing detainees' ability to name themselves. Worse, the DOJ's false privacy rationale has apparently contributed to depriving the detainees of a plethora of other rights. Part I defines the applicable privacy interest and exposes the fallacies of the DOJ's privacy argument. Part II draws the link between the DOJ's privacy argument and the deprivation of other rights of the detainees. Part III proposes that the DOJ vindicate the detainees' privacy interest the right way: by determining the detainees' wishes and naming or not naming them according to those wishes.
Privacy and the Post-September 11 Immigration Detainees: The Wrong Way to a Right (and Other Wrongs)
Connecticut Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2591