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Show-and-telephone game

Sexy cell-phone photos may get into the wrong hands, as illustrated by the latest cautionary tale to come through federal court.

A woman who sued Culpeper police for their unauthorized game of show-and-telephone of her nude pictures on a cell phone had no “objectively reasonable expectation of privacy in the images stored” on the phone, said Charlottesville U.S. District Judge Norman Moon.

In their separate lawsuits against the Culpeper Police Department, Jessie Casella and Nathan Newhard allege they were arrested by a town police officer in the early morning hours of March 30, 2008, and that an unnamed officer seized a cell phone lent by Casella to Newhard.

That officer purportedly opened the cell phone’s pictures folder, and uncovered “multiple nude pictures” of the couple in “sexually compromising positions.” The officer allegedly shared the pictures to the point that “an acquaintance unassociated with the police department” reported viewing the pictures to Casella.

As a result of her fear and anxiety over dissemination of the pictures, Casella said she had suffered sleeplessness, nightmares, weight fluctuations, anxiety and the breakup of her relationship with Newhard.

Although Casella allegedly owned the phone, she had lent it to Newhard almost two months before the arrest, without any password-protection on the phone or limitation on Newhard’s use, Moon said in his published opinion in Casella v. Borders. Given the lack of security, a police search wasn’t the only exposure Casella had to worry about, the judge said. Moon dismissed her § 1983 suit and her emotional distress claim

In the boyfriend’s separate suit for violation of his civil rights, Moon said the defendants had qualified immunity because Newhard had no clearly established constitutional privacy right in the cell phone pictures.

“In the Internet age,” the extent of Fourth Amendment protection for the content of e-communications is “an open question,” Moon says in a short survey of the subject.

We invite readers to weigh in on that “open question,” before or after they rush to check the security features on their own cell phones.

Does a person who shares a cell phone with a friend abandon a right of privacy in the phone contents? Tell us what you think in a comment.
By Deborah Elkins

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