No Privacy Case in Video of Agent’s Gun Mishap

(CN) - The Drug Enforcement Administration is not liable for releasing video footage of one of its agents shooting himself in the leg while lecturing children about gun safety, the D.C. Circuit ruled.

Special Agent Lee Paige of Orlando began talking about weapons during an April 2004 presentation about the dangers of illegal drugs before a community center audience of about 50 children and parents.

As he displayed his government-issued gun, he told the audience that "firearms should be handled only be professionals like himself," according to the judgment.

Shortly thereafter, he accidentally discharged his firearm, shooting himself in the leg.

A parent who videotaped Paige's presentation turned the film over to DEA agents later that day. The DEA Office of Inspections, which is responsible for investigating shooting accidents involving DEA personnel, cut the video down to 4:09 minutes and made several copies.

One of these copies ended up on the Internet and the DEA's internal email system, but the agency was unable to determine who released it after a year-long investigation.

Paige sued the DEA in April 2006, alleging that the disclosure of the video violated his privacy rights. A federal judge in Washington granted the government summary judgment, however, after finding that Paige failed to establish willful dissemination of the video.

In his appeal, Paige said that the release of the video was "a private fact, particularly since the video revealed his identity and subjected him to the very real threat of being killed because of his undercover activities, which included a serious death threat. In addition, disclosure of the video, as opposed to newspaper articles about the incident, destroyed his ability to work undercover and made him a laughing stock around the world despite his notable and often extremely dangerous service to the United States."

A three-judge panel of the D.C. Circuit affirmed dismissal last week.

"At no point was the 4:09 video retrievable or retrieved by Paige's name or other identifying particular, the sine qua non of a 'system of records,'" Judge Karen Henderson wrote for a three-judge panel. "The 4:09 video was unmarked and bore no notation indicating its contents."

Although no violation occurred, Henderson said that "the widespread circulation of the accidental discharge video demonstrates the need for every federal agency to safeguard video records with extreme diligence in this internet age of iPhones and YouTube with their instantaneous and universal reach."

"The DEA's treatment of the video-recording - particularly the creation of so many different versions and copies - undoubtedly increased the likelihood of disclosure and, although not an abuse of a system of records, is far from a model of agency treatment of private data," she continued.

Paige's invasion-of-privacy claims fail as well because "the 4:09 video contained no private facts."

"The accidental discharge occurred in a public place - the Callahan Neighborhood Center - and Paige knew he was being video-recorded. Accordingly, the publication of the 4:09 video merely gave 'further publicity to what Paige himself left open to the public eye,'" Henderson wrote.

"Paige is likely correct that the 4:09 video depicts the accidental discharge more graphically than a newspaper article, but the invasion of privacy tort 'focuses on the matter being published,' not the medium in which it is published," Henderson added, quoting precedent (emphasis in original).

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