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DEA agent fails to prove viral video violated Privacy Act

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  1. Libel and Privacy
The disclosure of a video showing a U.S. Drug Enforcement Administration officer accidentally shooting himself in the leg during a…

The disclosure of a video showing a U.S. Drug Enforcement Administration officer accidentally shooting himself in the leg during a lecture to community youths does not violate the federal Privacy Act, a U.S. appeals court ruled Tuesday. The court also rejected the officer's claim for invasion of privacy under the Federal Tort Claims Act.

The U.S. Court of Appeals for the District of Columbia affirmed a lower court ruling from December 2010, which ruled DEA Special Agent Lee Paige failed to establish that an Internet leak of a video of his April 2004 presentation in Orlando, Fla. was a violation of federal law.

Paige claimed the video, a 4 minute, 9 second excerpt from a longer Mini-DV recording, was part of a “system of records” relating to a DEA investigation into the accidental shooting, retrievable by a personal identifier. The Privacy Act restricts the release of records from a "system of records" that are searchable by personal identifiers and have been accessed or retrieved using such identifiers.

The court said the mini-DV was not a part of a “system of records” when the excerpted recording was made by the DEA's Orlando District Office, and only became part of the system when it was officially placed in the DEA Office of Inspections investigation file sometime between April 19 and April 21, 2004.

“By then, however, the 4:09 video had already been copied from the Mini-DV,” the court found. “And disclosure of the 4:09 video was not prohibited under the Privacy Act simply because the Mini-DV subsequently became a ‘record which is contained in a system of records.’”

The 4:09 video includes only that portion of the presentation in which Paige accidentally discharges his weapon into his leg. It was leaked on the Internet sometime between April 2004 and March 2005. The DEA conducted an investigation into the video leak, but was unable to determine exactly when or where the leak originated.

“In addition, at no point was the 4:09 video retrievable or retrieved by Paige’s name or other identifying particular,” the opinion states. “The 4:09 video was unmarked and bore no notation indicating its contents.”

Paige also claimed the release of the video was negligent under the Federal Tort Claims Act because the publication revealed private facts about him.

The court, however, disagreed, stating that under Florida law, the claim did not meet all the elements of the tort, which is defined as "[1] the publication, [2] of private facts, [3] that are offensive, and [4] are not of public concern." The court ruled Paige did not prove the video was a private fact nor of public concern.

“The accidental discharge occurred in a public place — the Callahan Neighborhood Center — and Paige knew he was being video-recorded,” the court said. “Accordingly, the publication of the 4:09 video merely gave ‘further publicity to what [Paige] himself le[ft] open to the public eye.’”

The court also stated the incident received public attention prior to the release of the video, nullifying the claim that the incident was not of public concern.

Though the court ruled in favor of the DEA, it raised concerns with the manner in which the recording was handled by the agency.

“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,” the court said.

Ward A. Meythaler, an attorney for Paige, could not be reached for comment.