Privacy rights win in Robert Kraft case

Besides the privacy issue, this case also challenges the prosecutorial zeal for targeting prostitution in the first place.

New England Patriots owner Robert Kraft in 2019.Bill Kostroun/Associated Press

It looks like there will be a happy legal ending in Florida for New England Patriots owner Robert Kraft.

Last month, an appeals court ruled that Kraft had an expectation of privacy the moment the door to a massage room at the Orchids of Asia Spa in Jupiter, Fla. closed behind him. That expectation of privacy means that a video that allegedly shows him engaged in a sex act in that room — and then paying for it — has been barred as evidence. This week, prosecutors said they won’t appeal the ruling. Without the video, there’s no other known evidence. So, even though Kraft apologized for having “hurt and disappointed my family, close friends, my co-workers, our fans and many others who rightly hold me to a higher standard,” misdemeanor charges against him and other customers will probably be dropped. Kraft’s lawyers are also asking for the recordings to be destroyed.

This case involves an important legal principle — privacy rights v. government intrusion. The court came down on the right side — privacy. The only question is whether the three-judge panel would have reached it if the case didn’t involve the privacy rights of a rich, white man who owns a football team.

Kraft had the means to vindicate his rights. People without his means can’t do that. Every day, they take a deal and live with the legal consequences.

“We should all be protected from unwanted surveillance in our private activities,” said Renée M. Landers, a Suffolk University law professor who teaches privacy law and has researched gender issues in the prosecution of crimes related to sexual activity.

The Florida appeals court likens the police surveillance of Kraft to the “video voyeurism” prohibited in a dressing room or restroom under Florida law. After using a phony bomb threat to clear the building, police installed hidden cameras in four of the spa’s massage rooms and continuously recorded video of everyone who entered the spa over the course of five days. In all, police recorded 25 spa customers paying for sexual services; 10 more were suspected to have paid for sex, but the offenses couldn’t be confirmed due to “dim lighting.” And four customers, including two women, were recorded not engaging in any illegal activity.

The appeals court was aghast at the idea of police watching all these people disrobe, especially those who got no more than a legal massage. As the ruling notes, no Florida law specifically addresses that type of “surreptitious, video-only surveillance as a law enforcement investigative tool.” The judges instead cited federal precedent that calls for efforts to be made to “minimize” surveillance.

Besides the privacy issue, this case also challenges the prosecutorial zeal for targeting prostitution in the first place. While allegations of human trafficking were initially part of the story, no such charges were ever brought. Besides, as one of the appeals court judges notes in a concurring opinion, under Florida law prostitution-related crimes are not considered “major types of offenses” that warrant audio surveillance. Therefore, that should also rule out video surveillance, the judge wrote.

In that, Landers sees “the glimmer” of a broader criminal justice discussion. “We have to decide what we think about prostitution,” she said. How much law enforcement do we want to throw at stopping it? When we do commit those resources, she said, “It can’t be that the person who provides the services is culpable, while those who use it are free of culpability.” In this case, the use of the videos has been barred not just for Kraft and the other spa clients, but also for the spa owner and employees. But the owner and employees might still face felony charges if there’s other evidence, such as financial records.

Landers said the “the law professor in me would like to think that any competently trained criminal defense lawyer” could make the same privacy argument as Kraft’s high-powered team.

Maybe. But to reach the same happy legal ending, the privacy rights of the average defendant must be given the same deference as the privacy rights of a naked and exposed billionaire.