amendment and also the fourteenth amendment so there's two and then that deal with this issue because it was a search and seizure so that would be the fourth not i'm not asking about search and seizure right i mean i'm asking privacy ok because my you are you really seeking to define right that narrowly because my impression from reading this records opinion was that he may have looked that way but that there's certainly a question factually it seems to me as to whether or not what was exposed was in fact what would be that she needed so is there not a right to privacy according to your position here something beyond a new yes you have a i would agree with you that you're right by the sea and like it's it's my body if i choose not to disclose it to the public it should remain private so i have only integrity the government can come and look at my body can see my tanlines can see in different things my boobies or anything like that which was some of the facts that were in this case but i think that is broader than just  think your position that it will be yes it goes beyond that he wanted to point to certain areas which there is no obvious law that says you know your boobs are protected your stomach's not more than one video so at this point shouldn't we know what was exposing what was an actual well there is some issues with the video because the fact that it is disrupted in its recording it's not a continuous recording so what actually was reported we'll never know because there is no electronic we can verify that this is everything that he he recorded that day and there was also a camera from a phone that's now been destroyed so we'll never know those things however there is a video that i have of what they have turned over what they did capture which was one picture was a male who was in a shower right completely new that with  water running over him that was you know filmed in then my client who was just with the sheer transparent piece of paper around her private areas that was recorded and it disclosed her tattoos  also there was discussion about her tan lines her but different things like that which right now are we actually are we limited to those two images or are you trying to you have other images that that you say are now lost but but because of oral testimony should be taken into consideration and are matters of dispute that out of well i think my think there should be and friends against the defendants because how will we was completely recorded that day because we don't have any concrete verification that that was the film taken but from the film we have clearly it's an invasion of privacy because of the fact that  on the video in terms of what was taken or can it there's a factual issue i guess can it go further i mean are you saying that this is you're limiting yourself  so her testimony in the car and so forth party behavior in the car or behavior in the car and then also behavior on that day that when they're in the shower room which is really where the heart contamination it's  back to the first question that i was not asked which is the definition of privacy to what extent does privacy encompass the fact that someone the subject thinks it's private and is attempting to conceal it i think you have a right to privacy if you yourself believe that something's private and you don't hold it out for everyone to say certainly it's a private private issue for you but you wouldn't go so far i guess on that one about if somebody has something on his or her head and always wears gloves that's very interesting that's why i'm here yes that's very interesting and i think that if i don't hold it out to the public then i can protect that and that i have a privacy right and because i'm not exposing it to the public shouldn't there be also some concept of the rest of the general public being is that that could be private you have the last to be reasonable  it wouldn't and may not be reached but you don't have anything wrong with your hands with people to see your hands maybe i have a burn or something or deformity a deformity that i don't want to other people to see  saying did you purposely limit yourself to a constitutional right you didn't include a state law privacy right there is a privacy there is a state however sees it and then replay it i know you'd like that but then we have an obligation not to consider a federal constitutional right if there some other option to get them the same place absolutely not know because to me your you look at whatever you don't have to look at well there's another law we she could have sued under that so you don't have a federal right i think you look at the potential for the purpose of argument that we do know that it isn't but to me there is you have a certain search and seizure which was what occurred as well as a violation of your due process rights so there's two laws that i hence sue under i don't have to go state and not go federal  me that is not that that is not a requirement but i may be wrong well can we can return to a question that i think in close to this anyway and what's what is the should to the point is that my right correct you think that's wrong what should be the stand well from looking at your feet your the case law and one of them it should be a balancing test in connection with the interest that the privacy interest is versus the government's interest and and filming or we have a we have a precedent of this court news mrs park and which is that the constitution protects against public disclosure of only highly personal matters for presenting the most intimate think my thoughts are that that is right in so forth that that is well we only have a property interests in our bodies so my case would fit in that because your body is you have a right that's a deeply fundamental right is your privacy in your body so i think that we meet that standard but where the the quote went is that the egregiousness that you have to show it reaches humiliation which to me th  is this whole process that was reported was humiliating so it does rise to that level because the government should not be able to report gee when you are nude only covered with a sheet of paper for no reason but you may only eat me that is what what that's what occurred here they want to say training purposes that this was never made into a training video this was to humiliate in report the humiliation o officers that day and that's not that that was the purpose of taking the yes we have to accept your view of what the purpose was yes for summary judgment you have to look at it through my prism you have just taken one hundred eighty degree turn from what you said a few seconds ago the government isn't doing it if they as individuals are doing it for their own personal purpose in no your honor only because the fact that was a policy making individual that therefore binds the pallet and to me what purpose would you have a videotaping a nipple ring of the gentleman how does that have any purpose whatsoever  is it wasn't for investigation it was a search search and seizure because the fact that filming i said i seized images and then i displayed them for people at back at the op as you would and partly n good morning honors john verde on behalf of amicus the electronic privacy information center this case presents novel privacy issues involving new technology the district court failed to appreciate the unique damage that is caused by information at all over office computer network you identified in your brief is the issue that we have involving the right of public employees to remain free from  video surveillance while undressed as they shower at who were place how is that the issue in this case well your honor i believe that the factual recitation there is accurate that this is a public employee who was videotaped surreptitiously based on the factual record in this case that she was unaware of the videotaping as it occurred in the shower and only became aware of it later jews were other videotaping within this context but she was unaware of the video taping the shower the videotaping the collection the second is the display we know the deputy for a play this video for fellow employees in his office on his computer monitor and the third is the distribution over the computer network and in fact in the record at appendix a fourteen there is factual evidence supporting the proposition that the video was either viewed transferred or copied sixty six times after was placed in the shared folder on the computer network so that strikes me as a substantial distribution mr verity what was surreptitiously about this filming though herself testified that she was aware of it constantly your honor i believe the district court found that ms doe testified that she was aware of the filming when she was in the car when she was in the parking lot when she was walking into the decontamination facility but that she was on aware of the extent of the filming when she was in the shower because her back was facing the shower door she had decontamination tiriel in her hair which obscured her vision and that she at no time turned around to look and see whether or not the door was open and how did this occur in the workplace  she was on her employer's time during this she encountered the flea infestation when she was working she was in her squad car which is what you know police officers were place when she was filmed and she was instructed by her employer to enter the decontamination facility which which is i believe an extension of her workplace she was under the direct orders of a supervisor to go to this decontamination facility engaging in decontamination procedure county your honor i think it's clear that the supreme court recognizes the unique rights at issue here concerning digital distribution in walen justice brennan warned the collecting digital information vastly increases the potential for abuse and there the court noted that the constitution limits the means of information collection as well as the content of information and i think that that is at the heart of this case it is the digital collection the display the digital to find the privacy interests in all three of the aspects you mentioned videotaping display and distribution and if you don't have one of those then his it no longer covered by the privacy rights for example suppose you have no distribution you want to i believe that each is an independent constitutional violation and that even if the collection is constitutional the display was not and even if the collection display were constitutional the distribution was not how could the collection have to have been constitutional because it was for a training supposedly purposes well that's what the county of the privacy right as you define it yes wrong that follows from the supreme court the third circuit precedent on this issue which distinguishes between circumstances whether it's lawful collection disclosure may be unconstitutional  main areas where privacy might be violated it would be the jury instruction on on the level of privacy that would attach to a semi nude body i mean know what if joe had a bathing suit on during this whole time would we be here we would not be here what kind of i'm just trying to think how a jury would be instructed on the the person who had the their privacy rights allegedly violin you don't think just by definition movie of taping a woman in the show covered by something that is not decide there's no genuine issue of material fact or whatever that that a jury could consider the plaintiff's own testimony was very clear and i think i forget which one of your and taking the shower and using the decontamination process of shampoos and products the door was completely closed when she was about to be finished the door was just slightly cracked where she stuck her head out and when her fellow female deputies assisted her in coming out the the potential flees from her air that all may be so mr hope but that is all factual and it's all part of what is in the record and it may be subject to dispute here and there but with respect to our efforts to get to a standard or standards applicable here and as jude suresh has asked instructions that necessarily would have to be given to a jury if this case would go back i'm concerned in my reading of the district court's opinion that notwithstanding what you've indicated about w the record shows that the district court may have had a rather narrow view as to what would constitute an invasion of privacy when more to the point the exposure of what portions of the body might constitute an invasion of privacy do you not think the opinion reads as if he might have been limiting the exposure and outrage from that exposure to exposure genitalia and as a consequence what he saw in this record just didn't meet an invasion of privacy standard i do not think that he was limiting himself to specific body parts i think when all privacy alleged violations to see to balance and to analyze the potential privacy interest against the states and whether they're now there's a compelling state interest in this particular case the court private yes and no it is that is one part of the test in that case that the seventh circuit and i think this court in new york is it was saying the same thing although not in the same words said that a reasonable expectation of privacy but i think it's when you look at when you look at the fact that this court has never for the circuit hasn't had the opportunity to evaluate a case on this factual basis when you look at noon years and you look at that standard i think that comes full circle to judge the rigorous question about what the jury instruction would be mr dystrophin of the district court also relied at least to some extent upon the prison line of cases at least incited davis versus hooper from the ninth circuit in those cases really aren't people here either we're talking about a completely different level or standard privacy when we talk of dissemination of a person's nude or seminude body i think that was the purpose for which the district court was referencing them and that becomes relevant here because even as we sit here today despite the evidence of a record below we're still hearing references does that lead you but it leads me to the fact that the only thing that was exposed on this woman in the context of this decontamination shower was nothing more than what as it would be an actual us it it was it was an it's not an issue anymore i mean it was it was testified to by numerous people in the record yes and the court in a court found very clearly that there was no genuine issue of material fact as to that issue she in fact he cites her own deposition testimony was that as a matter of oral testimony are as a matter of what's on the video and that i'm glad you asked that because it's both your honor one need only look at the video as well as i'm sure the lower court did to know a couple of things number one at no point during any of this process were any parts of mrs doe's body that would be reasonably expected to be secreted from the general public or even from members of her own fellow employees ever ever exposed number two is and it goes back to a question judgment that as there is absolutely nothing there was nothing syrup fishes about this video at all a simple viewing of this video makes it clear that mrs doe is interactive with not only foy but deputy joyce and the other members who were present that day and deputy shuns the and all the other members of the sheriff's department who were present in fact much is made about some rather probably inappropriate questions that are put to misess doe to which she responds the reason that they know that the people on the video make it clear the video makes it clear that the reason that the others in the room know what the things that are on her body is because she responds to me to ask just a couple basic factual questions here and i hope ms will respond when she's on and portions of her lower leg and you are telling us that as a matter of fact she was covered by and no pake cover you could not see through the the sheet that was covering her as for low pay me yes ma'am in fact the security officer who was present that day and who testified of record had testified that particularly on that point which of those body parts were exposed in the video shot her neck and her back and whatever face obviously what there were also some exposed still spots i think as shots were the  from our perspective had he been so aggrieved by what was allegedly on the county's computers he certainly could have fallen actually did not secondly as far as the dissemination goes that's another that's another eun didn't happen we but even over our own objection we were required by the district court to employ the services of a computer expert to go through the county servers to determine not only what was on the servers but what so over our objection but we hired an an expert there was absolutely no evidence of any dissemination of any kind so i'm not really sure from a factual standpoint where that's coming from but  there was actually the services of expert testimony in the record i think which the court so you're saying no no evidence of dissemination but there was a display there was there was i think there was an isolated instance of a display in when they returned it to the county sheriff's office but the images that we're talking about here is what we've already got around gun run around about ready which is that was nothing that would have caused a humiliation or degradation of this is are you referring to when they were gathered around the desktop computer the video is the video yeah i mean whatever it whether it was in the sheriff's office or out the parking lot and by the way i think if you asked about why they were in the car the record makes it very clear that while they're outside of a loser in county emergency management office they  videotaped in the car sitting in the car fully clothed the video is shut off they drive from there because they can't get the deacon to decontamination shower together to mercy hospital where the cameras are turned back on after they leave mercy they drive back to the county the camera is turned off so there's no and there's no getting around i think the district court got it absolutely right i think it was poorly conceived but it does not rise to the level of a constitutional violation for the pl pollack i wish you would help me because i may have been looking at this case incorrectly it was my understanding that she was covered by a scene through something replayed the video for my client and she is reciting what is seen and what is heard and she actually states about that someone an onlooker is saying you could see her boobies obviously it's transparent you can see through it and she is circumstantial that is we can infer from the state that this must have been see through people correct and it was a paper covering wasn't like a hospital like when you sit on the doctor's chair when you get examined that piece of right a six six four again talks about you could see talks about her her but they say they call it ass and then on a six six four again talks about and this is their words not my words but i'm being clear for the court shit on her back which is  apparently her tack to were so making a six six five what is that crap a big rip in your ass that is heard on the on the video you have i have testimony that a fellow deputy was embarrassed for her for what he saw on the video a six five five i have on testimony someone said grabbed back to cover her up a six six six i have all that evidence which should have been viewed in paper and it should have allowed me to get to a jury to be able for the jury to make the factual just the terminations was this was this being shown on the video wasn't reported i find it surprising i can't i can't explain what he wrote however i can point you to where i have it in the record and which was provided by the district court that's drawing as john smith's inferences from that she you know she testifies in her deposition about what people are saying around is the best evidence because it's actually right there it really isn't circumstantial it's evidence you know it's straight a judge saw over or am i correct that the video does not show whether either does not show the paper or does not show whether it was opaque or see through you do see her in the paper so you can see her in the paper so to me you can see that it's opaque you know when i specially with ok well i mean i think a i'm sorry see for zero hour that's the only way that i can see say it but going back to your consent she never consented to this and i can't control a video of an employer if my boss was  but how does that make it ok because the fact of ok so i'm just saying that she never asked to be recorded nor did she ever think that she was going to be videotaped in a shower room most people would not have done that just out of pure professionalism but that's not what happened in this case i just want to leave the court with a quote that i think is really good in this court has cited in u f three d one seventy five and it's just about the experience should teach us to be most on guard to protect liberty where when the government's purpose are beneficial persons want to freedom are actually alert to repel invasion of their liberty by evil room you have no right government to come and see my tan lines any of my tattoos that i keep covered from your video and her sexual orientation was tied into her tattoos that's a private fact and you don't get to come in and find out those things about me unless i give you permission so to me in addition to the recording regardless i should say of whether you can see or not you're seeing things that you're not entitled to see in a medical facility which is private and should not be reported and then disseminated for the whole office to see and for me to be humiliated again when i can't control what