A legal theory sometimes applied to Fourth Amendment issues arising out of police searches could help determine the outcome of Paris Hilton's lawsuit against a Web site operator who has allegedly published some of her “most private information.”

Hilton filed the case last week, seeking to enjoin “perhaps one of the single most egregious and reprehensible invasions of privacy ever committed against an individual.” Parisexposed.com, she claims, is illegally trying to profit from a veritable treasure trove of Hilton-alia discovered in a Culver City, Calif., storage unit.

A Los Angeles federal judge has already issued an emergency order barring site operator Bardia Persa from publicly disclosing, among other things, “photographs, videos, and writings depicting plaintiff in a sexual manner not previously exposed to public viewing.”

“Hilton has a reasonable expectation of privacy in all of the [storage unit] materials,” the complaint says.

But Persa came into possession of the property via a perfectly legal foreclosure sale. And under Fourth Amendment law, Hilton may have compromised her privacy rights by ceding “partial control” of her property to a third party.

The hotel heiress hired a moving company to put some of her belongings in storage after a burglary at her Los Angeles home in October 2004. “[T]o avoid garnering attention,” she rented the storage unit in the name of a third party -- the moving company.

Hilton's accountants timely sent monthly rental checks to the mover. But “unbeknownst to Hilton,” the mover allegedly failed to pay the storage facility, resulting in the foreclosure of the locker and the public auction of its contents.

At the auction, a Culver City couple, Nabil and Nabila Haniss, allegedly snapped up the property for $2,775 and then sold it to Persa for $10 million so it could be “mass distributed to the public for Defendants' financial gain.”

“[B]ecause of the sensitive and confidential nature of the property, Mr. and Mrs. Haniss knew or should have known the foreclosure was inadvertent,” alleges Hilton, who also names the couple as defendants.

Case law suggests Hilton did not waive privacy rights simply by having the moving company rent the storage locker for her. The 7th U.S. Circuit Court of Appeals has said a celebrity's “wish to avoid harassment or intrusion” is a valid reason for using a false name to send and receive mail. U.S. v. Pitts, 322 F.3d 449 (2003)

But Persa and the Hanisses could point to a 9th Circuit decision which applied the “assumption of risk” theory to a police search of storage lockers that a criminal defendant, Duk Kyung Kim, had rented in the name of an associate.

“Because Kim ceded partial control of the lockers to [Seon Yong] Wee at all times and allowed him total control on occasion, he assumed the risk that Wee would allow search of the units,” the court said in U.S. v. Kim, 105 F.3d 1579 (1997).

If Hilton's movers had a key to the storage unit, that would give them some control over her property. And however “inadvertent” the foreclosure may have been, didn't Hilton assume the risk that they would not pay the monthly rental bill?

U.S. District Judge George H. King will hear Hilton's request for an extended injunction Feb. 16.

By Matthew Heller
2/5/07