“Privacy law” continues to evolve in the face of ever-advancing technology. Legislative bodies, administrative agencies, courts, tech companies, and a host of other interests are working to innovate, keep pace with, or catch up. Even the First Amendment, which has been interpreted by courts, lawyers, and scholars for hundreds of years, and, which stands as a counter-balance to the right of privacy, is being tested in new ways. But the recent trial involving Erin Andrews highlights that, sometimes, privacy issues are simple, and businesses need to implement common sense policies or face potentially costly outcomes.
A Nashville jury recently handed Ms. Andrews a $55 million verdict against a Nashville hotel franchise owned by West End Hotel Partners and operated by Windsor Capital Management. Michael David Barrett, a notorious stalker, modified a hotel peephole and filmed Ms. Andrew while she was changing, then uploaded the illegally recorded material onto the Internet. Mr. Barrett was ultimately captured by law enforcement; he pleaded guilty and was sentenced to 27 months in prison. In Ms. Andrews’s civil privacy case, she testified that she suffered severe emotional distress as a result of the incident. According to both sides, Barrett stalked and filmed at least 10 women in various hotels across the country. The jury in the Nashville case found that West End Hotel Partners and Windsor Capital Management were 49 percent to blame, and Barrett was 51 percent to blame.
There was conflicting testimony as to how Barrett obtained a room next to Ms. Andrews. According to a hotel reservations executive, in 2008 Barrett requested a room next to Ms. Andrews when he called a central reservation center, but the agent who took Mr. Barrett’s call put the request in the wrong database, so it was not picked up by the front desk staff at the hotel where Barrett and Ms. Andrews both stayed. Barrett stated that he was able to learn Ms. Andrew’s room number by asking hotel staff to transfer an in-house phone call to her room, and, once the call was transferred, Ms. Andrew’s number appeared on the phone that Barrett was using. According to Barrett, he then used the information to locate and request a room next to Ms. Andrews’ room.
Surprisingly, the hotel had no written training material concerning the confidentiality of its patrons. Obviously, hotels collect and have access to some very confidential information, especially as it relates to celebrities like Ms. Andrews. While some of this information – such as the physical location of guests –may not fall within the statutory scope of “personally identifiable information”, common sense dictates that a flag should be raised any time a guest requests a room next to someone else with whom they have no relationship and that the hotel should properly train its employees to be sensitive to such situations and minimize the risks that should be apparent. The fallout when something goes wrong could be catastrophic: for the hotel, its brand, and for its patron.