A Tragedy That Won’t Fade Away

At the accident site, a crane was lifting the remains of a car so crumpled it was hard to tell what it had been. But Christos recognized a hubcap, barely attached, and collapsed onto the pavement. Later, two coroners told the family Nikki had been driving at close to 100mph when she clipped another vehicle, tumbled over the median and smashed into the concrete tollbooth. An autopsy would later reveal that she still had cocaine in her system.

Two weeks later, Lesli's brother, Geoff, got a call from a neighbor. "Have you seen the photos?" he asked. Apparently, photos of the crash scene were circulating around town, via e-mail. Soon they showed up on Web sites, many of them dedicated to hard-core pornography and death. A fake MySpace page was set up in Nikki's name, where she was identified as a "stupid bitch." "That spoiled rich girl deserved it," one commenter wrote. "What a waste of a Porsche," announced another.

The family filed a formal complaint about the photos' release, and three months later, they received a letter of apology from the California Highway Patrol. An investigation had revealed that the images, taken as a routine part of a fatal accident response, had been leaked by two CHP dispatchers: Thomas O'Donnell, 39, and Aaron Reich, 30. O'Donnell, a 19-year CHP veteran, had been suspended for 25 days without pay. Reich quit soon after—for unrelated reasons, says his lawyer. Both men declined requests for comment, but Jon Schlueter, Reich's attorney, says his client sent the images to relatives and friends to warn them of the dangers of the road. "It was a cautionary tale," Schlueter says. "Any young person that sees these photos and is goaded into driving more cautiously or less recklessly—that's a public service."

For the Catsouras family, however, knowing how the photos were leaked doesn't prevent their spread. So they hired a lawyer, Keith Bremer, and a tech company called Reputation Defender that works to remove malicious content from the Web. Together, they began tracking the Web sites displaying the photos, issuing cease-and-desist letters, and using advanced coding to make the photos harder to find in a Google search. Neither tactic was very successful: the family has no legal basis to compel Web sites to remove the photos, and no amount of programming magic could keep them from spreading to new sites. "Long story short, it became a virtually unwinnable battle," says Michael Fertik, a Harvard Law School graduate who is the founder of Reputation Defender.

So the Catsouras family sued the CHP for negligence, privacy invasion and infliction of emotional harm, among other charges. The case itself doesn't challenge Web users' right to post Nikki's photos, but it would hold the CHP accountable—creating a legal deterrent to prevent such leaks in the future. "There's not a lot of law on our side here," says the family's attorney, of Bremer, Whyte, Brown & O'Meara, LLP. "But putting these photos on the Internet was akin to placing them in every mailbox in the world."

In California, though, the case established little legal precedent. In March 2008, it was dismissed by a superior-court judge, who ruled that while the dispatchers' conduct was "utterly reprehensible," it hadn't violated the law. "No duty exists between the surviving family and defendant," the opinion reads, because privacy rights don't extend to the dead. "It's an unfortunate situation, and our heart goes out to the family," says R. Rex Parris, the attorney representing O'Donnell. "But this is America, and there's a freedom of information."

The Catsourases have appealed the court's decision—and at least one legal expert believes they may prevail. "Many, many courts have concluded that families of deceased individuals do have privacy rights to the deceased," says Daniel Solove, a law professor at George Washington University. In particular, he cites a 2004 case involving death-scene photos of former deputy White House counsel Vincent Foster, who died in 1993 of a self-inflicted gunshot wound to the head. In that case, the Supreme Court ruled that the government could deny Freedom of Information Act requests for the photos based on a family's right to survivor privacy. "I'm totally perplexed at how the [California] court concludes there was no duty to preserve this family's privacy," he says.