CYBERPRIVACY LAW IN THE NETWORKED WORLD (478-021)
I. Origins and Types of Privacy
A. Warren and Brandeis, p. 12
1. The starting point is full protection in person and property
a) Person’s reputation already protected in libel and slander
b) Property includes IP
2. Mental harm from intrusion > physical – Photographs, newspapers à gossip à mental pain & distress
3. One has the right not to have thoughts published – but from where?
a) Libel and slander laws – measured by external damage to reputation
b) IP laws (copyright) – focused on profit; the thing needing protection here isn’t the form, but the underlying fact
(1) IP laws only begin when some
c) Real property – closer, ?? why? (list of gems?) focused on withholding something
(1) Common law – right to control publication irrespective of content (look to note 2)
(2) Future profits – this right comes from elsewhere, even though dealing with property (??????)
d) Right to be left alone – origin of the right not to publish one’s own thoughts
(1) Similar to physical – right not to be assaulted, imprisoned, maliciously prosecuted
(2) Looks like real property – but comes from inviolate personality ???
(a) (note 3, p. 23) – freedom is the right to exercise free will, allowing the individual to realize her potential
(b) free from injury – the way to do this is to protect it legally
e) Substantive rights – should not change merely by the fixed nature
f) Changing circumstances – warrant changes in the approach to law ???
g) Right to privacy – the issues that are now arising could not be solved
(1) Doctrines of contract, trust, property – they all come from the same underlying principles of privacy
h) Limitations –
(1) Right to privacy do not protect any matter of public interest
(2) Right to privacy does not apply when under law you are required to disclose – e.g., on the stand;
(3) No protection for oral publication generally because injury was small and in interests of judicial economy
(4) No right to privacy once you’ve disclosed the facts yourself
(5) Truth is not a defense (it is for defamation though)
(6) Absence of malice is not a defense
i) Remedies –
(1) Damages always
(2) Injunction, in a limited class of cases (look to Galella)
B. Sources of Privacy Law
1. Privacy torts
a) No common law right to privacy
(1) Robertson v. Rochester Folding Box (NY, 1902), p. 25
Photo of a teenager used on flour ads; ct. said they don’t have the power to legislate
(This would fall under the tort of appropriation of one’s likeness.)
b) New York statute – first state to enact privacy statute
c) Common law right to privacy – from natural law
(1) Pavesich v. New England Life Insurance (Georgia, 1905), p. 25
Photo used in a life insurance ad without consent; instinctive nature to value privacy comes from natural law. This was the first recognition of the common law right to privacy.
2. Four types of invasions (Prosser)
a) Intrusion upon seclusion or solitude
b) Public disclosure of private facts
c) Publicity giving false light
d) Appropriation of one’s name or likeness
3. Protection from intrusion, public disclosure, and appropriation rooted in liberty
a) Lake v. Wal-Mart Stores (Minnesota, 1998), p. 27
Photo of two women naked in a shower developed at Wal-Mart was spread around town. Ct. said common law allows for change, growth with the changes in society. Right to privacy is recognized in England, arising out of property, contract, or breach of confidence. Liberty means we decide what is part of our public persona and what is part of our private persona.
While there is a right to privacy against intrusion upon seclusion, appropriation, and public disclosure of private facts, there is no false light invasion. This is too close to defamation.
Dissent – privacy rights from the Constitution are fundamental – marriage and reproduction. There is no general right to privacy in the Constitution.
This is to show that not everyone accepts all four torts.
b) Breach of confidentiality
c) Defamation – libel and slander
d) Infliction of emotional distress
4. Privacy protection in evidence law
a) Privileged communications – confidential communications between an attorney and a client cannot generally be compelled at trial.
5. Privacy protection via property law
a) Few property rights that specifically protect privacy, some implicate it
(1) Trespass – cause of action and criminal for unauthorized entry to another’s land can protect privacy.
6. Contract Law
a) Breach of Implied Contract – sometimes courts have “entertained actions based on implicit duties in certain relationships, e.g. doctor-patient.
7. Criminal Law
c) Identity Theft
C. Constitutional law
1. Locations of privacy –
a) First Amendment right to speak anonymously and freedom in association privately;
b) Third Amendment right to exclude soldiers from the home;
c) Fourth Amendment protection against unreasonable searches and seizures;
d) Fifth Amendment privilege against self-incrimination;
e) Penumbras or zones of privacy in the entirety of the bill of rights
f) Due process privacy protection
D. Statutory law
1. Federal statutes arising out of advances in technology, electronic eavesdropping
2. Department of Health, Education and Welfare – in 1973, developed Code of Fair Information Practice containing information privacy protections
a) There must be no personal-data recording-keeping systems whose very existence is secret
b) There must be a way for an individual to find out that information about him is in a record and how it is used.
c) There must be a way for an individual to prevent information about him obtained for one purpose from being used to or made available for other purposes without his consent
d) There must be a way for an individual to correct or amend a record of identifiable information about him.
e) Any organization creating, maintaining, using, or disseminating records of identifiable personal data must ensure the reliability of the data for their intended use and must take reasonable precautions to prevent misuse of the data.
E. Definitions of the value of privacy (Simitis, p. 56)
1. Privacy concerns have moved from the individual to societal realm
2. Surveillance is routine, ubiquitous
3. Personal information used to enforce standards of behavior
4. Importance of transparency, long term strategies of regulating personal conduct
F. Critics of privacy
1. Limits on privacy (Etzioni, p. 59)
a) Less government control requires less privacy (a company would use this theory, e.g. the grocery store – so good for exam) the greater the realm of privacy, the greater governmental control will be. With less government, it is up to the community to place pressure on the individual to disclose, to limit privacy.
(1) A good society can see the balance
(2) Our society has gone too far in the privacy direction
b) Response – Common good (Regan, p. 61)
(1) Privacy is a public value, not an individual one
(a) Protection for the individual
(b) Restraint on government and use of its power
c) Response – Communities and privacy norms (Schwartz, p. 61)
(1) Intermediaries can be more oppressive than government
(2) Communities à inefficient norms
d) Response – Reductionist (Thomson, p. 61)
(1) Privacy is really a cluster of other rights and can be reduced down to other rights.
2. Value in disclosure (Posner, p. 62)
a) More information about an individual will à better choices.
b) Privacy allows one to manipulate their public self, conceal things that others would want to know.
c) Everyone should be allowed to protect themselves.
d) Response – Irrational judgments
(1) When we learn information, it can have a greater impact than it should and à inaccurate perceptions and irrational judgments.
e) Response – information dissemination and efficiency – Without privacy, we are less apt to explore.
II. Privacy and the Media
A. Information gathering
1. Intrusion upon seclusion – intruding, physical or otherwise, on the solitude or seclusion and privacy of another or private affairs or concerns, if highly offensive; focus is on how the information is obtained, not what is eventually done with the information. P. 76.
a) Publicity is irrelevant – how widespread the reception is
b) What is done with it, whether it is published or not
c) One can also get protection from trespass
d) And also fraud
e) There still needs to be harm; critical is the public v. private
2. Injunction to prevent future harm when actions exceed newsgathering; intrusion in privacy is permitted only to the extent that it does not exceed that allowable if there is an overriding public interest (and he exceeded that). But the press is still not immune from laws, no wall of immunity.
a) Galella v. Onas
tailored, achieves the government interest, and impact on self-censorship.
a) Florida Star v. BJF(1989), p. 137
BJF reported a rape, and her name was printed on the report in error. This report was placed in the press room where there were many signs forbidding the release of names. Florida Star reporter published the name anyway. BJF sued for emotional distress from the disclosure. Ct. says Cox isn’t controlling here since no criminal proceedings have begun (i.e., no public interest in judicial proceedings). Daily Mail said that it is unconstitutional to punish disclosure of public interest matters obtained lawfully, absent any other interest. Here, the unlawful activity was in putting the name on the report; the reporter obtained it lawfully. Issues of crime are part of the public interest. The government’s interest is in immediate safety of the victim and encouraging future reporting. Three considerations:
(1) is punishment of lawfully obtained information narrowly tailored – here, information came from the government itself; to punish the paper would not be narrowly tailored to achieve the goal.
(2) does punishment advance government’s interests – here, not when information was already in the public
(a) manner – from the government here
(b) negligence per se – too broad; applies even if everyone knows the person’s name already
(c) under-inclusive – only addresses mass communications; often, lesser means can be more damaging.
(3) how will it impact self-censorship
Dissent – assumption that the state approves ignores that the press room had signs indicating otherwise, and the reporter knew it.
III. Privacy and Law Enforcement – Fourth Amendment
A. Fourth and Fifth Amendment
1. No compulsion for civil proceedings.
a) Boyd v. U.S.(1886), p. 209
Boyd was a merchant from whom invoices of imported glass for civil forfeiture proceeding. The Fourth Amendment focus is not just on physical intrusion, but personal security, personal liberty and private property. The Fifth Amendment protects against any forcible / compulsory extortion of testimony or papers to be used against him.
2. Fourth Amendment – applies to the power of government officials in search and seizure
a) Mere evidence rule – Searches can only be used for evidence that is an instrumentality of a crime, fruit of a crime, or illegal contraband.
b) Gouled v. U.S. (1921), p. 209
The government can’t search one’s home for evidence in criminal proceedings. They can only seize evidence if instrumentalities of crime, fruits of crime, or illegal contraband.
c) Warden v. Hayden (1967), p. 209
Mere evidence rule abolished.
3. Fifth Amendment – applies only to compelled information of a testimonial nature (not photos, fingerprints, etc) that is incriminating
a) Fifth Amendment protects a person, not her information.
b) Couch v. U.S. (1973), p. 209
Subpoena to an accountant; the Fifth Amendment is a personal privilege, protecting the person not the information. It is concerned with avoiding coercion.
c) Fifth Amendment privacy only for self-incrimination, not general privacy.
d) Fisher v. U.S. (1976), p. 209
Subpoena to an attorney; the Fifth Amendment does not provide general privacy protection, just self-incrimination.
a) Searches requirements –
(1) reasonable search
(3) probable cause required for warrant
(4) from reasonably trustworthy information
(5) not just bare suspicion
b) Exceptions to search warrant requirement:
(1) consent – oral, written or by policy (e.g., employment policy)
(2) exigent circumstances
(a) plain view