Information Privacy Outline

 
PRIVACY OUTLINE – SCHWARTZ SPRING 2016
 
I.                   RIGHT TO PRIVACY, GEN’LY
public figure has little right to privacy                                [Sidis] public has an affirmative right to information about a public figure: “… at some point the public interest in obtaining information becomes dominant over the individual’s desire for privacy.”                                [Sidis]                                                               i.      Sidis v. F.R. Publishing Corp (2nd Cir. 1940)
1.      F: Child prodigy; Years later New Yorker publishes report “Where are they now?” which contains unflattering information. Sidis sues for violation of privacy.
2.      H: Sidis is public figure, and as such, public curiosity in his life outweighs his right to privacy in non-intimate details. “Despite eminent opinion to the contrary (Warren/Brandis), we are not yet disposed to afford to all of the intimate details of private life an absolute immunity from the prying of the press.”
3.      “At least we would permit limited scrutiny of the ‘private’ life of any person who has achieved, or has had thrust upon him, the questionable and indefinable status of a ‘public figure.”
does not matter if public status is in/voluntary           [Sidis; Ford] public figure only has a right to privacy if something is so intimate to be shocking to the community’s notion of decency.                                         [Sidis] BUT truthful comments about dress, speech, habits, personality of public figure don’t cross line.
no claim for malice, as long as it’s truthful                             [Sidis] involuntary public figures = still public figures
individuals who have become ‘news’ even if they did not seek publicity. 
[625D, comm. (f), Sidis, Sipple] don’t become a publ figure just due to newsworthiness.
once a public figure, always a public figure? (suggested)      [Sidis]                                                               i.      status reports on public figures ok, in public interest
Sidis claim to privacy seems quaint in era of “Googleization”
Warren/Brandeis article
“the right to be let alone” – an individual should have the right to determine if info should or should not be published
right to privacy concerns inviolate personality (you should be able to express your own views and assert your own uniqueness)
                                                              i.      reflects Continental/German values of privacy as necessary part of personal dev.
right to privacy is not absolute; only a right against unwarranted invasions
must make 2 distinctions:
                                                              i.      public v. private personality
                                                            ii.      if public, then is it a private or a public issue
W&B would say right should come from judicial enforcement of an inviolate right that is really only a new application of the already established principle of the right to be let alone.
                                                              i.      Bulk of article = explaining how right to privacy can be derived from common law
other remedies may be available if no right of privacy is found, e.g. legislature [see Lake in class notes]:
Lake v. Wal-Mart Stores, Inc. (Minn. 1998)
                                                              i.      F: P sues Walmart when negatives she took to Wal-Mart to be printed are leaked to community – photos allude to sexual orientation of P. Walmart initially refused to print negatives, but then they’re circulated throughout community.
                                                            ii.      Court recognizes right to privacy in common law of Minnesota, including causes of action for intrusion upon seclusion, appropriation, and publication of private facts BUT NOT false light publicity. Rejects false light of publicity bc of its overlap w/defamation (and if false light is more expansive than defamation, then tension w/First Amendment)
Sources of privacy protection:
Tort
                                                              i.      privacy torts [Prosser examined 300 cases and as reporter for ALI gets his classification into Restatement] 1.      public discl of private facts
2.      intrusion upon seclusion
3.      false light
4.      appropriation
                                                            ii.      breach of confidentiality – professional can’t divulge info
                                                          iii.      defamation
                                                          iv.      IIED – limited by extreme and outrageous conduct.  hard to prove
Property—property rights and trespass
Evidence—privileged communications are protected (e.g. spouses can’t be forced to testify against each other; doctor/patient)
Constitutional law—1st    3rd    4th    5th
Statutory law
                                                              i.      fair info practices (FIPs)
                                                            ii.      1994 is a major break – CALEA passed
1.      gov’t req’s telecomm networks to build wiretap capacity into the network so they have access to anything that they want
2.      FBI tells industry committee what they want (and it’s paid for by the gov’t through subsidies), committee accepts/rejects some
3.      Schwartz: this creates a legal fiction that this is all neutral
Others—K; Crim law; Int’l law; IP
Def’ns of Privacy
PRO PRIVACY
Westin
                                                              i.      tension btwn desire for privacy and desire for some sort of public life
                                                            ii.      in democratic society, privacy important personal autonomy, emotional release, self-evaluation, limited and protected communication
Cohen
                                                              i.      privacy is related to autonomy, particularly personal dignity & free speech
                                                            ii.      “Pervasive monitoring of every first move or false start will, at the margin, incline choices toward the bland and the mainstream.” Result will be a subtle yet fundamental shift in the content of our character, a blunting and blurring of rough edges and sharp lines…
                                                          iii.      People need privacy – personal space – to develop holistically
Solove    p. 51 n.3
                                                              i.      16 kinds of privacy related activity in 4 categories:
1.      info collection à                surveillance/interrogation
2.      info storage/processing à aggregation/ID/insecurity/exclusion
3.      info dissemination à          disclosure/exposure/blackmail/distortion
4.      invasion of privacy à         intrusion/interference
Allen