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Privacy Law
University of Pennsylvania School of Law
Steinfeld, Lauren B.

 
INFORMATION PRIVACY
Final Exam Outline
Yoo & Steinfeld
Spring 2015
 
 
 
I.                   Introduction
 
Basic Issues
 
Common law
·         Interest grew in privacy because of
o   Sensationalistic journalism
o   Technological developments
Warren and Brandeis’ particular conception in The Right to Privacy
·         Motivation behind the article: gossip columns
o   By making private information public, gossip columns waste people’s time
o   Social phenomenon. Compromises character of society. Creates a bad state in the world
o   What happens to the individual (reputation) is secondary to what happens to overall society, according to article
·         Multiple justifications for protecting privacy, depending on what you protect, how you protect, how strongly you protect, and what other values you trade off with
·         Warren and Brandeis see a social ill and they want the law to adapt
o   But historically there was no cause of action exactly for this
·         Talks about implied contracts – confidentiality can be implied in the absence of an explicit contract by virtue of relationship
o   Tort law? Property law?
o   Usually turn to tort if you don’t know who you’re in a relationship with
·         Wanted to protect certain private facts
·         Advocated recognizing new cause of action
 
Puzzles
·         Immediately recognized exception for public figures
·         Justified by negative impact on broader society
o   Former justification is based on personality/dignity
o   Personality has both a absolutist and consequentialist justification
·         Physical places. Should the right to be protected be recognized here?
o   Certain places (i.e. the home) are sacred
·         Are there rights that shouldn’t be waived at all? (Paternalistic)
o   Understanding what you’re protecting and why determines what you do to it.
 
Privacy in general
·         What is protected:
o   Private places
o   Certain private information
o   Certain types of people
o   Ability to control presentation of self
o   Quantity/utility of information
o   Commercial harm
·         Against government or corporations
·         Against what types of acts
o   Harm
§  Damage to social status
§  Revelation of private people
§  Revelation of private facts
§  Right to be left alone
o   Disclosure
o   Commercial disadvantage
o   Increased risk of harm
o   Durability of information
·         Enforced how
o   Damages vs. injunctions
o   Inalienability/reversion
§  Can you take things back? After death?
 
Consider the following motivating examples that raise different issues. Should the following be protected? Why?
·         Diary
·         location information
·         erroneous credit score
·         unrevealed covert surveillance
·         right to be forgotten?
 
Theoretical perspectives on privacy law
 
Alan Westin, Privacy and Freedom
·         Balance desires for privacy with desires for communication
·         Four basic states of individual privacy
o   Solitude
§  Individual is separated from the group and free from the observation of others
§  Most complete state of privacy
o   Intimacy
§  Acting as part of a small unit and is allowed to exercise corporate seclusion so that it may achieve a close, relaxed, and frank relationship between two or more individuals
o   Anonymity
§  Individual is in public places or performing public acts but still seeks and finds freedom form identification or surveillance
§  Does not expect to be identified and held to the full rules of behavior and role that would operate if he were known to those observing him
§  Or anonymity is idea of publishing of ideas anonymously
o   Reserve
§  Most subtle
§  Creation of a psychological barrier against unwanted intrusion
 
·         Four headings
o   Personal autonomy
§  Development of individuality
§  Individual’s sense that it is he who decides when to go public is crucial aspect of his feeling of autonomy
§  Individuality important in democratic societies since independent thought, diversity of views, non conformity are considered desirable
o   Emotional release
§  Individual plays many different roles throughout the day and needs time to be himself
§  Permissible deviations—don’t punish every deviation from laws or norms; otherwise so many people would be under organizational discipline or jail
§  Safety-value—be able to comment on things without being held responsible for such comments
o   Limited and Protected Communication
§  Provides the individual with opportunities he needs for sharing confidence and intimacies with those he trusts
§  Wants to secure counsel form person with whom he does not have to live daily after disclosing his confidence
 
Julie Cohen Examined Lives: Information Privacy and The Subject as Object
·         Respect for the fundamental dignity of persons
·         Autonomy requires zone of relative insulation from outside scrutiny and interference—engage in conscious

o    Also a factor – openness in government less important in this case
·         HOLDING: distinguishing between info that is publicly available if you search for it, as opposed to if found in one rap sheet. Yes, there is a privacy interest in this info
·         ANALYSIS
o    Under FOIA, the default is that info is shared, but there are specific privacy exemptions
o    Rap sheet covers convictions, arrests, charges, etc. in single place. Info may be publicly available but there are restrictions on ability to find one summarized source.
o    Court seems petrified of computers. All information is obtainable, but the computer changes things
§  Changing nature of privacy!
§  This changes the analysis and the balance of interests
 
 
 
Progression of Privacy Protections
 
Tort Law
For awhile, tort law seemed to solve a lot of privacy problems
·         Tort law provided a good legal vehicle to redress privacy harms. And this is what governed for awhile until the development of the computer
o   The computer got people worried about what it could do (faceless, systematic collection) and what could the law do to respond to this
 
Evidence Law
Privacy can override the trust seeking function of trials
·         i.e. privileged evidence, ACP…
 
Property Rights
Appropriation tort is similar to property right.
·         Is personal info a form of property? (Warren and Brandeis say no)
Trespass laws can protect privacy
 
Contract Law
Sometimes specific contractual provisions protect against collection, use, disclosure of personal info
 
Criminal Law
Protects bodily invasions, home invasions, blackmail, etc.
 
Constitutional Law
Constitution does not specifically mention privacy, but has provisions that protect privacy and has been interpreted to provide a right of privacy
·         4th Amendment – protects against unreasonable searches and seizures
o   This is the main focus of the govt aspect!
o   (consider separate from ECPA)
o   will be on exam!