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Privacy Law
University of Pennsylvania School of Law
Yoo, Christopher S.

 
Privacy Law Outline
Yoo/Steinfeld, Spring 2015
 
TABLE OF CONTENTS
 
1.    Introduction [done wk 1] a.    Basic issues
b.    Theoretical perspectives on privacy law
c.    Fair information practices and other sources of privacy law
2.    Use of PI by the government [done 2.17] a.    4th amendment basics and wiretapping
b.    federal electronic surveillance statutes
c.    digital search and seizures
d.    national security, FISA, and the US Patriot Act
e.    National Security Letters, internal oversight, and Snowden
f.     The Privacy Act and government data mining
3.    Health privacy [done 3.3] a.    HIPAA
b.    Confidentiality of medical info
c.    Genetic privacy
4.    Consumer data [done 3.31] a.    Financial data
b.    US system of consumer regulation
c.    Tort, contract, and property law
d.    FTC enforcement
e.    Statutory regulation
5.    Other topics [done 4.9] a.    Data security
b.    Cloud computing
c.    Employee privacy
6.    International privacy [done 4.21] [on a separate outline!] a.    European convention on human rights
b.    EU data protection directive
c.       US-EU harmonization and the new Data Protection Directive
 
Where do we start in a privacy analysis, like on the test?
·         Decide which statute is most likely to be applicable, and then begin your analysis with the text of the statute
o   Ecpa / 4th amend / wirtap /sca/electronic are specific in the govt context
o   Computer fraud abuse act & Privacy act = more general … may even work for non-govt stuff (I think??) but these statutes don’t seem to do anything
o   All the other statutes tend to be sectoral (i.e. HIPAA only for health law, FERPA only for educational records, etc).
 
THE TEST:
·         He wants you to use IRAC format on the test
·         Law student should systematically tick off every issue even if it’s not correct until you get to the real meaty issue
·         State the rule, and then state why that rule is the case
1: INTRODUCTION
Basic issues
·         Sidis v. F-R Publishing Corp: public figures have forfeited certain rights to privacy because there is social value in publishing their lives; passage of time
o   Justified by negative impact on broader society
§  Former justification is based on personality/dignity
·         Gossip magazines = W&B’s justification. Very different justification than the personality justification.
§  Personality has both an absolutist and consequentialist justification
§  This justification is based on consequentialism/social welfare
·         What are people motivated by when they want privacy?
o   Facts that are true
o   People’s image
o   Being left alone
·         Injury required?
o   Not always. NIED. If it was just being scared, though, it doesn’t matter, because you cant get liability just for being afraid
·         Warren & Brandeis article: fashioning a new privacy tort; justification = public concern & social welfare; privacy was protected by the CL as “the right to be let alone”
Why did they write about privacy?
Technology – concerned about it posing threats to privacy. Concerned about cameras especially. Kodak came out w/ the inexpensive snap camera. Also concerned about the news media (photography used to be expensive and newspapers used drawings, W&B were concerned that press was over-reaching).
Yellow Journalism
Papers were sold cheap w/ sensational stories (done by Hearst and Pulitzer)
What happens when you combine yellow journalism w/ snapshot photos à Instant smut for the sensationalist media.
§  Social welfare
·         Reason W&B wrote this article is because of gossip columns. They said that gossip columns hurt the social welfare and compromises the social character of society.
o   Wanted to protect certain private facts
§  “right to be left alone”
o   Advocated recognizing new cause of action
§  Invasion of privacy is a common law tort.
§  Is there a privacy tort that you can deal with that doesn’t require physical damage? Damage to social status.
·         Revelation about private facts
·         Revelation about a private person
·         Right to be left alone
§  W&B trying to craft privacy torts out of already-existing law
·         Law always changes. We consistently need to redefine and reconsider the exact nature and extent or rights. Changes in society entail the recognition of new rights, and common law grows to meet the demands of society.
o   Protections don’t apply to public figures
o   W&B less focused on the individual than on society as a whole
Four torts derived from the article
Intrusion Upon Seclusion
Public Disclosure of Private Facts
False Light (Cousin to Defamation)
Appropriation of Name or Likeness
·         Who is sharing your info? Contract theory of privacy
o   In the past, you would take a photo and you would know the person taking the photo. There would be a relational contract. Now, you don’t know the person taking the photo.
§  Can say that when tell someone something privately, there’s an implied contract to keep it private. W&B say that doesn’t work all the time, and point to photography. Used to need to pose to get a picture, and then contract theory could apply b/

be able to control what info about ourselves is disclosed to the public. This is because people need control to be able to develop themselves. People need to be able to make mistakes in order to develop their personality.
                                       iv.    Privacy = a balance. You don’t want to be wholly alone or wholly in public. Need a private sphere and a public sphere, and need to keep them separate.
                                        v.    4 states of individual privacy: (i) solitude, (ii) intimacy, (iii) anonymity – you should be able to do some things in public without surrendering all of your rights, (iv) reserve
                                       vi.    how much would Westin protect:
1.    diary
2.    location info
3.    erroneous credit score
4.    unrevealed covert surveillance – do you know you’re being watched? Do other people know? If you don’t know youre being watched, you wont change your behavior. You will still make mistakes and develop. Panoptacon only works if you think someone is watching.
5.    the right to be forgotten
·         Julie Cohen: developed individual can help society
                                          i.    Consequential theory (consequentialist theories like Cohen’s take a lot to get from point A to point B).
                                         ii.    The purpose of privacy is to promote the development of autonomous individuals, and, more broadly, society.
                                        iii.    how much would Cohen protect:
1.    diary
2.    location info
3.    erroneous credit score
4.    unrevealed covert surveillance – no protection because if you don’t know you are being watched, you wont change your actions.
5.    the right to be forgotten – more important to Cohen than to Westin. If stuff you do is never forgotten, then you’ll stop doing stuff.
·         Anita Allen: privacy is really important so sometimes we should force it on people
                                          i.    Idea of liberal society means that there is a private space. If people give that away, downgrade of society.