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Privacy Law
University of Pennsylvania School of Law
Allen, Anita L.

Privacy Law – Allen
Tuesday, January 15, 2008
I. An Introduction:
Three Sources of US Privacy Law –
1)     Constitutional Law
2)     Statutes (fed, state, local)
3)     Common Law (invasion of privacy torts)
Types of Legally Protected “Privacy”
–          Physical Privacy
–          Informational Privacy
–          Decisional Privacy
–          Proprietary Privacy – claiming ownership over space, photo, DNA
–          Associational Privacy – right of groups to segregate themselves
Origins of the Right to Privacy
De May v Roberts – 1881
–          “A legal right to the privacy of her apartment at such a time…”
–          Doctor summoned to deliver baby, brings with him an unprofessional, unmarried young man; young couple giving birth sues when they find this out, thought he was a medical assistant.
–          Court deems this an invasion of privacy; gender origins of right to privacy.
–          The context: home, childbirth, an unmarried, unprofessional, young man
–          The wrong: deceit
–          The injury: shame and mortification
–          The remedy: monetary damages
Marion Manola v Stevens – 1890
–          Actress Manola, photo taken of her in her stage costume (tights!), Stevens tried to publish photo, Manola took him to court to obtain an injunction to protect her modesty
–          Context – city, theatre, actress and tights
–          Wrong – nonconsensual photo
–          The injury – affront to modesty, loss of control
o    She had been photo’d many times before, but this time, it was a photo she did not want taken; loss of control
–          The remedy: an injunction
E.L. Godkin, Scribner’s Magazine – 1890
– Wrote article arguing that privacy is too fuzzy to be protected by law, but extolled the virtue of privacy; we ought to pursue privacy and attempt to protect it
Samuel Warren and Louis Brandeis’ Harvard Law Review Article – 1890
–          The intellectual beginning of the right to privacy
–          There ought to be a protected right to be left alone
–          “Inviolate personality”
–          “Sacred precinct” of family and domestic life – want to preserve this
–          Idealized image of private home life (father comes home from crude world to loving haven of home)
–          Invention of instantaneous photograph, and ability to publish these in newspapers presented an affront to the right of privacy
o    Too much trashy publications ie Nat’l Enquirer-esque, idea that these things should be kept private
–          Article represented shift from recognizing only physical threats/torts, to those more emotional as well, interest in not having our reputation wounded
–          Also argued that defamation law not sufficient; Privacy law necessary because even things that are true should be protected
Charlotte Perkins Gilman – Privacy for Women?
–          Just having a house does not guarantee privacy (maids, plumbers, kids, no genuine privacy of mind, thought, feeling)
–          Argues to completely revamp way we think about home life
o    Ie Communal kitchens would give women more freedom from home, give them more time to get into society
–          The home life should promote the highest development of personality
Ideas of Privacy began to emerge due to:
1)     Population Density – more cramped, sense of privacy diminished
2)     Clsoing of the West
3)     Popular Literacy
4)     New Technology
Botsford v Union Pacific Railroad – 1891
–          Citing modesty, the Supreme Court holds woman plaintiff claiming injury on train may refuse medical exam
–          Modesty of a woman, right to be let alone
Schuyler v Curtis – 1891
–          Citing privacy interests, NY court holds family may block erection of statue of deceased locally prominent woman philanthropist
–          Argued that she herself was a private individual, would never have wanted this
Roberson v Rochester Folding Box Co. – 1902
–          Holds that NO right to privacy exists in NY
–          Pretty young woman’s photo was used on flour packaging without her consent; suggests she’s a woman of low morals to allow her photo to be used on packaging
–          NY Legislature soon after passes a statutory right to privacy (cannot appropriate one’s image or likeness in pub/advertising without their consent)
Pavesich v New England Life Insurance – 1905, GA Supreme Ct
–          Pavesich’s photo used in life insurance ad without his consent; ad says he bought their insurance, while in fact he did not
–          Court holds there is a right to privacy, even though not written in jurisprudence yet, essential in civilized society – should have a right to whether his picture is pub’d in a newspaper
–          Approved Warren and Brandeis article; looking forward using rules of reason (“upward natural law”)
Why Protect Privacy?
1)     Protect Individual Freedom (Pasevich)
a.     Invasion of privacy analogized to slavery
2) Feminine modesty (De May, Manola, Rochester)
3) Respect for Persons (Benn)
4) Personality Development (Warren and Brandeis, Gilman)
William Prosser: Taxonomer of the Invasion of Privacy Tort (CA Law Review, 1960)
            – List 4 Defamation and Privacy Torts, adopted by Restatement:
Restatement of Torts, 2d
1)     Intrusion upon seclusion
a.     De May
2)     Publication of embarrassing private facts
a.     Even if it’s true, must everyone know it??
b.    Outing a gay man, even if publicly outed in community, but hasn’t told family
3)     Publicity placing a person in a false light
a.     Not quite defaming, but distorting the truth to make one look immoral, stupid, etc.
4)     Appropriation of name likeness and identity
a.     ie. Pasevich
January 17, 2008
II. Unwanted Intrusion into Others’ Intimacy, Seclusion and Solitude: Intrusion Tort
Notes from Reading: Class Notes added in blue
Restatement S 652B – Intrusion Upon Seclusion: 2 Elements
–          One who (1) intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if (2) the intrusion would be highly offensive to a reasonable person.
Hamburger v Eastman, p.35 –
Landlord/neighbor planted a listening device in married couple’s bedroom, they sued for invasion of privacy. Court ruled for couple, upholding right to privacy, stating that “publicity with respect to private matters of purely personal concern is an injury to personality. It impairs the mental peace and comfort of the individual and may produce suffering more acute than that produced by a mere bodily injury.”
Robert Post on the Social Foundations of Privacy, p.37 –
–          The integrity of individual personality is dependent upon the observance of social norms, and breaking these norms “discredits a person’s identity and injures his personality” by “denying the capacity to become a complete man”
–          The tort of intrusion offers protection to the emotional well-being of the plaintiff by serving 3 functions:
o    1) Safeguards the respect due individuals by virtue of their territorial claims
o    2) Maintains the language constituted by territories, thus conserving the particular meanings carried by that language
o    3) Preserves the ability of individuals to speak through the idiom of territories, which is somehow central to one’s identity
–          à An individual’s ability to press or to waive “territorial claims”, his ability to “choose respect or intimacy, is crucial to one’s sense of self, autonomy, and is a precondition of personhood”
Plaxico v Michael, p.40 –
            Ms. Michael was divorced from her husband, and living in a cabin with her daughter when her lesbian lover also moved in. Mr. Michael heard of the “illicit relationship,” was concerned for his daughter and desired to modify the custody arrangement, so he went to the cabin, peeped in the window, and took pictures of Ms Plaxico, the lesbian paramour, engaging in sexual relations with his ex-wife, in a semi-nude state. He developed these and showed them to his attorney. Ms Plaxico then filed an intrusion of privacy suit.
            The Court held that while publication of the photos is not required for recovery, the intrusion of privacy was not one that would be highly offensive to the reasonable person, and therefore, she did not establish all the necessary elements of her claim. They based this on the fact that the act was done purely out of Mr Michael’s best interests for the child, and the photos were only shown to his attorney, and therefore it was a reasonable if not necessary act.
            In dissent it is argued that Mr Michaels had no right to peep into his ex-wife’s bedroom window and take semi-nude pictures of her lover, regardless of the circumstances surrounding the child’s custody.
–          Court holds that conduct must be highly offensive prying AND adds the requirement that it be in bad faith
–          Court rules that here, conduct was not in bad faith, but done in best interest of child (in father’s opinion, and court seems to agree)
–          Community standards are quite relevant
Intrusions in Non-Private/Public Places
People for the Ethical Treatment of Animals v Bobby Berosini, p.42 –
            Worker at PETA filmed Berosini “disciplining” orangutangs without his knowledge or consent. B had an expectation of privacy/seclusio

led to privacy and peace of mind, and it is an actionable tort to invade this privacy.
Knight v Penobscot Bay Medical Center
–          Nurse’s husband watches patient Knight delivering her baby. Birth is an intimate moment and one is entitled to expect privacy at this time. 
–          Court ruled that husband did not intend to intrude upon her seclusion because he was unaware that his presence was offensive or intrusive, and this is an essential element for the tort. Appeal denied, judge properly left for the jury to determine if the defendant intentionally intruded upon seclusion.
Doe v High-Tech Inst., Inc (1998)
–          Student in medical class informed professor that he was HIV positive and asked her to keep the info confidential.   When testing other students for rubella, prof also had only his sample tested for HIV. When the results came back positive, the lab informed the school and the Dept of Health, according to law. Student sues for 1) intrusion upon seclusion for having the test performed without his knowledge or consent and 2) for unreasonable disclosure of private facts. 
–          Court holds that student has a privacy interest in his or her blood sample and the medical info that may be obtained from it. The unauthorized HIV test was an intrusion upon seclusion sufficient for relief, highly offensive to the reasonable person.
–          Privacy interest in one’s own body.
I.C.U. Investigations v Jones (2000), p.63 –  
– Jones was injured at work and sued for workers’ comp. The extent of his injury was disputed, and an investigator was hired who filmed Jones doing yard work in his front yard. 
– Court holds that it is not tortuous to follow someone around in public and take pictures, ie. investigate them- no wrongful intrusion. Any passerby could have observed what Jones was doing in the public of his front yard. 
Danai v Canal Square Assoc. (2004), p.63 – Snooping Through Trash
–          Danai threw a letter out which demonstrated that she had knowledge that she missed her deadline to renew her lease. Her landlord, Canal, went through her trash and retrieved the letter and used it against her in trial over the lease renewal. She sued for invasion of privacy, but Court held that she had no reasonable expectation of privacy once the letter had been thrown out and removed from her office. Even though garbage had not yet been placed on the curb, but removed to a trash room, Court holds that once it has left one’s deskside the expectation of privacy is lost. Putting garbage into office garbage room is functionally equivalent to putting garbage out on the curb.
Sexual Harassment and Stalking:
Vescovo v New Way Enterprises (1976)
–          “Hot lips deep throat” personal ad gave impression that housewife was inviting people to her apartment for “deep throat.” People came to her house and jeered as a result, invading her privacy. Reckless with regard to truth of ad published. 
Phillips v Smalley Maintenance Services
–          Asking someone to have sex with you again and again, they repeatedly say no, is that invasion of privacy? YES. Don’t need to receive answers, but act alone of prying is an intrusion of privacy.
Remsburg v Docusearch (2003), p73
–          Girl killed by her stalker. Stalker requested personal info regarding the girl from Docusearch, they provided info such as her work address for a fee. He then went to her workplace and murdered her. Court holds info released must have been secret/secluded/private.   Court holds that address of workplace is NOT private but readily observable. No action for intrusion of privacy can be maintained. 
Cookies and Spyware – an intrusion upon seclusion?
(Cookies a file implanted on a user’s hard drive when the user visits internet websites