Privacy Law Outline

 
PRIVACY LAW
Professor Winn – Autumn 2015
 
Introduction to Privacy: History, Doctrine, and Philosophy
Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
Developments in the late 1800s created a growing interest in privacy.
1.    The press became increasingly sensationalistic (Pulitzer and Hearst).
2.    Technological developments caused great alarm for privacy (photographs, “snap camera”) (“unauthorized taking of photographs”).
“Right of life” expanded from freedom from actual restraint to right to enjoy life and “right to let alone” (right of privacy).  Later included right to intellectual and emotional life.
·         Led to laws of defamation and slander (damage to reputation) vs. literary and artistic property.
·         “The common law secures to individuals the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.”
General rules of the right of privacy (exceptions to property right to be let alone):
1.    The right of privacy does not prohibit any publication of matter which is of public or general interest.
2.    The right of privacy does not prohibit the communication of any matter, though in its nature private, when the publication is made under circumstances which would render it a privileged communication according to the law of slander and libel.
3.    The law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage.
4.    The right to privacy ceases upon the publication of the facts by the individual, or with his consent.
5.    The truth of the matter published does not afford a defense.
6.    The absence of malice in the publisher does not afford a defense.
 
Alan Westin, Privacy and Freedom
Privacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others (self-determined social withdrawal).
·         Privacy is the voluntary and temporary withdrawal of a person from the general society through physical or psychological means.
Four basic states of individual privacy:
1.    Solitude: individual is separated from the group and freed from observation of other persons.
2.    Intimacy: individual is acting as part of a small unit that claims and is allowed to exercise corporate seclusion so that it may achieve a close, relaxed, and frank relationship between individuals.
3.    Anonymity: individual is in public places or performing public acts but still seeks, and finds, freedom from identification and surveillance.
4.    Reserve: creation of a psychological barrier against unwanted intrusion; occurs when individual’s need to limit communication about himself is protected by the willing discretion of peers.
Various states of privacy:
1.    Personal Autonomy: the capacity to decide for oneself and pursue a course of action in one’s life, often regardless of any particular moral content (“the gap between what he wants to be and what he actually is, between what the world sees of him and what he knows to [himself] to be . . .”).
2.    Emotional Release: societal tension and stress demands periods of privacy for various types of emotional release for optimal physical and psychological health.
3.    Limited and Protected Communication: provides the individual with opportunities he needs for sharing confidences and intimacies with those he trusts; individual often wants to seek counsel from persons with whom he does not live daily after disclosing his confidences.
 
Julie Cohen, Examined Lives
Prevailing data privacy policies treat preferences for informational privacy as a matter of individual taste, entitled to no more weight than other everyday preferences (i.e., white wine or red wine).
·         Informational autonomy comports with important values concerning the fair and just treatment of individuals within society (respect for the fundamental dignity of persons).
·         Individuals must learn to process information and to draw our own conclusions about the world
·         Autonomous, unmonitored choice promotes a vital diversity of speech and behavior
·         Experience of being watched will constrain the acceptable spectrum of belief and behavior; condition of no-privacy suppresses individuality and dampens aspirations to it.
 
Richard Posner, The Right of Privacy
A critique of Warren and Brandeis.  Argues that gossip columns recounting the lives of successful and wealthy people yield information to the ordinary person in making consumption, career, and other decisions.  “Gossip columns . . . are genuinely informational.”
·         Attributes the rise of gossip columns to secular increase in personal incomes
·         More popular in wealthier societies because people have more disposal time and income
·         People should be able to protect themselves from disadvantages transactions by disclosing concealed facts about individuals that are material to the representations (implicit or explicit) that those individuals make concerning their moral qualities.
·         Very few people want to be let alone.  They want to manipulate the world around them by selective disclosure of facts about themselves.
 
State v. Rhodes (1868)
Facts: Husband was indicted for an assault and battery upon his wife.  Rhodes struck wife three licks with a switch about the size of his fingers without any provocation.  Lower court found that defendant had the right to whip his wife; defendant found not guilty.  State appealed.
Issue: Whether the court will allow a conviction of a spouse for moderate correction of his partner without provocation.
Held: Family government is recognized by law as being as complete in itself, similar to the State government.  The State should interfere with or attempt to control family governance, in favor of either the husband or wife, except in cases where permanent or malicious injury is inflicted or threatened, or the condition of the party is intolerable.  It is better for a family to keep trivial matters private, as to not be disgraced or exposed to the public.  “We will not inflict upon society the greater evil of raising the curtain upon domestic privacy, to punish the lesser evil of trifling violence.”
 
Griswold v. Connecticut (1965)
Facts: Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the medical director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law, which criminalized the provision of counseling, and other medical treatment, to married persons for purposed of preventing conception.
Issue: Does the Constitution protect the right of material privacy against state restrictions on a couple’s ability to be counseled in the use of contraceptives?
Held: Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments create a new constitutional right, the right to privacy in marital relations.  The Connecticut statute conflicts with the exercise of this right and is therefore null and void.
 
Privacy and Law Enforcement
Summary of Fourth Amendment Law
When people given right of privacy, people use to manipulate laws.  Privacy allows bad people to do bad things by concealing bad things about themselves.  May sue for constitutional violation (Fourth Amend.), trespass, or motion to compel return of property.
·         Need to determine what amount of surveillance is optimal.  Too much surveillance is a bad thing; actors will presume they are being monitored and will hide evidence.
 
Olmstead v. United States
Facts: The conversations of various individuals involved in illegal liquors sales were tapped.
Issue: Whether the use of evidence of private telephone conversations between defendants and others, intercepted by means of wire tapping, violated the Fourth and Fifth Amendments.
Held: Wire-tapping does not include a physical search or seizure, and thus, there was no violation of the Fourth Amendment.  The evidence here was secured by us