Information Privacy Law – Richards, Spring 2006

Origins of Information Privacy Law

  1. Common Law Privacy
  2. Warren & Brandeis
  3. Legal Protections of Privacy have roots in common law
  4. Copyright & Defamation, etc.
  5. Exceptions to the Right of Privacy
  6. Matters of public or general interest
  7. Except flagrant breaches of decency
  8. Matters published in court or legislature
  9. Oral publication in the absence of special damages
  10. Privacy ends by publication by the individual with his consent
  11. Defenses:
  12. Truth is not a defense
  13. Absence of malice is not a defense
  14. Remedies
  15. An action of tort for damages in all cases
  16. An injunction in certain limited instances
  17. Constitutional Privacy
  18. Substantive Due Process & The Constitutional Right to Privacy
  19. Roe v. Wade
  20. Zone of privacy is created by the penumbras of Amendments 1, 3, 4, 5, 9
  21. Whalen v. Roe
  22. Upheld State record system that recorded the name of users of certain prescription drugs
  23. DICTA: The right to collect the data is accompanied by a duty to avoid unwarranted disclosures
  24. The Westinghouse Test
  25. Type of record requested
  26. Information the record does or might contain
  27. Potential for harm in any subsequent nonconsensual disclosure
  28. Injury from Disclosure to the relationship in which the record was generated
  29. Adequacy of safeguards to prevent unauthorized disclosure
  30. Degree of need for access
  31. Whether there is an express statutory mandate, articulated public policy or other recognizable public interest militating toward access
  32. § 1983 Constitutional Torts
  33. Cause of action against state actors who violate federal law/Constitution
  34. “Bivens” action against federal actors
  35. Carter v. Broadlawns Medical Center
  36. Patients must approve before hospital chaplains may access their medical information
  37. Doe v. Borough of Barrington
  38. Once the government has confidential information it has a duty to avoid unwarranted disclosure
  39. Doe v. SEPTA
  40. In the absence of actual harm, limited disclosure of Doe’s HIV status in review of medical insurance claims for fraud was not actionable
  41. Interest in containing costs outweighs minimal intrusion
  42. Evidentiary Privileges
  43. Attorney-client, physician-patient, spousal, priest-penitent
  44. Crime Fraud Exception – communications made in furtherance of a crime are not protected
  45. Confidentiality Tort
  46. Liability for Disclosure
  47. McCormick v. England
  48. Fiduciaries have a duty to not disclose confidences UNLESS:
  49. Required by law
  50. In client’s interest
  51. No requirement of “highly offensive” or “likely to cause serious mental injury”
  52. Hammonds v. Aetna
  53. A third party who induces a fiduciary to breach his duty of loyalty is liable directly to the aggrieved party
  54. Liability for Non-Disclosure
  55. Tarasoff v. Regents of UC
  56. Generally there is no duty to warn others of the conduct of a third party
  57. EXCEPT: When the Δ has a “special relationship” to either the person in danger or the person whose conduct may cause harm
  58. Doctor must use professional standard of care
  59. Protective privilege ends where public peril begins
  60. Statutory Privacy
  61. Sidis v. F-R Publishing Corp.
  62. NY statute protecting privacy did not bar publication of an article about a former child prodigy – “involuntary public figure”
  63. Philosophical Perspectives
  64. Westin
  65. States of Privacy: Solitude, Intimacy, Anonymity, Reserve
  66. Schwartz
  67. Privacy protects autonomous decision making
  68. Cohen
  69. Information privacy is key to democracy, if people are watched they will make more mainstream choices
  70. Posner
  71. Privacy hides true things, allows fraud & deceit
  72. Murphy
  73. Privacy is efficient, it allows people to do things that make them happy that they wouldn’t otherwise
  74. Siegel
  75. Presumption of marital privacy has allowed men to beat/subordinate women
  76. Allen
  77. Women have more equality now, should embrace privacy so long as it is available to them on equal terms
  78. Etzioni
  79. Humanitarians – Lack of privacy increases community social pressure to treat others well

Privacy & The Media

  1. Intrusion Upon Seclusion
  2. Restatement
  3. One who intentionally intrudes, physically or otherwise,
  4. Upon the solitude or seclusion of another or his private affairs or concerns,
  5. Is subject to liability to the other for invasion of his privacy, IF the intrusion would be highly offensive to a reasonable person
  6. Nader v. GM
  7. Holds that harassing phone calls are not an “intrusion”
  8. Other courts have held otherwise
  9. “Overzealous” surveillance of person in public may be actionable
  10. Dietemann v. Time, Inc.
  11. Magazine did not have First Amendment defense when it lied to gain access to a private residence where a man offered “healing” services without charge
  12. Desnick v. ABC
  13. Undercover investigative report in doctor’s office did not invade any person’s private space
  14. Food Lion
  15. Press is subject to generally applicable rules
  16. Press may get special treatment when it comes to damages, e.g. $1 fine
  17. Shulman v. Group W
  18. It is possible for one to have a reasonable expectation of privacy in an ambulance
  19. It is possible that conversations with paramedics are confidential
  20. Public Disclosure of Private Facts
  21. Restatement
  22. One who gives publicity
  23. Generally disclosure to the public at large, but see Motorola
  24. To a matter concerning the private life of another
  25. Is subject to liability to the other for invasion of his privacy if the matter publicized is of a kind that:
  26. Would be highly offensive to a reasonable person, AND
  27. Objective reasonable person standard
  28. Not moderate or minor annoyances, but serious grievances
  29. Is not a legitimate concern to the public
  30. Non-newsworthy, not the same standard as 1st Amendment protection
  31. Private Matters
  32. Gill v. Hearst
  33. Photograph of couple hugging in public market was not private
  34. Daily Times Democrat v. Graham
  35. Although public events cannot generally be private, if an event exposes the person in an embarrassing way it may be private
  36. McNamara v. Freedom Newspapers
  37. Photograph of soccer game exposed genitals of player inadvertently
  38. No liability – distinguishable from Graham because there the newspaper knew the photo was embarrassing
  39. Publicity
  40. Miller v. Motorola, Inc.
  41. Public disclosure requirement may be satisfied by disclosure to a limited group of people with a “special relationship” to the victim
  42. Newsworthiness Test
  43. Sipple v. Chronicle Publishing Co.
  44. Disclosure of sexuality was newsworthy because it had bearing on whether a public figure had bias against gays
  45. Outing
  46. Exposes illogic of government discrimination
  47. Provides positive gay role models
  48. Breaks down stigma
  49. Newsworthiness Tests
  50. Leave it to the Press
  51. Defers to editorial judgment
  52. Customs and Conventions of the Community
  53. Giving information – OK; Morbid & Sensational prying – NO
  54. Nexus Test
  55. Logical nexus to a matter of legitimate public interest
  56. Shulman v. Group W
  57. Auto accidents are newsworthy
  58. First Amendment Limitations
  59. NYT v. Sullivan
  60. The 1st Amendment requires that the media be protected from liability for even false information absent “actual malice”
  61. Gives media “breathing room”
  62. Cox Broadcasting v. Cohn
  63. State cannot impose liability for publishing names of rape victims learned in court documents
  64. Daily Mail
  65. First Amendment protects only lawfully obtained information
  66. Florida Star v. BJF
  67. Court struck down punishment for publishing name of rape victim learned from police report despite posted signs that such names were not public records
  68. Less restrictive means available – redact the police reports
  69. Restrictions on lawfully obtained information are punishable absent the need to further a state interest of the “highest order”
  70. Illegally Obtained Information
  71. Bartnicki v. Vopper
  72. Media cannot be barred from reporting details of conversation obtained illegally by an unsolicited third party
  73. Defamation
  74. Restatement
  75. A false and defamatory statement concerning another
  76. An unprivileged publication to a third party
  77. Fault mounting at least to negligence on the apart of the publisher
  78. Either actionability of the statement irrespective of special harm or the existence of special harm caused by publication
  79. Definitions:
  80. Defamatory: tends to harm the reputation of another as to lower him in the estimate of the community or to deter third persons from associating or dealing with him
  81. Publication: communication to a third party
  82. Libel: written or printed defamation
  83. Broadcasting is considered libel
  84. No “special harm”
  85. Slander: spoken defamation
  86. “Requires proof of actual pecuniary harm, EXCEPT:
  87. Slander per se:
  88. Criminal offense
  89. Loathsome disease
  90. A matter incompatible with one’s business, trade, profession, or office
  91. Serious sexual misconduct
  92. Liability for transmission
  93. Failure to remove defamatory statements under one’s control
  94. One who repeats or publishes defamation is liable if they would have reason to know of its defamatory character
  95. Defamation on the Internet
  96. Publishers vs. Distributors
  97. Law generally distinguishes between those who publish defamation (book publisher may be liable), and those who merely distribute it (bookstore may not be liable
  98. No “conduit” liability for telephone companies, etc.
  99. Cubby v. Compuserve
  100. Court found Compuserve to be a distributor
  101. Stratton Oakmont v. Prodigy
  102. Court found Prodigy to be a publisher because screening program allowed them to exercise some control
  103. Communications Decency Act
  104. ISPs are not publishers
  105. Zeran v. AOL
  106. Court found AOL not liable for third party postings, even when it received a notice or complaint
  107. Blumenthal v. Drudge
  108. Court refused to hold AOL a publisher of Drudge’s content despite its contract w/ him and editorial control
  109. Relied on express statutory language of CDA
  110. Barrett v. Rosenthal
  111. Found that liability in Drudge type situation would not have substantial chilling effect or be contrary to CDA
  112. First Amendment Limitations
  113. NYT v. Sullivan
  114. Actual malice required before public figures can recover for defamation
  115. Made w/ knowledge that it was false or w/ reckless disregard for truth
  116. Gertz v. Robert Welch, Inc.
  117. Actual malice is not required for private citizens
  118. For “limited purpose public figures”
  119. Actual malice required only on subjects related to their notoriety
  120. Silvester
  121. Three prong test for limited purpose public figure
  122. Isolate the public controversy
  123. Examine the plaintiff’s involvement in the controversy
  124. Determine whether the alleged defamation was germane to the plaintiff’s participation in the controversy
  125. False Light
  126. Restatement
  127. One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, IF:
  128. The false light in which the other was placed would be highly offensive to a reasonable person
  129. The actor had knowledge of or acted in a reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed
  130. Lake v. Wal-Mart
  131. Minnesota refused to recognize false light tort on grounds that it was too similar to defamation and in tension with the First Amendment
  132. First Amendment Limitations
  133. Time v. Hill
  134. Actual malice required for false light claim
  135. Possible that Gertz modified this standard
  136. Infliction of Emotional Distress
  137. Restatement
  138. One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm
  139. Hustler Magazine v. Falwell
  140. Actual malice standard applies to public figures suing under IIED
  141. Appropriation of Name or Likeness
  142. Restatement (Torts)
  143. One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for the invasion of his privacy
  144. Δ must have appropriated to his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the Π’s name or likeness
  145. Restatement (Unfair Competition)
  146. One who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identify for purposes of trade is subject to liability for monetary and injunctive relief
  147. Appropriation vs. “Right of Publicity”
  148. Appropriation is for private figures (embarrassment)
  149. Right of Publicity is for public figures (loss of revenue)
  150. Name or Likeness
  151. Carson v. Here’s Johnny Portable Toilets
  152. Court rejected invasion of privacy claim – Carson already a public figure
  153. Court allowed publicity claim – protects pecuniary interest of Carson
  154. What is name or likeness:
  155. Well-known nicknames (e.g. “The Greatest”)
  156. Identifying characteristics (e.g. distinctive race car w/ faceless driver)
  157. Impersonations
  158. Fictitious personas (e.g. Laurel & Hardy)
  159. NOT telling a persons life story
  160. Public Interest
  161. The Real Relationship Test
  162. There must be a legitimate connection between the Π’s name and photograph and the matter of public interest
  163. Finger v. Omni Publications International, Ltd.
  164. Article on in vitro fertilization & caffeine using picture of large family who never used either method to conceive met the test
  165. Link between family size and fertility
  166. Should be regulated only where the news article is really an advertisement in disguise
  167. First Amendment Limits
  168. Zacchini v. Scripps-Howard Broadcasting
  169. First Amendment does not give press the right to broadcast performers entire act

Privacy & Law Enforcement

  1. The Fourth Amendment
  2. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  3. The courts can order a Δ to produce papers that incriminate the Δ – No Fifth Amendment privilege in papers
  4. Plain View exception
  5. Warrant requirement applies only to “searches”
  6. Reasonableness
  7. Warrant search generally reasonable
  8. Warrantless search generally per se unreasonable
  9. EXCEPT: exigent circumstances
  10. “Special Needs”
  11. Allows warrantless searches when law enforcement is not the purpose
  12. “Checkpoints”
  13. No random stopping for license and registration, but sobriety checks are OK
  14. “Information-seeking” stops are OK
  15. Terry Stops
  16. Officers with reasonable suspicion may briefly stop a person and frisk for weapons
  17. The Exclusionary Rule
  18. Evidence obtained in violation of the 4th Amendment (and its products) can be suppressed at trial
  19. Exception: Independent Source Rule & Leon good faith exception
  20. Wiretapping & Bugging
  21. Olmstead v. U.S.
  22. Court held that Fourth Amendment did not apply to wiretap installed outside the home
  23. Brandeis argued in dissent that Constitutional protections against abuses of power must have the capacity to adapt to a changing world
  24. Federal Communications Act
  25. In response to Olmstead, Congress made unauthorized wiretapping a crime
  26. HoffaLewis Cases
  27. Assumption of Risk – when you talk with someone you assume the risk that they will divulge the information, or that the person is not who they say they are
  28. Silverman
  29. “Spike mike” which touched heating duct to hear conversation in next house was an unauthorized physical encroachment
  30. Lopez v. U.S.
  31. No violation in recording conversation with federal agent where agent could testify to the conversation in court
  32. Katz v. U.S.
  33. Fourth Amendment protects people not places
  34. Closed phone booth is protected
  35. Reasonable Expectation of Privacy Test (concurring opinion)
  36. Person must exhibit an actual expectation of privacy (subjective)
  37. The expectation must be one that society recognizes as reasonable (objective)
  38. U.S. v. White
  39. Recording by federal agent concealed in home of informant admissible
  40. The Reasonable Expectation of Privacy Test
  41. Smith v. Maryland
  42. Allowed use of pen register without warrant b/c no objective expectation
  43. Numbers you dial are always relayed to the phone company
  44. Assumption of Risk
  45. Analogy to envelope information vs. content information
  46. California v. Greenwood
  47. Garbage searches are OK
  48. Assumption of Risk & Abandonment rationale
  49. Plain View, Open Fields, & Curtilage
  50. Plain View: If it is possible for something to be seen or heard from a public vantage point, there can be no reasonable expectation of privacy
  51. Open Fields
  52. No reasonable expectation of privacy in open fields
  53. Curtilage
  54. Parts of one’s property immediately outside one’s home do not fall within the open fields doctrine
  55. Florida v. Riley
  56. No general right of privacy in curtilage which is visible from a helicopter
  57. Public has right to fly over and see what can be seen with the naked eye
  58. Sensory Enhancement Technology
  59. Dow Chemical v. U.S.
  60. Sensory enhancement technology does not change the Riley rule
  61. Mere enhancement of what the naked eye can see is acceptable
  62. Camera used was available to the public
  63. Kyllo v. U.S.
  64. Obtaining, by sense-enhancing technology, any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search – at least where the technology is not in general public use
  65. Constitutional Privacy in the Home
  66. Stanley v. Georgia
  67. Private possession of obscene materials in the home cannot be a crime
  68. State has no business telling a man in his home what he may read or watch
  69. Osborne v. Ohio
  70. Constitution does not protect possession of child pornography in the home
  71. Court examines the State’s motives:
  72. Seeking to destroy the market for an activity that requires the exploitation of children
  73. Wilson v. Layne
  74. Police actions in execution of a warrant must be related to the objectives of the authorized intrusion
  75. Bringing reporters along is not related
  76. Federal Electronic Surveillance Law
  77. § 605 of the Federal Communications Act (1934)
  78. Made all wiretapping a federal crime
  79. Court implied an exclusionary rule in Nardone
  80. Title III of the Omnibus Crime Control Act (1968)
  81. Required federal agents to apply for a warrant before wiretapping
  82. Standard was probable cause
  83. National security exception applied only to external threats
  84. Electronic Communications Privacy Act (ECPA) (1986)
  85. Scope
  86. Applies to government agents and private parties
  87. Types of Communications
  88. Wire
  89. Aural transfer that travels through a wire
  90. Aural transfer = communication containing the human voice
  91. Oral
  92. Communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such an expectation
  93. Electronic
  94. Any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photelectronic or photooptical system that affects interstate or foreign commerce
  95. Title I: The Wiretap Act
  96. Prohibits intentional interception, use, or disclosure
  97. Warrants: Judge must find
  98. Probable Cause of crime
  99. That communications concerning the offense will be obtained
  100. Alternatives to wiretapping were attempted and failed, or reasonably appear to be unlikely to succeed or to be too dangerous
  101. Warrant can last for 30 days
  102. Exclusionary Rule applies
  103. Title II: The Stored Communications Act
  104. Scope: Applies to
  105. Any temporary, intermediate storage of a wire or electronic communication incidental to the transmission thereof, or
  106. Any storage of such communication by an electronic communications service for purposes of backup protection of such communication
  107. Warrants
  108. < 180 days – probable cause
  109. > 180 days – notice to subscriber, subpoena/court order, specific and articulable facts showing that there are reasonable grounds of relevance
  110. Notice can be waived upon probable cause showing
  111. No exclusionary rule
  112. Title III: The Pen Register Act
  113. Requires court order
  114. Less than probable cause standard: Gov. must certify information is likely to be relevant to ongoing investigation
  115. No exclusionary rule
  116. After the PATRIOT ACT
  117. Now applies to Internet address, the “to” and “from” lines on email, and other “routing” or envelope information
  118. Independence of the Fourth Amendment
  119. ECPA is applied independently of the Fourth Amendment
  120. Installation of Bugs
  121. Government can covertly enter a home to carryout an electronic surveillance warrant
  122. Enforcement
  123. Exclusionary rule for wire & oral communications under Title I ONLY
  124. Criminal and civil penalties for violations
  125. Video Surveillance
  126. Silent video surveillance is not covered under federal law
  127. Fourth Amendment still applies
  128. Email Surveillance
  129. Steve Jackson Games, Inc. v. U.S. Secret Service
  130. Email stored on server after being sent but before being read is in electronic storage and therefore protected by Title II
  131. What about email that has been read, but is still stored remotely on an ISP?
  132. DOJ Position: A remotely stored file, Title II does not apply
  133. 9th & 3rd Circuit Position: The storage is for backup, so Title II applies
  134. CALEA – Communications Assistance for Law Enforcement Act
  135. Requires electronic communications providers to provide infrastructure to assist law enforcement
  136. Terrorism & National Security
  137. Foreign Intelligence Surveillance Act (FISA)
  138. Applies when foreign intelligence gathering is a “significant purpose” of the investigation (no longer primary purpose)
  139. Must have probable cause that the party to monitored is a “foreign power” or “an agent of a foreign power”
  140. If the target is a “US person” then must have probable cause that person may or are about to involve a criminal violation
  141. No warrant required if:
  142. Exclusive purpose is to obtain intelligence from foreign powers
  143. No substantial likelihood that the surveillance will acquire the contents of any communications to which a United States person is a party
  144. AG must approve
  145. FISA does not violate the Fourth Amendment
  146. Global Relief Foundation v. O’Neil
  147. FISA provision allowing Gov. to act and then seek warrant up to 72 hours later is Constitutional
  148. U.S. v. Isa
  149. FISA requirement that communications not related to foreign intelligence be destroyed does not prohibit retention of communications that are evidence of other domestic crimes
  150. National Security & The Fourth Amendment
  151. Keith: Different standards may be compatible with the 4th Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens
  152. FISA & The Wall
  153. In Re Sealed Case
  154. There must be a “realistic option” of dealing with the target in a way other than criminal prosecution to satisfy the “significant purpose” test
  155. Even if FISA doesn’t meet 4th Amendment standards, it “comes close”

Privacy of Associations & Anonymity