7
Chapter 7 Outline:
7.1 What is privacy?
7.2 Perspectives of privacy
7.3 Privacy Laws
Introduction
While we have our own ideas of what privacy is, it is hard to define. Scholars, regulators, and consumers have struggled to define it. As scholar Robert Post, once said, “[p]rivacy is a value so complex, so entangled in competing and contradictory dimensions, so engorged with various and distinct meanings, that I sometimes despair whether it can be usefully addressed at all.” In order to effectively regulate something, there must be a clear defintiton. Some problems exist when trying to pin down a definition of privacy in order to regulate it. Consumers may express that they value their privacy yet readily give up their privacy for discounts from their favorite retail stores, “likes” on social media, or partake in app trends (such as the Google Arts & Culture app or Snapchat.) While an individual may say they care (when asked) but take steps to show the opposite for small rewards, too many corporations may place great monetary value on private data they collect. Those corporations may not, however, be as careful as they should with that data. More about data privacy will be discussed in Chapter 8.
7.1 What is privacy?
By the end of this section, you will be able to:
- Describe the general evolution of the concept of privacy
- Explain the importance of The Right to Privacy essay
Like many concepts in law, privacy has evolved over time. In the Colonial and Revolutionary eras (17th and 18th Centuries), the conception of privacy (though not likely called that) was rooted primarily in the Puritan enforcement and surveillance of moral behavior and protection of personal property. In the 19th century, citizens were concerned about the privacy of their correspondence, and with the advent of photography, what we can call now territorial privacy. In what has become known as one of the most influential legal essays in American law, Samuel Warren and future Supreme Court Justice Louis Brandeis discussed the “right to be let alone” in their 1890 essay, The Right to Privacy. In it, they recognized that the common law (cases) had begun to recognize a distinction between physical injuries and psychological harms. In 1890, the law had only recently recognized the tort of assault, a fear of injury, as an extension of battery, an actual physical injury. Similarly, Warren and Brandeis saw the potential for more than physical injuries as the result of new technology, such as the instantaneous photograph, and newspapers. Prior to the invention of the photographic film in the 1880s, with shorter exposure times and more mobile cameras, photographers required studio spaces with fragile glass plates. More importantly to Warren and Brandeis, subjects had previously consented via a contract to having their photos taken as they would often have to sit for relatively long periods of time for the exposure to occur. Much to the chagrin of Warren and Brandeis, new photographic technology had rendered the protections of contract and property law inadequate to protect those who had their photos taken secretively. Thus, the only avenue for redress could be in the law of torts, more specifically their proposed invasion of the right to privacy.
Interestingly, Warren and Brandeis did not precisely define the right to privacy, but rather relied on what Judge Thomas Cooley coined in 1879, “the right to be let alone.” With the advancement of technology and societal changes, courts would continue (and still do) struggle to define the right to privacy well into the 20th century. In 1956, Chief Judge Biggs of the U.S. Court of Appeals for the 3rd Circuit described the state of privacy law as “a haystack in a hurricane.” The chaotic nature of privacy jurisprudence and the laws at the time, would only get worse with a dizzying array of state and federal laws, regulations, case law, and privacy policies.
Excerpt from The Right to Privacy, Warren and Brandeis, Harvard Law Review (1890)
That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the “right to life” served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man’s spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, — the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term “property” has grown to comprise every form of possession — intangible, as well as tangible.
Thus, with the recognition of the legal value of sensations, the protection against actual bodily injury was extended to prohibit mere attempts to do such injury; that is, the putting another in fear of such injury. From the action of battery grew that of assault. Much later there came a qualified protection of the individual against offensive noises and odors, against dust and smoke, and excessive vibration. The law of nuisance was developed. So regard for human emotions soon extended the scope of personal immunity beyond the body of the individual. His reputation, the standing among his fellow-men, was considered, and the law of slander and libel arose. Man’s family relations became a part of the legal conception of his life, and the alienation of a wife’s affections was held remediable.Occasionally the law halted, as in its refusal to recognize the intrusion by seduction upon the honor of the family. But even here the demands of society were met. A mean fiction, the action per quod servitium amisit, was resorted to, and by allowing damages for injury to the parents’ feelings, an adequate remedy was ordinarily afforded. Similar to the expansion of the right to life was the growth of the legal conception of property. From corporeal property arose the incorporeal rights issuing out of it; and then there opened the wide realm of intangible property, in the products and processes of the mind, as works of literature and art, goodwill, trade secrets, and trademarks.
This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.
Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone.” Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.” For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons; and the evil of invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer. The alleged facts of a somewhat notorious case brought before an inferior tribunal in New York a few months ago, directly involved the consideration of the right of circulating portraits; and the question whether our law will recognize and protect the right to privacy in this and in other respects must soon come before our courts for consideration.
7.2 Perspectives of privacy
Learning Objectives
By the end of this section, you will be able to:
- Describe two of the four domains used to help define privacy.
- Understand the role of the Supreme Court in enumerating privacy rights
One reason that privacy is so difficult to define is that it contains many different concepts or domains. Splitting privacy into different domains can be helpful in thinking about it. Bodily privacy, territorial privacy, communication privacy, and data privacy are four domains. This section will discuss bodily and territorial privacy. The two other domains, communication and data privacy will be discussed in Chapter 8.
Bodily Privacy
This domain includes how genetic testing, health research, drug testing, and abortion rights impact personal bodily privacy. In the 1960s and 1970s, the Supreme Court interpreted the Constitution in a series of cases to protect a number of rights not explicitly enurmerated in the Constitution to include, the right to martial privacy (Griswold v. Connecticuit, 1965), the right to procreation (Eisenstadt v. Baird, 1972), and the right to abortion (Roe v. Wade, 1973). In Poe v. Ullman (1961) the Supreme Court considered a challenge to a Connecticut contraceptive ban, that would eventually be struck down later in Griswold. In that case, Justice Harlan authored a dissent that would have an enormous impact on the interpretation of the Constitution by the modern Supreme Court. Justice Harlan noted:
[t]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms in the United States; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.
Though the Court in Poe upheld that contraceptive ban, the Court subsequently in Griswold struck down the ban, laying the groundwork for the right to privacy in the bodily privacy domain. Because the Constitution, as Justice Harlan pointed out in Poe, does not contain the right to contraceptive, Justice Douglas looked to prior cases to “suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them live and substance.”
Though vaccinations and those against vaccinations (anti-vaxers) are not new, COVID-19 has thrust arguments of bodily autonomy and privacy back into the limelight. Many state government officials have railed against mandated COVID vaccines and mask mandates, arguing that personal medical decisions are protected by the right to privacy, a natural right that supersedes governmental needs. However, the governmental interest in public safety can supersede supposed individual rights to privacy. The governmental interest in the form of laws like mandates, are presumed valid, and would most likely succeed a challenge on Constitutional grounds.
Territorial Privacy
This domain includes video surveillance, house and vehicle searches, and physical access restrictions. Territorial privacy is a historical concept going back to the 19th century referring to personal space. However, in the modern world, according to some scholars, territorial privacy deserves new attention as “boundaries spanning both the physical and virtual world are required for demarcation of personal spaces in smart environments.”
The Founding Fathers thought enough about being protected from the over zealous use of search warrants to include a limitation on searches and seizures by the government (after the ratification of the Constitution) in what became known as the Bill of Rights. The 4th Amendment creates a limitation for the government to search or seize a person or property.
In 2019, New England Patriots (American football team) owner, Robert Kraft, along with 25 other men faced misdemeanor charges for soliciting prostitution at a day spa in Florida. Investigators captured Kraft on cameras secretly installed in the spa. Kraft sought to have the evidence of the video suppressed based upon the way upon which the police captured the video as violating Kraft’s 4th Amendment protection against unreasonable searches. A Florida appeals court agreed with Kraft, ruling that the video was inadmissible as evidence in court, affirming a lower court’s ruling that the “sneak and peak” search warrant used to obtain the video evidence violated the 4th Amendment of Kraft and others caught up in the sting. While some people may have gone to the day spa for nefarious purposes, yet others may not have and were caught on camera. Thus, this violated the right to privacy as protected by the 4th Amendment. The court’s ruling on the evidence being inadmissible proved to be fatal to the prosecutions cases as it was the only evidence they had.
7.3 Privacy Laws
By the end of this section, you should be able to:
- Describe the three privacy causes of action based in tort law
As noted above, the state of privacy laws in the United States is a tangled web of laws, regulations, and policies. Legislators for years have attempted to legislate privacy using the concept of “mandated dislocusre” as they lynchpin for legal protections. The idea is that if consumers know what information companies or the government is using and how they are using it, then the consumer is protected. This of course, is built on the fallacy that simply being told information in a variety of fine print disclousres means that it is understood. More on mandated disclosure will be discussed in the context of information privacy in Chapter 8.
Covering the domains of bodily and territorial privacy, tort law provides causes of action (a set of predefined factual elements that allow for a legal remedy) that individuals can bring in specific circumstances. The Restatement (Second) of Torts describes three causes of action that some state courts recognize.
- Intrusion upon seclusion is defined “as one who 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 the intrusion would be highly offensive to a reasonable person.” In Lawlor v. North American Corporation of Illinois, the Illinois Supreme Court adopted the Restatement’s definition of intrusion upon seclusion as an actionable tort in the state. Intrusion upon seclusion cases often involve investigations conducted by private employers to determine if an employee has violated a non-compete agreement or actually suffered an injury for a worker’s compensation claim.
- Appropriation of name or likeness is defined “as one who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.” The right to use one’s own name or likeness for commercial purposes is known in Illinois as the right to publicity, which empowers people to limit or control appropriation. This statute supersedes the common law tort of appropriation in the state.
- Publicity given to private life is defined as “one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that: a) would be highly offensive to a reasonable person, and b) is not of legitimate concern to the public.” Illinois courts have recognized this cause of action through adoption of the Restatement definition.
Endnotes
Bastian Könings, Florian Schaub, Michael Weber, Frank Kargo, Towards Territorial Privacy in Smart Environments (n.d.).
Matt Bonesteel, Charges Against Patriots’ Robert Kraft Dropped in Florida After Ruling on Video Evidence, The Washington Post (2020), https://www.washingtonpost.com/sports/2020/09/24/robert-kraft-charges-dropped/.
Robert C. Post, Three Concepts of Privacy, 89 Geo L. J. 2087 2000-2001.
Tyler Smith, Haystack in a Hurricane: Mandated Disclosure and the Sectoral Approach to the Right to Privacy, Yale Journal on Regulation Bulletin (2020), https://www.yalejreg.com/bulletin/haystack-in-a-hurricane-mandated-disclosure-and-the-sectoral-approach-to-the-right-to-privacy/.
What is Privacy, UC San Diego (n.d.), https://privacy.ucsd.edu/privacy/index.html.