Copyright © 2009 – Jeffrey Pittman Privacy Copyright © 2009 – Jeffrey Pittman

A Right to Privacy Writing in the Harvard Law Review in 1890, Louis Brandeis and Samuel Warren proposed that the courts recognize a new legal right, the right to privacy The right to privacy, as proposed, was a basic right to be left alone Privacy Law - Jeffrey Pittman

Privacy Concerns Today - Monitoring by Employers Around four out of five major U.S. firms record or review employee workplace activities and communications The activities monitored include telephone calls, e-mail messages, Internet activities, and computer files Employer surveillance techniques include videotaping employees, recording telephone conversations, logging Internet sites visited, and analyzing computer use regarding time logged on and keystroke counts Privacy Law - Jeffrey Pittman

Privacy Concerns Today - Monitoring by the Government Government monitoring of individuals has increased post-9/11 We will not focus on government monitoring as this is primarily a political versus a business issue Privacy Law - Jeffrey Pittman

Privacy Concerns Today - Monitoring by Private Companies Individual private information is available from companies such as www.secret-info.com The information available includes an individual’s social security number, unlisted telephone number, license plate number, information on neighbors and relatives, and property ownership Privacy Law - Jeffrey Pittman

Privacy Rights under the Law US Constitution Federal Statutory Law –various miscellaneous statutes State Constitutions & Statutes State Common Law Privacy Law - Jeffrey Pittman

Privacy & the United States Constitution The Unites States Constitution, specifically the Bill of Rights, is designed to protect individuals from government intrusion into their lives The protections for individuals found in the Constitution only provide protection from the government - private (nongovernmental) action is not regulated by the Constitution Privacy Law - Jeffrey Pittman

Privacy & the United States Constitution Privacy is not directly mentioned in the Constitution The courts have inferred privacy protection from other Constitutional provisions in the First, Fourth, Fifth, and Ninth Amendments Rosario v. United Staes of America (privacy handout) provides an example of privacy under the Fourth Amendment Privacy Law - Jeffrey Pittman

The Constitution & the Bill of Rights Amendment IV 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 Privacy Law - Jeffrey Pittman

The Fourth Amendment and Searches If the searching party is a government employee: US Constitution – The Fourth Amendment applies, protecting against unreasonable searches and seizures in areas where a reasonable expectation of privacy exists If the searching party is not a government employee: No federal law is applicable; look to state law Privacy Law - Jeffrey Pittman

The Fourth Amendment and Searches Regarding searches by government employees under the Fourth Amendment: If the employee is a police officer, a search warrant is usually required If the employee is not a police officer, the intrusiveness of the search is balanced against the need for the search The searched party’s expectation of privacy is a key component of this analysis Privacy Law - Jeffrey Pittman

Privacy & Various Federal Statutes The Computer Fraud and Abuse Act The Fair Credit Reporting Act The Right to Financial Privacy Act The Cable Communications Policy Act The Video Privacy Protection Act The Financial Services Modernization Act The Privacy Act Privacy Law - Jeffrey Pittman

A Key Federal Statute - The Electronic Communication Privacy Act (ECPA) Title I of the ECPA (the Wiretap Act), provides a civil cause of action against “any person who … intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.” Privacy Law - Jeffrey Pittman

The ECPA Title II of the ECPA (the Stored Communications Act) establishes civil liability for one who: “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system. Privacy Law - Jeffrey Pittman

ECPA Defenses Under the ECPA, employers are free to monitor or intercept electronic messages where employees have consented to such monitoring, made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public, or whenever such monitoring is in the ordinary course of business Privacy Law - Jeffrey Pittman

ECPA Case Example – Bailey v. Bailey How was the ECPA applied in Bailey? Privacy Law - Jeffrey Pittman

ECPA Case Example - Fisher v. Mt. Olive Lutheran Church Mt. Olive Lutheran Church employed Randall Fischer as a youth minister. While at the church, an employee intercepted an explicit homosexual telephone conversation between Fischer and another man Later, the church used a computer expert to gain access to Fischer’s private Hotmail account to view his email messages Privacy Law - Jeffrey Pittman

The Fischer case – Key Actors Ray O’Connor Senior Pastor Randall Fischer Youth Minister Rose Salzmann Secretary Sandra Janiszewski Business Manager Privacy Law - Jeffrey Pittman

The Fischer case The church argues that, according to plaintiff, he was counseling a homosexual man, a task that falls within his job description In contrast, plaintiff argues that his call was personal and that the church employees had an obligation to stop listening as soon as they determined that the call was personal in nature Privacy Law - Jeffrey Pittman

State Constitutional and Statutory Privacy Protections Most states, including Arkansas, have privacy protections that are similar in scope to federal laws Some states provide additional protections for medical records, insurance, school records, credit and banking information, for example Privacy Law - Jeffrey Pittman

State Common Law Privacy Rights Through the common law process, state courts have developed the following torts, providing additional privacy protections Intrusion Upon Seclusion Public Disclosure of Private Facts Causing Injury to Reputation Publicity Placing Another in a False Light in the Public eye Misappropriation of a Person’s Name or Likeness Privacy Law - Jeffrey Pittman

Intrusion This tort is an intrusion upon a person’s right to seclusion or solitude There is liability only if the interference with the plaintiff's seclusion is a substantial one, highly offensive to the ordinary reasonable person The “offensiveness” of the intrusion is by guided by whether a reasonable expectation of privacy was violated Privacy Law - Jeffrey Pittman

False Light in the Public Eye This tort involves the defendant revealing information about a person that places that person in a false light. A plaintiff here must demonstrate: The false light in which he was placed by the publicity would be highly offensive to a reasonable person, and The defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed Privacy Law - Jeffrey Pittman

Public Disclosure of Private Facts This tort requires public disclosure of private information about a person that, even though true, generates publicity of a highly objectionable kind An example might be the disclosure of names and details about employees fired for viewing pornography at work Privacy Law - Jeffrey Pittman

Appropriation Here a defendant is charged with use of a person’s name or likeness without permission This invasion of privacy would include activities such as the unauthorized use of a person’s name in an advertising campaign Privacy Law - Jeffrey Pittman

Case Example - Appropriation The following “Sex and the City” advertisement was placed on New York buses and subways by TBS, the cable television network “What is the definition of “yogasm” a. A type of yo-yo trick b. Sex with Yogi Berra c. What Samantha has with a guy from yoga class” Privacy Law - Jeffrey Pittman

Case Example - Appropriation Yogi Berra sued for appropriation and damage to his reputation Yogi Berra was a catcher for the New York Yankees from 1946-63, and he successfully managed the New York Yankees and the New York Mets professional baseball teams Yogi Berra agreed to drop his lawsuit against TBS in exchange for an undisclosed settlement (Sept. 2005) Privacy Law - Jeffrey Pittman

Case Example – Appropriation Dobby or V. Putin Privacy Law - Jeffrey Pittman

Case Example - Appropriation Doe v. TCI Cablevision 110 S.W.3d 363 (Mo. 2003) A former professional hockey player, Anthony Twist, brought an action against the creators and publishers of a comic book titled Spawn Privacy Law - Jeffrey Pittman

Case Example - Appropriation Spawn contained a villainous character "Tony Twist" that is a Mafia don whose list of evil deeds includes multiple murders, abduction of children and sex with prostitutes The Missouri Supreme Court held that Twist presented sufficient evidence that defendants used his name as a symbol of his identity, as required to make submissible case for right-of-publicity tort, defendants used Twist’s name to attract consumer attention to their products, and the use of Twist’s name was not protected speech Privacy Law - Jeffrey Pittman

Case Examples - Appropriation Vanna White as a robot (Ms. White prevailed in her suit against Samsung and its advertisement) George Wendt as a robot (Mr. Wendt won initial battles against Host International’s “Cheers” bars) Privacy Law - Jeffrey Pittman

Case Example - Appropriation The Vanna White and George Wendt victories in California were probably negated by a recent decision, Winter v. D.C. Comics, 69 P.3d 473 (2003) There the California Supreme Court held that the First Amendment overrides state tort law where an individual’s name or likeness is involved in a “transformative” use Privacy Law - Jeffrey Pittman

Winter v. D.C. Comics “Celebrities have a statutory right of publicity by which they can prohibit others from using their likeness. . . . An obvious tension exists between this right of publicity and the First Amendment to the United States Constitution.” Privacy Law - Jeffrey Pittman

Winter v. D.C. Comics “In [Comedy III Productions, Inc. v. Saderup], we considered when constitutional free speech rights may trump the statutory right of publicity.” Privacy Law - Jeffrey Pittman

Winter v. D.C. Comics “We formulated "what is essentially a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation. In [Comedy III Productions, Inc. v. Saderup], we concluded that lithographs and T-shirts bearing the likeness of The Three Stooges were not sufficiently transformative to receive First Amendment protection.” Privacy Law - Jeffrey Pittman

Winter v. D.C. Comics “In this case, we apply the same balancing test to comic books containing characters that evoke musician brothers Johnny and Edgar Winter.” Johnny Winters Jonah Hex Privacy Law - Jeffrey Pittman

Winter v. D.C. Comics “We conclude that, in contrast to a drawing of The Three Stooges, the comic books do contain significant creative elements that transform them into something more than mere celebrity likenesses. Accordingly, the comic books are entitled to First Amendment protection.” Privacy Law - Jeffrey Pittman

Winter v. D.C. Comics In considering whether a work is “transformative,” The California Supreme Court stated a relevant inquiry is whether the transformed work has value independent of the celebrity's fame, that is, value in its own right Andy Warhol pictures were used by the court as an example of protected, transformative art Privacy Law - Jeffrey Pittman