The Right to Privacy Jody Blanke Ernest L. Baskins, Jr. Distinguished Professor of Computer Information Systems and Law

Right to Privacy Origins in 1890 article by Samuel Warren and Louis Brandeis The right “to be let alone”

The Right of Privacy Roberson v Rochester Folding Box Co. (1902) New York Court of Appeals rejected a claim by a woman whose picture was used to advertise flour In response to the public outcry, New York enacted legislation making it a misdemeanor and a tort to use a name or picture for commercial purposes

The Right of Privacy Pavesich v. New England Life Ins. Co. (1905) Georgia became the first state to recognize a right to privacy, finding it in both the U. S. and Georgia constitutions

U.S. Constitution Does not contain the word “privacy” 1965 case held that “zones of privacy” emanate from the “penumbras” of the 1st, 3rd, 4th, 5th and 9th Amendments (Griswold v. Conn.) 1967 case held that an electronic listening device violated the 4th Amendment (Katz v. U.S.) concurring opinion proposed the “reasonable” expectation of privacy rule

U.S. Constitution (cont.) 1968 case adopted the notion of the “reasonable” expectation of privacy rule (Terry v. Ohio) 1977 case identified two “privacy” interests (Whalen v. Roe): the interest in avoiding disclosure of personal matters, and the interest in independence in making certain kinds of important decisions

State Constitutions Ten state constitutions contain the word “privacy” Ak., Ariz., Calif., Fla., Haw., Ill., La., Mont., S.C., Wash. Ak., Calif., Fla., Haw. and Mont. have privacy protection beyond criminal search and seizure Many provide for a right greater than that protected by the U.S. Constitution California – “Exhibit A” Georgia – the “right to be let alone” guaranteed by the Georgia Constitution is far more extensive than the right of privacy protected by the U.S. Constitution

Invasion of Privacy Tort Appropriation of name or likeness Intrusion upon seclusion False light Publication of private embarrassing facts Silvia Leyva at Café Intermezzo, Perimeter

Appropriation of Name or Likeness Based upon earliest privacy cases, e.g., Pavesich Michael Jordan Wine

Intrusion Upon Seclusion Jackie O Holiday Inn Mazzio’s Pizza Sean Penn Bill Gates Bob Dylan Katz Kyllo

U. S. v. Katz (1967) Introduced the “reasonable expectation of privacy” standard The FBI had placed a tape recorder between two telephone booths and recorded Katz making or taking bets

Your Home is Your Castle Kyllo v. U.S. (2001) Thermal imaging of a home constitutes a search Bowers v. Hardwick (1986) Supreme Court upheld Georgia sodomy law Lawrence v. Texas (2003) Supreme Court overturned Bowers

Your Workplace? Not so much

False Light Parade Magazine article on Teenage Prostitution

Publication of Private Embarrassing Facts “Joe Hero” Potomac River plane crash Assassination attempt on Gerald Ford Compare to defamation Libel and slander Truth is a defense Richard Jewell against media defendant, must prove “actual malice”

Scarlett Johansson What did Scarlett Johansson learn about nude selfies? Copyright protection Good DCMA takedown notice Privacy protection Not so good

Federal Privacy Laws Apply only to federal agencies Freedom of Information Act (FOIA) (1966, re-titled in 1986) Privacy Act (1994) Very sectoral in approach Fair Credit Reporting Act (FCRA) (1970) Fair and Accurate Credit Transactions Act (FACTA) (2003) Electronics Communications Privacy Act (ECPA) (1986) Video Privacy Protection Act (1988) revised in 2013

Federal Privacy Laws (cont.) Health Insurance Portability and Accountability Act (HIPAA) (1996) modified by the Health Information Technology for Economic and Clinical Health Act (HITECH) (2009) Children’s Online Privacy Protection Act (COPPA) (1998) revised in 2013 Gramm-Leach-Bliley Act (GLB) (1999) Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) (2003) Genetic Information Nondiscrimination Act (GINA) 2008

Fair Information Privacy Practices (FIPPs) Notice/Awareness Choice/Consent Access/Participation Integrity/Security Enforcement/Redress