1. Copyright © 2009 – Jeffrey Pittman
Privacy
Copyright © 2009 – Jeffrey Pittman

2. 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

3. 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, 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

4. 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

5. Privacy Concerns Today - Monitoring by Private Companies
Individual private information is available from companies such as
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

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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

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

17. 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 messages
Privacy Law - Jeffrey Pittman

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

27. Case Example - Appropriation
Yogi Berra sued for appropriation and damage to his reputation
Yogi Berra was a catcher for the New York Yankees from , 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

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

29. 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

30. 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

31. 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

32. 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

33. 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

34. 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

35. 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

36. 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

37. 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

38. 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