ClassNotesPrivacyNockleby

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Technology and Privacy

Professor John Nockleby

Monday, November 25, 2002 (Class 1)

• What do we mean by privacy and technology?
  • Will focus on informational privacy in this course.
  • Other types of privacy not covered in this course:
    • Decisional Privacy: e.g., your decision to use drugs. My decision should be independent of other people. Form of autonomy to be distinguished from paternalism.
    • Reproductive Privacy: whether to use contraception, whether to get abortion.
    • Proprietary Privacy: closer to torts. Four privacy torts, one of them is proprietary or property. When advertiser takes your image and associates it with product without permission.
    • Associational Privacy: First amendment, right of assembly/association. Your desire to be member of private club; who your sexual partners are; marriage and divorce.

• Informational privacy
  • All kinds of information that exists about you that somebody else has an interest in
  • Could be collected through spycams, mouse clicks on Internet, educational records, work history

• You could be asked whether the following can be done legally
  • Tracking of all Internet use in workplace--which websites
  • DNA analysis: which prospective employees are likely to have health problems
  • Records of who has been arrested, convicted.
  • Facial recognition technology with surveillance cameras
  • Credit card information sharing with insurance companies.

• Once you have "capturing" technologies, all information is instantaneously accessible anywhere in the world.
• Nesson: no evidence authenticates itself anymore; it is all 0's and 1's and must be authenticated otherwise. Transformative nature of digital technologies.

• Values inherent in privacy
  • Get to decide who you are, spontaneity
  • Who knows what about you

Milton R. Konvitz, Privacy and the Law: A Philosophical Prelude

31 Law & Contemp. Probs. 272, 272-76 (1966) (cb3)

• Difference between public and 'private

• Lasson article: the home. Still defined in relation to 'that which is not public'.
• If private is just all that is not public, then the public defines private.
• Arendt: not in relation to public, but rather intimacy. Contrast with Greek understanding of private as "deprived," community was where things happen. Women, slaves, children, not permitted to participate in public space, but were in private/deprived space.
• Radest: privacy as distinct from governmental intrusion.

Monday, December 9, 2002 (Class 2)

• Paper topics due next Monday

• Privacy as a condition (like repose, solitude) vs. as a right (legally defined/protected state)
• Rights of Privacy
  • Tort (protect against individual intrusion rather than state/governmental, 4 kinds)
    • Intrusion Upon Seclusion
    • False Light
    • Appropriation
    • Publicity Given to Private Life
  • Constitutional (asserted against government)
    • Decisional Autonomy (Griswold v. Connecticut, Roe v. Wade)
    • Informational (Whalen v. Roe, wiretaps, etc.)
  • Statutory
    • 150 federal statutes
    • Apply to Government, but also to some private parties, like cable companies, banks, health care, etc..

Warren & Brandeis, The Right to Privacy

[4 Harv. L. Rev. 193] 1890 Harvard Law Review (cb29)

• Authors concerned with loss of privacy from newspaper gossip columns.
• Could read article as protecting men; "common scold" criminal action, brought against women who gossip. Also privacy of "familial" relations, which particularly concerned sex lives of men.
• Decouples privacy from property: prior tort actions were focused on property notions. (property vs. individual personality)
• When privacy is treated as part of individual personality, cannot be given over to e.g., website, simply by "agreeing" to "privacy policy".

Restatement Definitions of Common Law Privacy Actions

[Restatement (Second) of Torts §§ 652B] (cb61)

• Some protect "personality", some protect "property"
• Appropriation of Name or Likeness
  • Property tort; e.g. Pavesich, insurance company uses photo in advertisement without permission.
  • But if famous actor appears in newspaper, will he have cause of action against newspaper?
    • First Amendment considerations, Freedom of the Press.
    • Difference of place: inside the home vs. public event.
    • Tort is now limited to advertising.
  • Other privacy torts are not property torts

Whalen v. Roe

[429 U.S. 589] 1977 United States Supreme Court (cb66)

Katz v. United States

[389 U.S. 347] 1967 United States Supreme Court (cb90)

• Bug on outside of public telephone booth; not physical invasion of space, but does it constitute search under 4th amendment?
• Court holds that it does; 4th amendment covers people not places.

Friday, December 13, 2002 (Class 3)

Katz v. United States

[389 U.S. 347] 1967 United States Supreme Court (cb90)

• Majority opinion: in order for government to wiretap public phone booth conversation, need to get warrant.
• Overrules Olmstead, which protected spaces from intrusion.
• Harlan Concurrence: Relied on more often as precedent. Person must have manifested subjective expectation of privacy, and this expectation must be one society recognizes as reasonable.
• Objective reasonableness is circular, since it is decided to by justices.

Kyllo v. United States

[533 U.S. 27] 2001 United States Supreme Court (cb99)

• Requires warrant for thermal imaging.
• Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, he surveillance is a "search" and is presumptively unreasonable without a warrant.
• Creates "one way ratchet"--as devices enter wider use, expectation of privacy is diminished, less protection from state.

United States v. White

[401 U.S. 745] 1971 United States Supreme Court (cb107)

• Police informant with wire transmitter. Court holds that conversation is not protected by Fourth Amendment warrant requirement.
• Consequence: participant in "private" conversation can unilaterally chose to transmit contents of conversation to third party (police).

Smith v. Maryland

[442 U.S. 735] 1979 United States Supreme Court (cb112)

• Question: does government need warrant to capture "communication attributes"? E.g., number dialed, time and date of call, length of call.
• Privacy right only covers content of conversation, not attributes.

United States v. Miller

[425 U.S. 435] 1976 United States Supreme Court (cb137)

• Question: are bank records protected against unwarranted search by 4th amendment?
• Answer: no, when you disclose information voluntarily to bank, they can disclose them to the Government.

York v. Story

[324 F.2d 450] 1963 9th Circuit Court of Appeals (cb144)

• Defendant police department sued under § 1983 after sharing nude photos of woman who had come to report assault.
• Issue is not the taking of the photographs, but publicizing it around the office.
• Court finds for Plaintiff, holding the distribution of the photographs violated 14th amendment.

Megan's Law

Monday, December 16, 2002 (Class 4)

• Constitution only protects against State Action
• When Federal Government creates conditions under which private actor violates constitutional right, may still be cause of action.
• When there is no constitutional protection, alternatives are common law (limited) or statutory protections.
• Statutory protections are often "legislation by anecdote", e.g., Video Privacy Protection Act and Bork nomination.

• Administrative Searches -- e.g., drug testing

Ferguson v. City of Charleston

[532 U.S. 67] 2001 United States Supreme Court (cb186)

• Hospital adopted policy of examining pregnant patients for drug use and reporting information to police, but did not tell patients.
• Court finds this is not like other administrative searches (railway employees in accidents, high school students trying out for sports), instead this is classic law enforcement case, need to get warrant for search.
• City may have thought they could conduct searches because patients were offering samples; similar to White where misplaced trust does not give privacy protection (voluntary revealing of information).
• Would still be State Action case, even if hospital weren't public, along Skinner and Von Raab cases, because of close involvement of police.

Borse v. Pierce Goods Shop, Inc.

[963 F.2d 611] 1992 3d Circuit Court of Appeals (cb196)

• Employer requires drug test for employment.
• Question: is test voluntary? Can employer impose test as condition on employment?
• Court finds post-employment tests would violate Pennsylvania law.

Monday, January 6, 2003 (Class 5)

Electronic Communications Privacy Act

• Key terms (different standards for each)
  • Wire communication: must include voice and must pass over some wire. Previously, base-handset cordless phone communication was not covered as wire communication but now it is.
  • Electronic communication: not over wire and not "oral"--data.
  • Oral communication: conversations such as face-to-face.
  • Intercept
• Exclusionary rule doesn't apply to electronic communication; issue of whether digitized voice over Internet or email attachment is wire or electronic.
• Wiretap order needed for wire communication, general warrant/no exclusionary rule for electronic communiaction.

Steve Jackson Games v. United States Secret Service

[36 F.3d 457] 1994 5th Circuit Court of Appeals (cb329)

• Email classified as "stored communication" rather than "in transit"; available under search warrant without particularized wiretap order requirements.

Patriot Act

One Party Consent Exception

United States v. Phillips

[540 F.2d 319] 1976 8th Circuit Court of Appeals (cb370)

Minimization Requirement

• Roaming wiretap

Friday, January 10, 2003 (Class 6)

• Why was the FERPA passed?
  • Vietnam war, militia movements, weather underground, etc., of 1970s.
  • Arguments against FERPA: expense, burden, bureaucracy, need access for employment, etc..
• Privacy Act of 1974
  • Nixon administration, J. Edgar Hoover, invasion of citizen's records, etc..
• Barriers between domestic and foreign information gathering and between agencies, etc..
• USA-PATRIOT removes many of these barriers/cabins established in the 1970s following Nixon.

Albright v. United States

[631 F.2d 915] 1980 DC Circut (cb468)

• Government employer videotaped meeting between analysts and supervisor discussing grievances.
• Privacy Act prohibits keeping records on exercise of 1st amendment rights.
• Court finds maintaining the videotape violated Privacy Act; damages only available if violation was willful however, so case is remanded.

Fair Credit Reporting Act

Right to Financial Privacy Act of 1978

• Passed in response to United States v. Miller [425 U.S. 435], bank's customer challenged disclosure of personal information to government, Court held that records were not customer's and thus not under 4th amendment.

Video Privacy Protection Act

Gramm-Leach-Bliley

• Allowed merger of various financial entities; also allowed merger of informational databases with some limits.

Monday, January 13, 2003 (Class 7)

• Paper due Monday, 2/17 by Midnight, by email attachment.

Common Law Privacy Torts

• Elements of intrusion on seclusion tort

1. Intrusion
2. Solitude on seclusion
3. Intrusion must be highly offensive to reasonable person

• Contemporary technology (not part of tort of intrusion as currently developed)
  • Acquisition
  • Recording
  • Storage
  • Manipulation
  • Distribution

Hamberger v. Eastman

[206 A.2d 239] 1964 New Hampshire Supreme Court (cb539)

• Landlord installs listening and recording device in bedrom of husband and wife.
• No evidence of actual recording.
• Court finds defendant liable for intrusion on seclusion even without publication or communication.

Nader v. General Motors Corporation

[255 N.U.2d 765] 1970 New York Supreme Court (cb546)

• Court gives restrictive view of intrusion tort:
  • When Nader goes to bank to take out money and person watches to see how much he has, this is intrusion.
  • Systematic accumulation of information through interviews, etc., is not considered intrusion, however.

Dieteman v. Time, Inc.

[449 F.2d 445] 1971 9th Circuit Court of Appeals (cb563)

Food Lion, Inc. v. Capital Cities/ABC

[194 F.3d 505] 1999 4th Circuit Court of Appeals (cb576)

Monday, February 3, 2003 (Class 9)

• Market Solution
• Consumerist Approach
  • Weak
  • Strong
• Fundamental rights

• Online profiling--what types of data?
  • "Anonymous" profiling
  • Identified profiling
    • Fixed IP address
    • Cookie
    • Purchasing

• Surfing behavior
• Comprehensive description of tastes and interests
• Linked to offline behavior

Monday, February 10, 2003 (Class 10)

• USA PATRIOT Act
• Domestic v. Foreign Intelligence Surveillance (FISA)