History of U.S. Privacy Laws: Difference between revisions

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==The History of U.S. Privacy Laws==
*George Washington feared that the sentiments he expressed in letters about the new Constitution were not confidential, “for by passing through the post-office, they should become known to all the world,” by the end of the nineteenth century a remarkable transformation in social attitudes and law had taken place. As David Seipp explains, “[n]ineteenth century public opinion regarded the ‘sanctity of the mails’ as absolute in the same way it esteemed the inviolability of the home.”  Improved confidentiality procedures in the Post Office and strong legal protections went hand in hand with an emerging attitude that the ideas and sentiments expressed in letters traveling through the postal system should remain inviolate, in language often tinged with overtly religious imagery. Thus, a Louisiana court could refer in 1811 to the law’s respect for “the sacredness of a man’s correspondence.” [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969495 Richards and Solove]
*In 1890, Samuel Warren and Louis Brandeis wrote [http://www.lawrence.edu/fast/boardmaw/Privacy_brand_warr2.html''The Right To Privacy''] in the Harvard Law Review
**Significantly added to privacy law debate and conception
**Cited [http://www.bailii.org/ew/cases/EWHC/Ch/1849/J20.html ''Prince Albert v Strange'']
**Established for torts: public disclosure of private facts, intrusion upon seclusion, appropriation of name or likeness, and false light (Prosser as cited in [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969495])
*William Prosser in 1960 wrote ''Privacy'' and helped on Restatement (Second of Torts). [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969495]
**Established American privacy law as four related torts
**Minimized the importance of confidentiality in American law
*In America, the prevailing belief is that people assume the risk of betrayal when they share secrets with each other [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969495]
*As the preceding discussion illustrates, Warren and Brandeis did not write on a nearly blank slate when they crafted their “right to privacy.” Instead of developing and expanding the robust law of confidentiality that already existed, Warren and Brandeis took American privacy law down a different path. Before the Warren and Brandeis article, English and American privacy law were on a similar trajectory, being built out of the same materials and concepts. American judges read English precedent and attempted to situate their rulings within the fabric of the common law. Afterwards, the paths diverged. The next part explores the path Warren and Brandeis charted for American privacy law, and also the path not taken – that of developing the law of confidentiality. England took this alternative path, with some illuminating and fascinating results. [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969495]
*Instead of creating a law of privacy, England developed a law of confidentiality, which was explicitly distinguished from privacy. Ironically, both the American law of privacy and the English law of confidentiality emerged from the same source – the Prince Albert case. In this Part, we compare the two divergent paths leading from Prince Albert.  [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969495]
*In 1902, The ''Roberson case'' produced a wave of public criticism. An editorial in the New York Times lambasted the decision.  Commentary in law reviews largely sided with Roberson and decried the court’s failure to redress her injury, although one of the judges who decided the Roberson case took the unusual step of defending the decision in the Columbia Law Review. A year later, in 1903, the New York legislature responded to the case by enacting a statute allowing people to sue for invasion of privacy where their “name, portrait, or picture” was used without consent “for purposes of trade. [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969495]
*During the 1940s and 50s, many more jurisdictions began recognizing the right to privacy, with the result that by the 1950s, most states had adopted a tort right of privacy in one form or another. [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969495]
*William Prosser’s most famous discussion of the topic was a 1960 article entitled Privacy published in the California Law Review.  In that article, Prosser noted that over 300 privacy cases had been decided since the Warren and Brandeis article, and that to date, there had been little “attempt to inquire what interests we are protecting, and against what conduct…Prosser identified the torts as follows:
#Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
#Public disclosure of embarrassing private facts about the plaintiff.
#Publicity which places the plaintiff in a false light in the public eye.
#Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
*In creating this taxonomy of the law of privacy, Prosser had a dramatic effect on the development of privacy law in America  [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969495]


'''Legal Decisions''':
*In 2001, Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (PATRIOT ACT.  The act expanded the authority of U.S. law enforcement agencies to fight terrorism.[http://en.wikipedia.org/wiki/USA_PATRIOT_Act]


*In 1782, the Continental Congress passed a law to protect the confidentiality of letters <ref> [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=969495#PaperDownload SSRN]</ref>
*On July 31, 2003, Senators Lisa Murkowski (R-AK) and Ron Wyden (D-OR), introduced the "Protecting the Rights of Individuals Act" (S. 1552).  This bill would revise several provisions of the PATRIOT Act to increase judicial review.[http://en.wikipedia.org/wiki/USA_PATRIOT_Act]


*In 1811, in ''Denis v. LeClerc'' a newspaper editor sought to publish an improperly obtained letter. The court prohibited the publication of the letter because just as the defendant could not produce it to his associates, he could also not publish it in the press, due to the “sacredness” of the “confidential letter.” <ref>(SSRN)</ref>
*On September 24, 2003, Congressman Dennis Kucinich (D-Ohio), Co-Chair of the Progressive Caucus, introduced legislation into the U.S. House of Representatives to repeal more than ten sections of the Act. The bill, titled the "Benjamin Franklin True Patriot Act", looks to review certain sections of the Act, including those that authorize sneak and peek searches, library, medical, and financial record searches, and the detention and deportation of non-citizens without full judicial review.[http://en.wikipedia.org/wiki/USA_PATRIOT_Act]


*In 1825, Congress enacted another law to protect the confidentiality of letters by criminalizing taking “any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier.” <ref>(SSRN)</ref>
*Bernie Sanders (I-VT) with Reps. Jerrold Nadler (D-NY), John Conyers Jr. (D-Mich.), C. L. Otter (R-Idaho), and Ron Paul (R-Texas) proposed an amendment to the Commerce, Justice, State Appropriations Bill of 2005 which would cut off funding to the Department of Justice for searches conducted under Section 215 of the PATRIOT Act.[http://en.wikipedia.org/wiki/USA_PATRIOT_Act]


*In 1877, in ''Ex Parte Jackson'' the Supreme Court concluded that the Fourth Amendment protected letters from government inspection without a warrant.  The fact that people willingly gave the government their letters for delivery did not waive protection, as the government was expected to keep them confidential.  (SSRN)
*On June 15, 2005, a second attempt to limit Section 215 was successful in the House of Representatives. The House voted 238-187 in favor of the Sanders amendment to an appropriations bill. The Sanders amendment prevents the funds provided by the bill from being used by the FBI and the Justice Department to search library and book store records as authorized by Section 215 of FISA.[http://en.wikipedia.org/wiki/USA_PATRIOT_Act]
 
*In 1890 Samuel Warren and Louis Brandeis termed the phrase "the right to be let alone" in their famous article in the Harvard Law Review titled ''The Right to Privacy''.  This was one of the earliest legal articles in the U.S relating to privacy issues.
**In 1891, just a year after the article was published, the “right to be let alone” found its way into constitutional law. The Supreme Court held in ''Union Pacific Railway Company v. Botsford'' that a court could not compel a plaintiff in a civil suit to undergo a surgical examination: “As well said by Judge Cooley: ‘The right to one’s person may be said to be a right of complete immunity; to be let alone’ (SSRN)
 
*In the famous 1902 case of ''Roberson v. Rochester Folding Box Company'' the court rejected the right to privacy. An advertisement for Franklin Mills Flour used a drawing of a young woman, Abigail Roberson, without her consent. The picture was a flattering one, but Roberson sued because she was “humiliated” by it and suffered mental distress as a result. The court concluded that there was “no precedent” to recognize Warren and Brandeis’s tort remedies for invasion of privacy, and that such a right was best left to the legislature to enact <ref>(SSRN)</ref>
 
*In 1905, the Georgia Supreme Court recognized in the common law a tort remedy for invasions of privacy. The case, ''Pavesich v. New England Life Insurance Company'' involved a situation similar to that in Roberson – a man’s image was used in an advertisement without his consent. The court concluded that a “right of privacy in matters purely private is . . . derived from natural law.” <ref>(SSRN)</ref>
 
*In 1965, in ''Griswold v. Connecticut'' the Court declared that an individual has a right to privacy from the government [http://www.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZS.html ''Griswold v Connecticut''].
*In 1967, in ''Time, Inc. v. Hill'' the Court faced the question: Is a publication, containing misrepresentations about the subject of its coverage, protected under the First Amendment's freedom of speech guarantees?  They concluded yes because "absent a finding of such malicious intent on the part of a publisher, press statements are protected under the First Amendment even if they are otherwise false or inaccurate" <ref> [[http://www.oyez.org/cases/1960-1969/1965/1965_22]] </ref>.
 
*In 1968, in ''Mancusi v. DeForte'' the Supreme Court addressed whether a union employee had a legitimate expectation of privacy, and therefore Fourth Amendment standing, in the contents of records that he stored in an office that he shared with several other union officials. The Court held that DeForte had standing to object to the search and that the search was unreasonable, noting that it was clear that “if DeForte had occupied a ‘private’ office in the union headquarters, and union records had been seized from a desk or a filing cabinet in that office, he would have had standing" [http://supreme.justia.com/us/392/364/ ''Mancusi v DeForte''].
 
*In 1975 in ''Cox Broadcasting v. Cohn'' the question was whether Georgia's law preventing the disclosure of the names of rape victims was constitutional.  The Supreme Court held that despite the right to privacy’s “impressive credentials,” when “true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it.”  The Court declined to address “the broader question” that would implicate the constitutionality of the tort in all its applications – namely, “whether the State may ever define and protect an area of privacy free from unwanted publicity in the press <ref>(SSRN)</ref>
 
*In 1977, in ''Zacchini v. Scripps-Howard Broadcasting Co'' the Supreme Court said that a news station violated the Constitution when it videotaped and aired Zacchini's "human-cannonball" stunt without his permission.  The logic of the opinion is that even though the the airing was not meant to be malicious and the event took place in a public setting, because the plaintiff asked for his stunt not to be published without payment the actions of the news station were unlawful <ref> [http://www.bc.edu/bc_org/avp/cas/comm/free_speech/zacchini.html] </ref>.
 
*In 1987 in  ''O'Connor ET AL. v. Ortega'' the Court found that workplace property remains within the control of the employer “even if the employee has placed personal items in [it]" [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=480&invol=709 ''O'Connor ET AL. v. Ortega']
 
*Subsequent Supreme Court cases reiterated the Cox rule. In ''Smith v. Daily Mail'' the Court held: “If a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.”  In ''Florida Star v. B.J.F.'' the Court reiterated the rule in Daily Mail in concluding that the First Amendment prohibited liability when a newspaper published the name of a rape victim obtained from a police report <ref>(SSRN)</ref>
 
*SEC vs. Jerry T. Obrien Inc.  It is established that when a person communicates information to a third party even on the understanding that the communication is confidential, he cannot object if the third party conveys that information or records thereof to law enforcement authorities <ref> Zittrain </ref>.  It also disables respondents from arguing that notice of subpoenas issued to third parties is necessary to allow a target to prevent an unconstitutional search or seizure of his papers
 
 
'''Digital Privacy Decisions'''
 
*In ''United States v. Simons'', the ruling was that employees do not have a reasonable expectation of privacy when it comes to their work related electronic communications[http://www.internetlibrary.com/cases/lib_case131.cfm ''United States v. Simons'']
 
*In ''United States v. Gourde'', 440 F.3d 1065, 1077 (9th Cir. 2006) it was found that "for most people, their computers are their most private spaces" [http://www.ca9.uscourts.gov/ca9/newopinions.nsf/04485f8dcbd4e1ea882569520074e698/b671b58e0a555b0f88256f03005783aa/$FILE/0330262.pdf ''United States v. Gourde'']
 
* In 2007, ''United States v. Zeigler''.  In this case, an employee had accessed child pornography websites from his workplace computer. His employer noticed his activities, made copies of the hard drive, and gave the FBI the employee's computer. At his criminal trial, Ziegler filed a motion to suppress the evidence because he argued that the government violated his Fourth Amendment rights.  The Ninth Circuit allowed the lower court to admit the child pornography evidence. After reviewing relevant Supreme Court opinions on a reasonable expectation of privacy, the Court acknowledged that Ziegler had a reasonable expectation of privacy at his office and on his computer, however, the court found that: "In this context, Ziegler could not reasonably have expected that the computer was his personal property, free from any type of control by his employer. The contents of his hard drive, like the files in Mancusi, 392 U.S. at 369, were work-related items that contained business information and which were provided to, or created by, the employee in the context of the business relationship. Ziegler’s downloading of personal items to the computer did not destroy the employer’s common authority. Ortega, 480 U.S. at 716. Thus...the employer, could consent to a search of the office and the computer that it provided to Ziegler for his work" [http://www.ca9.uscourts.gov/ca9/newopinions.nsf/1B9EE38656401781882572720080706B/$file/0530177.pdf?openelement ''United States v. Zeigler]
 
*In 2007, ''State of New Jersey v. Shirley Reid''.  In the case, prosecutors asserted that Shirley Reid broke into her employer’s computer system and changed its shipping address and password for suppliers. The police discovered her identity after getting a subpoena to the internet provider, Comcast Internet Service.  The lower court suppressed information from the internet service provider that linked Reid with the crime. The New Jersey appellate court agreed with this decision. As a result, New Jersey offers greater privacy rights to computer users than most federal courts. Although this case does not directly discuss the Fourth amendment, it illustrates that some states are providing more privacy protection to computer users than the federal courts. It also illustrates that caselaw on privacy in workplace computers is still evolving [http://www.epic.org/privacy/nj_reid/reid_superior_ct.pdf State of New Jersey v. Shirley Reid]
 
'''Examples of Problems Not Yet Taken to Court'''
 
*In early September 2006, Jason Fortuny, a Seattle-area graphic designer and network administrator, posed as a woman and posted an ad to Craigslist Seattle seeking a casual sexual encounter with area men. On September 4, he posted to the internet all 178 of the responses, complete with photographs and personal contact details, describing this as the Cragslist Experiment and encouraging others to further identify the respondents. [http://en.wikipedia.org/wiki/Internet_privacy#Jason_Fortuny_and_Craigslist Fortuny Incident]
 
'''U.S. Privacy Laws''':
 
*[http://www.usdoj.gov/oip/04_7_1.html  U.S Privacy Act of 1974 ] mandated a set of fair information practices, including disclosure of private information only with the an individual’s consent (with exceptions for law enforcement, archiving, and routine uses), and established the right of the subject to know what was recorded about her and to offer corrections. While it originally intended to apply to a broad range of public and private databases to parallel the H.E.W. report, the Act was amended before passage to apply only to government agencies’ records (Zittrain chapter 9)
 
*[http://www.ftc.gov/reports/privacy3/fairinfo.shtm Fair Information Practice Principles] articulation made by the Federal Trade Commission concerning  privacy.

Latest revision as of 14:24, 9 August 2007

  • George Washington feared that the sentiments he expressed in letters about the new Constitution were not confidential, “for by passing through the post-office, they should become known to all the world,” by the end of the nineteenth century a remarkable transformation in social attitudes and law had taken place. As David Seipp explains, “[n]ineteenth century public opinion regarded the ‘sanctity of the mails’ as absolute in the same way it esteemed the inviolability of the home.” Improved confidentiality procedures in the Post Office and strong legal protections went hand in hand with an emerging attitude that the ideas and sentiments expressed in letters traveling through the postal system should remain inviolate, in language often tinged with overtly religious imagery. Thus, a Louisiana court could refer in 1811 to the law’s respect for “the sacredness of a man’s correspondence.” Richards and Solove
  • In 1890, Samuel Warren and Louis Brandeis wrote The Right To Privacy in the Harvard Law Review
    • Significantly added to privacy law debate and conception
    • Cited Prince Albert v Strange
    • Established for torts: public disclosure of private facts, intrusion upon seclusion, appropriation of name or likeness, and false light (Prosser as cited in [1])
  • William Prosser in 1960 wrote Privacy and helped on Restatement (Second of Torts). [2]
    • Established American privacy law as four related torts
    • Minimized the importance of confidentiality in American law
  • In America, the prevailing belief is that people assume the risk of betrayal when they share secrets with each other [3]
  • As the preceding discussion illustrates, Warren and Brandeis did not write on a nearly blank slate when they crafted their “right to privacy.” Instead of developing and expanding the robust law of confidentiality that already existed, Warren and Brandeis took American privacy law down a different path. Before the Warren and Brandeis article, English and American privacy law were on a similar trajectory, being built out of the same materials and concepts. American judges read English precedent and attempted to situate their rulings within the fabric of the common law. Afterwards, the paths diverged. The next part explores the path Warren and Brandeis charted for American privacy law, and also the path not taken – that of developing the law of confidentiality. England took this alternative path, with some illuminating and fascinating results. [4]
  • Instead of creating a law of privacy, England developed a law of confidentiality, which was explicitly distinguished from privacy. Ironically, both the American law of privacy and the English law of confidentiality emerged from the same source – the Prince Albert case. In this Part, we compare the two divergent paths leading from Prince Albert. [5]
  • In 1902, The Roberson case produced a wave of public criticism. An editorial in the New York Times lambasted the decision. Commentary in law reviews largely sided with Roberson and decried the court’s failure to redress her injury, although one of the judges who decided the Roberson case took the unusual step of defending the decision in the Columbia Law Review. A year later, in 1903, the New York legislature responded to the case by enacting a statute allowing people to sue for invasion of privacy where their “name, portrait, or picture” was used without consent “for purposes of trade. [6]
  • During the 1940s and 50s, many more jurisdictions began recognizing the right to privacy, with the result that by the 1950s, most states had adopted a tort right of privacy in one form or another. [7]
  • William Prosser’s most famous discussion of the topic was a 1960 article entitled Privacy published in the California Law Review. In that article, Prosser noted that over 300 privacy cases had been decided since the Warren and Brandeis article, and that to date, there had been little “attempt to inquire what interests we are protecting, and against what conduct…Prosser identified the torts as follows:
  1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
  2. Public disclosure of embarrassing private facts about the plaintiff.
  3. Publicity which places the plaintiff in a false light in the public eye.
  4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
  • In creating this taxonomy of the law of privacy, Prosser had a dramatic effect on the development of privacy law in America [8]
  • In 2001, Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (PATRIOT ACT. The act expanded the authority of U.S. law enforcement agencies to fight terrorism.[9]
  • On July 31, 2003, Senators Lisa Murkowski (R-AK) and Ron Wyden (D-OR), introduced the "Protecting the Rights of Individuals Act" (S. 1552). This bill would revise several provisions of the PATRIOT Act to increase judicial review.[10]
  • On September 24, 2003, Congressman Dennis Kucinich (D-Ohio), Co-Chair of the Progressive Caucus, introduced legislation into the U.S. House of Representatives to repeal more than ten sections of the Act. The bill, titled the "Benjamin Franklin True Patriot Act", looks to review certain sections of the Act, including those that authorize sneak and peek searches, library, medical, and financial record searches, and the detention and deportation of non-citizens without full judicial review.[11]
  • Bernie Sanders (I-VT) with Reps. Jerrold Nadler (D-NY), John Conyers Jr. (D-Mich.), C. L. Otter (R-Idaho), and Ron Paul (R-Texas) proposed an amendment to the Commerce, Justice, State Appropriations Bill of 2005 which would cut off funding to the Department of Justice for searches conducted under Section 215 of the PATRIOT Act.[12]
  • On June 15, 2005, a second attempt to limit Section 215 was successful in the House of Representatives. The House voted 238-187 in favor of the Sanders amendment to an appropriations bill. The Sanders amendment prevents the funds provided by the bill from being used by the FBI and the Justice Department to search library and book store records as authorized by Section 215 of FISA.[13]
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