1. CALIFORNIA’S CONSTITUTIONAL PRIVACY RIGHT
Moderator: David A. Carrillo
J. Clark Kelso, McGeorge School of Law
Jill Bronfman, UC Hastings College of Law
Lothar Determann, Baker McKenzie
Stephen M. Duvernay, Benbrook Law Group

2. Bio info
J. Clark Kelso: Associate Dean for Strategic Initiatives and Professor of Law, McGeorge School of Law
Jill Bronfman: Director of the Privacy and Technology Project at the Institute for Innovation Law; Adjunct Professor of Law, UC Hastings
Lothar Determann: Adjunct Professor of Law, UC Hastings, Berlin, Berkeley Law; partner, Baker & McKenzie
Stephen M. Duvernay: Benbrook Law Group in Sacramento; Senior Research Fellow, California Constitution Center

3. duvernay

4. California’s constitutional right to privacy
Refocusing the constitutional privacy analysis on individual privacy rights.

5. THE PRIVACY INITIATIVE
California voters added the right to privacy to Article I in 1972 when they approved Proposition 11.

6. THE PRIVACY INITIATIVE
Article I, section 1 of the California Constitution: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

7. THE PRIVACY INITIATIVE
“The right of privacy is an important American heritage and essential to the fundamental rights guaranteed by the U.S. Constitution. This right should be abridged only when there is a compelling public need.”

8. Hill v. NCAA (1994) Key opinions: Chief Justice Lucas (majority)
Justice George
Justice Mosk

9. Chief Justice George’s revenge: Loder v. City of Glendale (1997)
Hill v. NCAA (1994)
Chief Justice George’s revenge: Loder v. City of Glendale (1997)

10. Compelling Public Need
Sheehan v. The San Francisco 49ers, Ltd. (2009) Hernandez v. Hillsides, Inc. (2009)

11. What’s the big deal?
Hill’s rejection of “compelling public need” contrary to voters’ intent.
Privacy rights at risk—“reasonableness”
Revisit Hill, adopt “compelling public need standard”

12. kelso

13. Has “privacy” been a successful juridical category?
After 100 years, still not a single, coherent concept with no sign of improvement.
Prosser’s four types of privacy are incomplete and fail to define the concept.
At the federal constitutional level, grabbag of holdings without doctrinal foundation.
In California’s Constitution, uncomfortable mash- up of constitutional and common law principles.

14. Has “privacy” been a successful juridical category?
Its most coherent expostulation has been in the context of informational privacy where the concept of “control” over certain personal information makes doctrinal and common sense.
Can informational privacy survive the Internet?

15. bronfman

16. U.s. PRIVACY TORTS Privacy torts Why these torts?
Intrusion upon seclusion
Public disclosure of embarrassing private facts
Publicity placing person in false light
Appropriation of name and/or likeness 
Home is a castle, private property prerogative
Public vs. private citizens
Individual reputation (Chinese research by contrast- collective)
Commercial concerns
There’s no overall federal right to privacy, and the Privacy Act of 1974, post Watergate, really just about federal records, doesn’t come close to covering all privacy.
Free speech rights may help people to speak anonymously and safely private, but also hurts privacy by allowing some exposure of other people’s information. Commercial speech is so American, the idea that corporations can say what they want e.g. advertising with very limited restrictions.
Calif. History includes a culture of individualism as the extreme Left Coast of US westward expansion, and also LA film industry which had a hand in some of the anti-paparazzi legislation.

17. U.s. v. the states Federal Law California Law
First Amendment to the U.S. Constitution
History: Free speech was not the default, see sedition laws, pre- approval of news
Does 1st A help or hinder privacy?
CA Constitution
Right to Privacy
History: privacy was not the default, see e.g. celebrities & paparazzi in LA
There’s no overall federal right to privacy, and the Privacy Act of 1974, post Watergate, really just about federal records, doesn’t come close to covering all privacy.
Free speech rights may help people to speak anonymously and safely private, but also hurts privacy by allowing some exposure of other people’s information. Commercial speech is so American, the idea that corporations can say what they want e.g. advertising with very limited restrictions.
Calif. History includes a culture of individualism as the extreme Left Coast of US westward expansion, and also LA film industry which had a hand in some of the anti-paparazzi legislation.

18. U.S. preference for capitalism and free markets
“Save the Tech!”
Congress passed Section 230 of the Communications Decency Act (CDA), immunizing ISPs and the hosts of online forums from liability for the speech of their users. The statute reads: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 
Again, focus on protecting corporations rather than individuals
-channel, or tube, sending information down the line rather than content provider
-easier to distinguish in early days of ISPs, harder now that Amazon, Google, Facebook create content & manipulate content not just a “dumb pipe”

19. Data breach starting line
Corporate proprietary information is information that belongs to a company and it is different from personal information that belongs to or identifies an individual.
Companies are concerned about losing or leaking data that belongs to them, and also about losing the personal data with which they have been entrusted.
A bit about data breach, here’s the hardest issue in corporate negotiations- separating corporate information/trade secrets from personal information
-some companies don’t want to separate it, keep it all?

20. Data protection extends beyond the it department
C-suite responsibility
Legal
Public Relations
Executives
Security professionals
Privacy professionals
Marketing
Government relations
Customer care/HR
Risk management and Insurance
Law enforcement
Growing understanding of data privacy as not just a tech issue, but everyone’s responsibility. Build into contracts before signature, and after contract is signed via compliance mechanisms.

21. determann

22. overview
How does the right to privacy in the California Constitution compare to privacy rights in the U.S. Constitution and in Europe?
4th & 14th amendment jurisprudence
The EU charta, recent CJEU cases, and the European Convention for Human Rights.

23. Comparison: constitutional privacy rights
Express / implied right and limitations
Substantive scope:
Search & seizure
Data
Communications privacy
Autonomy privacy
Personal scope: state actors v. private actors
Remedies

24. California constitution
ARTICLE I DECLARATION OF RIGHTS SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy. SEC. 13. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.

25. u.s. constitution
4th Amendment: 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.

26. European Convention of Human Rights (1950)
ARTICLE 8 Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

27. CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (2000)
Article 7 Respect for private and family life Everyone has the right to respect for his or her private and family life, home and communications. Article 8 Protection of personal data 1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority.

28. Practical impact
What practical impact has the right to privacy in the California Constitution had so far?
Cases in which plaintiffs have asserted the right
Note the less tangible effect of motivating the legislature to protect privacy in statutes.

29. Different/more stringent test? Additional restrictions to existing law?
Empower courts to develop additional test?
Broad catch-all?
For plaintiffs, additional cause of action to throw in and perhaps survive summary judgment dismissal.
Against private actors?
Against California government? (+)
Against federal government? (-)
Hierarchy? Trumps state statute; is trumped by any federal law (constitution, statutes, regulations)
Additional remedies?
Soft impact: Mission statement to legislature, justification in conflicting interests (security, free speech).