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

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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

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

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

11. 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

12. 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

13. Your Workplace?
Not so much

14. False Light
Parade Magazine article on Teenage Prostitution

15. 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”

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

17. 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

18. 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

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