PRIVACY

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PRIVACY
Airport backscatter x-ray system
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Teddy Bear Nanny Cam
RFID Tags
Pinhole Camera
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Privacy Concerns

• The development of the doctrine regarding this
  tort was largely spurred by an 1890 Harvard Law
  Review article written by Samuel D. Warren and
  Louis D. Brandeis on The Right of Privacy. Modern
  law gives four categories of invasion of
  privacy
• Recent inventions and business methods call
  attention to the next step which must be taken
  for the protection of the person, and for
  securing to the individual what Judge Cooley
  calls the right "to be let alone." Instantaneous
  photographs and newspaper enterprise have invaded
  the sacred precincts of private and domestic
  life and numerous mechanical devices threaten to
  make good the prediction that "what is whispered
  in the closet shall be proclaimed from the
  house-tops.

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Privacy Concerns

• Modern law gives four categories of invasion
  of privacy
  
• 1. Intrusion of solitude.
• A. The Home -- A person's home gets the highest
  protection from the courts. Entering a house or
  apartment without permission of the occupant or,
  in some circumstances, the police, can be an
  unlawful intrusion.B. Photographs and Tape
  Recording -- Taking photographs of a person or
  his property in a private place may be an
  invasion of privacy.
• 2. Public disclosure of private and embarrassing
  facts.
  
• A. Personal Matters -- Details about a private
  person's sexual relationships, the contents of
  personal letters, facts about an individual's
  hygiene, or other intensely personal matters are
  off limits to the news media unless events make
  those details "newsworthy.
• B. Newsworthiness -- Even truthful accounts are
  actionable if they contain highly offensive
  details not of legitimate concern to the public.

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Privacy Concerns

• 3. False light
• A. Fabrication -- Inventing quotes or
  fictionalizing actual events can lead to
  liability if a person is portrayed in a false
  light before the public.
• B. Photographs out of Context -- Using file
  photos or film to illustrate a story can imply
  falsely that a person is involved in a scandalous
  event.
• 4. Appropriation of identity (no use of name or
  likeness for commercial gain without consent)
  
• A. Advertising -- The unauthorized use of a
  person's name or photograph in an advertisement
  is the surest way to invite trouble in this area.
  
• B. Property Rights -- If someone is selling
  admission to a performance, it may be an invasion
  of privacy for the press to "give it away" with
  unauthorized broadcasts or photographs.

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Bill of Rights
Amendment I Congress shall make no law respecting
an establishment of religion, or prohibiting the
free exercise thereof or abridging the freedom
of speech, or of the press or the right of the
people peaceably to assemble, and to petition the
government for a redress of grievances.
Amendment III No soldier shall, in time of peac
e be quartered in any house, without the consent
of the owner, nor in time of war, but in a manner
to be prescribed by law. Amendment IV The righ
t 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.
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Amendment V No person shall be held to answer for
a capital, or otherwise infamous crime, unless
on a presentment or indictment of a grand jury,
except in cases arising in the land or naval
forces, or in the militia, when in actual service
in time of war or public danger nor shall any
person be subject for the same offense to be
twice put in jeopardy of life or limb nor shall
be compelled in any criminal case to be a witness
against himself, nor be deprived of life,
liberty, or property, without due process of law
nor shall private property be taken for public
use, without just compensation. Due process
Amendment IX The enumeration in the Constitutio
n, of certain rights, shall not be construed to
deny or disparage others retained by the people.
Amendment XIV Section 1. All persons born or na
turalized in the United States, and subject to
the jurisdiction thereof, are citizens of the
United States and of the state wherein they
reside. No state shall make or enforce any law
which shall abridge the privileges or immunities
of citizens of the United States nor shall any
state deprive any person of life, liberty, or
property, without due process of law nor deny to
any person within its jurisdiction the equal
protection of the laws.
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Olmstead v. United States (1928)
Ruled that wiretapping by government officials
does not violate constitutional rights
The makers of our Constitution undertook to se
cure conditions favorable to the pursuit of
happiness. They recognized the significance of
man's spiritual nature, of his feelings, and of
his intellect. They knew that only a part of the
pain, pleasure and satisfactions of life are to
be found in material things. They sought to
protect Americans in their beliefs, their
thoughts, their emotions and their sensations.
They conferred, as against the Government, the
right to be let alone -- the most comprehensive
of rights, and the right most valued by civilized
men. To protect that right, every unjustifiable
intrusion by the Government upon the privacy of
the individual, whatever the means employed, must
be deemed a violation of the Fourth Amendment.
And the use, as evidence in a criminal
proceeding, of facts ascertained by such
intrusion must be deemed a violation of the
Fifth. -- Justice Louis Brandeis, dissenting

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Griswold v. Connecticut, (1965) The Court
invalidated a state law prohibiting the use of
drugs or devices of contraception and counseling
or aiding and abetting the use of contraceptives.
The Court described the protected interest as a
right to privacy and placed emphasis on the
marriage relation and the protected space of the
marital bedroom. In Eisenstadt v. Baird, (197
2), the Court invalidated a law prohibiting the
distribution of contraceptives to unmarried
persons. The case was decided under the Equal
Protection Clause but with respect to unmarried
persons, the Court went on to state the
fundamental proposition that the law impaired the
exercise of their personal rights. It quoted from
the statement of the Court of Appeals finding the
law to be in conflict with fundamental human
rights, and it followed with this statement of
its own It is true that in Griswold the right
of privacy in question inhered in the marital
relationship . If the right of privacy means
anything, it is the right of the individual,
married or single, to be free from unwarranted
governmental intrusion into matters so
fundamentally affecting a person as the decision
whether to bear or beget a child.
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Roe v. Wade

• Roe v. Wade, (1973), was a landmark United States
  Supreme Court case establishing that most laws
  against abortion violate a constitutional right
  to privacy, overturning all state laws outlawing
  or restricting abortion.
• Even though the "Constitution does not explicitly
  mention any right of privacy" the court found
  support for a constitutional right of privacy in
  the First Amendment, Fourth Amendment, Fifth
  Amendment, Ninth Amendment, and Fourteenth
  Amendment. The court found this "right of
  privacy" to be "broad enough to encompass a
  woman's decision whether to terminate her
  pregnancy."
• However, the Court determined that "arguments
  that Texas either has no valid interest at all in
  regulating the abortion decision, or no interest
  strong enough to support any limitation upon the
  woman's sole determination, are unpersuasive."
  The Court declared, "We, therefore, conclude that
  the right of personal privacy includes the
  abortion decision, but that this right is not
  unqualified and must be considered against
  important state interests in regulation.
  (Wikipedia)

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In a 1969 decision, Stanley v. Georgia, the
Supreme Court concluded that the state may no
more prohibit mere possession of obscene matter
on the ground that it may lead to antisocial
conduct than it may prohibit possession of
chemistry books on the ground that they may lead
to the manufacture of homemade spirits. . . . A
state has no business telling a man, sitting
alone in his own house, what books he may read or
films he may watch. ...we are faced with the a
rgument that prohibition of possession of obscene
materials is a necessary incident to statutory
schemes prohibiting distribution. That argument
is based on alleged difficulties of proving an
intent to distribute or in producing evidence of
actual distribution. We are not convinced that
such difficulties exist, but even if they did we
do not think that they would justify infringement
of the individual's right to read or observe what
he pleases. Because that right is so fundamental
to our scheme of individual liberty, its
restriction may not be justified by the need to
ease the administration of otherwise valid
criminal laws. We hold that the First and Fou
rteenth Amendments prohibit making mere private
possession of obscene material a crime. As we
have said, the States retain broad power to
regulate obscenity that power simply does not
extend to mere possession by the individual in
the privacy of his own home.
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Lawrence v. Texas, 2003
Right of consenting adults to engage in
homosexual conduct. This case does not invol
ve minors, persons who might be injured or
coerced, those who might not easily refuse
consent, or public conduct or prostitution. It
does involve two adults who, with full and mutual
consent, engaged in sexual practices common to a
homosexual lifestyle. Petitioners right to l
iberty under the Due Process Clause gives them
the full right to engage in private conduct
without government intervention. The Texas
statute furthers no legitimate state interest
which can justify its intrusion into the
individuals personal and private life.
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Global Gag Rule

• Instated 1984 by President Reagan. Rescinded 1993
  by President Clinton. The Global Gag Rule was
  reinstated by President George W. Bush on his
  first day in office in January 2001. Rescinded
  again by President Obama, 2009.
• Officially termed the Mexico City Policy, these
  restrictions mandate that no U.S. family planning
  assistance can be provided to foreign NGOs that
  use funding from any other source to perform
  abortions in cases other than a threat to the
  womans life, rape or incest provide counseling
  and referral for abortion or lobby to make
  abortion legal or more available in their
  country.
• Called the "gag" rule because it stifles free
  speech and public debate on abortion-related
  issues, the policy forces a cruel choice on
  foreign NGOs accept U.S. assistance to provide
  essential health services but with restrictions
  that may jeopardize the health of many patients
  or reject the policy and lose vital U.S. funds,
  contraceptive supplies and technical assistance.