The Right to Privacy a New Common Law Right

Lillie Coney

Associate DirectorEPIC

Lillie Coney is Associate Director of the Electronic Privacy Information Center. EPIC is a public interest research center established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and constitutional values.

http://www.epic.org/

U.S. Constitution and Privacy• 1st Amendment affords a right to speak anonymously, privacy

in membership to groups, and travel privacy: “Congress shall make no law…abridging…the right of the people peaceably to assemble.” McIntyre v. Ohio Election Comm’n, 514 U.S. 334 (1995), NAACP v. Alabama, 357 U.S. 449 (1958), Shelton v. Tucker, 364 U.S. 479 (1960)

• 3rd Amendment protects the privacy of homes: “No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in times of war, but in a manner to be prescribed by law”

• 4th Amendment provides a right of privacy in documents, materials, and records: “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, (Brandeis Dissent Olmstead v. United States, 277 U.S. 438 (1938)

• 5th Amendment protects privacy by prohibiting the forced disclosure of personal information to government

What is Privacy?

• An intangible property right– The right to be let alone– The right to be anonymous– The right to control who, when, where, and

how information about us is shared– A recently recognized human right

“Right to let alone…”

• Information Privacy Law encompasses common law, constitutional law, statutory law, and international law.

• “The chief enemy of privacy in modern life is that interest in other people and their affairs known as curiosity…” source E.L. Godkin 1890 article

Privacy Common Law

• The Right to Privacy, Samuel Warren and Louis Brandeis, Harvard Law Review (1890)– A proposal to expand common law to include

protection of privacy rights

• Law based on custom and usage and confirmed by the decisions of judges, as distinct from statutory law.

Privacy Common Law

• Common Law a product of social and cultural evolution:– As society changed and greater proximity of persons to

each other created new opportunity for conflict and competition increased so did the need for new laws.

• A key principles of the Constitution of the United States support the right to privacy. The rights of Life, Liberty, and Property support privacy common law.

Privacy Protections in Torts Law

• Public disclosure of private facts

• Intrusion upon Seclusion

• False Light

• Appropriation

Federal Privacy Case LawGriswold v. Connecticut, 318 U.S. 478 (1965)

– Court Declared that individuals have a constitutional right to privacy found in the “penumbras” or “zones” of freedom created by an expansive interpretation of the Bill of Rights

Katz v. United States, 389 U.S. 347 (1967)

– The 4th Amendment protects people and not places

– Police must obtain warrants when searches take place in public locations like a phone booth

Whalen v. Roe, 433 U.S. (1977) Privacy rights extended to the avoidance of disclosure of personal matters.

Reasonable Expectation of Privacy

• The test:– A person must have exhibited an actual

(subjective) expectation of privacy– The expectation be one that society is

prepared to recognize as reasonable.

Common Law Evolution

• Right to life– Freedom from physical injury

– Freedom from fear of physical injury

• Right to liberty– Freedom from physical restraint

• Right to property– Tangible and intangible

Types of Privacy

• Bodily Privacy• Locational Privacy• Political Privacy• Medical Privacy• Genetic Privacy• Internet Privacy• Voter Privacy• Family Privacy• Religious Privacy

• Financial Privacy• Children’s Privacy• Data Privacy• Firearms Privacy• Workplace Privacy• Travel Privacy• Postal Service Privacy• Digital Info. Privacy

Tangible and Intangible Property

• Tangible right– Ownership of property physical and intellectual

– Control of physical space protected by the 4th Amendment

• Intangible rights– Right to be happy

– Freedom from nuisance

– Freedom from slander and liable

Pro-Privacy Statutory Law

• Fair Credit Reporting Act 1970 (public law 90-32, 15 U.S.C. Sec. 1681)

• Privacy Act 1974 (public law 93-579, 5 U.S.C. Sec 552a)• Family Education Rights and Privacy Act of 1974 (public

law 93-380, 20 U.S.C. Sec. 1221)• Right to Financial Privacy 1978 (public law 95-630, 12

U.S.C. Sec. 3401-3422)• Foreign Intelligence Surveillance Act of 1978 (public law

95-511, 15 U.S.C. Sec. 1801-1811)

Pro-Privacy Statutory Law

• Privacy Protect Act 1980• Cable Communication Policy Act 1984• Electronic Communications Privacy Act 1986• Computer Matching and Privacy Protection Act 1988• Employee Polygraph Protection Act 1988• Video Privacy Protection Act 1988• Telephone Consumer Protection Act 1991• Driver’s Privacy Protection Act of 1994

Pro-Privacy Statutory Law

• Children’s Online Privacy Protection Act 1998• Gramm-Leach-Bliley Act 1999• CAN-SPAM Act 2003• Fair and Accurate Credit Transaction Act 2003• Video Voyeurism Prevention Act 2004• Telephone Records and Privacy Protection Act 2006• Health Insurance Portability and Accountability Act

1996• Identity Theft and Assumption Deterrence Act 1998

Privacy Common Law Rights Under Pressure

• Innovations in technology: photography, audio recording, motion pictures, computers, telecommunications, digital data, networking of data bases

• New business and government practices– Record keeping, collection and use of personal

information, data mining, networking of informational data on persons

Statues Mandating Collection of Data

• Bank Secrecy Act 1970

• Communications Assistance for Law Enforcement Act 1994

• Personal Responsibility and Work Opportunity Reconciliation Act 1996

• USA PATRIOT Act 2001

Privacy v. Security

• Privacy Interests: 4th and 5th Amendment regulates the application of police authority

• Security Interests: The needs of government to ensure safety and security– Fixed sobriety check points (not other types of

check points)– Reasonable suspicion– Public health inspection of homes

Common Law Protects the Rights of Individuals

• The right within reason to control who has access to our thoughts, sentiments, and emotions– Protect intellectual property rights (publication of

manuscripts, diaries, sculptures, photographs, etc)

– Protects against disclosure of personal communications: diaries, letters, etc or their content

– 5th Amendment Protects against disclosing information in a government proceeding.

History of Surveillance in the US

Identification & Registration

• Indentured Servants Contracts• Freeman's Papers• Chinese Exclusion Act• Geary Act: Section Six, Canton Certificates,

and 431 Papers• Hand Printing of Native Americans c.1907• Census of 1940 (Japanese Detention)• FBI Fingerprint Database

Government Databases• Computer Matching and Privacy Protection

Act (1977)

• Computer Matching and Privacy Protection Act (1988)

• No-Fly and Automated Selectee Lists

• CAPPS II to classify people according to a threat level

• Secure Flight

Government Data Mining

• 2002 Total Information Awareness is one project that proposed to use linking and search capacity to pre-determine threats

• MATRIX an attempt by several states to build a criminal data mining effort.

• Use of private contractors to avoid privacy act reporting and transparency requirements.

Surveillance = Control

• Jeremy Bentham’s Panopticon describes a circular prison with illuminated cells using a central guard tower that gives the impression of constant watchful eyes. The goal is for the prisoners to “internalize the gaze”--become conscious of being watch to conform themselves. This new power dynamic of the watcher over the watched by creating the perfect gage for the mind and body.

Enforcement Mechanism

• Systems of Surveillance and Enforcement– Passes/Freedom Papers– Organized Slave Patrols “pattie rollers”– Wanted Posters and Newspaper Ads for

runaways

Passes/Freedom Papers

• 1642 Virginia passed laws targeting indentured Irish servants and debtors: those seeking to leave the colony needed a pass from the governor

• 1656 a pass law controlling the movement of Native Americans became law

• Earlier laws mentioned slaves, but it was not until 1680 that a law passed that exclusively dealt with slave passes.

Hacking the Pass System

• Slave Chronicles describe the means of undermining this system of identification– Patrollers were often illiterate: any random written

piece of writing could work as a pass– Doctor existing passes (changing the day or month)– Getting young masters or mistresses to write a pass– Literate slaves could write their own passes and traffic

in passes for others (black market)– Codes hidden in the lyrics of the Songs of the enslave

population

Countering Hacking

• Greater Scrutiny of documents• Planters allowed punishment of those found

with unspecified pass documents• Physical descriptions included in passes and

freedom papers• Metal Slave Tags (Charleston, SC 1783)• Metal Freedom Person's Tags• Wanted Posters

History of Government Surveillance

• Lincoln Administration• Anti-Chinese Immigrant Movement• Criminal Justice Records: Rogue Galleries,

fingerprints, physical measurements• Wilson Administration• Roosevelt Administration• Nixon Administration• Clinton Administration• Bush Administration (2000-____)

Sunshine is the Best Disinfectant: 1960s-1970s

• Social and Political Evolution

• Watergate

• Church Committee

• COINTELPRO

• Freedom of Information Act

• Federal Privacy Act

Your Papers Please?

Approaches to Surveillance

Commercial Sector and Privacy

• Marketing Strategies and Consumers

• Loyalty Cards

• Promotions and Contest

• Product Guarantees and Insurance

• Customer Profiles

Picking the Consumers

• Customer Profiling– Weeding out customers– Targeting Preferred Customers– Predictive Customer Behavior– Managing the Consumer Environment– Increasing consumption of goods and services

Consumers Perspective

• Individually tailored goods and services

• Anticipation of wants and needs

• Less bother with things that we have no interest in purchasing or knowing about.

• Happy news makes happy people

What is not in the fine print?

• How long do digital footprints last?

• Who has access to the information?

• What could someone do with digitized personal information

• How much control do you have over who, when, where, and how information about you is shared?

Dual Uses for Information

• Drivers Licenses

• Store Loyalty Cards

• Cell phones

• Personal Data Devices

• Social Networking Sites

Tracking Enabling Technology

• Close-circuit Television Cameras

• Radio Frequency Identification Devices

• Biometric Identifiers– DNA Databases– Retinal and Fingerprint Scans– Physical movement characteristics

Dual Use Technology

• Close-circuited Television (CCTV)

• Data-mining

• RFID Technology

• Biometric Identification

• DNA databases

• Facial Recognition

• Brain Pattern Recognition

Internet Privacy

• Deep Packet Inspection

• Shrink Wrap Agreements

• Tiered Services and Pay-to-Play

• Living and Working Online

Future of Surveillance

• Brain Mapping

• Thought Pattern Recognition

• RFID Implants

• Data Mining Ready or Not

Who will be the Canaries?

Poor Surveillance Schemes

• Targeting of non-threats

• Increasing the occurrence of false positives and false negatives

• Resistance to distinguishing between legitimate and illegitimate police efforts

Lillie Coney

February 20, 2007