Privacy

Jody BlankeDistinguished Professor of Computer Information Systems and LawMercer University

Right to Privacy

Origins in 1890 article by Samuel Warren and Louis Brandeis

First state to recognize right in civil case Georgia – 1905

The Right to Privacy

Pavesich (1905)

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

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

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

Invasion of Privacy Tort

Appropriation of name or likeness e.g., Michael Jordan Wine

Intrusion upon seclusion e.g., Jackie O, Holiday Inn, Mazzio’s

Pizza, Sean Penn, Bill Gates, Bob Dylan, Katz, Kyllo

False light e.g., Parade Magazine Teenage

Prostitution Publication of private

embarrassing facts e.g., “Joe Hero”

Silvia Leyva at Café Intermezzo, Atlanta

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)

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Federal Privacy Laws (cont.) Video Privacy Protection Act (1988)

revised in 2013 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

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Federal Privacy Laws (cont.) Gramm-Leach-Bliley Act (GLB) (1999) Controlling the Assault of Non-Solicited

Pornography and Marketing Act (CAN-SPAM) (2003)