I suspect that most people believe that they have more rights to privacy than the law in the USA recognizes, which means that we should be more active in requesting legislatures to enact statutes in this area. That is why I have posted the following essay on the Internet.
Privacy is the expectation that confidential personal information disclosed in a private place will not be disclosed to third parties, when that disclosure would cause either embarrassment or emotional distress to a person of reasonable sensitivities. Information is interpreted broadly to include facts, images (e.g., photographs, videotapes), and disparaging opinions.
The right of privacy is restricted to individuals who are in a place that a person would reasonably expect to be private (e.g., home, hotel room, telephone booth). There is no protection for information that either is a matter of public record or the victim voluntarily disclosed in a public place. People should be protected by privacy when they "believe that the conversation is private and can not be heard by others who are acting in an lawful manner." Am.Jur.2d Telecommunications § 209 (1974).
The easiest method to keep information confidential is to disclose it to no one, but this is too severe a method, in that it forces a person to be a recluse and denies a person medical care, among other unacceptable limitations.
Legal concepts like ownership of real property and contracts originated many hundreds of years ago and are now well established in law. In contrast, the right of privacy has only recently received legal recognition and is still an evolving area of law. It is generally agreed that the first publication advocating privacy was the article by Warren and Brandeis, The Right to Privacy, 4 Harvard L.R. 193 (1890). However, the codification of principles of privacy law waited until Prosser, Privacy, 48 Cal.L.Rev. 383 (1960), which Prosser subsequently entered into the Second Restatement of Torts at §§ 652A-652I (1977).
Early invasions of privacy could be treated as trespass, assault, or eavesdropping. Part of the reason for the delay in recognizing privacy as a fundamental right is that most modern invasions of privacy involve new technology (e.g., telephone wiretaps, microphones and electronic amplifiers for eavesdropping, photographic and video cameras, computers for collecting/storing/finding information). Before the invention of such technology, one could be reasonably certain that conversations in private (e.g., in a person's home or office) could not be heard by other people. Before the invention of computer databases, one might invade a few persons' privacy by collecting personal information from interviews and commercial transactions, but the labor-intensive process of gathering such information made it impossible to harm large numbers of victims. Further, storing such information on paper in file cabinets made it difficult to use the information to harm victims, simply because of the disorganized collection of information.
The famous phrase, the right "to be let alone" has a long history. As far back as 1834, the U.S. Supreme Court mentioned that a "defendant asks nothing wants nothing, but to be let alone until it can be shown that he has violated the rights of another." Wheaton v. Peters, 33 U.S. 591, 634 (1834). The phrase, "the right to be let alone", also appears in a law textbook [T.M. Cooley, A Treatise on the Law of Torts 29 (2d ed. 1888)], as corresponding to the duty "not to inflict an injury", for example, by battery. This argument was expanded by Warren and Brandeis in their famous law review article, cited supra. Subsequently, Brandeis used the phrase "the right to be let alone" in his famous dissent in Olmstead v. U.S., 277 U.S. 438, 478 (1928), the first wiretapping case heard by the U.S. Supreme Court. The "right to be let alone" is the most terse definition of the right to privacy, although, through numerous U.S. Supreme Court decisions cited later in this article, this phrase has come to be associated with preventing invasions of the private sphere by the government.
Because privacy is an emerging right, a discussion of privacy is typically a list of examples where the right has been recognized, instead of a simple definition. Privacy can be discussed in two different directions: the nature of the right and the source of the right (e.g., case law, statute, Constitution).
Prosser, in both his article and in the Restatement (Second) of Torts at §§ 652A-652I, classifies four basic kinds of privacy rights:
Only the second of these four rights is widely accepted in the USA. In addition to these four pure privacy torts, a victim might recover under other torts, such as intentional infliction of emotional distress, assault, or trespass.
Unreasonable intrusion upon seclusion only applies to secret or surreptitious invasions of privacy. An open and notorious invasion of privacy would be public, not private, and the victim could then chose not to reveal private or confidential information. For example, recording of telephone conversations is not wrong if both participants are notified before speaking that the conversation is, or may be, recorded. There certainly are offensive events in public, but these are properly classified as assaults, not invasions of privacy.
Other examples of privacy are included in professional ethics, such as confidentiality of disclosures during physician-patient, priest-penitent, attorney-client relationships, together with the evidence code that protects such disclosures. Violation of such confidentiality can be a tort. Humphers v. First Interstate Bank of Oregon, 696 P.2d 527 (Or. 1985)(physician violated confidentiality of adoption by helping daughter find her birth mother). The violation of confidentiality could also be a matter for a professional licensing board.
The wisdom in this dissenting view lay dormant for many years. The following is a brief history of the use the "right to be let alone" in majority opinions of the U.S. Supreme Court.
A 1946 majority opinion considered a newspaper's refusal to comply with a subpoena, in which the Court cited, in a long footnote, Brandeis' dissent in Olmstead as making "the case for protected privacy". Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 204, n.30 (1946).
A 1966 majority opinion in a habeas corpus proceeding mentioned that the Fourth and Fifth Amendments stand "as a protection of quite different constitutional values reflecting the concern of our society for the right of each individual to be let alone." The Court provided no citation to an earlier use of the "right ... to be let alone" in this case. Tehan v. U.S., 382 U.S. 406, 416 (1966).
Finally, in 1967, the Court overturned its ruling in Olmstead and held that recording by police of conversation in public telephone booth was a violation of the Fourth Amendment, because the speaker had a reasonable expectation of privacy in the booth. Katz v. U.S., 389 U.S. 347, 350 (1967). The Court quoted "right to be let alone" from Warren & Brandeis 1890 article, instead of from Brandeis' dissent in Olmstead, a case on the same issue. Maybe the Court was embarrassed to reverse its earlier position in Olmstead.
In the next 18 years after Katz, there were 32 decisions of the U.S. Supreme Court, including concurring and dissenting opinions, that mentioned the "right to be let alone". For example, in 1969, the Court ruled that possession of obscene material in a home was not a crime. Stanley v. Georgia, 394 U.S. 557, 564 (1969). In 1972, the Court struck a state statute that prohibited distribution of contraceptives to unmarried persons. Eisenstadt v. Baird, 405 U.S. 438, 454 (1972). And in 1985, the Court ruled that recovery of evidence by surgery was unreasonable. Winston v. Lee, 470 U.S. 753, 758 (1985).
Businesses have no right of privacy. California Bankers Ass'n v. Schultz, 416 U.S. 21, 65 (1974); U.S. v. Morton Salt Co., 338 U.S. 632, 652 (1950); Restatement (Second) Torts, §652I, comment c (1977); Prosser, Privacy, 48 Calif. L.Rev. 383, 408-09 (1960); Am.Jur.2d Constitutional Law § 606 (1979). Privacy law is phrased only as an individual person's rights. However, businesses have rights analogous to the right of privacy. For example, corporate espionage might be prosecuted as an improper acquisition of a trade secret. Restatement (Third) Unfair Competition § 43 (1995). Further, trademark law holds that a business can own a product name and prevent others from using the same name, at least in the owner's territory. It is interesting that confidential business information is treated as a property right, while confidential personal information is not.
When the Constitution was written in 1791, the major concern of the drafters was that a powerful government could intrude on the privacy of individual citizens, hence the provisions in the Bill of Rights, specifically the Fourth and Fifth Amendments, to protect citizens from government. Today, individuals also need protection from intrusion by large corporations, but the law has been slow to provide such protections.
Consider bar code scanning of products at the cashier's register of retail stores, together with input of credit card number to pay for the purchases. The credit card number can be linked with a name and address, to generate a database of information about purchases. As one hypothetical example of what could happen, consider an unmarried school teacher in a conservative state who purchases contraceptives. Since school teachers are supposed to have good moral values, and premarital sex is wrong according to some religions, the teacher could be dismissed from his/her job. I find such an invasion of privacy to be outrageous.
A person sympathetic to the consumer would conclude that the store only had the right to use the list of items purchased for its own use (e.g., inventory control, planning future purchases) and the credit card data should have been used only to obtain payment for the total amount of the sale to the consumer. The credit card data should never have been merged with the detailed list of items purchased.
A person sympathetic to the store might conclude that the act of purchasing was a public act, for which there was no reasonable expectation of privacy. The store clerk, the person who put the items in bags, and the people in line behind the customer are likely to be unfamiliar to the customer (i.e., public place). There is no expectation of a confidential relationship, because neither the store personnel nor the other shoppers are professionals with a duty of confidentiality to the customer. Therefore, if the customer really desires privacy, he/she should shop in a store far from his/her home (perhaps by mail order), where he/she is unlikely to encounter anyone who is interested in his/her purchases.
Because the store receives money from selling information on purchases of people, customers who desire privacy arguably should pay a fee to the store to offset the store's loss of income. On the other hand, one can argue that the store has no legitimate right to sell such information, therefore, any income from the sale of information is wrongful.
As a second example, consider purchases of underwear. The purchases are made in a public place and the sales clerk and other customers are not professionals with a duty of confidentiality. Therefore, under current law, there is no expectation of privacy. If the customer is a famous person, the store clerk could report the type of underwear that the famous person purchased. Yet it seems obvious that such a reporting is not only a violation of the purchaser's privacy, but is also an uncivil activity that degrades society as well as embarrasses the victim.
The U.S. Supreme Court has ruled that the police may legally search, without a search warrant, trash or garbage that individuals put out for collection. California v. Greenwood, 486 U.S. 35 (1988). As explained below, search and seizure of material placed in the trash is a clear invasion of an individual's privacy and this Supreme Court holding should be overturned.
Residents commonly place their trash in plastic bags and put the bags on the curb, for pickup by the municipal trash collection service. The bags themselves are opaque, commonly black or green or brown. The technology to make transparent plastic bags is well known, yet trash bags are always opaque. The color of trash bags is our first hint that people who purchase and use trash bags do not want transparent bags, since that would allow the contents to be easily seen.
The argument has been made that garbage from different residences is "promptly intermingled with other garbage in the truck such that its origin can no longer be identified." California v. Rooney, 483 U.S. 307, 322 (1987) (White, J., citing respondent's argument). While this quick anonymity is true for many items, it is not true for paper that contains names of people, such as invoices and labels on containers of prescription medicine.
The mere possibility of intrusion (e.g., burglar entering a house) does not negate the expectation of privacy in other situations, so it is inconsistent to hold differently for garbage. Greenwood, 486 U.S. at 54 (Brennan, J., dissenting); State v. Hempele, 576 A.2d 793, 804 (N.J. 1990).
The U.S. Supreme Court noted that a reporter for a weekly tabloid had seized five bags of garbage from Secretary of State Henry Kissinger, inventoried the contents, and published the results. California v. Greenwood, 486 U.S. 35, n.4 and 1635 (1988). The opinion of the Court used this invasion of Dr. Kissinger's privacy by a reporter as part of the reason to assert that one had no expectation of privacy in one's garbage! Just because Dr. Kissinger chose not to sue the reporter for "public disclosure of private facts" does not mean than an outrageous violation of his privacy did not occur.
In considering searches of luggage and packages, the U.S. Supreme Court held that there was no distinction between worthy containers (e.g., fancy suitcase, attaché case) and unworthy containers (e.g., paper bag), if the containers were opaque. Katz v. U.S., 389 U.S. 347, 361 (1967)(Harlan, J., concurring); Robbins v. California, 453 U.S. 420, 425-427 (1981); U.S. v. Ross, 456 U.S. 798, 815, 822 (1982). Because one expects law to be consistent, garbage that is in an opaque container should be protected from search. State v. Hempele, 576 A.2d 793, 803-804 (N.J. 1990).
In most of the cases involving police searches of garbage, the defendant has been selling illegal recreational drugs. I have the feeling that much of the opinions of courts are nothing more than the bogus philosophical argument that "the end justifies the means": because drug dealers are evil, they have no rights. Of course, the judges are sophisticated enough to cover their real motivation with long, technical arguments about no reasonable expectation of privacy, curtilage, abandonment, etc. In contrast, I believe the issues are simple: the confidential contents of much garbage, together with its opaque container, is enough to justify requiring a search warrant before the police can open the garbage bag. Erudition and scholarship should not be used to make issues more complicated than necessary for a full understanding!
The current law in the U.S.A. (federal as well as most states) is that (1) a person has no reasonable expectation of privacy for contents of garbage and (2) a person has relinquished any property interest in garbage, even when it sits in metal trash cans or opaque plastic bags at the person's home awaiting collection. This sorry state of affairs needs correction, probably by legislation.
The Court in Greenwood decided that case according to the Katz test (reasonable expectation of privacy), not considering whether the trash bags were abandoned property. However, many state and federal trial and appellate courts have considered the issue of abandoned property.
Trash bags on the curb might be considered as abandoned property. True abandoned property is available to anyone who finds it. But trash bags were put on the curb with the reasonable expectation that the municipal trash collection service and no one else would pick up the bags and dispose of them anonymously. See People v. Krivda 486 P.2d 1262, 1268 (Calif. 1971); State v. Hempele, 576 A.2d 793, 808 (N.J. 1990). Trash is not abandoned property, because it is not available to anyone who finds it.
But, even if trash be abandoned property, it does not follow that the former owner has also relinquished an expectation of privacy in the garbage. For example, in mailing a first class letter one relinquishes the letter, while retaining the right of privacy to the contents. California v. Greenwood, 486 U.S. at 55 (1988)(Brennan, J., dissenting); Ex parte Jackson, 96 U.S. 727 (1878). This analogy can be extended: one does not control the routing of telephone conversations or telegraphic messages, but 18 USC § 2511 requires that the telephone and telegraph companies maintain the confidentiality of the messages in their system. Still further, people sometimes discard items to maintain their privacy. State v. Hempele, 576 A.2d 793, 809 (N.J. 1990).
The Fourth Amendment to the U.S. Constitution explicitly prohibits "unreasonable searches and seizures" of people's houses by the government. This protection has been extended to the area immediately surrounding the house, which is called the "curtilage". Some courts have considered it significant whether the garbage bags are inside or outside the curtilage, with a view toward protecting garbage inside the curtilage, but not protecting garbage outside the curtilage.
In Greenwood, the U.S. Supreme Court only considered garbage that was outside the curtilage. Greenwood 486 U.S. at 37. Again, we must remind ourselves that the Court in Greenwood decided that case according to the Katz test (reasonable expectation of privacy), partly because the trash bags at issue in that case were outside the curtilage. But the Court in Greenwood never suggested that the concept of curtilage was determinative of a privacy right in garbage. A much better analysis of curtilage is given in State v. Hempele, 576 A.2d 793, 799 (N.J. 1990).
The reason that trash bags are placed outside the curtilage is that municipal ordinances require trash to be placed at the curb, for the convenience of collection personnel, so trash can be collected in an efficient and orderly way. The choice of location is not an expression of residents' desires to forfeit any privacy interest in the contents of their trash. Therefore, I think courts' arguments about curtilage are irrelevant to the real issue.
The privacy of garbage is an issue that extends beyond police searches without a warrant. In many cases of computer crime, a person obtained computer account numbers and passwords by searching garbage cans outside buildings that contained mainframe computers. A common way for people to steal credit card numbers (in the days before electronic processing of credit card transactions) was to rummage through the trash of retail merchants and find the carbon paper from credit card receipts. Who has committed the greater wrong: (1) the business who carelessly discarded confidential information or (2) the punk who deliberately searched through garbage in search of the confidential information to use for unlawful purposes?
There are also a few reported cases in which a company searched through the garbage of a competitor, in an attempt to find lists of customers, corporate strategy, embarrassing material, etc. The Soap Co. v. Ecolab, Inc., 646 So.2d 1366 (Ala. 1994); Camp, Dresser & McKee, Inc. v. Steimle & Assoc., Inc., 652 So.2d 44 (La.Ct.App. 1995). The dissent in Ecolab mentions that, because Greenwood held that a person has no legitimate expectation of privacy in garbage, there is no legal basis for the complaint. This is an example of how the bad decision in Greenwood can affect more than just privacy of individuals. Technically, Greenwood is inapposite, because, as explained above in section 4, businesses have no right of privacy.
Journalists are protected by "freedom ... of the press" that is explicitly mentioned in the First Amendment to the U.S. Constitution, while privacy rights of individuals are not explicitly mentioned in the Constitution. A public figure has great difficulty recovering for defamation (i.e., publication of false statements). N.Y. Times v. Sullivan, 376 U.S. 254 (1964); Restatement (Second) of Torts § 580A. See also Time, Inc. v. Hill, 385 U.S. 374 (1967)(Require finding of "knowing or reckless falsity" before plaintiff can recover under state privacy statute for false portrayal). There would presumedly be even less protection for publication of true statements (i.e., inventory of a garbage can) of a public figure. For the same reasons, a public figure can not recover for "intentional infliction of emotional distress" caused by a parody or satire. Hustler Magazine v. Falwell, 485 U.S. 46 (1988).
In 1910, William Sidis, a child prodigy, was a public figure. Many years after he became a recluse, a reporter for The New Yorker located Sidis in 1937 and wrote an article that described in detail Sidis' current activities. Sidis sued the publisher for invasion of privacy, what would now be called "unreasonable intrusion on seclusion". The Court of Appeals held that Sidis' life was still of public interest, therefore The New Yorker could publish an article about him. Sidis v. F-R Pub. Corp., 113 F.2d 806 (2d Cir. 1940). This famous case is typical of many subsequent decisions: journalists have the right to report anything that is arguably of interest to their readers. Courts do not want to get involved in evaluating whether the reader's interest is in good taste, socially decent, etc. Still, I am concerned that Sidis' right to solitude his right to be let alone was violated because of a nosy public's curiosity about Sidis as a freak. Sidis had done nothing around 1937 that would make his personal life a legitimate public issue: he had not asked for donations of money from the public, he was not a politician who was asking for votes, he had not made any recent publications, he had not harmed anyone.
Courts do not always protect the press. A newspaper in Alabama published a photograph of a woman whose dress was lifted by jets of air at a Fun House at a county fair. The court ruled that the photograph, which showed her panties, had no "legitimate news interest to the public" and upheld an award of $ 4166 to plaintiff, for invasion of her privacy. Daily Times Democrat v. Graham, 162 So.2d 474 (Ala. 1964). The facts are mentioned in the Restatement (Second) of Torts at § 652B, illustration 7, but without a cite to the actual case.
There are several television programs in the USA that show paramedics or
firemen rescuing people. When someone calls for emergency assistance and a
television camera crew also appears and enters their house, the victim
is in no condition for either consent or protest to this invasion of his/her
privacy. There have been several reported cases in which the victim later
sued the television program for invasion of privacy.
Shulman v. Group W Productions, 59 Cal. Rptr.2d 434 (1997);
Miller v. NBC, 232 Cal.Rptr. 668 (1986);
Anderson v. Fisher Broadcasting, 712 P.2d 803 (Or. 1986).
It is not yet clear exactly where the boundary between "freedom of the press" and privacy of individuals should be drawn. Miller made clear that a film crew entering a home with paramedics (not only was the film crew uninvited, but they never asked permission from the homeowners) was an intentional trespass that is actionable in tort. The court in Shulman held that victims did have a reasonable expectation of privacy inside an ambulance, however this case is currently under review by the California Supreme Court. review granted 934 P.2d 1278 (Calif. 1997). These two cases describe the law only in California.
In my opinion, there are similar issues here and in medical experiments on human beings without informed consent. Both the journalists and physicians obtain fame and fortune, while their victims suffer. Not all journalists are unethical. Not all medical researchers are unethical. But there exists the potential for exploitation of victims.
A "public figure" does have the right to control commercial exploitation of his/her name and likeness. But here there is no conflict between the freedom of the press and the privacy rights of individuals. Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866, 868 (2d Cir. 1953); Arnold Palmer v. Schonhorn Enterprises, Inc., 232 A.2d 458 (N.J.Super. 1967); J. Onassis v. Christian Dior-New York, Inc., 472 N.Y.S.2d 254 (1984).
The entire act of a circus performer was filmed and showed on a televised news broadcast in 1972. This was not a misunderstanding: the day before the surreptitious filming occurred, the performer had asked the reporter not to film the performance. The performer sued the television station for "unlawful appropriation" of his performance. The U.S. Supreme Court and the Ohio Supreme Court held that the television station had no immunity under freedom of the press. Zacchini v. Scripps-Howard Broadcasting, 433 U.S. 562 (1977); 376 N.E.2d 582 (Ohio 1978).