Copyright © 2009 – Jeffrey Pittman
A Right to Privacy
 Writing in the Harvard Law Review in 1890, Louis
Brandeis and Samuel Warren proposed that the courts
recognize a new legal right, the right to privacy
 The right to privacy, as proposed, was a basic right to
be left alone
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Privacy Concerns Today Monitoring by Employers
 Around four out of five major U.S. firms record or
review employee workplace activities and
communications
 The activities monitored include telephone calls, e-mail
messages, Internet activities, and computer files
 Employer surveillance techniques include videotaping
employees, recording telephone conversations, logging
Internet sites visited, and analyzing computer use
regarding time logged on and keystroke counts
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Privacy Concerns Today Monitoring by the Government
 Government monitoring of individuals has increased
post-9/11
 We will not focus on government monitoring as this is
primarily a political versus a business issue
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Privacy Concerns Today Monitoring by Private Companies
 Individual private information is available from
companies such as www.secret-info.com
 The information available includes an individual’s
social security number, unlisted telephone number,
license plate number, information on neighbors and
relatives, and property ownership
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Privacy Rights under the Law
 US Constitution
 Federal Statutory Law –various miscellaneous statutes
 State Constitutions & Statutes
 State Common Law
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Privacy & the United States
Constitution
 The Unites States Constitution, specifically the Bill of
Rights, is designed to protect individuals from
government intrusion into their lives
 The protections for individuals found in the
Constitution only provide protection from the
government - private (nongovernmental) action is not
regulated by the Constitution
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Privacy & the United States
Constitution
 Privacy is not directly mentioned in the Constitution
 The courts have inferred privacy protection from other
Constitutional provisions in the First, Fourth, Fifth,
and Ninth Amendments
 Rosario v. United Staes of America (privacy handout)
provides an example of privacy under the Fourth
Amendment
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The Constitution & the Bill of
Rights
Amendment IV
The right 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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The Fourth Amendment and
Searches
If the searching party is a
government employee:
 US Constitution – The
Fourth Amendment
applies, protecting
against unreasonable
searches and seizures in
areas where a reasonable
expectation of privacy
exists
If the searching party is
not a government
employee:
 No federal law is
applicable; look to state
law
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The Fourth Amendment and Searches
 Regarding searches by government employees under
the Fourth Amendment:
 If the employee is a police officer, a search warrant is
usually required
 If the employee is not a police officer, the intrusiveness
of the search is balanced against the need for the search

The searched party’s expectation of privacy is a key
component of this analysis
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Privacy & Various Federal Statutes
 The Computer Fraud and Abuse Act
 The Fair Credit Reporting Act
 The Right to Financial Privacy Act
 The Cable Communications Policy Act
 The Video Privacy Protection Act
 The Financial Services Modernization Act
 The Privacy Act
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A Key Federal Statute - The Electronic
Communication Privacy Act (ECPA)
 Title I of the ECPA (the Wiretap Act), provides a civil
cause of action against “any person who …
intentionally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to
intercept, any wire, oral, or electronic
communication.”
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The ECPA
 Title II of the ECPA (the Stored Communications Act)
establishes civil liability for one who:
 “(1) intentionally accesses without authorization a facility through
which an electronic communication service is provided; or
 (2) intentionally exceeds an authorization to access that facility;
 and thereby obtains, alters, or prevents authorized
access to a wire or electronic communication while it is
in electronic storage in such system.
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ECPA Defenses
Under the ECPA, employers are free to monitor or
intercept electronic messages
 where employees have consented to such
monitoring,
 made through an electronic communication system
that is configured so that such electronic
communication is readily accessible to the general
public, or
 whenever such monitoring is in the ordinary course
of business
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ECPA Case Example – Bailey v. Bailey
 How was the ECPA applied in Bailey?
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ECPA Case Example - Fisher v. Mt. Olive
Lutheran Church
 Mt. Olive Lutheran Church employed Randall Fischer
as a youth minister. While at the church, an employee
intercepted an explicit homosexual telephone
conversation between Fischer and another man
 Later, the church used a computer expert to gain
access to Fischer’s private Hotmail account to view his
email messages
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The Fischer case – Key Actors
Ray O’Connor
Senior Pastor
Randall Fischer
Youth Minister
Rose Salzmann
Secretary
Sandra Janiszewski
Business Manager
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The Fischer case
 The church argues that, according to
plaintiff, he was counseling a homosexual
man, a task that falls within his job
description
 In contrast, plaintiff argues that his call was
personal and that the church employees had
an obligation to stop listening as soon as
they determined that the call was personal
in nature
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State Constitutional and Statutory
Privacy Protections
 Most states, including Arkansas, have privacy
protections that are similar in scope to federal laws
 Some states provide additional protections for medical
records, insurance, school records, credit and banking
information, for example
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State Common Law Privacy Rights
Through the common law process, state courts have
developed the following torts, providing additional
privacy protections
 Intrusion Upon Seclusion
 Public Disclosure of Private Facts Causing Injury to
Reputation
 Publicity Placing Another in a False Light in the Public
eye
 Misappropriation of a Person’s Name or Likeness
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Intrusion
 This tort is an intrusion upon a person’s right to
seclusion or solitude
 There is liability only if the interference with the
plaintiff's seclusion is a substantial one, highly
offensive to the ordinary reasonable person
 The “offensiveness” of the intrusion is by guided by
whether a reasonable expectation of privacy was violated
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False Light in the Public Eye
 This tort involves the defendant revealing information
about a person that places that person in a false light.
A plaintiff here must demonstrate:
 The false light in which he was placed by the publicity
would be highly offensive to a reasonable person, and
 The defendant had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter and
the false light in which the plaintiff would be placed
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Public Disclosure of Private Facts
 This tort requires public disclosure of private
information about a person that, even though true,
generates publicity of a highly objectionable kind
 An example might be the disclosure of names and
details about employees fired for viewing pornography
at work
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Appropriation
 Here a defendant is charged with use of a person’s
name or likeness without permission
 This invasion of privacy would include activities such
as the unauthorized use of a person’s name in an
advertising campaign
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Case Example - Appropriation
The following “Sex and the City” advertisement was
placed on New York buses and subways by TBS, the
cable television network
 “What is the definition of “yogasm”
a. A type of yo-yo trick
b. Sex with Yogi Berra
c. What Samantha has with a guy from yoga class”
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Case Example - Appropriation
 Yogi Berra sued for appropriation and damage to his
reputation
 Yogi Berra was a catcher for the New York Yankees
from 1946-63, and he successfully managed the New
York Yankees and the New York Mets professional
baseball teams
 Yogi Berra agreed to drop his lawsuit against TBS in
exchange for an undisclosed settlement (Sept. 2005)
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Case Example – Appropriation Dobby or
V. Putin
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Case Example - Appropriation
Doe v. TCI Cablevision
110 S.W.3d 363 (Mo.
2003)
 A former professional
hockey player, Anthony
Twist, brought an action
against the creators and
publishers of a comic
book titled Spawn
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Case Example - Appropriation
 Spawn contained a villainous character "Tony Twist"
that is a Mafia don whose list of evil deeds includes
multiple murders, abduction of children and sex with
prostitutes
 The Missouri Supreme Court held that Twist
presented sufficient evidence that
 defendants used his name as a symbol of his identity, as required to
make submissible case for right-of-publicity tort,
 defendants used Twist’s name to attract consumer attention to their
products, and
 the use of Twist’s name was not protected speech
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Case Examples - Appropriation
Vanna White as a robot
(Ms. White prevailed in
her suit against Samsung
and its advertisement)
George Wendt as a robot
(Mr. Wendt won initial
battles against Host
International’s “Cheers”
bars)
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Case Example - Appropriation
 The Vanna White and George Wendt victories in
California were probably negated by a recent decision,
Winter v. D.C. Comics, 69 P.3d 473 (2003)
 There the California Supreme Court held that the
First Amendment overrides state tort law where an
individual’s name or likeness is involved in a
“transformative” use
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Winter v. D.C. Comics
 “Celebrities have a
statutory right of
publicity by which they
can prohibit others from
using their likeness. . . .
An obvious tension
exists between this right
of publicity and the First
Amendment to the
United States
Constitution.”
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Winter v. D.C. Comics
 “In [Comedy III
Productions, Inc. v.
Saderup], we considered
when constitutional free
speech rights may trump
the statutory right of
publicity.”
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Winter v. D.C. Comics
 “We formulated
"what is essentially a balancing test
between the First Amendment and the right of
publicity based on whether the work in question adds
significant creative elements so as to be transformed
into something more than a mere celebrity likeness or
imitation.
 In [Comedy III Productions, Inc. v. Saderup], we
concluded that lithographs and T-shirts bearing the
likeness of The Three Stooges were not sufficiently
transformative to receive First Amendment
protection.”
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Winter v. D.C. Comics
 “In this case, we apply
the same balancing test
to comic books
containing characters
that evoke musician
brothers Johnny and
Edgar Winter.”
Johnny
Winters
Jonah Hex
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Winter v. D.C. Comics
 “We conclude that, in contrast to a drawing of The
Three Stooges, the comic books do contain significant
creative elements that transform them into something
more than mere celebrity likenesses. Accordingly, the
comic books are entitled to First Amendment
protection.”
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Winter v. D.C. Comics
 In considering whether a work is “transformative,” The
California Supreme Court stated a relevant inquiry is
whether the transformed work has value independent
of the celebrity's fame, that is, value in its own right
 Andy Warhol pictures were used by the court as an
example of protected, transformative art
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