The Right to Privacy a New
Common Law Right
Lillie Coney
Associate Director
EPIC
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 Law
Griswold 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