Privacy

In constitutional law, the right of people to make personal decisions regarding

intimate matters; under the common law, the right of people to lead their lives
in a manner that is reasonably secluded from public scrutiny, whether such scrut
iny comes from a neighbor's prying eyes, an investigator's eavesdropping ears, o
r a news photographer's intrusive camera; and in statutory law, the right of peo
ple to be free from unwarranted drug testing and electronic surveillance.
The origins of the right to privacy can be traced to the nineteenth century. In
1890 Samuel D. Warren and Louis D. Brandeis published "The Right to Privacy," an
influential article that postulated a general common-law right of privacy. Befo
re the publication of this article, no U.S. court had ever expressly recognized
such a legal right. Since the publication of the article, courts have relied on
it in hundreds of cases presenting a range of privacy issues.
In Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928),
Brandeis, then a Supreme Court justice, articulated a general constitutional ri
ght "to be let alone," which he described as the most comprehensive and valued r
ight of civilized people. For the next half century, the right to privacy gradua
lly evolved. Today every jurisdiction in the country recognizes some form of con
stitutional, common-law, or statutory right to privacy.
Constitutional Law
The constitutional right to privacy protects the liberty of people to make certa
in crucial decisions regarding their well-being without government coercion, int
imidation, or interference. Such crucial decisions may concern religious faith,
moral values, political affiliation, marriage, procreation, or death. The federa
l Constitution guarantees the right of individuals to make these decisions accor
ding to their own conscience and beliefs. The government is not constitutionally
permitted to regulate such deeply personal matters.
The right of privacy protected by the Constitution gained a foothold in Griswold
v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), in which
the Supreme Court struck down a state statute forbidding married adults from us
ing birth control because the statute violated the sanctity of the marital bedro
om. Acknowledging that the Constitution does not mention the word privacy anywhe
re in its text, the Court held that a general right to privacy may be inferred f
rom the express language of the First, Third, Fourth, Fifth, and Fourteenth Amen
dments, as well as from the interests protected by them.
The Court said that the First Amendment guarantees the right to peaceably assemb
le, which includes the liberty of any group to associate in private. The Third A
mendment prohibits the government from quartering soldiers in a private home wit
hout the consent of the owner. The Fourth Amendment forbids the government from
performing warrantless and unreasonable searches of any area in which a person m
aintains a reasonable expectation of privacy. The Fifth Amendment safeguards the
right of criminal suspects to keep secret any incriminating evidence that might
help the government obtain a conviction against them. The Fourteenth Amendment
prevents states from denying its citizens certain fundamental rights that are de
emed essential to the concepts of equality or liberty, including the right to au
tonomy, dignity, and self-determination.
The holding in Griswold was later used to strike down a Massachusetts statute th
at made illegal the distribution of contraceptives to unmarried persons (Eisenst
adt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 [1972]). In strikin
g down this law, the Supreme Court articulated a broader view of privacy, statin
g that all individuals, married or single, enjoy the liberty to make certain int
imate personal decisions free from government intrusion, including the decision
whether to bear or sire a child. This rationale was extended in Roe v. Wade, 410
U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), which established the right o
f women to terminate their pregnancy at any time before the fetus reaches the st
age of viability. Roe has subsequently been interpreted to proscribe the governm
ent from passing regulations that unduly burden a woman's right to abortion.
In Cruzan v. Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L
. Ed. 2d 224 (1990), the Supreme Court again enlarged the constitutional meaning
of privacy by declaring that competent patients have a right to refuse life-sus
taining medical treatment, including artificial nutrition and hydration. A 1997
Supreme Court case presented the issue of whether competent but terminally ill p
atients may hasten their death through physician-assisted suicide (Washington v.
Glucksberg, 117 S. Ct. 2258). Representatives for the terminally ill patients a
rgued that the right to physician-assisted suicide represents an essential liber
ty interest in controlling one of life's most significant decisions, whereas the
state of Washington argued that this liberty interest is outweighed by the need
to protect vulnerable individuals from irrational, ill-informed, and coerced de
cisions to end their lives. The Supreme Court held that the right to assistance
in committing suicide is not a fundamental liberty interest protected by the due
process clause of the Constitution, and a state's ban on assisted suicide is co
nstitutional.
The constitutional right to privacy does not protect all forms of conduct that a
re pursued behind closed doors. Adults have no constitutional right to engage in
homosexual sodomy, inject intravenous drugs, solicit prostitutes, or view child
pornography. Nor do members of society have a right to be insulated from every
potentially offensive activity. For example, the government may not forbid a mov
ie theater from displaying nude scenes on a large outdoor screen that is visible
to passing motorists. In Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.
Ct. 2268, 45 L. Ed. 2d 125 (1975), the Supreme Court said that the First Amendm
ent right to show such films outweighs the privacy interests of offended passers
by who can protect their sensitivity by averting their eyes.
Common Law
The common law of torts recognizes five discrete rights of privacy. First, the c
ommon law affords individuals the right to sue when their seclusion or solitude
has been intruded upon in an unreasonable and highly offensive manner. Second, i
ndividuals have a common-law right to sue when information concerning their priv
ate life is disclosed to the public in a highly objectionable fashion. Third, to
rt liability may be imposed on individuals or entities that publicize informatio
n that places someone in a false light. Fourth, the common law forbids persons f
rom appropriating someone's name or likeness without his or her consent. Fifth,
the common law prevents business competitors from engaging in unfair competition
through the theft of trade secrets.
Intrusion upon Seclusion
One who intentionally intrudes upon the solitude or seclusion of another is subj
ect to liability for common-law invasion of privacy. An invasion may involve a p
hysical intrusion into a place where a person has secluded herself, such as the
nonconsensual entry into someone's home, office, apartment, or hotel room. Nonph
ysical intrusions may also give rise to liability when they involve the use of e
lectronic surveillance equipment, including wiretaps, microphones, and video cam
eras. Alternatively, a person's seclusion may be impermissibly interrupted by pe
rsistent and unwelcome telephone calls, or by the occasional window peeper. By i
mposing liability in such instances, the law seeks to protect a person's tranqui
lity and equilibrium.
Not every intrusion is actionable under this common-law tort. The intrusion must
 be considered highly offensive to a reasonable person. Creditors are allowed to
take action to collect delinquent debts but must do so in a reasonable fashion.
Landlords are permitted to demand late rental payments but must do so at reason
able times. A judge or jury determines what is reasonable according to the facts
of each case. Individuals have no expectation of privacy in matters that are pu
blic. Thus, businesses may examine public criminal records of prospective employ
ees without fear of liability, and photographers may take pictures of movie star
s in public places.
Publicity That Discloses Private Information
The common law protects individuals from publicity that discloses information ab
out their private lives. Unlike libel, slander, and defamation actions, this com
mon-law tort may give rise to liability for truthful publicity, as long as the i
nformation is published in a manner that is highly objectionable to a reasonable
person and the information is of no legitimate concern to the public. Disclosur
e of private sexual relations, disgraceful family quarrels, humiliating illnesse
s, and most other intimate personal matters will normally give rise to liability
for invasion of privacy, even if such disclosures are completely accurate. By d
iscouraging the publication of such private and personal matters, the common law
places a high value on the right of individuals to control the dissemination of
information about themselves, including the right to filter out embarrassing an
d harmful facts that might influence the opinion of others.
Liability is not usually imposed for alleged injuries relating to matters that a
re intended for public consumption. A person's date of birth and military record
, for example, are both matters of public record that may be disclosed without i
nvading his or her privacy. Commercial proprietors that regularly deal with the
public receive little protection from disclosures that relate to the price of th
eir products, the quality of their services, or the manner in which they conduct
business. Under the First Amendment, business proprietors receive less protecti
on of their privacy interests because the U.S. Constitution seeks to promote the
free and robust exchange of accurate information to allow consumers to make inf
ormed decisions.
False-Light Publicity
The common-law tort of false-light publicity protects individuals from the publi
c disclosure of false information about their reputation, beliefs, or activities
. The information need not be of a private nature nor must it be defamatory, as
must libelous and slanderous statements, before liability will be imposed. Inste
ad, a misleading publication will give rise to liability for false-light publici
ty when it is placed before a large segment of the public in such a way that a r
easonable person would find it highly offensive. However, publication of an inac
curate story to a single person, or a small group of people, is not considered s
ufficiently public to constitute publicity.
A newspaper photograph printed in close proximity to a caption suggesting crimin
al activity on the part of the person photographed is a classic example of false
-light publicity. On the other hand, a misleading photograph, such as one that h
as been retouched, may not give rise to liability for false-light publicity if t
he photograph is accompanied by a caption that clearly explains how it has been
distorted. An esteemed poet may successfully sue for false-light publicity when
an inferior poem is published under her name. A war hero may assert a cognizable
claim for false-light publicity if a story is aired that inaccurately portrays
him as a coward.
Public officials, such as politicians, and public figures, such as professional
athletes, rarely recover for false-light publicity. Before a public official or
public figure can recover for false-light publicity, the First Amendment require
s proof that a story or caption was published with knowledge of its falsity or i
n reckless disregard of its truth, a principle that has become known as the actu
al malice standard (New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710,
11 L. Ed. 2d 686 [1964]). In most instances, public officials and public figure
s have thrust themselves into the public spotlight. As a condition to accepting
the benefits that accompany public recognition, the law requires that such perso
ns accept a diminished level of protection of their privacy interests. Because t
he First Amendment confers less protection on public persons than it does on pri
vate individuals, the Constitution encourages the media to freely disseminate in
formation about candidates for office, government officials, and other figures w
ho influence or shape the course of society.
Appropriation of Name or Likeness
One who appropriates the name or likeness of another person is subject to liabil
ity for invasion of privacy. All individuals are vested with an exclusive proper
ty right in their identity. No person, business, or other entity may appropriate
someone's name or likeness without permission. Nonconsensual commercial appropr
iation of a person's name or likeness for advertising purposes is the most commo
n type of conduct giving rise to liability under this common-law tort. By forbid
ding the nonconsensual use of a person's name or likeness, the law allows an ind
ividual to license her face, body, reputation, prestige, and image for remunerat
ion.
Not every appropriation gives rise to liability for invasion of privacy. Liabili
ty will attach only when a person's name or likeness has been appropriated to ob
tain an immediate and direct advantage. The advantage need not yield a financial
gain. However, the mere incidental use of someone's name or likeness is not a c
ompensable appropriation.
For example, the print and electronic media may publish photographs, drawings, a
nd other depictions of a person's name or likeness as an incidental part of thei
r legitimate news-gathering activities without violating the common-law right to
privacy. However, if a nonprofit organization uses a person's name or likeness
to promote its philanthropy, it may be liable for the appropriation. The right t
o sue for wrongful appropriation is a personal right. Parents cannot recover dam
ages for breach of their children's privacy, and family members cannot sue after
the death of the person whose name or likeness has been misappropriated.
Theft of Trade Secrets
Wrongful use, disclosure, or theft of a trade secret is actionable under the com
mon law. Although the U.S. economy is generally governed by free-market principl
es, the common law requires businesses to compete fairly and forbids business ri
vals from improperly stealing one another's intellectual property for commercial
advantage. Although it is difficult to formulate a comprehensive list of what c
onstitutes the improper acquisition of a trade secret, the common law generally
makes it unlawful to engage in fraud, misrepresentation, or other forms of decep
tion for the purpose of obtaining confidential commercial information.
Independent analysis of publicly available products or information is not an imp
roper means of acquisition. Through a process known as reverse engineering, a co
mpetitor may lawfully purchase a rival's product, disassemble it, and subject it
to laboratory analysis for the purpose of unlocking valuable information, such
as a secret formula or process. However, aerial photography of a competitor's pl
ant constitutes tortious interference with commercial privacy. Courts have reaso
ned that the law should not force commercial entities to expend additional resou
rces to conceal their interior from every possible form of exterior exposure. Co
nversely, commercial entities may patent many of their valuable trade secrets be
fore placing a product on the market where it can be analyzed by a competitor.
Legislation
In addition to the constitutional and common-law principles that offer protectio
n of privacy interests, a host of statutes and regulations have been passed to d
efine privacy in a variety of contexts. State and federal legislation regulates
the circumstances under which information from financial, educational, and gover
nment records can be revealed. State and federal legislation also prescribes the
conditions under which employers may subject their employees to drug testing. F
ederal laws strictly limit the use of electronic surveillance in both the public
and private sectors.
Congress passed the Fair Credit Reporting Act of 1970 (15 U.S.C.A. § 1681 et seq.)
to prevent unreasonable and careless invasions of consumer privacy. The law per
mits employers, lenders, and other persons to obtain a copy of an individual's c
redit report for a legitimate business purpose. However, businesses may not requ
est a credit report unless it is related to a transaction initiated by the consu
mer, such as a job interview or bank loan.
Commercial entities may not use credit reports for the purpose of marketing. Nor
may a person or entity obtain a credit report through the use of false pretense
s, fraud, or misrepresentation. The statute authorizes consumers to review the i
nformation contained in their own credit reports and challenge inaccuracies. Cre
dit bureaus have an obligation to correct any inaccuracies within a reasonable a
mount of time after learning of them.
The Privacy Act of 1974 (5 U.S.C.A. § 522a) requires the federal government to use
fair practices in the collection and use of information about U.S. citizens and
is designed to prevent federal agencies from disclosing certain personal inform
ation contained in their records. In general, federal agencies may not release g
overnment records without first obtaining consent from the persons who are refer
enced in the records. Every individual maintains the right to inspect federal ag
ency records, correct mistakes, and add important details. In the event that an
individual's right is infringed under this law, he or she can sue the federal go
vernment for money damages or a court order directing the agency to obey the law
.
Similarly, the Freedom of Information Act (5 U.S.C.A. § 552 [1996]) contains limit
ations on the disclosure of agency information when such disclosure would consti
tute a "clearly unwarranted invasion of personal privacy." In most other instanc
es, the Freedom of Information Act guarantees the right of Americans to request
a copy of any reasonably identifiable record kept by a federal agency. However,
the U.S. government may refuse to disclose certain sensitive information that re
lates to national security, foreign policy, or other classified areas. Persons w
hose requests for information have been denied may challenge the decision in cou
rt. The Freedom of Information Act serves the twin purposes of protecting privat
e and classified documents from disclosure while requiring the uninhibited excha
nge of all other information that is consistent with an open society and a democ
ratic government.
In 1974 Congress enacted the Family Educational Rights and Privacy Act (20 U.S.C
.A. § 1232g), which gives parents the right to examine the scholastic records of t
heir children. The act broadly defines scholastic records to include all records
, files, documents, and other materials containing information directly related
to a student that are maintained by an educational agency or institution. The ac
t permits only certain individuals to have access to student records, including
other institution officials who have a legitimate scholastic interest in the rec
ords, such as teachers, principals, and student loan officers. Otherwise, a scho
ol must obtain consent from the student or parent before disclosing any informat
ion contained in an educational record. The Family Educational Rights and Privac
y Act applies to all public schools, including colleges and universities, and to
private schools that receive federal funding.
The Right to Financial Privacy Act of 1978 (12 U.S.C.A. § 3401 et seq.) entitles b
ank customers to a limited expectation of privacy in their financial records by
requiring that law enforcement officials follow certain procedures before inform
ation can be disclosed. Unless a customer consents in writing to the disclosure
of his financial records, a bank may not produce such records for government ins
pection unless ordered to do so by an administrative or judicial subpoena or a l
awfully executed search warrant. Other formal written requests for bank records
may be granted if they are made for a legitimate law enforcement purpose. The Ri
ght to Financial Privacy Act applies to credit unions, trust companies, and savi
ngs and loan institutions.
The Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.A. § 2510 et seq.
) governs the use of electronic surveillance in both the public and private sect
ors. In the public sector the act outlines detailed procedures the federal gover
nment must follow before conducting any form of electronic surveillance. Pursuan
t to authorization by the U.S. attorney general or a specially designated assist
ant, federal law enforcement agents must make a sworn written application to a f
ederal judge that specifically describes the location where the communications w
ill be intercepted, the reasons for the interception, the expected duration of t
he surveillance, and the identity of any persons whose conversations will be mon
itored. The judge must then review the surveillance application to ensure that i
t satisfies each of the statutory requirements and establishes probable cause to
justify electronic eavesdropping.
The Omnibus Crime Control and Safe Streets Act governs the use of electronic sur
veillance in the private sector as well. The act prohibits any person from inten
tionally using or disclosing information that has been knowingly intercepted by
electronic or mechanical means without the consent of the interested person. Nea
rly 70 percent of all reported wiretapping involves divorce cases and custody ba
ttles. Often, divorcing spouses, attempting to obtain embarrassing or discrediti
ng information against one another, plant recording and listening devices throug
hout the marital home. Although most federal courts have ruled that the Omnibus
Crime Control and Safe Streets Act applies to interspousal electronic surveillan
ce, some courts have created a spousal immunity from civil liability under the a
ct in an effort to preserve any remaining remnants of marital harmony.
The Omnibus Crime Control and Safe Streets Act also governs the use of electroni
c surveillance in the area of employment. A number of employers videotape employ
ee movement throughout the workplace, search employees' computer files, monitor
their telephone calls, and read their electronic mail. Courts have generally per
mitted employers to engage in such surreptitious snooping so long as it serves a
legitimate and significant business purpose.
In the rest of the private sector, the Omnibus Crime Control and Safe Streets Ac
t applies to information intercepted from telephone satellite unscrambling devic
es, cellular telephones, and pagers, as well as from traditional forms of electr
onic surveillance, such as telephone taps, microphones, and other bugging device
s. However, the act does not cover information intercepted from pen registers, w
hich record the telephone numbers of outgoing calls, or caller identification de
vices, which display the telephone numbers of incoming calls, because neither ca
ptures conversations of any sort. In addition, the act does not apply to informa
tion intercepted by videotape.
Drug and alcohol testing is another form of employee surveillance that raises pr
ivacy questions in both the public and private sectors. Many legislators conside
r drug testing by urinalysis to be intrusive, and the practice has been regulate
d in at least eighteen states. Three states require employers to demonstrate pro
bable cause of illegal drug use before they can compel an employee to submit to
urinalysis. Six states specify that employers can instigate drug testing only if
they have reason to suspect an employee of illegal drug use. In general, howeve
r, no pervasive public policy against mandatory employee drug testing exists in
either the public or private sector.
Drug testing in the workplace gained momentum in 1986 following a presidential c
ommission report on drug abuse (America's Habit: Drug Abuse, Drug Trafficking, a
nd Organized Crime). The commission recommended drug testing in both the public
and private employment sectors. Based on this recommendation, President Ronald R
eagan ordered drug testing for federal employees in positions that require a hig
h degree of trust and confidence (Exec. Order No. 12,564, 3 C.F.R. 224 [1986]).
Guidelines promulgated by the Department of Health and Human Services establishe
d scientific and technical requirements concerning specimen collection, laborato
ry analysis, and interpretation of test results for the federal drug-testing pro
gram.
In response to this federal impetus, employers have dramatically increased drug
testing of employees. Many state laws now encourage private employers to periodi
cally test their employees for illegal drug use, and many private employers have
asked their state legislatures to pass drug-testing laws. In the public sector,
however, the U.S. Supreme Court has ruled that random drug testing of governmen
t employees constitutes a "search" that must comply with the requirements of the
Fourth Amendment before it may be deemed legal (National Treasury Employees Uni
on v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 [1989]).
The meaning of the term privacy changes according to its legal context. In const
itutional law, privacy means the right to make certain fundamental decisions con
cerning deeply personal matters free from government coercion, intimidation, or
regulation. In this sense, privacy is associated with interests in autonomy, dig
nity, and self-determination. Under the common law, privacy generally means the
right to be let alone. In this sense, privacy is associated with seclusion. Unde
r statutory law, privacy often means the right to prevent the nonconsensual disc
losure of sensitive, confidential, or discrediting information. In this sense, p
rivacy is associated with secrecy.