We have reorganized this chapter in order to help students better understand the different sources for privacy protection, especially since the word “privacy” has a broad meaning today. The chapter now opens with the development of privacy law, followed by the various privacy torts. The chapter ends with a new section on privacy and data protection as well as an updated and expanded look at how the Supreme Court has handled recent electronic privacy cases.

Generally, lawsuits against the media for invading privacy are not based on constitutions or statutes. Rather, these lawsuits usually are tort actions. Privacy torts grew slowly. Courts and some state legislatures recognized appropriation as a tort early in the 20th century. But intrusion and private facts developed much later. Courts in several states still do not accept the false light tort.

By the mid-20th century, privacy law had grown sufficiently complex that William Prosser, then the dean of Boalt Law School at the University of California at Berkeley, proposed that invasion of privacy be broken into the four categories we know today: false light, appropriation, intrusion, and private facts. False light is intentionally or recklessly publicizing false information a reasonable person would find highly offensive. Appropriation is using another’s name or likeness for advertising or other commercial purposes without permission. Intrusion is intentionally intruding on another’s solitude or seclusion. Private facts are publicizing private, embarrassing information. Privacy law continues to evolve, with appropriation generally now being seen as two categories – commercialization and right of publicity.

Appropriation is the use of a person’s name, picture, likeness, voice, or identity for commercial or trade purposes without consent. It can be divided into two torts – commercialization and right of publicity. Commercialization applies to famous and ordinary people alike. Courts recently have recognized a right of publicity that protects celebrities from being exploited for commercial or trade reasons. A recent trend is the explosive growth in right of publicity cases. This includes the high-profile sports video game cases and whether student athletes have publicity rights. It’s an area of great interest to students and could be an area to focus your classroom discussion.

Intrusion is a broad term. At first, intrusion was nearly synonymous with trespass, that is, physical invasion of another’s land or house. Then it came to include technological forms of invasion of privacy. Essentially, the intrusion tort has become a way to sue the media for newsgathering techniques. For this reason, this textbook discusses such newsgathering methods as surreptitious taping in Chapter 8, Newsgathering. One recent area for discussion about intrusion is the use of drones for newsgathering. That is discussed briefly in this chapter as well as Chapter 8.

The private facts tort is particularly galling to journalists. The press rebels at the notion of being sued for doing what the press is supposed to do, that is, publishing the absolute truth. However, courts hold it unacceptable in a civilized society to publish some private truths.

Today, people’s concerns about privacy persist alongside an additional threat from marketers, data brokers and other businesses that amass personally identifiable data. For example, Google, Microsoft, and many popular websites install tracking devices on users’ computers, some able to record and transmit keystrokes for data-gathering and analysis. Courts have allowed websites and advertisers to put cookies – technology that tracks what websites people visit – on computers. Many smartphone applications send users’ sensitive information to advertisers and third-party data collectors.

About five years ago, the Federal Trade Commission (FTC) issued a substantive report about consumer privacy protection and called on companies to adopt its recommended best practices. The FTC is the chief federal agency that protects consumer privacy and enforces federal privacy laws. The one exception to this is the FCC’s regulation of privacy practices as they apply to broadband Internet service providers, discussed in Chapter 9.

The FTC report suggested that companies build in consumer privacy protections at all stages of product development. Those protections should include consumer data security, limited data collection and retention, and procedures to promote data accuracy. The report also recommended giving consumers the option to control how they share their information and the ability to choose a “Do Not Track” mechanism, and the FTC encouraged companies to strive toward transparency in how they collect and use consumer information.

The breadth of the concept of privacy moves beyond what information is to be revealed or kept secret, but in the way information is protected. Students should understand that the word “privacy” is not used in the U.S. Constitution or in most state constitutions. The U.S. Supreme Court has read privacy protection into the U.S. Constitution, but only regarding sexual and reproductive matters. The U.S. Congress has adopted privacy laws, but traditionally most of these relate to access to information in government documents. Recent Supreme Court cases (for example, Riley v. California, excerpted at the end of the chapter) focus on privacy and the Fourth Amendment. Two Supreme Court decisions in 2012 and 2013 that explored privacy and the Fourth Amendment (which protects against unreasonable search and seizure) reaffirmed the traditional privacy expectation near the home and unanimously held that physically mounting a GPS transmitter on a car amounts to a search and violates the Fourth Amendment. The Riley case focuses on smartphone privacy and should be of interest to students, even though the case focuses on Fourth Amendment search and seizure issues.

Outline

1. Plaintiff’s Case
   
   1. Publication
   2. Identification
   3. Falsity
   4. Highly Offensive
   5. Fault
2. Defenses

1. Commercialization and Right of Publicity
2. Plaintiff’s Case
   
   1. Name or Likeness
   2. Voice
   3. Identity
3. Defenses
   
   1. Newsworthiness
   2. Public Domain
   3. First Amendment
   4. Ads for the Media
   5. Consent
   6. Incidental Use

1. Methods of Intruding
2. Intrusion on Private Property
3. Defenses
   
   1. Consent
   2. False Pretenses
   3. Newsworthiness

1. Intimate Facts
2. Legitimate Public Concern
3. Publicity
4. First Amendment Defense
   
   1. Public Significance
   2. Lawfully Obtained
   3. Public Record