The Internet Encyclopedia (Volume 3)

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PRIVACYLAWS IN THEUNITEDSTATES ANDABROAD 97

court, is the right not to say with whom you’re associat-

ing.


The Fourth Amendment prohibits the government from

searching your home and property and from seizing

your papers or possessions, except under very specific

circumstances. The Fourth Amendment has also been

read to give certain rights against government wiretaps

and surveillance.


The Fifth Amendment includes various rights of due

process, which means that if the government is inter-

ested in depriving you of any of your rights—throwing

you in jail, for example—it must first follow strict pro-

cedures designed to protect your rights. Among those

is the right against being forced to incriminate your-

self.

The equal protection clause of the Fourteenth Amend-

ment requires that both sexes, all races, and all religions

be given equal protection under all the laws of the United

States and all the laws of every state. This protection

comes despite other amendments that can be read to per-

mit some types of discrimination. These rights aren’t ab-

solute, however. For example, consider the following:

The government can set up wiretaps, perform surveil-

lance, and perform searches and seizures if it has rea-

sonable belief (“probable cause”) that a crime has been

committed and if given permission (a “warrant”) by a

judge.


The government can establish secret wiretaps and sur-

reptitiously search your home or car, without a normal

warrant, if you are suspected of being a terrorist or an

“agent of a foreign power.”


Certain sexual activities, even between consenting

adults in the privacy of their bedroom, can be illegal.


It can be illegal to keep certain materials in your home,

such as drugs or child pornography.


Certain public organizations (such as the Jaycees, which

was the subject of a lawsuit that established this prece-

dent) cannot use the First Amendment right of free as-

sociation to exclude protected classes of people, such

as women or certain minorities. On the other hand, at

the time this book was written, the Boy Scouts could

discriminate against gay people.

But the Constitution only affects privacy issues involv-

ing the government. What are your rights against people

who are not part of the government, such as individuals

and corporations? That’s where a patchwork of common-

law privacy protections and several statutes comes into

play.

Common-Law Privacy

The common law is a set of rights and obligations first

recognized by courts rather than by legislatures. Just be-

cause it is “judge-made” law, however, one cannot dis-

count the common law as being less forceful. In fact, many

common-law rights have been enforced for centuries and

are some of the most powerful precedents in our legal

system. They are rarely overturned by legislatures, and

many state and federal laws are simply codifications of

common-law ideas that have been around for hundreds

of years.

In a groundbreaking law review article in 1960, William

Prosser set out four broad categories of common law that

underlie privacy-related torts:

Intrusion into one’s seclusion,


Disclosure of private facts,


Publicizing information that unreasonably places one in

a false light, and


Appropriation of one’s name or likeness.

Intrusion

The tort of intrusion recognizes the value of having your

own private space and provides relief from those who

would seek to violate it. Eavesdroppers and “peeping

toms” are two examples of activities considered intrusion.

Disclosure

The tort of disclosure recognizes that making public cer-

tain private facts can cause harm to an individual. For

example, disclosures about someone’s health status, finan-

cial records, personal correspondence, and other kinds of

sensitive personal information can cause harm if made

public.

False Light

The tort of false light is similar to libel in that it involves

publicizing falsehoods about someone, but it is subtly dif-

ferent. One famous case of false light,Cantrell v. Forest City

Publishing Co.(1974), involved a family who was inaccu-

rately portrayed in a news article in a humiliating fashion

that brought shame and embarrassment. Another,Dou-

glass v. Hustler Magazine(1985), involved a model who

posed nude for a popular pornographic magazine, which

were instead published with embarrassing captions by a

notoriously vulgar magazine instead.

Appropriation

This tort involves using the name or likeness of someone

for an unauthorized purpose, such as claiming a commer-

cial endorsement by publishing someone’s image (or even

that of a look-alike impersonator) in an advertisement.

In this age of modern technology, there appear to be

many new ways of violating these centuries-old privacy

torts. The prevalence of miniature “Web-cams,” highly

sophisticated digital photo editing applications, and the

vigorous online trade in pornographic imagery, have each

added to the ways in which individual privacy can be vio-

lated.

PRIVACY LAWS IN THE UNITED STATES

AND ABROAD

In a 1973 report to Congress, the U.S. Department of

Health, Education and Welfare (HEW) outlined four

tenets of fair information practices. These guidelines were

groundbreaking in that they set forth four characteristics

that any fair policy regarding the collection and use of