As independent American's, we are constantly concerned with our privacy. Especially with Facebook's breach of privacy in the forefront of our minds, it is important to understand how the U.S Constitution protects us. Daily, people are accessing the internet and marketers, advertisers, and businesses have direct access to our information and data. Meanwhile, the market for high functioning camera is growing and people, as well as public figures like celebrities are more vulnerable for experiencing breaches of their privacy. As a result, there have been substantial calls for the government to pass legislation that protects individuals and their information with the highest regard.
This is a tricky process though because privacy must be maintained while simultaneously adhering to the First Amendment rights of the constitution. However, ultimately, a right to privacy is intrinsic to American's and all people's ability to live. A right to privacy keeps everyone in check and helps maintain the personal bubble everyone deserves.
Defining Key Terms:
false light: A privacy tort that involves making a person seem in the public eye to be someone he or she is not. Several states do not allow false light suits.
fact finder: In a trial, a judge or the jury determining which facts presented in evidence are accurate.
appropriation: Using a person's name, picture, likeness, voice, or identity for commercial trade purposes without permission.
commercialization: The appropriation tort used to protect people who want privacy.
right of publicity: The appropriation tort protecting a celebrity's right to have his or her name, picture, likeness, voice and identity used for commercial or trade purposes only with permission. To win a right of publicity case, an individual must prove that his or her name or likeness was used without permission and that the commercial or advertisement was widely distributed.
sound-alike: Someone whose voice sounds like another person's voice. Sound-alikes may not be used for commercial or trade purposes without permission or a disclaimer.
artistic relevance test: A test used to determine whether the use of a celebrity's name, picture, likeness, voice, or identity is relevant to a disputed work's artistic purpose.
transformative use test: A test used to determine whether a creator has transformed a person's name, picture, likeness, voice, or identity, for artistic purposes. If so, the person cannot win the right of publicity suit against the creator.
predominant use test: In a right of publicity lawsuit, a test to determine whether the defendant used the plaintiff's name or picture more for commercial purposes or protected expression.
intrusion upon seclusion: Physically or technologically disturbing another's reasonable expectation of privacy.
reasonable person: The law's version of an average person.
private facts: The tort under which media are sued for publishing highly embarrassing private information that is not newsworthy or lawfully obtained from a public record.
public record: A government record, particularly one that is publicly available.
Important Cases:
Cox Broadcasting Corp. v. Cohn (1975) - Cohn was the father of a seventeen-year old girl who was raped and killed in Georgia. Cox Broadcast Corporation obtained information from the public record, and named Cohn's daughter in connection with the incident. This violated a Georgia privacy statute which prevents members of the media from publicizing the names or identities of rape victims.
But, Supreme court held that this violated the First Amendment, and was dangerous to press freedom because it would invite self-censorship and timidness. The press should not be restricted because news media is an important resource for citizens. Also, in interests of privacy "fade" in cases where controversial information already appears on the public record.
Riley v. California (2014) - David Riley belonged to the Lincoln Park gang in San Diego, California. In August 2009, he and others opened fire on a rival gang member. He was then pulled over later in the month in a different car for driving under expired registration tags. The car had to be impounded, and upon routine search, police found two guns and arrested Riley for possession of firearms. Riley had his cell phone in his pocket when he was arrested, and a gang unit detective analyzed videos and photos to determine if Riley was Gang affiliated. Riley was then tied to the shooting and separate charges were filed for shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic firearm. Jury convicted Riley on all three counts and sentenced him to 15 years- life in prison.
The question raised was whether or not the search violated Riley's Fourth Amendment right, to be free from unreasonable searches. In a unanimous court decision, it was decided that yes, the search violated his constitutional right. Police searches are only allowed to prevent the substantial harm that can be presented to an officers safety. Created conversation about when, where, and how information should be allowed to be searched via cell phone during arrests, if at all.
Relevant Doctrine:
1. Constitutional Right to Privacy
- Protection comes from the Third, Fourth, Fifth, and Fourteenth Amendments.
- The Constitution protects from governmental invasion of privacy.
- Harlan's "reasonable expectation of privacy" test from Katz establishes a Fourth Amendment right to privacy when:
- A person exhibits an actual expectation of privacy, and
- Society is prepared to recognize this expectation as reasonable.
2. The Four Privacy Torts
False Light: Intentionally or recklessly publicizing false information a reasonable person would find highly offensive.
Plaintiff's Case
- Publicizing
- False facts
- About someone who is idenitified
- That would be highly offensive to a reasonable person
- Acting intentionally or recklessly (according to the Supreme Court), or negligently if the plaintiff is a private person (according to some courts).
Defense
- Libel defenses
Appropriation: Using another's name or likeness for advertising or other commercial purposes without permission (Appropriation includes two different torts, commercialization and right of publicity).
1. Commercialization: Applying to someone who wants to remain private and unknown except to family and friends. Using this person's name, picture, likeness, or voice for advertising or other commercial purposes without permission is commercialization. It is invading this person's privacy, causing emotional distress.
Plaintiff's Case
- Using a person's name, picture, likeness (such as a drawing or avatar), voice or identity.
- For advertising or other commercial uses
- Without permission
Defenses
- News
- Public domain
- First Amendment
- Incidental use
- Advertising for a mass medium
-Consent
2. Right of publicity: Applying to someone who wants to be known far and wide, to be a celebrity - a musician, athlete, movie star, or television personality. Using this person's name, picture, likeness, voice or identity - or a look alike or sound alike - for advertising or other commercial purposes without permission invades this person's right of publicity. It diminishes the person's economic value.
3. Intrusion: Intentionally intruding on another's solitude or seclusion.
Intrusion by Trespass
Plaintiff's Case
- A reasonable expectation of privacy
- Intentional intrusion of privacy
- The intrusion would be highly offensive to a reasonable person.
Defense
- Consent
4. Private facts: Publicizing private, embarrassing information.
Private Facts
Plaintiff's Case
- Publicizing
- Private, intimate facts
- That would be highly embarrassing to a reasonable person.
- And are not of legitimate concern to the public.
Defenses
- First Amendment: Truthful information lawfully obtained from public records.
1. How do we balance security with privacy?
2. Do police often violate the law regarding cell phone data?
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