Cameron Miranda
Privacy is the right to be left alone, free from unwarranted intrusion or exploitation. The common law test for privacy rights is based on the concept of reasonable expectation of privacy, which is crucial in defining the scope of privacy protections under the Fourth Amendment to the US Constitution. This test considers both subjective and objective expectations of privacy, such as in one's home or through the use of cellphones. Invasion of privacy is a tort that allows an individual to take legal action against those who unlawfully intrude into their private affairs, disclose private information, or appropriate their name or likeness for personal gain. The development of privacy rights has evolved over time, with early common law focusing on physical interference and property rights, and more recent cases addressing new technologies and the role of the press.
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What You'll Learn
The right to be left alone
The right to privacy is a broad concept found in many legal systems. In the United States, the right to privacy is a legal test that defines the scope of the applicability of the privacy protections of the Fourth Amendment to the U.S. Constitution. This includes the right to be free from unreasonable government intrusion, as stated by Justice Scalia:
> "This right would be of little practical value if the state's agents could stand in a home's porch or side garden and trawl for evidence with impunity."
The Fourth Amendment has also been extended to protect the totality of a person's movements captured by tracking their cellphone, as this information can be highly sensitive.
The right to privacy is also protected under the First Amendment right to free assembly and the Fourteenth Amendment due process right. The right to privacy is further supported by the tort of ""invasion of privacy", which allows an individual to bring a lawsuit against another who unlawfully intrudes on their private affairs, discloses private information, publicizes them in a false light, or uses their name or likeness for personal gain.
The right to privacy can be understood as "the right to be let alone" or "the right to be left alone". This means being free from misuse or abuse of one's personality and includes protection from intrusion into one's physical solitude or seclusion, as well as the publicization of private affairs not within the legitimate concern of the public.
The right to privacy also includes protection from the appropriation of one's name, portrait, or picture for advertising or trade purposes without prior written consent. This is a statutory right in several states, though it may be limited to protection against appropriation of one's name or likeness.
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Invasion of privacy
The development of privacy rights in common law began with the protection of "only the physical interference of life and property". The "Castle doctrine" analogises a person's home to their castle, a private site that should not be accessible without the owner's permission. The Fourth Amendment protects the right to be free from unreasonable government intrusion in one's home, as in the case of Florida v. Jardines, where the Supreme Court ruled that police violated the Fourth Amendment rights of a homeowner by bringing a drug-sniffing dog to the front door.
The right to privacy also extends to the totality of a person's movements captured by tracking their cellphone. The Supreme Court has extended Fourth Amendment protections to CSLI data generated by a cellphone, as this information is highly invasive and not voluntarily disclosed. However, a person generally loses their expectation of privacy when they disclose information to a third party. For example, there is no legitimate expectation of privacy regarding the telephone numbers dialled as these are knowingly given to telephone companies.
The use of a person's name, portrait, or picture for advertising or trade purposes without prior written consent is prohibited in many jurisdictions. This includes the appropriation of one's name or likeness for personal gain or commercial advantage, such as in ads, fictional works, or products.
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Public vs. private spaces
The distinction between public and private spaces is not always clear, with many grey areas and overlaps. Public space is commonly shared and created for open usage throughout the community, whereas private space is owned by individuals or corporations. In the United States, the right to free speech and assembly in public spaces may not be unreasonably restricted by the government. However, the government can control speech to a greater degree in private, non-public forums.
Public spaces include public parks, beaches, government buildings open to the public (such as libraries), highways, and malls (regardless of private ownership). In the United States, the Fourth Amendment protects the right to be secure in one's home against unreasonable searches and seizures, which has been extended to include the use of drone technology. This amendment also protects the contents of cellphones, as they contain a person's most sensitive information.
Private spaces include residences, hotel rooms, and businesses or public sector-provided spaces intended to ensure privacy, such as public restrooms. In some cultures, there is no expectation of privacy in public spaces, but civil inattention allows individuals to maintain privacy within a crowd.
The right to privacy is a complex issue, with variations in its interpretation and protection across different jurisdictions. While some states have statutes protecting privacy rights, a few have denied the existence of any common-law right to privacy. The common-law cause of action for invasion of privacy includes the right to be left alone, and individuals can bring lawsuits against those who intrude upon their private affairs or disclose their private information.
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Privacy in the digital age
Privacy laws deal with several different legal concepts, with the right to privacy defined broadly as "the right to be let alone". Invasion of privacy is a tort based in common law, allowing an individual to bring a lawsuit against another who unlawfully intrudes into their private affairs, discloses private information, publicizes them in a false light, or appropriates their name for personal gain. The right to privacy is often derived from the root of some already established right, such as a property right, with the Fourth Amendment extending to the totality of a person's movements captured by tracking their cellphone.
The development of privacy rights began with English common law, which initially protected only the physical interference of life and property. The Castle doctrine analogizes a person's home to their castle, a private site that should not be accessible without the owner's permission. This right has been extended to include the digital realm, with the Supreme Court ruling that individuals have a reasonable expectation of privacy regarding the contents of their cellphones, as they contain sensitive information. This was further extended by the Privacy Act of 1974, which established a code of fair information practices for federal agencies, governing the collection, maintenance, use, and dissemination of personal information.
However, with the advent of the internet, the line between public and private spaces has become blurred, leading to challenges in defining the expectations of privacy laws. For example, while most internet users expect some level of privacy protection while online, the Fourth Amendment may not protect informational privacy. Relevant exceptions include when consent to search has been given, when information has been disclosed to a third party, and when the information is in plain view.
In the digital age, privacy rights continue to evolve, with new technologies such as drone technology and cellphone tracking raising questions about the reasonable expectation of privacy. For instance, in Florida v. Jardines, the Supreme Court ruled that police violated the Fourth Amendment rights of a homeowner by bringing a drug-sniffing dog to the front door, demonstrating the ongoing legal interpretation of privacy rights in relation to new technologies.
Overall, privacy in the digital age encompasses a range of legal concepts, with common law providing a foundation for the right to privacy, which continues to be interpreted and adapted to address the evolving nature of privacy in the modern world.
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Privacy and the press
The right to privacy is a legal concept that has evolved over time, with the common law serving as a foundation for privacy rights in various jurisdictions. The concept of privacy and the press has been a particularly salient issue, with the development of privacy rights being spurred by concerns over journalistic overreach.
In the United States, the Fourth Amendment guarantees individuals the right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. This amendment has been interpreted to include a reasonable expectation of privacy, which extends to the totality of a person's movements captured by tracking their cellphone. This means that individuals have a right to privacy in their homes and can expect a certain level of privacy in their personal information and communications.
The reasonable expectation of privacy is not absolute and can be subjective or objective. Objectively, it considers whether society at large would deem an expectation of privacy as reasonable. For example, individuals generally do not have a reasonable expectation of privacy in the garbage they put out for collection or in the telephone numbers they dial, as this information is knowingly shared with third parties. Subjectively, an individual's opinion of what constitutes privacy can vary greatly from person to person and may include expectations of privacy in residences, hotel rooms, or public restrooms.
Invasion of privacy is a tort based on common law, allowing individuals to take legal action against those who unlawfully intrude on their private affairs, disclose their private information, publicize them in a false light, or use their name or likeness for personal gain without consent. This tort has been recognised in several US states, with statutes prohibiting the use of a person's name or image for commercial benefit without their consent.
The development of privacy rights in the US was significantly influenced by the 1890 article "The Right to Privacy" by Samuel D. Warren and Louis D. Brandeis. They expressed concern over the press's increasing intrusion into private matters and the commercialisation of gossip, particularly regarding the spread of sexual relations details in daily newspapers. This article set a precedent for privacy rights, recognising the need to protect individuals from journalistic overreach and intrusion.
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Frequently asked questions
The common-law cause of action for invasion of privacy includes the right to be left alone. Privacy is the right to be free from misuse or abuse of one's personality.
The reasonable expectation of privacy is a legal test that defines the scope of privacy protections under the Fourth Amendment. It includes two types: subjective and objective.
The subjective expectation of privacy is an individual's opinion that a certain location or situation is private, which varies from person to person.
The objective expectation of privacy is legitimate and generally recognized by society and may be protected by law.
Places where individuals expect privacy include residences, hotel rooms, and public places specifically designated for privacy, such as restrooms.
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