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Introduction to Privacy Part I

Introduction to Privacy Part I. Jody Blanke Ernest L. Baskins, Jr. Distinguished Professor of Computer Science and Law. Right to Privacy. Origins in 1890 article by Samuel Warren and Louis Brandeis The right “to be let alone”. The Right of Privacy.

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Introduction to Privacy Part I

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  1. Introduction to PrivacyPart I Jody Blanke Ernest L. Baskins, Jr. Distinguished Professor of Computer Science and Law

  2. Right to Privacy • Origins in 1890 article by Samuel Warren and Louis Brandeis • The right “to be let alone”

  3. The Right of Privacy • Roberson v Rochester Folding Box Co. (1902) • New York Court of Appeals rejected a claim by a woman whose picture was used to advertise flour • In response to the public outcry, New York enacted legislation making it a misdemeanor and a tort to use a name or picture for commercial purposes

  4. The Right of Privacy • Pavesich v. New England Life Ins. Co. (1905) • Georgia became the first state to recognize a right to privacy, finding it in both the U. S. and Georgia constitutions

  5. U.S. Constitution • Does not contain the word “privacy” • 1965 case held that “zones of privacy” emanate from the “penumbras” of the 1st, 3rd, 4th, 5th and 9th Amendments (Griswold v. Conn.) • 1967 case held that an electronic listening device violated the 4th Amendment (Katz v. U.S.) • concurring opinion proposed the “reasonable” expectation of privacy rule

  6. U.S. Constitution (cont.) • 1968 case adopted the notion of the “reasonable” expectation of privacy rule (Terry v. Ohio) • 1977 case identified two “privacy” interests (Whalen v. Roe): • the interest in avoiding disclosure of personal matters, and • the interest in independence in making certain kinds of important decisions

  7. State Constitutions • Ten state constitutions contain the word “privacy” • Ak., Ariz., Calif., Fla., Haw., Ill., La., Mont., S.C., Wash. • Ak., Calif., Fla., Haw. and Mont. have privacy protection beyond criminal search and seizure • Many provide for a right greater than that protected by the U.S. Constitution • California – “Exhibit A” • Georgia – the “right to be let alone” guaranteed by the Georgia Constitution is far more extensive than the right of privacy protected by the U.S. Constitution

  8. Invasion of Privacy Tort • Appropriation of name or likeness • Intrusion upon seclusion • False light • Publication of private embarrassing facts Silvia Leyva at Café Intermezzo, Perimeter

  9. Appropriation of Name or Likeness • Based upon earliest privacy cases, e.g., Pavesich • Michael Jordan Wine

  10. Intrusion Upon Seclusion • Jackie O • Holiday Inn • Mazzio’s Pizza • Sean Penn • Bill Gates • Bob Dylan • Katz • Kyllo

  11. U. S. v. Katz (1967) • Introduced the “reasonable expectation of privacy” standard • The FBI had placed a tape recorder between two telephone booths and recorded Katz making or taking bets

  12. Your Home is Your Castle • Kyllo v. U.S. (2001) • Thermal imaging of a home constitutes a search • Bowers v. Hardwick (1986) • Supreme Court upheld Georgia sodomy law • Lawrence v. Texas (2003) • Supreme Court overturned Bowers

  13. Your Workplace? • Not so much

  14. False Light • Parade Magazine article on Teenage Prostitution

  15. Publication of Private Embarrassing Facts • “Joe Hero” • Potomac River plane crash • Assassination attempt on Gerald Ford • Compare to defamation • Libel and slander • Truth is a defense • Richard Jewell • against media defendant, must prove “actual malice”

  16. Federal Privacy Laws • Apply only to federal agencies • Freedom of Information Act (FOIA) (1966, re-titled in 1986) • Privacy Act (1994) • Very sectoral in approach • Fair Credit Reporting Act (FCRA) (1970) • Fair and Accurate Credit Transactions Act (FACTA) (2003) • Electronics Communications Privacy Act (ECPA) (1986) • Video Privacy Protection Act (1988) • revised in 2013

  17. Federal Privacy Laws (cont.) • Health Insurance Portability and Accountability Act (HIPAA) (1996) • modified by the Health Information Technology for Economic and Clinical Health Act (HITECH) (2009) • Children’s Online Privacy Protection Act (COPPA) (1998) • revised in 2013 • Gramm-Leach-Bliley Act (GLB) (1999) • Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) (2003) • Genetic Information Nondiscrimination Act (GINA) 2008

  18. Fair Information Privacy Practices (FIPPs) • Notice/Awareness • Choice/Consent • Access/Participation • Integrity/Security • Enforcement/Redress

  19. EU Data Protection • 1995 Data Protection Directive • 2018 General Data Protection Regulation (GDPR) • May 26, 2018 • Right to be Forgotten

  20. California Consumer Privacy Act • Passed in 2018 under threat of stricter law by way of ballot initiative • Will take effect in 2020

  21. Privacy Policies • Protect your privacy, right? • Not so fast • “Our policy is to collect every little piece of information about you that we can get our hands on – then and sell it to the highest bidder.”

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