Privacy and Adult Materials

1. Privacy and Adult Materials

2. Privacy • The word ‘privacy’ does not appear in the US Constitution. • The Supreme Court has interpreted language in the Bill of Rights and the Civil War Amendments as • preventing the state from interfering in the exercise of certain activities • preventing the state from collecting, utilizing or disclosing certain personal information • Warren and Brandeis, The Right to Privacy, 4 Harvard L.R. 193 (1890) was first scholarly discussion • “The right to be let alone” • Codification in Prosser, Privacy, 48 Cal.L.Rev. 383 (1960) • Second Restatement of Torts at §§ 652A-652I (1977).

3. Restatement (Second) of Torts at §§ 652A -652I • unreasonable intrusion upon the seclusion of another • physical invasion of a person's home (e.g., unwanted entry, looking into windows with binoculars or camera, tapping telephone), searching wallet or purse, repeated and persistent telephone calls, obtaining financial data (e.g., bank balance) without person's consent, etc. • appropriation of a person's name or likeness; • A similar concept is the "right of publicity". Privacy protects against "injury to personal feelings", while the right of publicity protects against unauthorized commercial exploitation of a person's name or face. • publication of private facts • income tax data, sexual relations, personal letters, family quarrels, medical treatment, photographs of person in his/her home. • publication that places a person in a false light • In a privacy action the information is generally true, but the information created a false impression about the plaintiff

4. Criminal Law Protections for Privacy • surreptitious interception of conversations in a house or hotel room is eavesdropping. • right of privacy for contents of envelopes sent via first-class U.S. Mail. • right of privacy for contents of telephone conversations, telegraph messages, or electronic data by wire. • one has a right of privacy for contents of radio messages. • A federal statute denies federal funds to educational institutions that do not maintain confidentiality of student records, which enforces privacy rights of students in a backhanded way. • Records of sales or rentals of video tapes are confidential. • Content of e-mail in public systems are confidential. • Bank records are confidential. • library records are confidential in some states.

5. Restrictions on Law Enforcement • The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. Fourth Amendment to the US Constitution

6. What Constitutes a Search? • Examination of a person’s body, property or other area that the person would reasonably expect to be private • Strip search or body cavity search? • Taking blood or hair samples? Voice sample? Handwriting? • Pat down? • Warrantless search in response to emergency or arrest? • Going through an automobile on a traffic stop? • New Year’s Eve drunk driver roadblocks? • Airport searches of passengers before boarding? • Search of public or commercial premises by a regulatory authority for the purpose of enforcing health, safety or security regulations? • Subpoena of corporate records? • Searches by private individuals (as opposed to police officers)?

7. House Searches • Home is sacrosanct under American law • Is the yard included in “home”? • What if the “yard” is 100 acres of farmland? • Are outbuildings (e.g. a barn) included? • Plain view doctrine • Plane view doctrine? • Plane with precision camera view doctrine? • IR sensors?

8. Privacy and Your “Papers” • What “papers” are safe from warrantless searches? • Bank records? • Pen register records? • Garbage? • School papers in a locker? • Computer files? • Packets? • Carnivore • “Art”?

9. Obscenity • In 1942, in Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), the Court categorized obscenity as expression outside the protection of the First Amendment. • In Roth v U. S., 354 U. S. 476 (1957), the Court made it clear that regulating obscenity can raise First Amendment issues. • Questions: • What is obscenity? • What state interests justify restraint?

10. What is Obscenity? • Miller v California, 413 U. S. 15, confined obscenity to “works which depict or describe sexual conduct.” • The trier of fact must decide • whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest • whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law • whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value

11. U. S. v Thomas • Is Memphis, TN part of the “contemporary community” whose standards apply to computer files downloaded from Milpitas, CA? • Prosecutions may be brought either in the district of dispatch or the district of receipt, Bagnell, 679 F.2d at 830-31 • Obscenity is determined by the standards of the community where the trial takes place. See Miller, 413 U.S. 15, 30-34 • This is not a situation where the bulletin board operator had no knowledge or control over the jurisdictions where materials were distributed for downloading or printing. . . If Defendants did not wish to subject themselves to liability in jurisdictions with less tolerant standards for determining obscenity, they could have refused to give passwords to members in those districts, thus precluding the risk of liability.

12. Continuing Problems • “Indecency” versus “obscenity” • Pictures of adults who look like children • Computer-generated images • The Communications Decency Act (CDA) of 1996 made it a crime to provide on the internet material deemed harmful to minors. Though the CDA was ultimately ruled unconstitutional by the US Supreme Court, nearly identical legislation was introduced this year and is currently pending in Congress.