Privacy laws of the United States


Privacy laws of the United States deal with several different legal concepts. One is the invasion of privacy, a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into their private affairs, discloses their private information, publicizes them in a false light, or appropriates their name for personal gain.
The essence of the law derives from a right to privacy, defined broadly as "the right to be let alone". It usually excludes personal matters or activities which may reasonably be of public interest, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity violating the right. These include the Fourth Amendment right to be free of unwarranted search or seizure, the First Amendment right to free assembly, and the Fourteenth Amendment due process right, recognized by the Supreme Court of the United States as protecting a general right to privacy within family, marriage, motherhood, procreation, and child rearing.
Attempts to improve consumer privacy protections in the U.S. in the wake of the 2017 Equifax data breach, which affected 145.5 million U.S. consumers, failed to pass in Congress.

Right to privacy

Early years

The early years in the development of privacy rights began with English common law, protecting "only the physical interference of life and property". The Castle doctrine analogizes a person's home to their castle – a site that is private and should not be accessible without permission of the owner. The development of tort remedies by the common law is "one of the most significant chapters in the history of privacy law". Those rights expanded to include a "recognition of man's spiritual nature, of his feelings and his intellect." Eventually, the scope of those rights broadened even further to include a basic "right to be let alone," and the former definition of "property" would then comprise "every form of possession – intangible, as well as tangible." By the late 19th century, interest in privacy grew as a result of the growth of print media, especially newspapers.
Between 1850 and 1890, U.S. newspaper circulation grew by 1,000 percentfrom 100 papers with 800,000 readers to 900 papers with more than 8 million readers. In addition, newspaper journalism became more sensationalized, and was termed yellow journalism. The growth of industrialism led to rapid advances in technology, including the handheld camera, as opposed to earlier studio cameras, which were much heavier and larger. In 1884, Eastman Kodak company introduced their Kodak Brownie, and it became a mass market camera by 1901, cheap enough for the general public. This allowed people and journalists to take candid snapshots in public places for the first time.
Privacy was dealt with at the state level. For example, Pavesich v. New England Life Insurance Company was one of the first specific endorsements of the right to privacy as derived from natural law in US law. Judith Wagner DeCew stated, "Pavesich was the first case to recognize privacy as a right in tort law by invoking natural law, common law, and constitutional values."
Samuel D. Warren and Louis D. Brandeis, partners in a new law firm, feared that this new small camera technology would be used by the "sensationalistic press." Seeing this becoming a likely challenge to individual privacy rights, they wrote the "pathbreaking" Harvard Law Review article in 1890, "The Right to Privacy". According to legal scholar Roscoe Pound, the article did "nothing less than add a chapter to our law", and in 1966 legal textbook author, Harry Kalven, hailed it as the "most influential law review article of all". In the Supreme Court case of Kyllo v. United States, 533 U.S. 27, the article was cited by a majority of justices, both those concurring and those dissenting.

Brandeis and Warren article

The development of the doctrine regarding the tort of "invasion of privacy" was largely spurred by the Warren and Brandeis article, "The Right to Privacy". In it, they explain why they wrote the article in its introduction: "Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society". More specifically, they also shift their focus on newspapers:
The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers.... The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

They then clarify their goals: "It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is".
Warren and Brandeis write that privacy rights should protect both businesses and private individuals. They describe rights in trade secrets and unpublished literary materials, regardless whether those rights are invaded intentionally or unintentionally, and without regard to any value they may have. For private individuals, they try to define how to protect "thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts". They describe such things as personal diaries and letters needing protection, and how that should be done: "Thus, the courts, in searching for some principle upon which the publication of private letters could be enjoined, naturally came upon the ideas of a breach of confidence, and of an implied contract". They also define this as a breach of trust, where a person has trusted that another will not publish their personal writings, photographs, or artwork, without their permission, including any "facts relating to his private life, which he has seen fit to keep private". And recognizing that technological advances will become more relevant, they write: "Now that modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party, the protection granted by the law must be placed upon a broader foundation".
There have been many laws related to privacy and data protection in recent years that have been enforced as a result of the rapid technological advancements. However, critics and scholars have argued that these guidelines are usually focused on legal factors, rather than technical details, which make it difficult for engineers and developers to ensure that new designs meet the guidelines stated in privacy laws.

Modern tort law

In the United States,"invasion of privacy" is a commonly used cause of action in legal pleadings. Modern tort law, as first categorized by William Prosser, includes four categories of invasion of privacy:
  • Intrusion of solitude: physical or electronic intrusion into one's private quarters
  • Public disclosure of private facts: the dissemination of truthful private information which a reasonable person would find objectionable
  • False light: the publication of facts which place a person in a false light, even though the facts themselves may not be defamatory
  • Appropriation: the unauthorized use of a person's name or likeness to obtain some benefits

    Intrusion of solitude and seclusion

Intrusion of solitude occurs where one person intrudes upon the private affairs of another. In a famous case from 1944, author Marjorie Kinnan Rawlings was sued by Zelma Cason, who was portrayed as a character in Rawlings' acclaimed memoir, Cross Creek. The Florida Supreme Court held that a cause of action for invasion of privacy was supported by the facts of the case, but in a later proceeding found that there were no actual damages.
Intrusion upon seclusion occurs when a perpetrator intentionally intrudes, physically, electronically, or otherwise, upon the private space, solitude, or seclusion of a person, or the private affairs or concerns of a person, by use of the perpetrator's physical senses or by electronic device or devices to oversee or overhear the person's private affairs, or by some other form of investigation, examination, or observation intrude upon a person's private matters if the intrusion would be highly offensive to a reasonable person. Hacking into someone else's computer is a type of intrusion upon privacy, as is secretly viewing or recording private information by still or video camera. In determining whether intrusion has occurred, one of three main considerations may be involved: expectation of privacy; whether there was an intrusion, invitation, or exceedance of invitation; or deception, misrepresentation, or fraud to gain admission. Intrusion is "an information-gathering, not a publication, tort... legal wrong occurs at the time of the intrusion. No publication is necessary".
Restrictions against the invasion of privacy encompasses journalists as well:
The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another's home or office.