What is the “Right of Privacy”, what does it protect, and who does it protect?
The modern american concept of privacy is traced from a Harvard Law Review article where Samuel Warren and Louis Brandeis defined privacy as “The right to be let alone.” The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890). The US Supreme Court has further defined the right of privacy as “the individual’s control of information concerning his or her person” and that privacy protects against “dissemination of . . . private facts. . . .” U.S. Dep’t of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 763, 109 S. Ct. 1468, 1476, 103 L. Ed. 2d 774 (1989). Courts have asserted that the right of privacy is a personal right and that “only a living person can sue for invasion of privacy.” Nicholas v. Nicholas, 277 Kan. 171, 192, 83 P.3d 214, 228 (2004). By contrast a non-human entity or “corporation has no personal right of privacy.” King v. State Farm Mut. Auto. Ins. Co., 157 Md. App. 287, 298, 850 A.2d 428, 435 (2004).
Where can I find privacy laws?
1. Federal Constitutions
The Constitution of the United States of America does not specifically mention the word “privacy”, however the Supreme Court declared that the constitutional right to privacy exists in the “penumbras” or “zones of freedom” created by an expansive interpretation of the bill of rights. Griswold v. Connecticut, 381 U.S. 479, 483, 85 S. Ct. 1678, 1681, 14 L. Ed. 2d 510 (1965). One example is the first amendment. The U.S. Supreme Court has held that the right to “publish anonymously is protected by the First Amendment.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 334, 115 S. Ct. 1511, 1513, 131 L. Ed. 2d 426 (1995). The first amendment creates a protection for anonymous speech which is a privacy right but without specifically mentioning the word “privacy.” Additional privacy rights can be found in the 3rd amendment’s “privacy of the home”, 4th amendment’s restriction of unreasonable search and seizures, and the 5th amendment’s privilege against self-incrimination.
2. State Constitutions
The various states have created their own definitions of privacy in their state constitutions. These different definitions create varying regulatory power where each state may have a different basis for their privacy law. Consider the similarities and differences between the privacy protections in the State Constitutions
- Alaska–”The right of the people to privacy is recognized and shall not be infringed.” Alaska Const. Art. I, §22.
- Montana–”The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” Montana Const. Art. II, §10. (Emphasis added)
Both Constitutions directly mention privacy as a right that shall not be infringed, but Montana has explicitly added the exemption of a compelling state interest. Another difference is between states that have a broad versus a narrow view of what privacy protects. Consider the similarities and differences between the broad California Constitutional right and the more narrow Illinois right.
- California–“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal. Const. Art. I, §1.
- Illinois–”The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.” Ill. Const. Art. I, §6
California’s constitution lists “privacy” as a broad right in the same list as other broad based rights like “defending life and liberty” and “pursuing and obtaining safety (and) happiness.” By contrast, Illinois’s constitution is limited in scope to “unreasonable searches, seizures, invasions . . . or interceptions of communications.”
3. Federal Statutes
This is only a small sample of federal statutes and their privacy impact:
- Section 5(a) of the FTC Act empowers the agency to enforce against “unfair or deceptive acts or practices in or affecting commerce.” Over the past two decades, the FTC has used this authority extensively to hold businesses to fair and transparent privacy and security standards.1
- The HIPAA Privacy Rule establishes national standards to protect individuals’ medical records and other personal health information and applies to health plans, health care clearinghouses, and those health care providers that conduct certain health care transactions electronically.2
- COPPA imposes certain requirements on operators of websites or online services directed to children under 13 years of age, and on operators of other websites or online services that have actual knowledge that they are collecting personal information online from a child under 13 years of age.3
4. State Statutes
Comprehensive privacy statutes are only currently enacted in the states of California, Maine, and Nevada. The remaining states’ privacy laws are a complex web of statutes covering only particular sectors or activities and pending legislation. The states of Washington and Florida have introduced comprehensive privacy bills and a handful of state’s have or have had bills in committee. The International Association of Privacy Professionals (IAPP) has a particularly useful map to visualize current privacy law evolutions, here. Additionally, IAPP has a list of those privacy laws, here.