Privacy Rights: Moral and Legal Foundations

6. Strengthening Legal Privacy Rights

6 strengthening legal privacy rights It has been argued that individuals have locational privacy rights as well as rights to control personal information. These rights or moral claims, however , are not absolute. A theory that generated exceptionless moral rights that could never be justifiably overridden is as absurd as the view that such rights should be tossed aside for mere incremental gains in social utility. In the chapters to come the ‘‘weightiness’’ of privacy claims will be considered in the areas of freedom of speech, drug testing, free access arguments, and public accountability or security. If employers have overriding rights to monitor employees, digital natives and hackers strong arguments in support of free access, or law enforcement agents compelling claims of security, then the presumption in favor of privacy, already established, will have been counterbalanced by competing claims. The task at hand, however, is to determine the nature and scope of legal protections for privacy. If legal systems are to reflect important moral norms, then privacy protections must be codified in the law. In recent times privacy protections have not fared well—as we shall see. The first part of this chapter will offer an overview of the legal protections of privacy in the United States. Privacy protections are typically broken into three general categories—common law privacy torts, constitutional provisions, and statutory regulations. The second part will focus on numerous cases that indicate the weakness of these privacy protections. In the third part, I will argue 1 0 0 P R I VA C Y R I G H T S that by strengthening the tort of intrusion we may move toward a more robust protection of this basic moral right—the chapters to come will consider how legal privacy might be strengthened in other areas. legal protections of privacy in the united states As I have noted, legal privacy protections within the United States can be broken down into three categories. Common law torts protect privacy by allowing individuals to sue others in civil court. Constitutional privacy protects U.S. citizens from unjustified governmental intrusions into private domains. Finally, various statutory regulations at the local, state, and federal levels protect privacy. We will take them up in turn. Privacy Torts While privacy protections were implicated in the common law doctrines of nuisance, trespass, and restrictions on eavesdropping, one of the first discussions of privacy occurred in Judge Thomas Cooley’s treatise on torts in 1880.1 In De May v. Roberts (1881) the Michigan Supreme Court echoed Cooley’s view acknowledging an individual’s right to be let alone. ‘‘The plaintiff had a legal right to the privacy of her apartment . . . and the law secures to her this right by requiring others to observe it, and to abstain from its violation.’’2 In 1890, Samuel D. Warren and Louis D. Brandeis issued a call to arms in their article ‘‘The Right to Privacy.’’ Hinting at times to come, Warren and Brandeis noted: ‘‘Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right ‘to be let alone.’ Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’’’3 1. Thomas Cooley, A Treatise on the Law of Torts (Chicago: Callaghan, 1880). See also Commonwealth v. Lovett, 4 Clark 5 (Pa. 1831); State v. Williams, 2 Overt. 108 (Tenn. 1808); State v. Pennington, 3 Head 299 (Tenn. 1859); Corps v. Robinson, 2 Wash. C.C. 388 (1809); and Westin, Privacy and Freedom, 330–38. 2. De May v. Roberts, 9 N.W. (Mich. 1881) at 149; cited in Richard Turkington and Anita Allen, Privacy Law: Cases and Materials, 2nd ed. (St. Paul, Minn.: West Group, 2002), 23. 3. Warren and Brandeis, ‘‘Right to Privacy,’’ 194. L E G A L P R I VAC Y R I G H T S 1 0 1 The remedy for such invasions was to create a new tort. Torts are, in general, a negligent or intentional civil wrong that injures someone and for which the injured person may sue for damages. In 1960, in an effort to clarify matters, legal scholar Dean William Prosser separated...