PRIVACY

What is the Right to Privacy??

•The Right to Privacy – Gavison

Three basic components:• Secrecy (confidentiality): The extent to which we

are known to others; • Anonymity: The extent to which we are the

subject of other’s attention; • Solitude: The extent to which others have

physical access to us.

Ruth Gavison, "Privacy and the Right to Privacy," Philosophy 55 (1980): 17-38.

Privacy - Prosser

Four distinct rights to sue (torts) if: Intrusion upon seclusion or solitude, or into

private affairs; Public disclosure of embarrassing private facts; Inaccurate reporting: Publicity which places a

person in a false light in the public eye; and Appropriation of identity

William Prosser, "Privacy," California Law Review, 48: 338-423, 1960

Is the Right to Privacy in the Bill of Rights?

Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment III: No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV: 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 persons or things to be seized.

Bill of Rights And Privacy II

Amendment V: No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

A Condensed History of the Right to Privacy

Pope v. Curl (1741)

Curl published without consent letters to and by literary figures such as Alexander Pope and Jonathan Swift

Pope sued Curl to have the letters removed from the market

The Lord Chancellor upheld the privacy of Pope’s letters on the grounds that the writer of a letter has a property right to his words.

(Mary Chlopecki @ http://www.self-gov.org/freeman/920802.html)

Yovatt v. Winyard (1820)

Winyard, a journeyman assistant, worked for Yovatt, a veterinarian

Winyard quit and started his own business Yovatt sues Winyard, claiming that secret

medicines Winyard used were stolen from Yovatt, copied out of Yovatt’s notebooks.

The Lord Chancellor ruled in Yovatt’s favor on the grounds that there had been a breach of trust and confidence. (intellectual property: “trade secret”)

(Mary Chlopecki @ http://www.self-gov.org/freeman/920802.html)

Prince Albert v. Strange (1849)

Strange had catalogued and printed echings that were created and owned by Queen Victoria and Prince Albert

Victoria and Albert argued that they had a right to keep art they had created for their own enjoyment

Strange’s lawyer argued that “the notion of privacy is altogether distinct from that of property”

Ruling in favor of Victoria and Albert, the Vice Chancellor wrote “Every man has a right to keep his own sentiments, if he pleases…. In that state the manuscript is, in every sense, his peculiar property; and no man can take it from him, or make any use of it which he has not authorized, without being guilty of a violation of his property.”

(Mary Chlopecki @ http://www.self-gov.org/freeman/920802.html)

Marion Manola 1865-1914

One of the most renowned leading ladies of the American musical stage during the late 1880s and 1890s.

NYT: “A photographer was placed in one of the boxes, and when an opportunity ocurred during the performance a flash light was used and a photograph of the actress was secured…. When Miss Manola realized what had been done, she threw her mantle over her face and ran off the stage…. It is alleged that Miss Manola refused to be photographed in tights owing to her modesty.”

http://wearcam.org/aim_of_advertising_

was_to_extort_attention.htm

Warren & Brandeis I

“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. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. 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.”

Warren & Brandeis II

“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."

Warren & Brandeis III

“Legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy…. [The] principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality.

Griswold v. Connecticut - 1965

Struck state law prohibiting distribution of contraceptives to married adults.

“Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

Griswold v. Connecticut - 1965

“specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. ...Various guarantees create zones of privacy ….We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”