It's a living legal community making laws accessible and interactive. Click Here to get Started »
In constitutional law, the right of people to make personal decisions regarding intimate matters; under the common law, the right of people to lead their lives in a manner that is reasonably secluded from public scrutiny, whether such scrutiny comes from a neighbor's prying eyes, an investigator's eavesdropping ears, or a news photographer's intrusive camera; and in statutory law, the right of people to be free from unwarranted drug testing and electronic surveillance .
The origins of the right to privacy can be traced to the nineteenth century. In 1890, Samuel D. Warren and Louis D. Brandeis published "The Right to Privacy," an influential article that postulated a general common-law right of privacy. Before the publication of this article, no U.S. court had expressly recognized such a legal right. Since the publication of the article, courts have relied on it in hundreds of cases presenting a range of privacy issues.
In Olmstead v. United States 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928), Brandeis, then a Supreme Court justice, articulated a general constitutional right "to be let alone," which he described as the most comprehensive and valued right of civilized people. For the next half century, the right to privacy gradually evolved. Today, every jurisdiction in the country recognizes some form of constitutional, common-law, or statutory right to privacy.
The constitutional right to privacy protects the liberty of people to make certain crucial decisions regarding their well-being without government coercion, intimidation, or interference. Such crucial decisions may concern religious faith, moral values, political affiliation, marriage, procreation, or death. The federal Constitution guarantees the right of individuals to make these decisions according to their own conscience and beliefs. The government is not constitutionally permitted to regulate such deeply personal matters.
The right of privacy protected by the Constitution gained a foothold in Griswold v. Connecticut 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), in which the Supreme Court struck down a state statute forbidding married adults from using birth control because the statute violated the sanctity of the marital bedroom. Acknowledging that the Constitution does not mention the word privacy anywhere in its text, the Court held that a general right to privacy may be inferred from the express language of the First, Third, Fourth, Fifth, and Fourteenth Amendments, as well as from the interests protected by them.
The Court said that the First Amendment guarantees the right to peaceably assemble, which includes the liberty of any group to associate in private. The Third Amendment prohibits the government from quartering soldiers in a private home without the consent of the owner. The Fourth Amendment forbids the government from performing warrantless and unreasonable searches of any area in which a person maintains a reasonable expectation of privacy. The Fifth Amendment safeguards the right of criminal suspects to keep secret any incriminating evidence that might help the government obtain a conviction against them. The Fourteenth Amendment prevents states from denying its citizens certain fundamental rights that are deemed essential to the concepts of equality or liberty, including the right to autonomy, dignity, and self-determination.
The holding in Griswold was later used to strike down a Massachusetts statute that made illegal the distribution of contraceptives to unmarried persons (Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 ). In striking down this law, the Supreme Court articulated a broader view of privacy, stating that all individuals, married or single, enjoy the liberty to make certain intimate personal decisions free from government intrusion, including the decision whether to bear or sire a child. This rationale was extended in Roe v. Wade 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), which established the right of women to terminate their pregnancy at any time before the fetus reaches the stage of viability. Roe has subsequently been interpreted to proscribe the government from passing regulations that unduly burden a woman's right to abortion.
In Cruzan v. Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990), the Supreme Court again enlarged the constitutional meaning of privacy by declaring that competent patients have a right to refuse life-sustaining medical treatment, including artificial nutrition and hydration. A 1997 Supreme Court case presented the issue of whether competent but terminally ill patients may hasten their death through physician-assisted suicide (Washington v. Glucksberg 117 S. Ct. 2258). Representatives for the terminally ill patients argued that the right to physician-assisted suicide represents an essential liberty interest in controlling one of life's most significant decisions, whereas the state of Washington argued that this liberty interest is outweighed by the need to protect vulnerable individuals from irrational, ill-informed, and coerced decisions to end their lives. The Supreme Court held that the right to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause of the Constitution, and a state's ban on assisted suicide is constitutional.
The constitutional right to privacy does not protect all forms of conduct that are pursued behind closed doors. Adults have no constitutional right to inject intravenous drugs, solicit prostitutes, or view child pornography. Nor do members of society have a right to be insulated from every potentially offensive activity. For example, the government may not forbid a movie theater from displaying nude scenes on a large outdoor screen that is visible to passing motorists. In Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S. Ct. 2268, 45 L. Ed. 2d 125 (1975), the Supreme Court said that the First Amendment right to show such films outweighs the privacy interests of offended passersby who can protect their sensitivity by averting their eyes.
The common law of torts recognizes five discrete rights of privacy. First, the common law affords individuals the right to sue when their seclusion or solitude has been intruded upon in an unreasonable and highly offensive manner. Second, individuals have a common-law right to sue when information concerning their private life is disclosed to the public in a highly objectionable fashion. Third, tort liability may be imposed on individuals or entities that publicize information that places someone in a false light. Fourth, the common law forbids persons from appropriating someone's name or likeness without his or her consent. Fifth, the common law prevents business competitors from engaging in unfair competition through the theft of trade secrets.
Intrusion upon Seclusion One who intentionally intrudes upon the solitude or seclusion of another is subject to liability for common-law invasion of privacy. An invasion may involve a physical intrusion into a place where a person has secluded herself, such as the nonconsensual entry into someone's home, office, apartment, or hotel room. Nonphysical intrusions may also give rise to liability when they involve the use of electronic surveillance equipment, including wiretaps, microphones, and video cameras. Alternatively, a person's seclusion may be impermissibly interrupted by persistent and unwelcome telephone calls, or by the occasional window peeper. By imposing liability in such instances, the law seeks to protect a person's tranquility and equilibrium.
Not every intrusion is actionable under this common-law tort. The intrusion must be considered highly offensive to a reasonable person. Creditors are allowed to take action to collect delinquent debts but must do so in a reasonable fashion. Landlords are permitted to demand late rental payments but must do so at reasonable times. A judge or jury determines what is reasonable according to the facts of each case. Individuals have no expectation of privacy in matters that are public. Thus, businesses may examine public criminal records of prospective employees without fear of liability, and photographers may take pictures of movie stars in public places.
Publicity that Discloses Private Information The common law protects individuals from publicity that discloses information about their private lives. Unlike libel, slander, and defamation actions, this common-law tort may give rise to liability for truthful publicity, as long as the information is published in a manner that is highly objectionable to a reasonable person and the information is of no legitimate concern to the public. Disclosure of private sexual relations, disgraceful family quarrels, humiliating illnesses, and most other intimate personal matters will normally give rise to liability for invasion of privacy, even if such disclosures are completely accurate. By discouraging the publication of such private and personal matters, the common law places a high value on the right of individuals to control the dissemination of information about themselves, including the right to filter out embarrassing and harmful facts that might influence the opinion of others.
Liability is not usually imposed for alleged injuries relating to matters that are intended for public consumption. A person's date of birth and military record, for example, are both matters of public record that may be disclosed without invading his or her privacy. Commercial proprietors that regularly deal with the public receive little protection from disclosures that relate to the price of their products, the quality of their services, or the manner in which they conduct business. Under the First Amendment, business proprietors receive less protection of their privacy interests because the U.S. Constitution seeks to promote the free and robust exchange of accurate information to allow consumers to make informed decisions.
False-Light Publicity The common-law tort of false-light publicity protects individuals from the public disclosure of false information about their reputation, beliefs, or activities. The information need not be of a private nature nor must it be defamatory, as must libelous and slanderous statements, before liability will be imposed. Instead, a misleading publication will give rise to liability for false-light publicity when it is placed before a large segment of the public in such a way that a reasonable person would find it highly offensive. However, publication of an inaccurate story to a single person, or a small group of people, is not considered sufficiently public to constitute publicity.
A newspaper photograph printed in close proximity to a caption suggesting criminal activity on the part of the person photographed is a classic example of false-light publicity. On the other hand, a misleading photograph, such as one that has been retouched, may not give rise to liability for false-light publicity if the photograph is accompanied by a caption that clearly explains how it has been distorted. An esteemed poet may successfully sue for false-light publicity when an inferior poem is published under the poet's name. A war hero may assert a cognizable claim for false-light publicity if a story is aired that inaccurately portrays the soldier as a coward.
Public officials, such as politicians, and public figures, such as professional athletes, rarely recover for false-light publicity. Before a public official or public figure can recover for false-light publicity, the First Amendment requires proof that a story or caption was published with knowledge of its falsity or in reckless disregard of its truth, a principle that has become known as the actual malice standard (New York Times Co. v. Sullivan 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 ). In most instances, public officials and public figures have thrust themselves into the public spotlight. As a condition to accepting the benefits that accompany public recognition, the law requires that such persons accept a diminished level of protection of their privacy interests. Because the First Amendment confers less protection on public persons than it does on private individuals, the Constitution encourages the media to freely disseminate information about candidates for office, government officials, and other figures who influence or shape the course of events.
Appropriation of Name or Likeness One who appropriates the name or likeness of another person is subject to liability for invasion of privacy. All individuals are vested with an exclusive property right in their identity. No person, business, or other entity may appropriate someone's name or likeness without permission. Nonconsensual commercial appropriation of a person's name or likeness for advertising purposes is the most common type of conduct giving rise to liability under this common-law tort. By forbidding the nonconsensual use of a person's name or likeness, the law allows an individual to license his or her face, body, reputation, prestige, and image for remuneration.
Not every appropriation gives rise to liability for invasion of privacy. Liability will attach only when a person's name or likeness has been appropriated to obtain an immediate and direct advantage. The advantage need not yield a financial gain. However, the mere incidental use of someone's name or likeness is not a compensable appropriation.
For example, the print and electronic media may publish photographs, drawings, and other depictions of a person's name or likeness as an incidental part of their legitimate news-gathering activities without violating the common-law right to privacy. However, if a nonprofit organization uses a person's name or likeness to promote its philanthropy, it may be liable for the appropriation. The right to sue for wrongful appropriation is a personal right. Parents cannot recover damages for breach of their children's privacy, and family members cannot sue after the death of the person whose name or likeness has been misappropriated.
Theft of Trade Secrets Wrongful use, disclosure, or theft of a trade secret is actionable under the common law. Although the U.S. economy is generally governed by free-market principles, the common law requires businesses to compete fairly and forbids business rivals from stealing one another's intellectual property for commercial advantage. Although it is difficult to formulate a comprehensive list of what constitutes the improper acquisition of a trade secret, the common law generally makes it unlawful to engage in fraud, misrepresentation, or other forms of deception for the purpose of obtaining confidential commercial information.
Independent analysis of publicly available products or information is not an improper means of acquisition. Through a process known as reverse engineering, a competitor may lawfully purchase a rival's product, disassemble it, and subject it to laboratory analysis for the purpose of unlocking valuable information, such as a secret formula or process. However, aerial photography of a competitor's plant constitutes tortious interference with commercial privacy. Courts have reasoned that the law should not force commercial entities to expend additional resources to conceal their interior from every possible form of exterior exposure. Conversely, commercial entities may patent many of their valuable trade secrets before placing a product on the market where it can be analyzed by a competitor.
In addition to the constitutional and common-law principles that offer protection of privacy interests, a host of statutes and regulations have been passed to define privacy in a variety of contexts. State and federal privacy legislation regulates the circumstances under which information from financial, educational, and government records can be revealed. State and federal legislation also prescribes the conditions under which employers may subject their employees to drug testing. Federal laws strictly limit the use of electronic surveillance in both the public and private sectors.
The meaning of the term privacy changes according to its legal context. In constitutional law, privacy means the right to make certain fundamental decisions concerning deeply personal matters free from government coercion, intimidation, or regulation. In this sense, privacy is associated with interests in autonomy, dignity, and self-determination. Under the common law, privacy generally means the right to be let alone. In this sense, privacy is associated with seclusion. Under statutory law, privacy often means the right to prevent the nonconsensual disclosure of sensitive, confidential, or discrediting information. In this sense, privacy is associated with secrecy.
- ↑ http://laws.findlaw.com/us/405/438.html
- ↑ http://laws.findlaw.com/us/497/261.html
- ↑ http://laws.findlaw.com/us/422/205.html
Dworkin, Ronald. 1996. Freedom's Law: The Moral Reading of the American Constitution. Cambridge, Mass.: Harvard Univ. Press.
Garrow, David. 1994. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. New York: Scribner.
Grant, Jeffrey R. 2000. Surveillance Society. Toronto, Ontario: Frontier Research.
Kennedy, Caroline, and Ellen Alderman. 1995. The Right to Privacy. New York: Knopf.
Posner, Richard. 1981. The Economics of Justice. Cambridge, Mass.: Harvard Univ. Press.
Restatement of the Law Second, Torts. 1987–2001. New York: American Law Institute.
Warren, Samuel D., and Louis D. Brandeis. 1890. "The Right to Privacy." Harvard Law Review 4.
- Electronic Privacy Information Center
- Electronic Frontier Foundation
- International Association of Privacy Professionals
- Morrison & Foester Privacy Library
- FTC Privacy Initiative
- FTC Seeks Public Comment on Program to Keep Web Site Operators in Compliance With the Children’s Online Privacy Protection Rule
- FTC Financial Privacy Rule: Interagency Notice Research Project
- Secretary Sebelius Announces Final Rules To Support ‘Meaningful Use’ of Electronic Health Records
Related Resources on FindLaw
- Privacy - Primary Materials
- Consumer Action Handbook - Protecting Your Privacy
- Workplace Privacy
- Privacy and Testing in the Workplace
- Managing Employees: Privacy Issues
- Email Privacy
- What Does Invasion of Privacy Mean?
- Tenant Privacy Rights and the Right to Repairs
- How does the privacy rule protect my medical privacy?
- Patient Rights: Confidentiality and Privacy
Related Blogs on FindLaw
Web Services by Yahoo!
- Right to Privacy
- U.S. Privacy Law
- International Privacy Law
- EU Privacy Law
- Europe Privacy Law
- Asia-Pacific Privacy Law
- Australia Privacy Law
- Canada Privacy Law
- Latin America Privacy Law
- Africa Privacy Law
- Middle East Privacy Law
- Smart Grid
- Radio Frequency Identification (RFID)
- Global Positioning System (GPS)
- Acquired Immune Deficiency Syndrome
- Consumer Credit
- Death and Dying
- Drugs and Narcotics
- Employment Law
- Libel and Slander
- Parent and Child
- Privileged Communication
- Quinlan, In re
- Search and Seizure