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Data Security 1011 A ASPEN CASEBOOK SERIES INFORMATION PRIVACY LAW Seventh Edition Daniel J. Solove John Marshall Harlan Research Professor of Law George Washington University Law School Paul M. Schwartz Jefferson E. Peyser Professor of Law U.C. Berkeley School of Law Faculty Director, Berkeley Center for Law & Technology Copyright © 2021 CCH Incorporated. All Rights Reserved. Published by Wolters Kluwer in New York. Wolters Kluwer Legal & Regulatory U.S. serves customers worldwide with CCH, Aspen Publishers, and Kluwer Law International products. (www.WKLegaledu.com) No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or utilized by any information storage or retrieval system, without written permission from the publisher. For information about permissions or to request permissions online, visit us at www.WKLegaledu.com, or a written request may be faxed to our permissions department at 212-771-0803. To contact Customer Service, e-mail [email protected], call 1-800-234-1660, fax 1-800-901-9075, or mail correspondence to: Wolters Kluwer Attn: Order Department PO Box 990 Frederick, MD 21705 Printed in the United States of America. 1 2 3 4 5 6 7 8 9 0 ISBN 978-1-5438-1372-2 Library of Congress Cataloging-in-Publication Data Names: Solove, Daniel J., 1972- author. | Schwartz, Paul M., 1959- author. Title: Information privacy law / Daniel J. Solove, John Marshall Harlan Research Professor of Law, George Washington University Law School; Paul M. Schwartz, Jefferson E. Peyser Professor of Law, U.C. Berkeley School of Law, Faculty Director, Berkeley Center for Law & Technology. Description: Seventh edition. | New York : Wolters Kluwer, [2021] | Series: Aspen casebook series | Includes bibliographical references and index. | Summary: "Cases, exposition, and materials for the law school course on information privacy law or information and technology"-- Provided by publisher. Identifiers: LCCN 2020044521 | ISBN 9781543813722 (hardcover) | ISBN 9781543827262 (ebook) Subjects: LCSH: Privacy, Right of--United States. | Data protection--Law and legislation--United States. | Confidential communications--United States. | Personality (Law)--United States. | LCGFT: Casebooks (Law) Classification: LCC KF1262 .S66 2021 | DDC 342.7308/58--dc23 LC record available at https://lccn.loc.gov/2020044521 SUMMARY OF CONTENTS Contents xiii Preface xxvii Acknowledgments xxix 1 INTRODUCTION 1 A. Information Privacy, Technology, and the Law 1 B. Information Privacy Law: Origins and Types 10 2 PERSPECTIVES ON PRIVACY 41 A. The Philosophical Discourse about Privacy 41 B. The Definition and the Value of Privacy 43 C. Critics of Privacy 60 D. The Feminist Perspective on Privacy 68 E. The Civil Rights Perspective on Privacy 77 F. Privacy, Poverty, and Social Class 83 3 PRIVACY AND THE MEDIA 87 A. Information Gathering 89 B. Disclosure of Truthful Information 114 C. Dissemination of False Information 183 D. Appropriation of Name or Likeness 220 E. Privacy Protections for Anonymity and Receipt of Ideas 248 4 PRIVACY AND LAW ENFORCEMENT 267 A. The Fourth Amendment and Emerging Technology 270 B. Information Gathering About First Amendment Activities 361 C. Federal Electronic Surveillance Law 374 D. Digital Searches and Seizures 389 5 NATIONAL SECURITY AND FOREIGN INTELLIGENCE 437 A. The Intelligence Community 438 B. The Fourth Amendment Framework 439 ix x SUMMARY OF CONTENTS C. Foreign Intelligence Gathering 447 D. NSA Surveillance 473 6 HEALTH PRIVACY 497 A. Confidentiality of Medical Information 499 B. Constitutional Protection of Medical Information 564 C. Genetic Information 603 7 GOVERNMENT RECORDS 623 A. Public Access to Government Records 624 B. Government Records and Use of Personal Data 683 C. Identification Records and Requirements 740 8 FINANCIAL DATA 755 A. The Fair Credit Reporting Act 755 B. The Gramm-Leach-Bliley Act 792 C. Federal and State Financial Privacy Laws 796 9 CONSUMER DATA 809 A. The U.S. System of Consumer Data Privacy Regulation 810 B. Tort Law 843 C. Contract Law 852 D. Property Law 865 E. FTC Section 5 Enforcement 868 F. Statutory Regulation 907 G. State Statutory Regulation 970 H. First Amendment Limitations on Privacy Regulation 977 10 DATA SECURITY 1011 A. Introduction 1011 B. Data Security Breach Notification Statutes 1013 C. Civil Liability and Standing 1018 D. FTC Regulation 1043 11 EDUCATION PRIVACY 1065 A. School Searches and Surveillance 1065 B. Drug Testing 1071 C. School Records 1081 12 EMPLOYMENT PRIVACY 1091 A. Workplace Searches 1094 B. Workplace Surveillance 1102 C. Workplace Drug Testing 1105 D. The Issue of Consent 1117 E. Testing, Questionnaires, and Polygraphs 1123 F. Telephone Monitoring 1137 SUMMARY OF CONTENTS xi G. Computer Monitoring and Searches 1144 13 EU AND INTERNATIONAL PRIVACY LAW 1169 A. The OECD Privacy Guidelines 1172 B. Privacy Protection in Europe 1176 C. International Transfers of Data 1259 D. Privacy Protection Worldwide 1295 Index 1307 CONTENTS Preface xxvii Acknowledgments xxix 1 INTRODUCTION 1 A. INFORMATION PRIVACY, TECHNOLOGY, AND THE LAW 1 • Sidis v. F-R Publishing Corp. 3 B. INFORMATION PRIVACY LAW: ORIGINS AND TYPES 10 1. Common Law 10 (a) The Warren and Brandeis Article 10 • Samuel D. Warren and Louis D. Brandeis, The Right to Privacy 13 (b) The Recognition of Warren and Brandeis’s Privacy Torts 26 • William Prosser, Privacy 27 • Lake v. Wal-Mart Stores, Inc. 29 (c) Privacy Protection in Tort Law 32 (d) Privacy Protection in Evidence Law 33 (e) Privacy Protection via Property Rights 33 (f) Privacy Protection in Contract Law 34 (g) Privacy Protection in Criminal Law 34 2. Constitutional Law 34 3. Statutory Law 36 4. International Law 40 2 PERSPECTIVES ON PRIVACY 41 A. THE PHILOSOPHICAL DISCOURSE ABOUT PRIVACY 41 1. The Concept of Privacy and the Right to Privacy 41 2. The Public and Private Spheres 42 xiii xiv CONTENTS B. THE DEFINITION AND THE VALUE OF PRIVACY 43 • Daniel J. Solove, Conceptualizing Privacy 44 • Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object 50 • Anita L. Allen, Coercing Privacy 53 • Paul M. Schwartz, Privacy and Democracy in Cyberspace 55 • Spiros Simitis, Reviewing Privacy in an Information Society 57 C. CRITICS OF PRIVACY 60 • Richard A. Posner, The Right of Privacy 60 • Fred H. Cate, Principles of Internet Privacy 65 D. THE FEMINIST PERSPECTIVE ON PRIVACY 68 • State v. Rhodes 68 • Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy 70 • Danielle Keats Citron, Sexual Privacy 74 E. THE CIVIL RIGHTS PERSPECTIVE ON PRIVACY 77 • Alvaro M. Bedoya, Privacy as Civil Right 77 F. PRIVACY, POVERTY, AND SOCIAL CLASS 83 • Khiara M. Bridges, Privacy Rights and Public Families 83 3 PRIVACY AND THE MEDIA 87 A. INFORMATION GATHERING 89 1. Intrusion upon Seclusion 89 • Restatement (Second) of Torts § 652B: Intrusion upon Seclusion 89 • Nader v. General Motors Corp. 90 • Dietemann v. Time, Inc. 95 • Desnick v. American Broadcasting Co., Inc. 97 • Shulman v. Group W Productions, Inc. 102 2. Paparazzi 106 • Galella v. Onassis 107 • California Anti-Paparazzi Act 108 3. Video Voyeurism 111 • Video Voyeurism Prevention Act 112 B. DISCLOSURE OF TRUTHFUL INFORMATION 114 1. Public Disclosure of Private Facts 114 (a) Introduction 114 • Restatement (Second) of Torts § 652D: Publicity Given to Private Life 114 SUMMARY OF CONTENTS xv (b) Private Matters 116 • Gill v. Hearst Publishing Co. 116 • Daily Times Democrat v. Graham 121 (c) The Newsworthiness Test 128 • Sipple v. Chronicle Publishing Co. 128 • Shulman v. Group W Productions, Inc. 139 • Bonome v. Kaysen 142 2. First Amendment Limitations 148 • Cox Broadcasting Corp. v. Cohn 150 • The Florida Star v. B.J.F. 158 • Bartnicki v. Vopper 173 C. DISSEMINATION OF FALSE INFORMATION 183 1. Defamation 183 (a) Introduction 183 (b) Defamation and the Internet 185 • Zeran v. America Online, Inc. 186 (c) First Amendment Limitations 195 • New York Times Co. v. Sullivan 195 • Gertz v. Robert Welch, Inc. 198 2. False Light 206 (a) Introduction 206 • Restatement (Second) of Torts § 652E: Publicity Placing Person in False Light 206 (b) First Amendment Limitations 209 • Time, Inc. v. Hill 209 3. Infliction of Emotional Distress 213 • Hustler Magazine v. Falwell 213 • Snyder v. Phelps 216 D. APPROPRIATION OF NAME OR LIKENESS 220 1. Introduction 220 • Restatement (Second) of Torts § 652C: Appropriation of Name or Likeness 220 2. Name or Likeness 223 • Carson v. Here’s Johnny Portable Toilets, Inc. 223 3. For One’s Own Use or Benefit 231 • Raymen v. United Senior Association, Inc. 231 4. Connection to Matters of Public Interest 235 • Finger v. Omni Publications International, Ltd. 236 5. First Amendment Limitations 240 • Zacchini v. Scripps-Howard Broadcasting Co. 240 xvi CONTENTS • De Havilland v. FX Networks, LLC 242 E. PRIVACY PROTECTIONS FOR ANONYMITY AND RECEIPT OF IDEAS 248 1. Anonymity 248 (a) Anonymous Speech 249 • Talley v. State of California 249 • McIntyre v. Ohio Elections Commission 250 • Doe v. Cahill 254 (b) Reporter’s Privilege 260 2. Privacy of Reading and Intellectual Exploration 262 • Stanley v. Georgia 262 4 PRIVACY AND LAW ENFORCEMENT 267 A. THE FOURTH AMENDMENT AND EMERGING TECHNOLOGY 270 1. How the Fourth Amendment Works 270 (a) Applicability: Searches and Seizures 270 (b) Reasonable Searches and Seizures 271 (c) Enforcement: The Exclusionary Rule and Civil Remedies 273 (d) Subpoenas and Court Orders 274 2. Wiretapping, Bugging, and Beyond 277 • Olmstead v. United States 278 • Lopez v. United States 286 • Katz v. United States 288 • United States v. White 295 3. The Reasonable Expectation of Privacy Test 299 (a) The Third Party Doctrine 299 • Smith v. Maryland 299 (b) Items Abandoned or Exposed to the Public 310 • California v. Greenwood 310 (c) Surveillance and the Use of Sense Enhancement Technologies 317 • Florida v. Riley 317 • Dow Chemical Co. v. United States 325 • Kyllo v. United States 328 • United States v. Jones 336 • Carpenter v. United States 346 B. INFORMATION GATHERING ABOUT FIRST AMENDMENT ACTIVITIES 361 • Stanford v.
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