DOCSLIB.ORG

Fourth Amendment Privacy Interests William C

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Fourth Amendment Privacy Interests William C Journal of Criminal Law and Criminology Volume 92 Article 1 Issue 1 Fall Fall 2001 Fourth Amendment Privacy Interests William C. Heffernan Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation William C. Heffernan, Fourth Amendment Privacy Interests, 92 J. Crim. L. & Criminology 1 (2001-2002) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/01/9201-0001 I THE JOURNALOF CRIMINAL LAW & CRIMINOLOGY Vol. 92, No. Copyright C 2001 by Northwestern University, School of Law Printed in US.A, CRIMINAL LAW FOURTH AMENDMENT PRIVACY INTERESTS WILLIAM C. HEFFERNAN* I. INTRODU CTION .............................................................................. 2 II. PRIVACYAND PERSONAL SECURITY: ENTICKTO OLMSTEADTO KATZ.. 7 A. The Fourth Amendment's Guarantee of Personal Security ... 9 B. The Eighteenth Century Sources ......................................... 12 C. Trespass and the Eighteenth Century Heritage: ChiefJustice Taft's Opinion for the Court in Olmstead v. United States ........ 15 D. The Court's Repudiation of the Trespass Standard in Katz v. United States.............................................................. 17 1. Katz and the Court's Recognition of Privacy as an Independent Fourth Amendment Variable ................. 18 2. Vindicating the Court's Conclusions in Katz ................ 19 E. Fourth Amendment Pluralism ............................................ 24 III. DEVELOPING THE FORBEARANCE MODEL ...................... 31 A. Post-Katz Privacy Jurisprudence: An Unreasonable Expectation of Eternal Vigilance .............................................. 32 1. The Anxious Quest for Privacy ...................................... 38 2. The Problem of Exposure to Third Party Facilitators ...... 39 3. Calculating What a Member of the Public Might D iscover ...............................................................................39 B. The Harlan Test I: From Social Expectations to Legally Enforceable Privacy Interests ...................................................... 40 C. The Harlan Test II: Methods of Identifying Privacy In terests ...................................................................................... 45 D. The Features of a Valid Privacy Claim ................................ 48 1. The Different Types of Privacy: Privacy of the Person and Inform ational Privacy .................................................... 52 2. Interpersonal Privacy: Symmetrical and Asymmetrical R elationships ....................................................................... 53 3. Asymmetry in Surveillance Relationships ..................... 56 WILLIAM C. HEFFERNAN [Vol. 92 4. The "What" and "How" of Privacy Analysis: Conventional and Idiosyncratic Sources of Personal V uln erability ......................................................................... 57 5. Recapitulation ................................................................ 60 E. A Reasonable Expectation of Forbearance on the Part of O th ers ........................................................................................ 6 1 F. The Possibility of a Role Discount for the Police: Rejecting an Across-the-Board Discount While Accommodating the Government During Emergencies ............................................ 67 IV. APPLYING THE FORBEARANCE MODEL ................................... 72 A. Settings Where Privacy Cannot Be at Stake .............. 72 B. Observational Surveillance ................................................... 80 1. Private Objects and Information ................................... 81 2. Privacy C ues .................................................................... 87 3. Surveillance of Behavior in Public Places ..................... 94 4. A Note on Technology and Privacy ................................. 101 C. Interactive Surveillance .......................................................... 106 1. N onproblem atic Settings ................................................. 110 2. H arder C ases ..................................................................... 118 C ON CLU SIO N ........................................................................................ 126 I. INTRODUCTION Is it possible to incorporate a serious concern for privacy into Fourth Amendment jurisprudence? Even before the terrorist attacks on America, the question was a pertinent one; in the aftermath, it has become even more so. Fourth Amendment case law is of course grounded in an explicit concern for reasonable expectations of privacy.2 But given a long line of decisions rendered prior to the attacks, one could * Professor of Law, John Jay College of Criminal Justice and the Graduate Center, City University of New York. Marc Bernstein, Janice Dunham, and Steve Wasserman provided helpful suggestions concerning an earlier draft of this article. The Fourth Amendment provides: 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. U.S. CONST. amend. IV. Justice Harlan developed the expectation-of-privacy test in his concurring opinion in Katz v. United States, 389 U.S. 347, 361 (1967). Numerous opinions of the Court have since adopted Harlan's test for purposes of Fourth Amendment analysis. See, e.g., Minnesota v. Olson, 495 U.S. 91, 95-96 (1990); California v. Ciraolo, 476 U.S. 207, 211 (1986). 20011 FOURTH AMENDMENT PRIVACY INTERESTS hardly say that the Supreme Court has shown a serious concern for privacy. The Court, for example, has held that individuals do not have any Fourth Amendment privacy interests in their bank records,3 in the phone numbers they dial,4 or in freedom 5 from low-flying surveillance of their backyards. Moreover, by the Court's analysis, even our garbage places us at risk. If someone wraps her garbage carefully in an opaque bag and places the bag on the street, that person, the Court has held, cannot expect the police to refrain from inspecting it to find out what's going on in her home.6 Clearly, the Court has parsed the concept of privacy as thinly as possible. It has expressed concern for residential privacy'-but has allowed police helicopters to conduct surveillance of backyards.' It has expressed concern for the privacy of phone conversations 9 but has said people have no ° privacy interest in the numbers they dial.' Whether-or how much-terrorism's arrival in America will influence future privacy jurisprudence is hard to say, but it does at least seem clear that even before its advent the Court did not take privacy seriously as a Fourth Amendment value. My question at the outset, though, was not directly concerned with Supreme Court rulings. Rather, I asked whether it is possible to incorporate a serious concern for privacy into Fourth Amendment jurisprudence. In this Article, I argue that it is. But a cogent argument can be advanced to the contrary, an argument that requires special attention given the challenge that police work poses for privacy interests. SeeUnited States v. Miller, 425 U.S. 435, 443 (1976). See Smith v. Maryland, 442 U.S. 735, 744 (1979). See Florida v. Riley, 488 U.S. 445, 449-51 (1988); see also Ciraolo, 476 U.S. at 212-14. See California v. Greenwood, 486 U.S. 35 (1988). 7 See Payton v. New York, 445 U.S. 573, 589 (1980) ("The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of the home."); see also United States v. Karo, 468 U.S. 705, 714-15 (1984) ("At the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of government intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable.") 8 See Riley, 488 U.S. at 449-51; see also Ciraolo, 476 U.S. at 212-14. ' See Katz v. United States, 389 U.S. 347, 352 (1967) (A person using a telephone "is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.") "0See Smith v. Maryland, 442 U.S. 735, 744 (1979). WILLIAM C. HEFFERNAN [Vol. 92 The core features of this counterargument are easy to grasp. Privacy norms require people to exercise forbearance in everyday life: they require people not to act on their curiosity about their neighbors and officemates, not to encourage third- party confidences, not to snoop through incoming mail, and so on. But the police, it could be contended, must be exempted from these norms. This exemption is essential for the investigation of what the Court has called "ordinary criminal wrongdoing."" It is wholly indispensable, one could continue, for police work on what the Court has called "special governmental needs" 2 (the investigation of terrorism quite clearly comes under this heading). Police officers, it could be conceded, must avoid egregious violations of privacy norms. Nothing more than this should be expected of them
Load more

Recommended publications
  • Press Release
    PRESS RELEASE Saffron Burrows, Oliver Chris and Belinda Stewart-Wilson join cast of Everything I Ever Wanted to Tell My Daughter About Men 29 January 2020 Shakespeare’s Globe is delighted to announce further casting for Everything I Ever Wanted to Tell My Daughter About Men, a new black comedy by actor and writer Lorien Haynes, directed by Tara Fitzgerald (Brassed Off, Game of Thrones), being hosted in the Sam Wanamaker Playhouse on Thursday 20 February. Everything I Ever Wanted to Tell My Daughter About Men traces a woman’s relationship history backwards, exploring the impact of sexual assault, addiction and teen pregnancy on her adult relationships. Presented in association with RISE and The Circle, all profits from this event will go towards supporting survivors of sexual violence. Thanks in huge part to RISE’s work, the event will also mark the planned introduction of the Worldwide Sexual Violence Survivor Rights United Nations Resolution later this year, which addresses the global issue of sexual violence and pens into existence the civil rights of millions of survivors. Nobel-Prize nominee and founder of Rise, Amanda Nguyen, will introduce the evening. A silent auction will also take place on the night to highlight and raise awareness for the support networks available to those in need. Audience members will be able to bid on props from the production as well as a selection of especially commissioned rotary phones, exclusively designed by acclaimed British artists including Harland Miller, Natasha Law, Bella Freud and Emma Sargeant. The money raised by each phone will go to a rape crisis helpline chosen by the artist.
    [Show full text]
  • Privacy and Publicity: the Two Facets of Personality Rights
    Privacy and publicity Privacy and publicity: the two facets of personality rights hyperbole. In this context, personality In this age of endorsements and rights encompass the “right of privacy”, tabloid gossip, famous people which prohibits undue interference in need to protect their rights and a person’s private life. In addition to coverage in the media, reputations. With a growing number images of celebrities adorn anything from of reported personality rights cases, t-shirts, watches and bags to coffee mugs. India must move to develop its This is because once a person becomes legal framework governing the famous, the goods and services that he or commercial exploitation of celebrity she chooses to endorse are perceived to reflect his or her own personal values. By Bisman Kaur and Gunjan Chauhan, A loyal fan base is a captive market for Remfry & Sagar such goods, thereby allowing celebrities to cash in on their efforts in building up Introduction a popular persona. Intellectual property in India is no longer Unfortunately, a large fan base is a niche field of law. Stories detailing also seen by unscrupulous people as an trademark infringement and discussing opportunity to bring out products or the grant of geographical indications services that imply endorsement by an routinely make their way into the daily individual, when in fact there is no such news headlines. From conventional association. In such cases the individual’s categories of protection such as patents, “right of publicity” is called into play. trademarks, designs and copyright, IP laws The right of publicity extends to every have been developed, often by judicial individual, not just those who are famous, innovation, to encompass new roles and but as a practical matter its application areas of protection.
    [Show full text]
  • Image Is Everything Lowenstein Sandler’S Matthew Savare Gives a Comparative Examination of Publicity Rights in the US and Western Europe
    Publicity rights Image is everything Lowenstein Sandler’s Matthew Savare gives a comparative examination of publicity rights in the US and western Europe Comedian Steven Wright once joked, “It’s a small world, but I the person’s identity has “commercial value” versus only 10 years for wouldn’t want to paint it”. Over the last decade, the proliferation those whose identity does not. of digital technologies has not made the world smaller or easier to • Remedies – the remedies available to plaintiffs also vary from state paint, but it has significantly hastened the globalisation of content. This to state. For example, New York’s statute provides for injunctions, transformation, coupled with the developed world’s insatiable fascination compensatory damages, and discretionary punitive damages. Ohio’s with fame, has spurred the hyper commoditisation of celebrity. statute, which offers the most remedies of any state statute, permits Despite the universality of celebrity, the laws governing the injunctions; a choice of either actual damages, “including any commercial exploitation of one’s name, image, and likeness differ profits derived from and attributable to the unauthorised use of an widely between the US and the nations of western Europe. In light individual’s persona for a commercial purpose” or statutory damages of the increased trafficking in celebrity personas between the two between $2,500 and $10,000; punitive damages; treble damages continents, a brief comparative analysis is warranted. if the defendant has “knowledge of the unauthorised use of the persona”; and attorney’s fees. A primer on US right of publicity law Courts have used primarily three methodologies or some The right of publicity is the “inherent right of every human being to combination thereof to value compensatory damages.
    [Show full text]
  • Much Ado About Newsgathering: Personal Privacy, Law Enforcement, and the Law of Unintended Consequences for Anti-Paparazzi Legislation
    MUCH ADO ABOUT NEWSGATHERING: PERSONAL PRIVACY, LAW ENFORCEMENT, AND THE LAW OF UNINTENDED CONSEQUENCES FOR ANTI-PAPARAZZI LEGISLATION ANDREW D. MORTONt Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dan- gers to liberty lurk in insidiousI encroachment by men of zeal, well-meaning but without understanding. INTRODUCTION: BALANCING THE INDIVIDUAL RIGHT TO PRIVACY WITH LEGITIMATE LAW ENFORCEMENT SURVEILLANCE Horror, not humor, brought actors Michael J. Fox and Paul Reiser to testify before a hearing of the United States House Judiciary Committee last summer.2 Fox described the "mercenary tactics of tabloid photographers" who turned his wedding into a "nightmare" as helicopters recklessly jock- eyed for position above the ceremony, then "fired away with high-powered cameras" on the couple's honeymoon suite.3 When Reiser's son was born prematurely, disguised journalists infiltrated the hospital with hidden cam- eras to steal a photo of the infant, and after returning home, the child was photographed in the privacy of the family's backyard by "resourceful" jour- t B.A. 1991, M.P.P. Candidate 2000, University of Maryland; J.D. Candidate 2000, Uni- versity of Pennsylvania. This Comment is dedicated to the memory of Alan Rubinstein- gifted attorney, and the father-in-law I have known only through the many whose lives he touched. I am deeply indebted to Ed Pease, Diana Schacht, the staff and members of the U.S.
    [Show full text]
  • Privacy and the Limits of Law
    The Yale Law Journal Volume 89, Number 3, January 1980 Privacy and the Limits of Law Ruth Gavisont Anyone who studies the law of privacy today may well feel a sense of uneasiness. On one hand, there are popular demands for increased protection of privacy, discussions of new threats to privacy, and an intensified interest in the relationship between privacy and other values, such as liberty, autonomy, and mental health.' These demands have generated a variety of legal responses. Most states recognize a cause of action for invasions of privacy.2 The Supreme Court has declared a constitutional right to privacy, a right broad enough to protect abortion and the use of contraceptives. 3 Congress enacted the Privacy Act of 19744 after long hearings and debate. These activities 5 t Visiting Associate Professor of Law, Yale Law School. This Article develops some of the themes of my doctoral thesis, Privacy and Its Legal Protection, written under the supervision of Professor H.L.A. Hart. Much of the inspiration of this piece is still his. I am grateful to Bruce Ackerman, Bob Cover, Owen Fiss, George Fletcher, Harry Frank- furt, Jack Getman, Tony Kronman, Arthur Leff, Michael Moore, and Barbara Underwood, who read previous drafts and made many useful comments. I. The best general treatment of privacy is still A. WEsTIN, PRIVACY AND FREEDOm (1967). For treatment of a variety of privacy aspects, see NoMos XIII, PRIVACY (R. Pen- nock & J. Chapman eds. 1971) (Yearbook of the American Society for Political and Legal Philosophy) [hereinafter cited as Nomos]. 2. W. PROSSER, THE LAW OF TORTS 804 (4th ed.
    [Show full text]
  • Case 3:14-Cr-00085-JAM Document 112 Filed 11/17/14 Page 1 of 22
    Case 3:14-cr-00085-JAM Document 112 Filed 11/17/14 Page 1 of 22 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA v. No. 3:14-cr-00085 (JAM) CARLOS COLON, et al. RULING ON DEFENDANTS’ JOINT MOTIONS FOR DISCOVERY (Doc. #36) AND TO DISMISS THE INDICTMENT (Doc. #37) This case involves seven criminal defendants who were set up by undercover law enforcement agents to rob a fictional drug ―stash house‖ in Connecticut. They fell victim to a ruse that federal law enforcement agents have deployed with remarkable success against countless suspects nationwide. All seven defendants—some of them armed—gathered one day last April at a parking lot somewhere in Stamford, expecting that they would momentarily proceed to a nearby stash house to rob and help themselves to 15 kilograms or more of lightly guarded cocaine. Instead, a flood of law enforcement agents swept in to arrest them. Each of the defendants now stands charged with conspiracies to engage in robbery, drug trafficking, and related weapons offenses. For their plans to rob a house and cocaine that never existed, each of the defendants likely faces at least 15 years of mandatory minimum imprisonment if convicted on these charges. Defendants jointly move to dismiss the indictment on the ground that the stash-house sting operation that was launched against them amounted to outrageous government conduct in violation of their constitutional rights under the Due Process Clause. Relatedly, defendants contend that they were targeted on account of their race in violation of the Equal Protection 1 Case 3:14-cr-00085-JAM Document 112 Filed 11/17/14 Page 2 of 22 Clause, and they seek discovery to support their claim of selective enforcement and prosecution.
    [Show full text]
  • Defamation and the Right of Privacy
    Vanderbilt Law Review Volume 15 Issue 4 Issue 4 - October 1962 Article 4 10-1962 Defamation and the Right of Privacy John W. Wade, Dean Vanderbilt Law School Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Privacy Law Commons, and the Torts Commons Recommended Citation John W. Wade, Dean, Defamation and the Right of Privacy, 15 Vanderbilt Law Review 1093 (1962) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol15/iss4/4 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Defamation and the Right of Privacy JOHN W. WADE* In this article Dean Wade discusses the scope of the tort of un- warranted invasion of the right of privacy, comparing and contrasting it with the tort of defamation. He observes that the action for invasion of the right of privacy may come to supplant the action for defamation and that this development should be welcomed by the courts and writers. Finally, he concludes that the whole law of privacy may someday be- come a part of the larger, more comprehensive tort of intentional in- fliction of mental suffering. I. INTRODUOTMON The history of the two torts of defamation and unwarranted invasion of the right of privacy has been greatly different. Defamation developed over a period of many centuries, with the twin torts of libel and slander having completely separate origins and historical growth.
    [Show full text]
  • Three Milestones in the History of Privacy in the United States
    Three Milestones in the History of Privacy in the United States Vernon Valentine Palmer* I. INTRODUCTION ................................................................................... 67 II. A FIRST MILESTONE: WARREN AND BRANDEIS’S INVENTION OF PRIVACY ........................................................................................ 70 A. Intervening Years 1890-1970 ............................................. 79 III. A SECOND MILESTONE: PROSSER’S REFORMULATION OF PRIVACY ............................................................................................. 82 A. Prosser’s Methodology Revisited ....................................... 85 B. Finding Order, Losing Sight of Privacy ............................. 89 C. The Four Privacies Enter American Common Law ........... 91 IV. THE THIRD MILESTONE: THE CONSTITUTIONAL TRANSFORMATION OF LIBERTY INTO PRIVACY ................................. 93 V. CONCLUSION ...................................................................................... 97 I. INTRODUCTION The subject of privacy rights fits somewhere within the far broader subject of personality rights. Personality rights of course are numerous and diffuse. As Jean Dabin defined them, they are “rights whose subject is the component elements of the personality considered in its manifold aspects, physical and moral, individual and social.”1 They may be classified by general headings under which related interests are grouped together. On the Continent and in countries where a general theory of personality rights has
    [Show full text]
  • INTRUSIVE MONITORING: EMPLOYEE PRIVACY EXPECTATIONS ARE REASONABLE in EUROPE, DESTROYED in the UNITED STATES Lothar Determannt & Robert Spragueu
    INTRUSIVE MONITORING: EMPLOYEE PRIVACY EXPECTATIONS ARE REASONABLE IN EUROPE, DESTROYED IN THE UNITED STATES Lothar Determannt & Robert SpragueU TABLE OF CONTENTS I. INTRODUCTION ................. ...................... 980 II. EMPLOYER MONITORING AND EMPLOYEE PRIVACY-U.S. PERSPECTIVE ............................ 981 A. WORK-RELATED EMPLOYER MONITORING........................................981 B. WORK-RELATED EMPLOYEE PRIVACY ................ ....... 986 1. Work-Related Rights to Privag Under the Constitution.....................986 2. Work-Related Rights to Privag Under the Common Law..................990 3. Statutog Rjghts to Privag................................. 993 a) The Electronic Communications Privacy Act ............... 995 C. INTRUSIVE WORKPLACE MONITORING AND EMPLOYEE PRIVACY................................................ 1001 1. Employer Access to PersonalWeb-Based Applications..................... 1007 2. Webcams ...................................... 1009 3. GPS ..................................... 1012 D. WORKPLACE PRIVACY TRENDS IN THE UNITED STATES............... 1016 III. EMPLOYER MONITORING AND EMPLOYEE PRIVACY-EUROPEAN PERSPECTIVE .. ................... 1018 A. LAWS IN EUROPE-OVERVIEW ................ ............. 1019 B. CIVIL RIGHTS PROTECTIONS FOR PRIVACY AT THE EUROPEAN LEVEL............................. .......... 1019 ( 2011 Lothar Determann & Robert Sprague. t Dr. iur habil, Privatdozent, Freie Universitat Berlin; Adjunct Professor, University of California, Berkeley School of Law and Hastings College
    [Show full text]
  • Photographers' Guide to Privacy
    Photographers’ Guide to Privacy What every cameraman, photographer and videographer should know about invasion of privacy standards in the 50 states and D.C. Fall 2007 A primer on invasion of privacy The question of when the coverage and agrees that a news organization has omitted by reporting a misuse of taxpayer money. reporting of news becomes an invasion or played down facts that put a truthful state- (Harris v. City of Seattle, 152 Fed.Appx. 565 of privacy is a difficult one, especially for ment in its proper context. In 2003, a Florida (9th Cir. 2005)) photographers and videographers. jury awarded $18 million to Joe Anderson, The invasion of another’s privacy is a Reporting news stories in a way that the owner of a road-paving company who “tort,” meaning a civil wrong against another serves and informs the public will often entail sued over a Pensacola News Journal article that results in injury. publicizing facts or displaying images that that truthfully reported he had shot and A privacy tort occurs when a person or will embarrass or anger someone. killed his wife. However, the fact that an entity breaches the duty to leave another To make privacy matters even more diffi- investigation determined that the death was person alone. When journalists intrude on cult for journalists, courts constantly redefine a hunting accident was not mentioned until a person’s privacy and cause emotional or what is private based upon interpretations two sentences later, which Anderson said cre- monetary injury, they may be forced to pay of the elusive legal standard of a “reasonable ated a false impression that he murdered his damages.
    [Show full text]
  • Reasonable Expectations of Privacy and Novel Search Technologies: an Economic Approach Steven Penney
    Journal of Criminal Law and Criminology Volume 97 Article 3 Issue 2 Winter Winter 2007 Reasonable Expectations of Privacy and Novel Search Technologies: An Economic Approach Steven Penney Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Steven Penney, Reasonable Expectations of Privacy and Novel Search Technologies: An Economic Approach, 97 J. Crim. L. & Criminology 477 (2006-2007) This Symposium is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/07/9702-0477 THEJOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 97, No. 2 Copyright © 2007 by NorthwesternUniversity, Schoolof Law Printed in U.S.A. REASONABLE EXPECTATIONS OF PRIVACY AND NOVEL SEARCH TECHNOLOGIES: AN ECONOMIC APPROACH STEVEN PENNEY* The "reasonable expectation of privacy" test, which defines the scope of constitutionalprotection from governmental privacy intrusions in both the United States and Canada, is notoriously indeterminate. This indeterminacy stems in large measure from the tendency ofjudges to think ofprivacy in non-instrumentalistterms. This "moral" approach to privacy is normatively questionable, and it does a poor job of identifying the circumstances in which privacy should prevail over countervailing interests, such as the deterrence of crime. In this Article, I develop an alternative,economically-informed approach to the reasonable expectation of privacy test. In contrast to the moral approach, which treatsprivacy as a fundamental right, the economic approach views it as an (normatively neutral) aspect of self-interest: the desire to conceal and control potentially damagingpersonal information.
    [Show full text]
  • Determining Reasonable Expectation of Privacy in the Intrusion Into Seclusion Tort
    DETERMINING REASONABLE EXPECTATION OF PRIVACY IN THE INTRUSION INTO SECLUSION TORT William Fussey* Abstract As new and intrusive ways of invading a person’s privacy become increasingly common, it is important that tort law has a satisfactory way of protecting a person from intrusion. The case of C v Holland in 2012 created such a protection mechanism, by importing the tort of intrusion into seclusion from the USA. Whereas the first tort of privacy introduced in New Zealand protects the publication of private facts, intrusion into seclusion prevents access to a person even if it does not result in dissemination of any personal information. This article focuses on how to determine when a reasonable expectation of privacy is satisfied, suggesting it involves a detailed analysis of three suggested factors, modified from Richard Wilkins’ approach in the US search and seizure context. The article considers how the factors could be applied to an intrusion into seclusion claim in New Zealand. I. Introduction The 2012 High Court case of C v Holland1 introduced the privacy tort of intrusion into seclusion in New Zealand. In the case, C was filmed in the shower by a camera surreptitiously installed by Mr Holland, causing C great distress.2 The purpose of the intrusion into seclusion tort is to protect the privacy intrusion interest which, prior to the introduction of this cause of action, was inadequately protected in the legal framework. This article aims to explore what the intrusion interest is, and when and why it should be respected. It addresses how the tort of intrusion into seclusion can best be applied and developed in New Zealand.
    [Show full text]