MEDIA AND PRIVACY
Ruth Shulman lay pinned inside her family’s overturned car, her legs sticking out, in a ditch alongside a freeway. She moaned in pain, begging to know if her children had survived and at one point urging a paramedic to let her die. Little did she know that the crash that left her a paraplegic would be weekend fare for millions of TV viewers across the nation. The paramedic had worn a mini-microphone. A cameraman on the helicopter ambulance had taped the frantic trip to the hospital. ‘They took one of the most tragic moments of my life and made it entertainment for the nation,’ said Shulman, 53, who sat stunned in her hospital room three months later, watching herself on a syndicated show about real-life rescues. (LA Times, August 1, 1997)
This dramatic account is indicative of invasions of privacy being displayed in the mass media. A cursory perusal of the weekly television listings will reveal a number of “real life” shows which feature the use of hidden cameras, tiny microphones and “ride alongs” to capture the drama of everyday life. The problem is that these “real life” people have their most traumatic, embarrassing and horrifying moments captured without their permission and then displayed for everyone in the nation to watch. In one case, a widow watched a news program which showed the frantic efforts made to save the life of her dying husband, filmed without her knowledge in her own bathroom. In another situation, a mother watching a similar broadcast saw the body of her college-aged son draped over a chair as a result of a drug overdose while police arrived on the scene to investigate.
Such privacy invasions aren’t limited to television. The print media regularly makes use of photos and stories gained without the knowledge or permission of the individuals involved. Celebrities are the most frequent target, even finding their intimate moments featured on internet sites. Although legal claims have been made, and won, the damage has already been done.
Consistent judicial remedy at this point has been sorely lacking. Journalists use their broad first amendment protection to cover these stories citing “public interest.” The victims of the stories question the need for their private tragedies to be revealed in order to cover the story.
PRIVACY IN THE WORKPLACE
Some privacy invasions are generally considered acceptable by the majority of Americans; they typically occur in the workplace. The federal government has established several warranted invasions, particularly in the face of public safety interests. For example, in Skinner v. Railway Labor Executives’ Association (1989) a majority of the Supreme Court justices concluded that mandatory blood and urine testing of employees was justified for those involved in train accidents or who violated safety rules. It was held that “government’s compelling interests outweighed privacy concerns.” Essentially, this cost-benefit analysis has had the effect of ignoring the Fourth Amendment, but the public has generally accepted the need. Airplane pilots, train engineers, air traffic controllers, and bus drivers are among those occupations where there is perceived need to permit privacy violations in the interest of public safety.
The concept of privacy in the workplace (outside of these areas) is more complex. Private individuals can expect a certain level of privacy protection which is not afforded to employees. As Michael Bulzomi notes in The FBI Law Enforcement Bulletin, “As a general rule, intrusions that are reasonably employment-related do not require warrants to be considered reasonable under the Fourth Amendment and are evaluated on a case-by-case basis.” For example, federal courts have ruled that employers have access to employee lockers, desks, e-mails, correspondence, file cabinets, paging systems, even confidential medical records including psychiatric care while “private ” possessions like purses and wallets, coats, and briefcases are generally protected. However, despite these rudimentary protections, Bob Herbert notes in a recent article, “Most people assume that federal laws protect Americans from being spied upon in the workplace. To the contrary, over the years Congress has rejected legislation spelling out basic privacy protections for employees.”
PRIVACY AND LAW ENFORCEMENT
Law enforcement is one field where incursions on privacy rights have had dramatic changes. The Supreme Court has continually shown great latitude into what constitutes a lawful search and seizure, in everything from routine traffic stops to criminal investigations. But privacy violations can continue even after a defendant has been found guilty, sentenced, and served his time. Numerous states have “Megan’s Laws,” statutes which mandate informing the public if a former sex offender is living in their neighborhood. In many cases, these individuals find that they are not free from their sentence after all; instead, they are driven from their new homes by frightened and angry neighbors. As most of these laws are fairly new, society has not had time to gage their impact on rights’ violations.
Genetic testing is also an area which has law enforcement ramifications. The Dallas Morning News noted in an editorial on March 8, 1999 that some state legislatures want DNA samples taken from every arrested person. The DNA samples would then reside indefinitely in a criminal DNA bank. Both the state and federal government would have access to this information. A chilling thought, the editorial notes, as the key American principles of right to privacy, freedom from unlawful search and seizure, and the presumption of innocence would all be violated. The information gained would undoubtedly provide potential benefits, but at what cost?
These are just a few of the areas where issues of privacy rights are involved, but the do serve to illuminate the scope of the problem.
FEDERAL LEGISLATION
As of May 1999, these are some of the federal laws which deal with privacy issues:
Title VII of the Civil Rights Act of 1964 – covers private employers – prohibits discrimination in employment on basis of sex, race, color, national origin, or religion
Freedom of Information Act of 1966 – applies to general public – makes government documents available for public disclosure
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 – covers private employers – limits interception and disclosure of telephone communications
Fair Credit Reporting Act – (15 USC Sec. 1681a – 1/24/99) – earlier 1974 – defines procedures for release of credit information and disclosure
Privacy Act – (5 USC Sec. 552a – 1/24/94) – provides for making known to the public the existence and characteristics of all personal information systems kept by every Federal agency. Earlier version in 1974.
Immigration Reform and Control Act of 1986 – defines document requirements to establish employment eligibility
Electronic Communications Privacy Act – (USC Sec. 2510 – 1/24/94) – earlier 1986 – limits employer access to electronic communications
Drug-Free Workplace Act of 1988 – requires establishment of policy to promote drug-free workplace
Employee Polygraph Protection Act of 1988 – prohibits use of polygraph in preemployment screening, defines procedures for investigations
Americans with Disabilities Act of 1990 – prohibits discrimination and limits use of medical records
Telephone Consumer Privacy Act of 1991
Omnibus Transportation Employee Testing Act of 1991- requires drug testing of certain employees Boxer/Moran Drivers Privacy Protection Act of 1993 – limits access to information on your driver’s license
Computer Fraud and Abuse Act – (18 USC Sec. 1030 – 1/24/94)
Health Insurance Portability and Accountability Act of 1996 – defines procedures for insurance continuation and medical record privacy
Financial Records Privacy Act – ( 12 USC Sec. 3402 – 1/24/99)
Postal Patron Privacy Act – proposed
Privacy Protection Commission Bill – proposed
Electronic Monitoring Bill – proposed
Caller ID legislation – several proposals
SUPREME COURT CASES
The following is a sampling of Supreme Court cases which have dealt with privacy issues in the past 30 years:
Roe v. Wade (1973) – determined that the constitutional right to privacy included a woman’s right to terminate her pregnancy.
Bowers v. Hardwick (1986) – the court upheld Georgia’s anti-sodomy statute.
O’Connor v. Ortega – (1987) – the court held that the very nature of a public employee’s position allows intrusions into privacy that would not otherwise be tolerated by the Fourth Amendment.
Skinner v. Railway Labor Executives’ Association (1989) – government’s compelling interest in protecting public safety justifies blood and urine testing of employees.
National Treasury Employees Union v. Von Raab (1989) – justified drug testing of Customs Service employees due to the special needs of deterrence and workers’ professional integrity.
Florida v. Jimeno (1991) – justified a search of a stopped car which resulted in discovery of narcotics in a closed container when the suspect gave police permission to search the car. Employment Division, Department of Human Resources of Oregon v. Smith (1990) – the court rules against the sacramental use of peyote during a religious service. Essentially the court moved from projecting individual rights to being guardians of majority rule.
Florida v. Bostick (1991) – held that police can constitutionally search a bus passenger’s luggage without probable cause or a warrant if consent was given. Essentially this case shifted the burden to the citizen to defend their rights rather than the officer.
CONCLUSION
“The goal of privacy advocates is not extreme . . . to try to restore the privacy that was universal in the 1970s is to chase a chimera. . . but 20 years hence most people will find that the privacy they take for granted today will be just as elusive as the privacy of the 1970s now seems. . . People will have to start assuming that they simply have no privacy. This will constitute one of the greatest social changes of modern times.” (The Economist, May 1, 1999)
The time to act is now . . .
DEFINITIONS
privacy – freedom from unauthorized intrusion; state of being let alone and able to keep certain esp. personal matters to oneself. (Meriam Webster’s Dictionary of Law, 1996)
Privacy -the right to be left alone; that is, to be free from unwarranted publicity and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned. The so-called right, founded upon the claim that a man has the right to pass through this world, if he wills, without having his picture published, his business enterprises discussed, his successful experiments written up for the benefit of others, or his eccentricities commented upon either in handbills, circulars, catalogues, periodicals, or newspapers; and, necessarily, that the things which may not be written and published of him must not be spoken of him by his neighbors, whether the comment be favorable or otherwise. The theory that everyone has a right to privacy and that the same is a personal right growing out of the inviolability of the person. The right to one’s person may be said to be a right of complete immunity, to be let alone. That a person is entitled to relief at law or in equity for an invasion of this right, is generally understood to have been first publicly advanced in an article entitled, “The Right to Privacy,” in 4 Harvard Law Review 193 (December, 1890) – (Ballentine Law Dictionary, 1969)
Private – affecting or belonging to private individuals, as distinct from the public generally. (Black’s Law Dictionary, 1990)
right of privacy
1) a general right to privacy: the right of an individual “to be let alone” in the enjoyment of a private life in an increasingly intrusive society. In particular, the right includes freedom from unwanted publication of matters that the public has no right to know concerning an individual’s “private life, habits, acts, and relations.” Accurate or not, such a publication that subjects one to “mental pain and suffering” is an invasion of the right and actionable in tort.
2) the right to be let alone (sense 1) as an umbrella for a variety of torts for invasion of that right. Usage varies by statute and decision. Typically:
a. unreasonable intrusion, physical or otherwise, into one’s seclusion or private affairs. E.g. housebreaking, wiretapping, opening mail.
b. public disclosure of intimate facts of private life that are not of public concern at least when they relate to an ordinary private person, as distinct from a public figure.
c. publicity, though not defamatory, that places one in a false light. E.g. a false fictionalized account that plaintiff had been raped.
d. a use without consent (appropriation) of one’ name or likeness for the user’s benefit, e.g. advertising a product. Appropriation may be unwanted publicity, or something much different: depriving an individual (e.g. a celebrity) of an exclusive property, sometimes called the right of publicity.
3) a constitutional right of privacy: a controversial version of the right to be let alone (sense 1) stated to be a constitutional right, as distinct from traditional protections of privacy and personal liberty under specific provisions of the US Constitution, e.g. Third, Fourth, Fifth, and Fourteenth Amendments. Usage is not uniform. Typically, the right is described not only in terms of freedom from unwanted intrusions and publicity (sense 1 and 2 ). Increasingly, it is described to include personal autonomy in making critically important decisions over the intimate affairs of life, e.g., begetting, bearing, and rearing of children (contraception, abortion, education): e.g., marital and non marital sexual relationships. With its content in flux, a constitutional right of privacy has attracted a confusing variety of what are intended as endearing epithets, in addition to autonomy; e.g., dignity, identity, individuality, intimacy lifestyle, person hood, selfhood. Some speak of distinctive rights, e.g., lifestyle, and, notably, freedom of intimate association. (Mellinkoff’s Dictionary of American Legal Usage, 1992)
Privacy, right of – The right to be let alone; the right of a person to be free from unwarranted publicity; and right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned. Term “right of privacy” is generic term encompassing various rights recognized to be inherent in concept of ordered liberty, and such right prevents governmental interference in intimate personal relationships or activities freedoms of individual to make fundamental choices involving himself, his family, and his relationship with others. (Black’s Law Dictionary, 1990)
Privacy laws – Those federal and state statutes which prohibit an invasion of a person’s right to be left alone (e.g. to not be photographed in private), and also restrict access to personal information (e.g. income tax returns, credit reports); and overhearing of private communications (e.g. electronic surveillance). Some provide for equitable relief in the form of injunction to prevent the invasion of privacy while others specifically call for money damages and some provide for both legal and equitable protection. (Black’s Law Dictionary,1990)
Invasion of Privacy – an unjustified exploitation of one’s personality or intrusion into one’s personal activity, actionable under tort law and sometimes under constitutional law: the four types of invasion of privacy in tort are: 1) an appropriation, for ones’ benefit, of another’s name or likeness, 2) and offensive, intentional interference with a persons seclusion or private affairs, 3) the public disclosure, of an objectionable nature, or private information about another, and 4) the use of publicity to place another in a false light in the public eye. (Black’s Law Dictionary, 1996)
Breach of privacy – knowingly and without lawful authority: a)intercepting, without the consent of the sender or receiver, a message by telephone, telegraph, letter or other means of private communications; or b) divulging, without the consent of the sender or receiver the existence or contents of such message if such person knows that the message was illegally intercepted, or if he illegally learned of the message in the course of employment with an agency in transmitting it. (Black’s Law Dictionary, 1990)
Identity Theft – the misuse of personal identifying information to commit various types of financial fraud. (The Limits of Privacy, 1999)