Information Privacy Outline Fall 2024 PDF

Table of Contents {#table-of-contents.TOCHeading} ================= [Overview 2](#overview) [A. Defining Privacy 2](#defining-privacy) [B. Perspectives / Philosophy 3](#perspectives-philosophy) [Privacy & the Media 3](#privacy-the-media) [A. Information Gathering 3](#information-gathering) [i. Intrusion Upon Seclusion 4](#intrusion-upon-seclusion) [B. Disclosure of Truthful Information 7](#disclosure-of-truthful-information) [i. Public disclosure of private facts 7](#public-disclosure-of-private-facts) [ii. First Amendment Limitations 9](#first-amendment-limitations) [C. Dissemination of False Information 13](#dissemination-of-false-information) [i. Defamation 13](#defamation) [ii. False Light 17](#false-light) [iii. Infliction of Emotional Distress (IIED) 18](#infliction-of-emotional-distress-iied) [D. Appropriation of Name or Likeness 20](#appropriation-of-name-or-likeness) [Privacy & Law Enforcement / Public Law 20](#privacy-law-enforcement-public-law) [A. 4^th^ Amendment 20](#th-amendment) [i. Fourth Amendment Analysis 21](#fourth-amendment-analysis) [i. Wiretapping, Bugging, and Beyond 23](#wiretapping-bugging-and-beyond) [iii. The Reasonable Expectation Privacy Test 23](#the-reasonable-expectation-privacy-test) [a.Third-Party Doctrine 23](#third-party-doctrine) [b. Item abandoned or exposed to the public 24](#item-abandoned-or-exposed-to-the-public) [c. Surveillance and the Use of Sense Enhancement Technology 25](#surveillance-and-the-use-of-sense-enhancement-technology) [B. Information Gathering About First Amendment Activities 27](#information-gathering-about-first-amendment-activities) [C. Federal Electronic Surveillance Law 29](#federal-electronic-surveillance-law) [D. Digital Searches & Seizures / Electronics 31](#digital-searches-seizures-electronics) [i. Searching Computers and Electronic Devices 31](#searching-computers-and-electronic-devices) [ii. Encryption 32](#encryption-exam-q3) [iii. Video Surveillance 32](#video-surveillance) [iv. Email and Online Communications 32](#email-and-online-communications) [v. ISP Account Information 34](#isp-account-information) [vi. IP Addresses, URLs, and Internet Searches 34](#ip-addresses-urls-and-internet-searches) [National Security and Foreign Intelligence 34](#national-security-and-foreign-intelligence) [A. The Intelligence Community 34](#the-intelligence-community) [B. Fourth Amendment Framework 34](#fourth-amendment-framework) [C. Foreign Intelligence Gathering 34](#foreign-intelligence-gathering) [D. NSA Surveillance 35](#nsa-surveillance) [Consumer Data 37](#consumer-data) [A. Consumer Data Privacy Regulation 37](#consumer-data-privacy-regulation) [i. Tort / Contract / Property Law 38](#tort-contract-property-law) [B. Standing & Civil Liability 39](#standing-civil-liability) [C. FTC 39](#ftc) [D. Statutory Regulation 41](#statutory-regulation) [E. Data Security 43](#data-security) [Educational Privacy 43](#educational-privacy) [A. General Searches 43](#a.-general-searches) [A. Drugs 44](#drugs) [B. FERPA 44](#ferpa) [Medical Privacy 45](#medical-privacy) [A. Confidentiality of Medical Information 45](#confidentiality-of-medical-information) [B. Exceptions to Duty of Confidentiality 45](#b.-exceptions-to-duty-of-confidentiality) [C. Failure to Disclose Patient Information 45](#c.-failure-to-disclose-patient-information) [Substantive Due Process / Constitutional Protections 47](#substantive-due-process-constitutional-protections) [A. Decisional Privacy 47](#decisional-privacy) Overview ======== Defining Privacy ---------------- - **Theory**---Privacy is all about questions about who has power over what doing whom which is what law is generally who has the power and who should and how much - Reasonable expectation of privacy is a matter of law for judges to decide - **Information privacy**---concerns the collection, use, and disclosure of personal information - **Decisional Privacy**---concerns the freedom to make decisions about one's body and family. - **Warren & Brandeis**---Right to be left alone - Right to privacy basis of privacy in common law; Privacy = Right to be left alone; Limitations: - The right to privacy does not prohibit a publication of matter which is public or general interest. - The right to privacy does not prohibit the communication of any matter, though in its nature private, when the publication is made under circumstances which would render it a privileged communication according to the law of slander and libel. - The law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damages - The **right to privacy ceases** upon the **publication** of the facts by the individual, or what his **consent** - The truth of the matter does not afford defence. - The absence of "malice" in the publisher does not afford a defense - Sidis---childhood prodegyness and violation of privacy rights case of action; **once a public figure always a public figure**; public interest so no privacy claim. - ***Griswold v. Connecticut*** (Supreme Court declared that an individual has a constitutional right to privacy located within bill of rights) - ***Whalen v.* Roe** (Court extended its substantive due process privacy protection to information privacy, holding that the "zone of privacy" protected by the Constitution encompasses the "individual interest in avoiding disclosure of personal matters") - ***Lake v. Walmart Stores*** (Nude photos of ladies leaked to Walmart store goers; Minnesota recognizes the right to privacy torts only wrt to intrusion upon seclusion, appropriation, and publication of private facts but DECLINE to recognize the tort of false light publicity; right to privacy is inherent in the English protections of individual property and contract rights and the "right to be let alone" is recognized as part of the common law across the country. ALSO, it is within the province of the judiciary to establish privacy torts within this jurisdiction.) Perspectives / Philosophy ------------------------- - The Panoptic Sort: - Jeremy Bentham's Panopticon, a prison architected with cells encircling a central observation tower. - Panopticon theory prison guard hub with windows you cant see through to see who\'s watching) --doesn\'t know when being watched so you act like you are always being watched. - Michael Foucault later noted that modern society, with its burgeoning surveillance technology, was becoming a Panopticon---a way to control and oppress people, achieving obedience at a cost of stifling difference, deviance, and individuality. - **Privacy is really a cluster of other rights** - Right to liberty, property, right not to be injured - **Julie e. Cohen, Examined Lives: Information Privacy and the Subject as Object** - "Advocates for strong data privacy protection argue that these principles have clear and very specific implications for the treatment of personally-identifiable data: They require that we forbid data-processing practices that treat individuals as mere conglomerations of transactional data, or that rank people as prospective customers, tenants, neighbors, employees, or insureds based on their financial or genetic desirability." - "The condition of no-privacy threatens not only to chill the expression of eccentric individuality, but also, gradually, to dampen the force of our aspirations to it." - Paul Schwartz, Privacy and Democrcy in Cyberspace - Autonomy trap in cyberspace the act of clicking through a "consent" screen on a website may be considered by some observers to be an exercise of sef-reliant choice. - Human rights vs free flow of information - Privacy and family - Privacy and Gender - Measure of the intimacy has been the measure of oppression - Privacy as a Civil Right Privacy & the Media =================== Information Gathering --------------------- - Privacy torts are about balancing the interest of people's dignity and public knowledge/interest. - Meant to prevent highly offensive information from being collected - If you're in public (with exceptions), courts are reluctant to say that you have a privacy interest ### Intrusion Upon Seclusion - [Elements] - \(1) **Intent**---cant be accidental, have to intend to do it (physically or - \(2) **Intrusion** upon solitude, seclusion, **private affairs,** or concerns - Courts have held that trespass into places where people have reasonable expectation of privacy are actionable - i.e. Nonphysical activities (wiretapping and overzealous surveillance) = highly offensive intrusions) - illegally accessing plaintiff\'s credit card records to determine if he abused his sick leave at work was actionable (per ***Pulla v. Amoco Oil Co.*** (S.D. Iowa 1994)) [and peering into a person\'s home windows] (per ***Pinkerton Nat'l Dectective Agency, Inc. v. Stevens (Ga. App. 1963))*** - \(3) **Highly offensive to a reasonable person**---objective standard b/c reasonable person in same similar circumstances - \(4) Some jurisdictions add this one: **reasonable expectation of privacy** but don\'t use the two-part test but more of the objective one\*\*\* (also see this in Fourth Amendment) - **[*(Newsworthiness is not an element but some courts consider it as Public Policy arguments)* 👀 *(In terms of Nader case some jurisdictions --- just collecting public information)*]** - **No publication** necessary for intrusion upon seclusion !!!! - ***Nader v. General Motors Corp. (New York Court of Appeals 1970)*** (GM stalked critic of GM and began a \"campaign of intimidation to suppress plaintiff\'s criticism and prevent his disclosure of information about its products") - Rule: In order to sustain a cause of action for invasion of privacy, therefore, the **plaintiff must show that the appellant\'s conduct was truly \"intrusive\" and that it was designed to elicit information which would not be available through normal inquiry or observation**. - Information gathering itself is NOT tortuous---Majority opinion looked at each instance of "intrusion" separately - Holding---no intrusion upon seclusion - Court used **2-factor test**: - \(1) [Confidentiality]---information itself was of a confidential nature, not generally known by public - \(2) [Unreasonably Intrusive]---information not available through normal inquiry or observation - HIGHLY CONTEXTUAL/FACT BASED - NO Publication element - Filming someone nude in home IS enough---doesn't matter if you tell or show anybody - **Cases** - Dietemann v Time---Plaintiff was arrested on charge of practicing medicine w/o license (QUACK). Life published the article. PLAINTIFF SUED MAGAZINE for invasion of privacy! District court concluded that defendant ***had invaded the plaintiff\'s privacy*** and awarded 1k in damages.) - **Clandestine photography of plaintiff in his den and the recording and transmission of his conversation without his consent resulting in his emotional distress warrants recovery for invasion of privacy.** - Entered plaintiff's den with a hidden camera, lied to get into home - **Methodology and location matter. If lying/deceit/fraud gets you access/entrance, it's probably highly offensive to a reasonable person. ** - AND publication can be considered in the formulation of damages. - A rule forbidding the use of publication as an ingredient of damages would deny to the injured plaintiff recovery for real harm done to him without any countervailing benefit to the legitimate interest of the public in being informed. - Food Lion (2001, 4th Circuit) - Reporters got jobs at Food Lion and secretly videotaped the gross food practices, and court affirmed the duty of loyalty and trespass claims. - Although Food Lion consented to Dale\'s entry to do their job, ***she exceeded that consent when she videotaped [in non-public areas of the store] and worked against the interests of Food lion bc she had a duty of loyalty to Food Lion as an employee*** - Defendants exceeded consent of entry to an area public had no access to and owed a duty of loyalty as they [presented themselves as employees]. - Desnick v American Broadcasting Co. - Dr. Desnick does cataracts eye surgery mostly for people with medicare. After agreeing to news story that was supposedly going to be \"fair and balanced\" and not include undercover surveillance, the news people turned around and used undercover \"patients\" who recorded their conversations and did a big medical takedown story on Dr. Desnick. - Issue--Is entry onto another's property unlawful trespassing if it does not interfere with the owner's ownership or possession of the property? - Holding--no intrusion upon seclusion because the plaintiff's office was a space open to everybody. - **NO intrusion upon seclusion claim because the right to privacy embraces several distinct interests, but the only ones conceivably involved [here are the closely related interests in concealing intimate personal facts and in preventing intrusion into legitimately private activities, such as phone conversations.]** - No intimate personal facts were revealed and the only conversations that were recorded where convos with the testers themselves. - Testers entered offices that were open to anyone expressing a desire for eye services and videotaped physicians engaged in professional, not personal, communications with strangers. The activities of the offices were not disrupted nor was there any invasion of a person's private space. - ***[EXPECTATION OF PRIVACY IN WORKPLACE MUCH LOWER THAN THEY ARE AT HOME]*** Shulman v. Group W Productions, Inc. (California Supreme Court 1998) - Plaintiffs sued the producers of the segment and complaint included two causes of action for invasion of privacy: - 1\) Based on defendant\'s unlawful intrusion by videotaping the rescue in the first instance; - 2\) Based on the public disclosure of private facts (i.e. the broadcast) - The action for intrusion has two elements: - **(1) Intrusion** into a private place, conversation, or matter - \(2) In a manner **highly offensive** to a reasonable person - There **an actionable invasion of intrusion claim** when one is recording the nurse during an emergency with medical information and when riding in ambulance to hospital bc highly offensive to a reasonable person and **human dignity**. - Intrusion by being at the accident scene and filming not intruding but the riding in the ambulance and being in the hospital room was intrusion. - Private medical conversations with nurse the plaintiff was entitled to a degree of privacy. - Offensive because plaintiffs were not in position to keep careful watch on who was riding with them or to inquire as to everyone's business and consent or object to their presence and a jury could reasonably believe that fundamental respect for human dignity requires the patients' anxious journey be taken only with those whose care is solely for them and out of sight of the prying eyes (or cameras of others) - A reasonable jury could find that defendants, in placing a microphone on an emergency treatment nurse and recording her conversation with a distressed disoriented and severely injured patient, without the patient's knowledge or consent, acted with highly offensive disrespect for the patient's personal privacy. - **The intrusion tort,** unlike that for publication of private facts, does not subject the press to liability for the contents of its publications. - **Newsworthiness is a complete bar to liability for publication of private facts and is evaluated with a high degree of deference to editorial judgment.** - **The same deference is NOT due for when the issue is not the media's right to publish something but their right to *intrude* into secluded areas or conversations in pursuit of publishable material.** - Issue---in California, is one who intentionally intrudes upon a private place, conversation, or matter of another in a manner that is highly offensive to a reasonable person liable in tort? - Holding--Yes. - car accidents are of interest to the public at large---newsworthiness, protected - She was not a PF. Disclosure of Truthful Information ---------------------------------- ### Public disclosure of private facts - **Elements** - **publicity** / **highly offensive / private matter** / **not newsworthy** - \(1) Private Life of Another - \(2) Intentional Invasion of Privacy - \(3) **[Publicity]**---disclosure to the *public at large*; widely spread (majority view); more than mere gossip; NOT PUBLICATION - Publicity also can mean to so many persons that the matter must be regarded as substantially certain to become one of public knowledge - Miller v. Motorola---Exception/minority view: revealing to a small group of coworkers was enough to constitute publicity. - ***[Posting information in public places constitutes sufficient publicity ]*** - \(4) Highly Offensive AND NOT Newsworthy - H.O.---cause of action only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it - Public Figures are generally newsworthy - the line is drawn when publicity ceases to be giving the info public is entitled to, and becomes a morbid and sensational prying into private lives for its own sake with which a reasonable member of the public, *with decent standards*, would say that he had no concern (common decency) - [Sharing Private Information with Limited Individuals]: does this extinguish your right to privacy? - Sipple v. Chronicle Publishing Co. California Court of Appeals 1984---Sipple saved President Ford's life during assassination attempt and multiple news articles came out and publicized the fact that he was gay. Although multiple people in his social circles knew he was gay, his family did not know and heard from the press. - Whether the facts were private - Sexual orientation, lived in Castro district in SF - Friends knew he was gay, openly gay in SF but family didn't know - Court ruled that--Not private because he was openly gay in community and alredy published in media with Harvey Milk - Whether the facts were newsworthy - Introduction of [public versus private figures] - Elements of cause of action for invasion of privacy: - Disclosure of the private facts must be a *public* disclosure - The facts must be *private facts* not public ones - Matter made public must be one which would be **offensive and objectionable** to a reasonable person of ordinary sensibilities - EXCEPTION: tortious invasion of privacy is exempt from liability if the publication of private facts is **truthful and newsworthy** - **[There is no liability when the defendant merely gives further publicity to information about the plaintiff which is *already public* or when the further publicity relates to *matters which the plaintiff leaves open to the public eye*]** - Facts were not private facts and publications were newsworthy and constituted a *protective shield from liability based upon invasion of privacy* - Flaw in the tort in that it doesn't protect a secret from certain people - Newsworthiness tests = - Leave to the press - Looks at customs and conventions of the community and draws a line between the giving of information to which the public is entitled and morbid and sensational prying into private lives for its own sake - Nexus test involves reasonable approach and logical nexus between the complaining individual and the matter of legitimate public interest ### First Amendment Limitations - Content-Based Speech---substance of the communication - Content-Neutral Speech---time, place, manner - Association / Assembly, Petition of the government for Redress, Speech, Religion, Press---requires newsworthiness test - There is a HIGH BAR for the government to limit the First Amendment - **Test** - ***Strict Scrutiny---Content-Based*** - Child porn passes strict scrutiny - ***[Compelling]*** government interests - Least restrictive means to compel govt interests---can't get any less restrictive than that - ***Intermediate Scrutiny---Content-Neutral*** - Scope--Narrowly-tailored to promote a substantial government interest - I.e. "Somewhere in the ballpark" - Broader in scope, not going to encompass everything - ***[Substantial]*** government interest - Lower bar than strict scrutiny - Compelling \> Substantial - Contract law trumps the First Amendment - Speech based on lawfully obtained info - Cox Broadcasting Corp. v. Cohn - The Florida Star v. BJF - Speech based on unlawfully obtained info - Bartnicki v. Vopper - Shulman v. Group W Productions (California Supreme Court 1998)---Plaintiffs sued the producers of the segment and complaint included two causes of action for invasion of privacy: - 1\) Based on defendant\'s unlawful intrusion by videotaping the rescue in the first instance; - 2**) Based on the public disclosure of private facts (ie the broadcast))** - The dissemination of truthful, newsworthy material is not actionable as a publication of private facts. - If the contents of a broadcast or publication are of legitimate public concern, the plaintiff cannot establish a necessary element of the tort action, **lack of newsworthiness.** - Courts have generally protected the privacy of otherwise private individuals involved in events of public interest by requiring that a logical nexus exist between the complaining individual and the matter of legitimate public interest - Recent decisions have generally tested **newsworthiness** with regard to such individuals by assessing the **nexus** between the events that brought the person into the public eye and the particular facts disclosed. **This approach balances the public\'s right to know against the plaintiff\'s privacy interest by drawing a protective line at the point the material revealed ceases to have any substantial connection to the subject matter of the newsworthy report.** Legitimate public interest does not include a morbid and sensational prying into private lives for its own sake. - CONCLUDED THAT THE DISPUTED MATERIAL WAS NEWSWORTHY AS A MATTER OF LAW. - The courts do not, and constitutionally could not, sit as superior editors of the press. - Public Disclosure tort raises complicated tensions with the First Amendment because it permits liability for publication of truthful information - Built into tort is **newsworthiness test** - **[Vital relationship between freedom to associate and privacy in one's associations]** - **[Privacy also essential for free speech]** - First Amendment protects privacy with freedom of association, anonymous speech with free speech, who you are and who you choose to be, with whom and what we share - **No First Amendment protection** to: - Obscenity - know it when you see it - Fighting words - threat with intent of imminent harm - Child Pornography - ***Intermediate scrutiny*** - law must be narrowly tailored with substantial government interest instead of a compelling government interest (this is what content neutral regulation gets aka restricts speech regardless of its message, such as regulating time place, or manner of speech) - ***Strict scrutiny in content-based*** regulation (targets particular messages) - **Cases** - Gill v Hearst Publishing: Cali Supreme Court 1953 - ***[There can be no privacy in that which is already public.]*** - plaintiffs husband and wifey waived their right of privacy when they were working at the public farmer's market and did their *affectionate* pose. - Court dismissed the plaintiff\'s public disclosure action because was filmed in public and left open to the public eye. - plaintiffs voluntarily took a pose in a public place (couple being affectionate at farmers market). - First Amendment rights of Hearst Publishing protected. - Dissent recognizes the lack of newsworthiness and no expectation to be publicized - Photograph posted in Harpers Bazar article about love - NOT highly offensive - NOT private - Daily Times Democrat v. Graham Alabama Supreme Court 1964---Lady at fun house at fair gets picture snapped of her undies and published in a newspaper - ***[Although she was in public, the exposure of her body was involuntary, and hence a private matter.]*** - No invasion to follow around in public but when a legal principle is pushed to absurdity, the principle is not abandoned, but the absurdity avoided. - Photo was obscene with no legitimate news value even though she was in public - [One who is a part of a public scene may be lawfully photographed as an incidental part of that scene in his *ordinary status*. Where the status he expects to occupy **is changed without his violation to a status embarrassingly to an ordinary person of reasonably sensitivity**, then he should **not be deemed to have forfeited his right to be protected from an indecent and vulgar intrusion of his right of privacy merely because misfortune overtakes him in a public place.**] - **IF YOUR PANTS FALL DOWN IN PUBLIC SOMEONE CANT JUST TAKE A PHOTO FFS** - P Identity---the person being disclosed about---matters in determining offensiveness - ***Cox Broadcasting Corp. v. Cohn*** (1979 Supreme Court)---Rape victim identity exposed after was public information from public record at tribunal; Georgia Statute that says it's a misdemeanor to publish the names of rape victims, reporter leaked the name of a rape victim - ***Because the courts are going to enforce this is what the government's action is here*** - ***[Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it.]*** - ***If the government releases it, its fair game--- has to be public record*** - ***Smith v. Daily Mail*** (1979 Supreme Court)---newspapers published the name and photo of 15 year old who had shot 14 year old and court held that the asserted state interest (to protect the anonymity of juvenile offenders) cannot justify the statute's imposition of criminal sanctions on this type of publication - ***Melvin v. Reid*** 1931 in California Supreme Court (red kimono movie about reformed prostitute's reformed life which used her maiden name) court held that she had a cause of action - Rule: **If the person has rehabilitated, a third party cannot expose/publicize the unsavory past of the person. The tort was actionable under the Red Kimono facts.** - ***The Florida Star v. B.J.F.**:* U.S. Supreme Court 1989---robbery and rape victim's name was published in newspaper even Florida Statute about unlawfulness publishing; government screwed up bc it was in publicly disclosed police report) Court concluded that imposing damages on appellant for publishing B.J.F.'s name violates the First Amendment - We hold only that where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a **state interest of the highest order**, and that no such interest is satisfactorily served by imposing liability under the Statute to appellant under the facts of this case (strict scrutiny!!!) - **If a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a *state interest of the highest order*.** - **If the government releases it, however they release it, its free game.** - Destroying the newsworthiness test ? - If that's no longer an element, we no longer need to talk about newsworthiness test???? - Possibly restrict just to public government records??? - Bonome v Kaysen - First Amendment - Bartnicki v. Vooper Supreme Court 2001---brought to press; union negotiator; public interest in that the school teachers were involved; part of public debate; tape given to a journalist who had been critical of the union; illegally obtained wiretap !!!! Pennsylvania which is two party state, what degree of protection, if any, the First Amendment provides to speech that discloses the contents of an **illegally intercepted communication** - Court held that a stranger's illegal conduct does not suffice to ***remove the First Amendment shield from speech about a matter of public concern*** - ***[Information of public concern being published is still lawful even when it is illegally obtained by a third party]*** - intermediate scrutiny/content neutral - *Florida Star/Daily Mail* do not hold - Illegally obtained but truthful information can be published **[if]** the [government interest] is **[not]** legitimate. - Freedom of the Press. - [Abusive speech] can only be restricted if defendant has [subjective intent ] - High bar, hard to prove Dissemination of False Information ---------------------------------- ### Defamation - **Elements** - \(1) ***False and defamatory*** statement concerning another - Presented as fact - \(2) ***Unprivileged publication*** to a third party - \(3) Fault amounting *at least to **negligence*** on the part of the publisher - \(4) Either actionability of the statement either - [Irrespective] of special harm - Special Harm = actual money loss, or actual harm from statements itself - Not necessary---the statement itself can be harmful by definition because of how defamation works - **Definitions** - Defamation---tends to cause harm to reputation of another, lower him in the community or deter others from associating with him; injurious statement - Publication---communicated intentionally or be a negligent act to one other than the person defamed; can be a flier, intentional or negligent act - **Defamation only requires publication which merely requires that the communication requires communication from another person** - NOT PUBLICITY - Libel---written defamatory statements - Plaintiff does not need to show special harm (particular harm or injury); posted in a tangible medium of expression; damages assumed - Slander---spoken defamatory statements; spoken speech - or transitory gestures) (any form of communication not covered by libel), Plaintiff must show **actual pecuniary harm** with the exception of slander per se (for which damages are presumed) - Repeating **publishing** libelous statements = \"**publisher**\" liability - Merely **disseminating** a libelous statement = \"**distributor**\" liability - - **Statute** - Communications Decency Act **(CDA) § 230 --- "Liability shield" ** - "Let's just take \[whatever the hell\] -- Twitter --- are they liable for *me* saying something liable on Twitter? **NO. ** - *Alternative is Basically make it like Disney channel remove ALL bad content* - Protection for online platforms to moderate their content - Internet service providers (ISPs) not liable as publishers/speaker - Good faith to take down obscenity - Can moderate however they want - Facebook/Twitter private property under the 1st Amendment - 230 is about WHO is RESPONSIBLE for that content - **Liability** - [Publisher]---negligence - [Distributor]---knew or had reason to know - One who distributes, transmits, or broadcasts on TV/Radio - Defamatory material is also liable if she knows or would have reason to know - Reprinting - Higher standard than negligent - No willful blindness - [Disseminator]---negligence - Speaker, writer, publisher - **Cases** - Stratton Oakmont, Inc. v. Prodigy (NY Sup. 1995)---Operator of computer network **held liable** for defamatory statements because Prodigy\'s stated policy said it would screen/control posts for offensive content - In response, Congress passed [Communications Decency Act: \"No **provider** of an interactive computer service ***shall be treated as the publisher or speaker of any information provided by another information content provider***" 47 USC 230] - Prodigy liable as publisher b/c controlled content - Computer Network - Zeran v. American Online, Inc (AOL) (4^th^ Cir. 1997)---AOL defamatory messages with the phone number of our guy; guy tries to argue that AOL is a distributor because he told them about the statements and they got reposted - Facts---Virginia, b/c AOL headquarters; Oklahoma City Bombing (next to day care center); Anon user posted fake ads about bombing using Zeran name and number; Blasted with calls and death threats - Zeran Claim---Defamation against AOL as publisher; Told AOL and argued they had a duty to remove; Negligent; AOL had knowledge, proof, notice - AOL---Kinda removed it, but didn't do much - Potentially distributor, didn't create content - **Distributor liability is a subset of publisher liability.** - **Distributors are protected as well. ** - *Why are distributors encouraged to regulate if they're immune from liability? * - User experience, program success - ***Batzel v. Smith (***9th Circuit in 2003) (handyman thinks woman has nazi art and sends an email to director of security of a museum; director made a few small changes to email then sent it to listserv about looted art; Paintings were NOT looted art and court held that since director was not the originator of the info he was immune under 230) - ***[A service provider is immune or use is immune from liability under 230(c)(1) when a third person or entity that created or developed the information in question furnished it to the provider or user under circumstances in which a reasonable person in the position of the service provider or user would conclude that the information was provided for publication on the internet or other \"interactive computer source\"]*** - If a person is deemed a **content provider** then 230 immunity does not apply because 230 is designed to immunize a person from being liable for disseminating the content of others - Essentially, ***[you\'re the platform; you as the listserv provider, you are protected by Section 230 !!!!!!]*** - ***Barrett v. Rosenthal*** (Cal. Ct. App. 2003) PP 172 - Non-originators immune under 230 - Outlier of what 230 allows - ***New York Times Co. v. Sullivan*** (1964)---Police commissioner claimed that full page article in NYT defamed him even though it didn't mention his name - ***Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official conduct*** - Rule: Requires **Actual malice for public official** - Actual malice: subjective standard based on state of mind of the publisher AT THE TIME of the publication - [with knowledge of falsity or reckless disregard for whether it was false or not] - Applies to publications about public officials - *Very* hard to meet - ***Curtis Publishing v Butts*** - Confirmed NYT Sullivan and extended actual malice for *[all]* public figures - ***Gertz v. Robert Welch, Inc.*** (1974)---Weird police being uprooted by communists movement led to an article labeling ***attorney Gertz*** as a communist and defaming him; Court held that he was a ***[private individual]*** - ***[Private individuals are not only more vulnerable to injury than public officials and public figures they are more deserving of RECOVERY !]*** - **First Amendment does not protect defamers who libel private individuals**, and the government has a legitimate interest in offering compensation via punitive damages to those whose ***[reputation]*** is hurt by falsehoods. - Public figures and private individuals are different because of the resources of publif figures and officials to defend themselves - Rule: **No [actual] malice for private figures** - ***Time, Inc. v. Firestone*** (1976) - Court held said that just because someone is involved in a court case about divorce proceedings, does not make them a **\"public figure\"** - ***HOWEVER* just because you\'re someone who gets involved in a court case, some courts say you\'re not automatically a public figure** - Divorce is not a public controversy - Mary Alice Firestone was NOT a public figure - She assumed no special prominence - ***Atlanta Journal-Constitution v. Jewell*** (Ga. Ct. App. 2001) PP 183 - Limited purpose public figure - 3 Prong Public Figure Test - Isolate a ***public controversy*** - Plaintiffs ***involvement*** in the public controversy - Defamation was ***germane*** to the plaintiffs involvement in the public controversy - Jewell voluntarily assumed a position of influence in PC - He was drawn into the PC but did not reject any role; Then voluntarily stayed in spotlight and had influence over PC; 10 media appearances; Became a central figure - Was germane; Olympic park safety +-----------------------+-----------------------+-----------------------+ | | **Public Figure** | **Private Figure** | +=======================+=======================+=======================+ | **Public Concern** | Actual Malice | Compensation: | | | | Negligence | | | | | | | | Punitive Damages and | | | | Presumed Damages: | | | | Actual Malice | +-----------------------+-----------------------+-----------------------+ | **Private Concern** | Still Actual Malice | Negligence | | | (tabloid stuff) | | +-----------------------+-----------------------+-----------------------+ ### False Light - **Elements** - \(1) Gives rise to a matter concerning another - \(2) Places the other person before the public in false light (lie about someone - \(3) Subject to liability to the other for invasion of privacy if: - \(a) The false light in which the other was places would be **highly offensive** to a reasonable person, *AND* - \(b) The actor had **knowledge** of or acted in **reckless disregard** as to the falsity of the **publicized matter and the false light** in which the other would be placed - Publicity / False / Highly Offensive / Mens Rea - **False light can compensate for exclusively mental emotional damage** (just gotta have emotional distress and DOES NOT require reputational harm; false light concerns peace of mind) - Can\'t bring both defamation and false light b/c cannot recover damages for both false light and defamation - Can be image taken out of context - ***When you\'re looking at compensatory damages which means negligence only for private figures*** - ***NEGLIGENCE FOR PRIVATE FIGURES*** - ***Only would go to actual malice for a private figure if you\'re trying for punitive damages*** - Not every state has false light tort - Requires more publicizing than public disclosure of private facts - ***False light v. Defamation*** - False light does NOT require harm to person reputation, can even improve their reputation and still recover damages - False light can still recover damages exclusively for emotional distress - CANNOT recover for BOTH - Most courts apply GERTZ to false light - **Cases** - ***Time, Inc. v. Hill*** - FACTS-- In 1952, James Hill and his family were held hostage for 19 hours by three escaped convicts, who eventually released them unharmed. The incident gained media attention when police later killed two of the convicts and captured the third. In 1955, a magazine owned by Time, Inc. published an article referencing a new Broadway play, *The Desperate Hours*, which dramatized the Hills\' experience but included inaccuracies about their conduct during the ordeal. James Hill sued Time, claiming the article portrayed his family falsely. Elizabeth Hill, who struggled with depression and was forced to relive the traumatic experience, eventually died by suicide. - Procedural History - The jury awarded Hill \$50,000 in actual damages and \$25,000 in punitive damages. - The New York Court of Appeals upheld the ruling, rejecting Time's "newsworthiness" defense for its fictionalized portrayal. - The U.S. Supreme Court granted certiorari (review). - The case occurred after *New York Times v. Sullivan* but before *Gertz v. Robert Welch, Inc. --- *therefore, proving actual malice required for Hills (even though they were private citizens) - Holding/Reasoning - The case was remanded due to faulty jury instructions. - The Court held that \"calculated falsehood\" does not have immunity. - A subjective standard was applied, requiring proof of knowledge or reckless disregard (what the person was thinking at the time). - There were degrees of separation between Hill's actual experience and the media portrayal, which was based on a movie and play inspired by his story. - Additional Points - Most courts now apply the *Gertz* standard for false light claims, though a [minority] still follow *Hill* (requiring malice for both public and private figures). - False light claims address emotional harm, whereas defamation requires actual harm to reputation. ### Infliction of Emotional Distress (IIED) - Elements - \(1) Extreme AND outrageous conduct - \(2) Intentional or reckless - \(3) Severe emotional distress - Cases - Hustler Magazine v. Falwell (1988) PP 190 - Facts---Hustler featured parody using nationally known Jerry Falwell name and photo; Sexual double meaning; Had him drunk, engaged in incest; Disclaimer it was a parody - Claim---IIED - Holding---**Public figures may not recover for IIED without false statement of FACT made with "Actual Malice"** - "I wanted to assassinate him" is not actual malice - Reasoning---Parody ad - no false statement of fact because there are no facts - it is just funny words - Reasonable jury would not construe statements as FACT - **First Amendment** - Public Figure - Snyder v. Phelps (2011) - Facts---Phelps founded Westboro Baptist Church, hated gays and gays in the military (hated US and Military tolerance for gays) - Picketed soldiers funerals - Phelps did not go into cemetery, and could not be seen or heard from church besides the top of the signs - Family saw picket signs on the TV later - Claim---Snyder family sued for IIED - Holding---Reversed lower court holding. Snyder looses. - Reasoning - Matter of public concern, social and political commentary, political and moral conduct of US citizens, fate of our nation, gays in the military, scandals involving catholic clergy, war, religion, homosexuality - Subject to special protection - Not talking about Gov't here so don't apply strict scrutiny - Court is the govt here/state actor, they would be the ones squashing 1st amendment freedom of speech - Analysis - Why not sue for intrusion upon seclusion? - Snyder family wasn't there, they were not intruded upon. - Picketing not visible or audible from cemetery or church. Appropriation of Name or Likeness --------------------------------- - Elements - \(1) Appropriation of another---to take image or name - \(2) OWN use or for the benefit of yourself - \(3) Name or likeness - PROTECTS ONE\'S DIGNITY AGAINST THE EXPLOITATION OF HER IDENTITY - Or alternative rationale = \"right of publicity\" - Central interest protected by appropriation is property rather than privacy - Protection of someone\'s feels against mental distress is an important factor leading to recognition of appropriation tort, the right created by it is in the nature of a property right - No malice standard or commercial aspect - Can argue one interpretation of another based on the facts - In many jurisdictions, **appropriation** occurs **only when** the use or benefit is **commercial** in nature\-- i.e. used to promote or endorse a service or product. - Appropriation **protects** against the \"commercial\" exploitation of one\'s name or likeness, not the use of one\'s name or likeness for news, art, literature, parody, satire, history, and biography - Many states require the use of **commercial purposes** - Difference between false light and right of publicity are important - Publicity is protecting the **proprietary interest** of the individual in his act in part to encourage such entertainment - Right of individual to reap the reward of his endeavors and having little to do with protecting feelings or reputation - Differ in degree in which they intrude on dissemination of information to the public - To be liable for appropriation, the defendant must have appropriated to his own **use or benefit** the **reputation, prestige, social or commercial standing, public interest or other values of the plaintiff\'s name or likeness** - Privacy & Law Enforcement / Public Law ====================================== Private Citizens and the Government Data gathering and surveillance are essential law enforcement tools but come at a cost to privacy George Orwell 1984 "Big Brother" 4^th^ Amendment --------------- - Applicability? Reasonable? Enforcement? - The Constitution, through the Fourth Amendment, protects people from unreasonable searches and seizures by the government. The Fourth Amendment, however, is not a guarantee against all searches and seizures, but only those that are deemed unreasonable under the law. - Purpose---prevent general warrant and writ of assistance which allowed customs agents to get rid of contraband and taxes and look through all your stuff - Person, home, papers, effects - What is a search? - If you pass or fail the Katz test, there is/isn't a search - Probable cause standard - More likely than not - Information amounts to probable cause that person has committed or is committing a crime - Exclusionary Rule---evidence can't be used in court because it violated the 4^th^ amendment i. ### Fourth Amendment Analysis - \(1) Is there a [state actor]? - \(2) Was there a [search?] (Katz test) - **Subjective Expectation of Privacy** - Did they outwardly or in some way suggest that they were trying to keep it private - i.e. put up a fence, closed all the windows and blinds, etc. - **Third Party Doctrine**---if you voluntarily give information to somebody then you don't have a reasonable expectation of privacy in that information - **Objective Expectation of Privacy** - One society is willing to accept as reasonable - If NO to EITHER part---THERE IS NO SEARCH!! - \(3) Is there a [valid warrant]? - With probable cause, reasonable particularity, and correctly within time/space constraints - **Probable cause** requires that the government officials have \"**reasonably trustworthy information**\" that is sufficient to \"*warrant a man of reasonable caution in the belief that an offense has been or is being committed*\" or *that evidence will be found in the place to be searched* - Scope of Search Warrants: "particularly describing" standard from 4th amendment limits it such that it is not a general warrant = **particularity requirement** - Supreme Court has held if the scope of the search **exceeds** that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more - **Cannot use a warrant past an expiration date** - Unreasonable searches: taking bullet lodged deep in the accused chest - Reasonable searches: taking of blood from a suspect (barring truly exceptional circumstances, most searches undertaken with a valid warrant will be reasonable) - **Warrant Particularity =** *Where for what and when;* No later than \; Like to limit the amount of time for the sake of particularity because they don't want fishing expeditions - Supreme Court has held if the **scope** of the search **exceeds** that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more - If obtaining warrant is **impractical** or **person consents to search**, [search can be reasonable even when government officials do not have a warrant or probable cause] - \(4) [Exceptions]---still allowed under the 4^th^ amendment - \(i) **consent** - \(ii) plain view doctrine - \(iii) exigent circumstances / special needs (schools) - \(iv) **search incident an arrest** - Is there a First Amendment interest to be protected? - If YES---analysis probably changes **Expectation of Privacy** Objective---NOT Reasonable Objective---Reasonable ----------------------------- ------------------------------------------------- -------------------------------------- Subjective---NOT Reasonable No Search (Katz) Privacy Statutes---HIPAA Subjective---Reasonable No Search (Smith v. Maryland 3^rd^ Party Doct.) Search (Katz)---telephone calls, etc - 4^th^ amendment Exceptions - 4^th^ applies to not just law enforcement but ALLLLLL government officials - **Special needs doctrine** for searches by public school and hospital but only when a search is not for a law enforcement purpose - **Terry stop** (Terry v. Ohio) police officer **can** \"stop\" an individual if the officer has a \"**reasonable suspicion**\" that criminal activity is afoot - Only \"frisk\" which is not a full search and only for weapons - If, in the course of searching the person for weapons, they find evidence of a crime, it will still be admissible if it was found within the scope of a valid frisk - Different ways government agents can retain information without requiring warrants: - Eavesdrop anything in public - Verbal tips from informant - Police pretends to be friend --- undercover agents (DOJ has rules to prevent abuses) - Wearing a wire doesn't require a warrant even in a house as long as they consented to being in the house - They don't have to tell you if you're a cop - Search Incident to arrest / Consent - Chimel v CA (1969) - US v Robinson (1973) - Us v Chadwick (1977) - Arizona v Gant (2009) - Search incident to the arrest - Officer safety, opening something that feels weird, etc. ### Wiretapping, Bugging, and Beyond - Overrules Olmstead - Petitioner was recorded through an electronic listening device that was **attached to the outside of a public telephone booth** from which he had placed his calls; he always went to the same row; Katz was a bookie and places bets; federal criminal law was relatively new; when can a federal agent get involved? Interstate commerce because he was wagering information via phone call from LA to MIA - ***[What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment. But what he seeks to preserve as private, even in an area accessible to the public may be constitutionally protected.]*** - Katz Test---if no to either part then there is NO SEARCH - Person had exhibited an actual **subjective expectation of privacy** - **That a person exhibited an actual (subjective) expectation of privacy** (Court gives liiiiiiiiittttllleeeeee deference to this) - Existence of **an objective expectation of privacy** that [society is prepared to recognize as reasonable] - Critical fact: shuts the door behind them in a telephone both and pays the toll that permits him to place a call; the point is not that the booth is accessible to the public at other times but that it is a **temporarily private place whose momentary occupants' expectations of free from intrusion are recognized as reasonable** - **Court held trespass doctrine bad law but sdid not overturn trespass doctrine** - ***Silverman v. US*** (US 1961) police used "spike mike" to listen to adjacent house with the spike hitting the heating duct of the recorded house; Court held the spike mike **violated the 4th amendment** bc it was "unauthorized physical encroachment" aka physical invasion and trespass into adjoining house - Cases that **establish that a person does not have a privacy interest in the loyalty of her friends. [The government may deceive a person by sending in secret agents to befriend her.]** - ***Hoffa v. US*** (US 1966) (undercover informant befriended Hoffa and elicited statements from him about his plans to bribe jurors in a criminal trial in which Hoffa was defendant) (court held that Hoffa was relying upon his own misplaced confidence that undercover informant would not reveal his wrongdoing**; no interest legitimately protected by the Fourth Amendment is involved**) - ***Lewis v. US*** (US 1966) (defendant sold drugs to an undercover cop) court said that they cannot hold agent deceptions constitutionally prohibited because it would make undercover agents constitutionally prohibited and severely hamper the government) - [No violation of 4th amendment] in ***Lee v. US*** (US 1952) when government informant with concealed transmitter transmitted a conversation for the purpose of eliciting that Lee is was a drug dealer to an officer; overhead out in public so doesn't count ### The Reasonable Expectation Privacy Test - #### Third-Party Doctrine - If you voluntarily share info to 3rd party then [you have no more reasonable expectation of privacy] for this specific information - You probably cannot contract around third party doctrine enforceable. - Smith v. Maryland (1979 SC) - Whether the installation and use of a pen register constitutes a "search" within the meaning of the 4th amendment, made applicable to the States through the 14th amendment; McDonough was robbed and became suspicious that Smith was the robber; the telephone company (at police request) installed a pen register on Smith's number; police did not get a warrant or court order before having the pen register installed; on the basis of the pen register picking up a call from Smith to McDonough's number the police obtained a warrant to search Smith's house and found evidence he was the robber - ***Court used Katz REoP Test!*** - **No legitimate expectation of privacy** - Knowingly shared the numbers dialed with telephone agency - **[No legitimate expectation of privacy in information someone voluntarily turns over to third parties.]** - Petitioner assumed the risk that the company would reveal to police the numbers he dialed - TWO BASIC PREMISES: - Numbers are not the content (just the meta data) - Assumption of the risk doctrine (any information to a third party, you have lost the privacy to that information) - Leads to federal government coming in hot to invalidate with **Pen Register Act** (requires government to obtain a court order by certifying that the use of a pen register is "relevant to an ongoing investigation" (less stringent than the probable cause required to obtain a fourth amendment - **Right to financial privacy act** prevents banks and other financial institution from disclosing a person's financial information to the government unless the records are disclosed pursuant to subpoena or search warrant - Supreme Court also applied the third party doctrine to bank records - Pen register---what number, when, for how long - Fourth Amendment analysis - State actor---local police - No Content based information---limited capabilities of metadata - NOT a search - US v. Miller (1976) - Bank Records - Cant Contract around this - Holding--bank depositor has no "legit expectation of privacy in financial information voluntarily conveyed to banks and exposed to their employees in the ordinary course of business. - Information revealed to a third party and conveyed by him to Government authorities even if info given on the assumption that it will be used only for limited purposes and confidence in 3rd party will not be betrayed - Depositor "assumed the risk" of disclosure; - the court held that it would be unreasonable for him to expect financial records to remain private. - Led to bank secrecy act 1970 - #### Item abandoned or exposed to the public - California v. Greenwood (1988)--- police *searched* garbage bags left on curb in front of house; officers found indications of drug use from the search and based on that got a warrant to search the house where they recovered more evidence of drug trafficking. Glenwood was arrested - Trash bag left on curb night before trash day - Searched by cops - No reasonable expectation of privacy for treat trash - Applied 3rd party doctrine - Trash collectors license to enter property - You have abandoned trash at this point - **Assumption of risk doctrine: ** - Curtilage of home, if it was on front porch would have been different - ***State v. Athan*** - spit envelope one Washington 2007: - The analysis of DNA without forcing analyzed by the government for comparasion to evidence found at the crime scene is not a search under the 4th - Public policy allows for some deceitful conduct and violation of criminal laws by police officers in order to detect and eliminate criminal activity - The police did not induce Athan to commit any crime here nor did they attempt to gain any confidential information from the ruse - IS a SRACH but in plain view so falls under exception - See, hear, smell, any sense (smell of weed is in plain view) - Legally allowed to be in view (viewing into house form street legally allowed to be there) - Harris v. United States 390 US 234 1968) - IF you don\'t need to trespass to be able to see it, it is not a search - In the process of a valid search if the officer sees it ! - an individual does not have a reasonable expectation of privacy in the open fields she owns - ***Oliver v. US*** 466 US 170 1984 with no trespassing signs and gate, the police are cool to trespass and find the weed - All of your property except your home and curtilage - Curtilage: party of one\'s property immediately outside one\'s home does not fall within the open fields rule - Trash from Greenwood not - #### Surveillance and the Use of Sense Enhancement Technology - ***Florida v. Riley*** (488 U.S. 445 (1989) Mobile home with do not enter signs and partially open green house and *weeeeeeeed* with helicopter when he could not see inside the green house from the road; with his naked eyes in said helicopter, ***he was able to see through the openings in the roof and identify what he thought was marijuana growing in the structure)***: Hovering at a ***legal*** altitude, the police may see what may be seen from a **public vantage point** (includes over the property) where they have a legal right to be (do not need a warrant). - **Fourth Amendment does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye** - Is a search but **plain view doctrine** - No reasonable expectation - **Dissent** - Helicopter not easily accessible, plurality ignoring essence of KATZ - Dow Chemical Co. v. US 1986 - Holding---yes a search but meets exception under **open field** - **EPA commercial aerial photogpraher** - ***Kyllo v. US*** 533 U.S. 27 (2001) (yes heat imaging = search) (police used heat imaging camera on outside of house to determine likelihood of marijuana plant lights and used this as the basis for a warrant; officers engaged in more than naked-eye surveillance of a home) - Rule: **Obtaining information of the interior of a home with *"sense-enhancing technology"* regarding the interior of the home that could not have been obtained without actual physical intrusion constitutes a SEARCH** (AT LEAST where technology in question is not in *general* public use) - ***[If they use a technology that is not in general use it makes something that would not be a search into a search.]*** - **Holding:** Where, as here, the GOVMENT uses a device that is *not in general public use*, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant. - ***US v. Knotts*** 460 U.S. 276 (1983) the police placed a beeper on a drum of chloroform with no warrant purchased by defendants and placed in their car with beeper transmitting signals that enabled the police to track the defendants vehicle - Court held that ***4th did not apply bc traveling on public roadways you have no reasonable expectation of privacy*** - ***NOT A SEARCH !*** - Equivalent of like following an automobile on public streets and highways - **US v. Karo** 468 U.S. 705 (1984) law enforcement officials (without a warrant) planted beeper on can of ether but this beeper tracked can into a residence; distinguished from Knotts because **the movements within a residence amounted to *[impermissible search of the residence]*** - Information conveyed was not voluntarily conveyed to anyone who wanted to look - Key difference between ***Knotts*** = private place vs public place Sniffing Dogs - Generally not a search, unless the dog is going right up on your porch and invading the curtilage of the home ***US v. Jones*** 132 S.Ct. 945 (2012) (Police attached a gps to a car outside the search warrant time range and not in the delineated area) - *Background: Police don't need a warrant to follow you in your car on a public road. * - *However, police don't do this because doing so would be a time and resource drain on the state. * - *Fourth Amendment Analysis (penned by [Scalia])* - *State actor? - yes* - *Was there a search? (Katz analysis) --- yes --- physically occupying private property for the purpose of obtaining information* - *Trespass on the home* - *"Katz doesn't eliminate trespass doctrine." --- trespass doctrine had been eliminated, but Scalia revives it and says Katz supplements, not overrules * - *Is there a valid warrant? --- NO. * - *Time to Execute - executed a day after validity date * - *Particularity - had to be in Maryland, they executed the search in DC * - *Concurrence: [Sotomayor] * - *location data is not really, functionally metadata; it's actual content and more subject to Fourth Amendment protection * - *Does not supplamt Katz by using property theory; may be used in addition to Katz.* - **Scalia says that Katz added to 4th amendment doctrine and did not replace it** - Because government was ***physically occupying private property, there was [trespass]***! - Car is effect under Fourth - Gov installation of GPS device on the vehicle and use of that device to monitor the vehicles movements = **search** - ***Carpenter v. US*** 138 S.Ct. 2206 (2018) (Carpenter was robbing cell phone stores and prosecutor applied for court order under the Stored Communication Act for Carpenter\'s **CSLI** which only required reasonable grounds\-- a lower standard than probable cause) - **An individual maintains a legitimate expectation of privacy in the record of his physical movements as captured** - **Retrospective tracking data invades one\'s reasonable expectation of privacy and requires a warrant.** - NOT SAYING that CSLI is not available (**even prospective is ok with a warrant**) - **Real time is ok and tower dumps are ok** - **A person does not surrender all 4th amendment protection by venturing into the public sphere** - [Alito's dissent] - No state actor --- phone company did the looking - [Thomas's dissent] - Privacy doesn't appear in the 4th Amendment, *Katz* is bad law - Analysis - Tower Dumps and Real-Time Searches - Don't need a warrant (so not a search?) --- court order - Tower dumps: Different because it's data from a specific area for anyone who happens to pass through - Real-time searches: at a specific period in time instead of everywhere in the past - Geofencing - See *In the Matter of the Search of Information Stored at Premises Controlled by Google* (ND Illinois 2020) - Must be [particularized] to catch The Guy Information Gathering About First Amendment Activities ------------------------------------------------------ - Wilkes v. Wood (1763) - Facts - Publication of anon criticism about King, commonly known author was John Wilkes member of parliament - General warrants, govt searched many homes for anything related to the publishing - Wilkes brought civil trespass lawsuit - Holding - Wilkes prevailed and celebrated by American colonies, Fuck the King! - Rule - General warrants bad, trespass bad - Entrick v. Carrington (CP 1765) - Fuck the King continued... - NO GENERAL WARRANTS : Lord Camden found for Entick, criticizing general warrants: "A persons house is refiled; his most valuable secrets are taken out of his possession, before the paper for which he is charged is found to be criminal by any competent jurisdiction, and before he is convicted either of writing publishing ot being concerned in the paper." - Widely praised case in the colonies. - Shaped framers intent behind the 4th amendment - Stanford v. Texas (SCOTUS 1965)--- Texas officers searched house for communist stuff and found nothing; had warrant under Suppression Act) - There is a **constitutional requirement** that warrants must particularly describe the \'things to be seized\' which is to be accorded with the **MOST [SCRUPULOUS EXACTITUDE]** when the \"things\" are books and the basis of the seizure is the ideas they contain - Facts - Whether search and seizure was constitutionally valid - Looking for communist activity ☭ - Didn't find much - Not a valid warrant, not particular enough - Holding - Unconstitutional search - General warrant bad - Reasoning - 1st Amendment ; the fourth protects the first, the first protecting the fourth protecting the first; association and speech (also what you read) / press - 4th designed to protect against general warrants and writs of assistance to allow people to speak out against the king or gov't, exact parallel to speaking out against the crown - Zurcher v. The Stanford Daily--- police searched news office for photo and evidence and it was ok bc they had a warrant with pc - 1st amendment activities implicated is still ok as long as the requirements of the 4th amendment are applied with **scrupulous exactitude** - 1^st^ amendment protections are sufficiently protected by the preconditions of warrant and no higher standard than a warrant with probable cause for seizures of books or films but still must have **particular exactitude** - NAACP v. Alabama - NAACP could NOT be compelled to publicly disclose the names and addresses of its members) - Bc the vital relationship between freedom to associate and privacy in one's associations - Who we associate with is part of privacy - Gonzales v. Google (ND CA 2006) - government subpoenaed in relation to COPPA googled for 1) all URLs searched as of July 31, 2005, and 2) all search queries from search engine from June-July 2005; government didn't show a substantive need for URLs and searches) - Court brought up privacy sua sponte and only gave 50k URLs because can figure out who people are through their searches - Facts - ACLU v. Gonzales-- challenge by the ACLU to the Children\'s Online Privacy Protection Act (COPPA). Google was not a party to the case but the GOVT subpoenaed from Google. - URL samples, search queries - Govt narrowed search to URL sample of 50,000 and searches for one week period rather than 2 month period - Over 25% of Google searches are for PORN - Holding - Court granted Govt motion to compel only as to sample 50,000 URLs from Google Search Index - Reasoning - Burden and loss of trust \> Gov't benefit-- Such an expectation does not rise to the level of an absolute privilege but does indicate that there is a potential burden as to googles loss of goodwill if google is forced to disclose search queries to the government - Rule - Blancing test Burden/espenises \> benefit - Analysis - People actually can be identified by their anonymous search data Federal Electronic Surveillance Law ----------------------------------- - **Privacy Protection Act (PPA)** - Prohibits government officials from searching or seizing work product materials or documents possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast or other similar form of public communication affecting commerce. - But if probable cause to believe someone doing crime, materials may be searched and seized. - Requires law enforcement to obtain a subpoena which you can fight - **Communications Act** of 1934 § 605 - **The Wiretap Act, Tittle III** of the 1968 Omnibus Crime Act - **[NOT]** STILL GOOD LAW - AG can apply to a federal judge for an order authorizing the interception of a wire or oral communication - Judge may only issue such an order if there is probable cause - National security exclusion---those wiretaps are okay - *United States v. United States District Court (the Keith case)* (SC 1972) says that only external risks qualify for the exception, not internal risks - Keith categories: - Criminal investigations - 4A and ECPA - Domestic surveillance - ? - Foreign intelligence gathering - **Electronic Communications Privacy Act of 1986 (ECPA)** - Title I (old Title III) is the Wiretap Act -- wire communication - Title II is the Stored Communication Act - Title III is now Pen Register Act - ECPA not tied to 4th amendment but statute might, act separately from 4th amendment - Analysis - 4th and ECPA separate analysis, 4th always in background but might be in case statutes apply but 4th doesnt - Applies to public and private parties - Vocabulary - Wire Communications: - "aural transfer" human voice at any point; wiretap; communications in transmission as they occur - Oral Communications: - bugging - Electronic Communications: - everything else, email, radio, etc - How do you get relief under the surveillance laws? - Exclusionary rule under wiretap for wire and oral communications but not for electronic communications - No exclusionary rule for stored communications and pen register acts but you can bring civil suit - Statutes typically giving you additional protection beyond fourth amendment - CALEA makes it easier for the government to get the information they want from executing legal authorized surveillance by giving federal funds to telecommunication providers - Requires that all telecommunications providers be able to isolate and intercept electronic communications and be able to deliver them to law enforcement personnel - Does not apply to "information services" such as email and internet access - US PATRIOT ACT expanded the definition of terrorism, sneak and peak warrants (delayed notice warrants that usually only apply in national security situations; allows you to search through things secretly by breaking in; purpose to get in before evidence can be destroyed) - Private right of action of government disclosure of information - "**Electronic communication**" in wiretap act includes transient electronic storage that is intrinsic to the communication process and interception of an e-mail message in such store is **an offense under the Wiretap Act** - **INTERCEPT DOES APPLY!** - **In general, you have a REoP to your email** - However, terms of service could change that - Not just the fact that the email is within an intermediary of the ISP; it is also because it is full of confidential communications (not simple business records like *Miller*) - **The Wiretap Act** - A "super warrant" is simply the court order required under Section 2518 of the Wiretap Act, which provides additional protections over a normal warrant. They also, however, extend for longer periods of time than normal warrants (e.g., 30 days). - Provided the MOST privacy protection - Exclusionary rule [separate] analysis from 4th amendment - Remedy: - Excluded from evidence if you violate act - Apply to: - CIVIL AND CRIMINAL penalties - Applies to everyone (state, federal, private citizens) - If you record your phone convo on landline, but prob not bc one party consent, depends on the State, most states are one party consent states - Warrant won't do it. Have to get a SUPER warrant 🦸. - Higher standard than probable cause. Up to 30 days and then can renew. Above probable cause but warrant can\'t sit on wire for up to 30 days. Not possible with Warrant. - Minimization: "every order and extension thereof shall contain a provision that the authorization to intercept shall be [executed as soon as practicable], shall be conducted in such a way as to [minimize the interception of communications not otherwise subject to interception] under this chapter, and must [terminate upon attainment of the authorized objective]." - **The Stored Communications Act (SCA)** - Separate analysis from 4th amendment - No exclusionary rule - Court order, standard less than warrant. No super warrant - Gmail, Cloud based storages - Lands in a lot of places, lot of hops. Hop hop hop like a bunny. 🐇 - **The Pen Register Act** - Free for all - Trap and trace - Remember Smith v Maryland (pg 15) Digital Searches & Seizures / Electronics ----------------------------------------- ### Searching Computers and Electronic Devices - ***United States v. Lacy*** (9^th^ Circuit 1997) (Defendant challenged search warrant authorizing seizure of his **computer hard drive** and disks by saying **too general**) - Court held warrant was fine because more precise description would not be possible---have to go through everything to find it (whole computer ok) - ***U.S. v. Upham*** (1^st^ Cir. 1999) (held sufficient chance of finding needle in haystack established by probable cause standard of warrant) - ***U.S. v. Carey*** (10^th^ Cir. 1999) (officer got warrant to search computer about illegal drug distribution and found porn then searched for similar files) - ***Court held*** porn search was expanding scope and would require 2^nd^ warrant - ***U.S. v. Campos*** (10^th^ Cir. 2000) (defendant emailed child porn in chatroom and receiver told FBI; FBI obtained warrant for defendant for defendant home and computer) - ***Court rejected*** defendant's argument that FBI could only search for emailed images because it is not feasible to search only for a particular computer file - ***Have to be particular about warrant still*** - ***United States v. Gorsha*** (W.D. Washington 2001) (w/ FBI emotely copying the data from defendant's computer in Russia; held that copying it was **NOT a seizure under the 4^th^** because did not interfere with defendant or anyone else's possessory interest in the data.) - ***Trulock v. Freech (4^th^ Circuit 2001)*** (two people shared computer but with different password protected files; one consented to the FBI search but **court held that one of the two could not consent for both**) - 3^rd^ party consent criteria: - 1\. 3^rd^ party must have authority to consent to search - 2\. 3^rd^ party consent must be voluntary - US v. Andrus (10^th^ Cir. 2007)---51 yr old son with child porn and parental consent to computer search with Feds even though it wasn't parent's laptop and had password; Feds used software that bypassed password with computer off and didn't know it was not father's to consent to search until further conversation with father at which point the search was halted) - **Voluntary consent** to a police search, given by the individual under investigation or by a third party with authority over the subject property **is a** **well-established exception to the warrant requirement** - Third party has **actual authority to consent to search** IF that third party has either 1) mutual use of the property by virtue of joint access OR 2) control for most purposes - Where **actual authority is lacking,** a third party has **apparent authority** to consent to a search when an officer reasonably, even if erroneously, believes the third party possesses authority to consent (reasonable belief standard) - Court concluded it was enough for apparent authority because reasonable perception that dad was one user of computer and search ended when learned otherwise. - Dissent said that Law Enforcement should have to inquire about password protection - ***Microsoft v. US*** (2d Cir. 2016) (govt used a warrant under SCA to search and seize data about Microsoft customer whose data was located on Microsoft server in Ireland, with Irish data not being allowed under SCA warrant (would be like importing)) - **Court held that foreign data cannot be imported through SCA warrant.** - Holding serves the interests of comity that, as the MLAT process reflects, ordinarily govern the conduct cross-boundary criminal investigations - Foreign sovereign interests are implicated when a US judge issues an order requiring a service provider to collect from servers located overseas and "import" into the US data, possibly belonging to a foreign citizen, simply bc the service provider has a base of operations in the US - Govt argued Microsoft still had control over data and govt access should not turn on where Co. stores data - Preventing SCA warrants from reaching data abroad would "seriously impede" law enforcement investigations - Suppose a foreign govt sought to obtain data from a company doing business in that country but with data located on a server in the US. Suppose tht this foreign govt lacked sufficient privacy protections and its law allowed access to the data with minimal standard of oversight. - Jennifer Daskal "Data localization mandates are likely to result in foreign governments being able to compel the production of data---including of Americans---based on a much lower standard than what would apply if the data were sought by the US." - Both sides are undesirable - Arbitrary for govt access to ones data to depend upon where the data happens to be stored, particularly if the user does not know and has no role in choosing that location - Schwartz - Balance policy goals including the battle against international terrorism, assisting in domestic litigation, protecting individual privacy, and respecting the law of foreign nations - Call for US lawmakers to keep a level playing field for U.S. tech companies - Don't want to encourage foreign cloud services and disadvantage U.S. companies with no policy benefits - - Riley v. California 2014--- Whether police without warrants search digital info on cell phone seized from an individual who has been arrested - Search incident to arrest DOES NOT apply to cell phones but other case specific exceptions may still justify a warrantless search of particular phone - One well-recognized exception applies when the **exigencies of the situation** makes the need of law enforcement so compelling that a warrantless search is **objectively reasonable under the fourth** - **4th amendment only applies if there is reasonable expectation of privacy** - **PRIVACY STATUTES GIVE US ADDITIONAL PROTECTION IN CERTAIN AREAS EVEN IF WE DON'T HAVE A REASONABLE EXPECTATION OF PRIVACY and apply to private parties where the 4th amendment does not** - Cell phones differ via **QUANTITIVE and QUALITIATIVE** - Immense storage capacity - **One place so many distinct types of info: address, notes, prescriptions, bank statements, a video, date back to purchase of phone, maybe even earlier. More pervasive than physical records, has mundane and the intimate** - Preventing destruction of evidence - Remote wiping and data encryption ### Encryption (EXAM Q3) - Riley v. California 2014 - **Encryption is a security feature** that some modern cell phones use in addition to password protection. When such phones lock, data becomes protected by sophisticated encryption that renders a phone all but "unbreakable" unless police know the password\... - Includes the ability to keep communications secure by concealing the contents of a message. - **Even if** a communication is **intercepted** (WIRETAP/BUGGING/SCA/ECPA), it still **remains secure**. - **How it works** - Translating a message into a code of letters or numbers called "cypher text" - Parties to the communication hold a key, - Key consists of the information necessary to translate the code back to the original message, or "plain text" - Dates back ancient times coding messages but also mean code brakers - **Difficult trade off between privacy and surveillance** - Essential technique to protect privacy of electronic communications in an age where such communications are so easily monitored and intercepted - Other hand, enables individuals to disguise their communications from detection by law enforcement officials - Govt seeks to control - Debate between pro tech: privacy, business, and security - Fear it: interference with the work of police and its adverse effect on the collection of intelligence. - **Pro unfettered cryptography Encryption** - Free society depends on privacy to protect freedom of association, artistic creativity, and political discussion - Restore status quo means it is the readily availability of conversational privacy that prevailed at the time of the country's founding (NO GENERAL WARRANTS) - **Pro Control/MK** - There will be no freedom at all unless we can protect ourselves from criminals, terrorists, and foreign threats - Restore status quo for police means continued ability to wiretap - **The Clipper Chip** - Govt concern with incr. strong encryption making it hard to decrypt - 1994 gov't proposed implementing "Clipper Chip" - Federal encryption standard in which ***Gov't would retain a copy of the key in a federal system called 'key escrow'*** - By holding a "spare key," Gov't could readily decrypt encrypted communications if it desired. - Strongly criticized - Gov't encryption standard has not been widely used - **First Amendment** - Junger v. Daley (6^th^ Cir. 2000)---concluded that **encryption was protected speech under 1^st^ amendment** - Criticized as myopic view too closely looking at coding - Looked like speech in form but lacked deeper significance required to establish constitutional expression - Robert Post---"between encryption source code that is itself part of public dialogue and encryption source code that is meant merely to be used" - "even if encryption source code is not itself a subject of public discussion, its regulation. Might nevertheless affect public discussion in ways that ought to trigger First Amendment coverage" - i.e. licensing scheme for encryption code that engaged in viewpoint discrimination would be flawed. Even beyond viewpoint discrimination, a viewpoint neutral scheme of regulating encryption soft where would be flawed if it had sufficient constitutional impact on the various First Amendment media that employ such soft where. - **Fourth Amendment** - If law enforcement legally obtain an encrypted communication does the 4^th^ require a warrant before the govt can decrypt an encrypted communication? - Encryption is like a lock-and-key system, key is sued to lock plaintext by turning it into ciphertext and then a key is used to unlock the cyphertext by turning it into plaintext - Locking a container is a common way to create a reasonable expectation of privacy in its contents: the gov't ordinally cannot break the lock and search a closed container without a warrant - Lock cannot triger right-based 4^th^ amendment - **Fifth Amendment** - Can gov't compel the production of a private key if it is stored on a personal computer? What if the key is known only to the individual and not stored or recorded? - iii. ### Video Surveillance iv. ### Email and Online Communications - ***Steve Jackson Games v. US Secret Service*** (5^th^ Circuit 1994) (electronic bulletin board system (BBS) from one of computers and offered customers the ability to send and receive private emails; private email was stored on the hard drive temporarily until addresses "called" the BBS to read their mail to read their mail then recipients could store or delete it; Secret Service got warrant for SJG authorized seizure of computer hardware, software, and computer data; 162 items of unread, private email stores on BBS; for violations of 18 USC 1030&2314; Appellants filed suit against SS (Secret Service) and US claiming violation of Federal Wiretap Act) - ***Issue:*** Whether seizure of a computer on which is store private e-mail that has been sent to an electronic bulletin board, but not y

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