wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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to ensure that it was properly done. T he court therefore awarded him
damages for his distress from the violation.6*
T he court’s opinion recognizes that not all privacy problems are the
same, although the court did not direcdy state this. The person’s ac
tions may not have been private in the sense that they were secret or
concealed. Instead, the privacy problems involved a combination of
identification, secondary use, disclosure, accessibility, and perhaps
even distortion. T he problem of identification occurred because the
broad dissemination of images of his actions allowed him to be identi
fied by many people, whereas he m ight not have been readily identified
by anybody at the scene where he attempted suicide. Secondary use is
implicated because the C C TV camera footage was originally for use in
preventing crime and promoting safety and was then provided to the
media. Disclosure is obviously implicated because the footage dis
playing him in a desperate moment was broadcast to millions. Accessi
bility is involved since the video that would ordinarily be seen by just a
handful of officials was disseminated publicly on television. Finally, dis
tortion may be involved because some of the disclosures involved
merely showing the person with the knife. People may have thought
that he was attempting to attack others. Obviously, disclosing that he
was attempting suicide would also be a privacy violation, but the diffi
culty in deciding how to characterize the events emerges only because
of the improper release of the video.
Recognition of the plurality of privacy problems makes it easier to
analyze the situation in this case. T h e European C ourt of Human
Rights issued a nuanced opinion that thoughtfully examined the situa
tion and understood many of the problems involved.
The Future of Privacy
Privacy has long been a conceptual jungle that has entangled law and
policy and prevented them from effectively addressing privacy prob
lems. This book has attempted to provide a way out of the thicket.
W ith a framework for identifying and understanding privacy problems,
courts and policymakers can better balance privacy considerations
against countervailing interests. The theory of privacy I have devel
oped is not meant to be the final word. It cannot be, because privacy is
Privacy: A New Understanding
197
evolving. In the future, new technologies and ways of living will create
new privacy problems and transform old ones. But we need a frame
work, a way of conceptualizing privacy that does not get bogged down
and befuddled by its manifold complexities. This book is the beginning
of what I hope will be a more comprehensive and clear understanding
of privacy.
Notes
1. Privacy: A Concept in Disarray
1. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dis
senting).
2. Ruth Gavison, “Privacy and the Limits of Law,” 89 Yale Law Journal 421,455
(1980); James Rachels, “Why Privacy Is Important,” in Philosophical Dimensions of
Privacy: An Anthology 290, 292 (Ferdinand David Schoeman ed., 1984); Beate
Rossler, The Value o f Privacy 1 (2005); Arthur R. Miller, The Assault on Privacy 212
(1971).
3. Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235 (Minn. 1998); Pub.
Utilities Comm’n v. Poliak, 343 U.S. 451,467 (1952) (Douglas, J., dissenting).
4. See, e.g., Gavison, “Privacy and the Limits of Law,” 422 (lamenting the lack
of a useful, distinct, and coherent concept of privacy); Alan F. Westin, Privacy and
Freedom 7 (1967) (“Few values so fundamental to society as privacy have been left
so undefined in social theory”).
5. Miller, Assault on Privacy, 25.
6. Jonathan Franzen, How to Be Alone 42 (2003).
7. Julie C. Inness, Privacy, Intimacy, and Isolation 3 (1992).
8. Hyman Gross, “The Concept of Privacy,” 43 New York University Law Review
34, 35 (1967).
9. Cohn J. Bennett, Regulating Privacy: Data Protection and Public Policy in Europe
and the United States 25 (1992).
10. Robert C. Post, “Three Concepts of Privacy,” 89 Georgetown Law Journal
2087, 2087 (2001).
11. The “reasonable-expectation-of-privacy” test currently employed by the
Court to determine the applicability of the Fourth Amendment to a particular sit
uation was first articulated in Justice John Marshall Harlan’s concurring opinion in
Katz v. United States, 389 U.S. 347 (1967). A person must demonstrate an “actual
200
Notes to Page 3
(subjective) expectation of privacy” and “the expectation [must] be one that society
is prepared to recognize as ‘reasonable.’ ” Id. at 360-61 (Harlan, J., concurring).
12. Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S.
438 (1972); Roe v. Wade, 410 U.S. 113 (1973); Whalen v. Roe, 429 U.S. 589
(1977); Lawrence v. Texas, 539 U.S. 558 (2003).
13. See Alaska Const, art. I, §22 (“The right of the people to privacy is recog
nized and shall not be infringed”); Ariz. Const, art. II, §8 (“No person shall be dis
turbed in his private affairs, or his home invaded, without authority of law”); Cal.
Const, art. I, §1 (“All people are by their nature free and independent and have in
alienable rights. Among these are enjoying and defending life and liberty, ac
quiring, possessing, and protecting property, and pursuing and obtaining safety,
happiness, and privacy”); Fla. Const, art. I, §23 (“Every natural person has the
right to be let alone and free from governmental intrusion into his private life ex
cept as otherwise provided herein”); see also Haw. Const, art. I, §6; 111. Const, art.
I, §6; La. Const, art. I, §5; Mont. Const, art. II, §10; S.C. Const, art. I, §10; Wash.
Const, art. I, §7. For a further discussion of state constitutional protections of pri
vacy, see Timothy O. Lenz, “ ‘Rights Talk’ About Privacy in State Courts,” 60 A l
bany Law Review 1613 (1997); Mark Silverstein, Note, “Privacy Rights in State
Constitutions: Models for Illinois?” 1989 University of Illinois Law Review 215
(1989).
14. Brazilian Constitution art. 5; South African Constitution §14 (1996); Consti
tution of The Republic of Korea, art. 17, quoted in Electronic Privacy Information
Center & Privacy International, Privacy and Human Rights 288, 904, 917 (2005).
15. Although Canada’s Charter of Rights and Freedoms does not explicitly pro
tect a right to privacy, the Supreme Court of Canada has interpreted it to imply
such a right. Privacy and Human Rights, 323. The Constitutional Court in France
declared in 1995 that the French constitution has an implied right of privacy. Pri

to ensure that it was properly done. T he court therefore awarded him

damages for his distress from the violation.6*

T he court’s opinion recognizes that not all privacy problems are the

same, although the court did not direcdy state this. The person’s ac

tions may not have been private in the sense that they were secret or

concealed. Instead, the privacy problems involved a combination of

identification, secondary use, disclosure, accessibility, and perhaps

even distortion. T he problem of identification occurred because the

broad dissemination of images of his actions allowed him to be identi

fied by many people, whereas he m ight not have been readily identified

by anybody at the scene where he attempted suicide. Secondary use is

implicated because the C C TV camera footage was originally for use in

preventing crime and promoting safety and was then provided to the

media. Disclosure is obviously implicated because the footage dis

playing him in a desperate moment was broadcast to millions. Accessi

bility is involved since the video that would ordinarily be seen by just a

handful of officials was disseminated publicly on television. Finally, dis

tortion may be involved because some of the disclosures involved

merely showing the person with the knife. People may have thought

that he was attempting to attack others. Obviously, disclosing that he

was attempting suicide would also be a privacy violation, but the diffi

culty in deciding how to characterize the events emerges only because

of the improper release of the video.

Recognition of the plurality of privacy problems makes it easier to

analyze the situation in this case. T h e European C ourt of Human

Rights issued a nuanced opinion that thoughtfully examined the situa

tion and understood many of the problems involved.

The Future of Privacy

Privacy has long been a conceptual jungle that has entangled law and

policy and prevented them from effectively addressing privacy prob

lems. This book has attempted to provide a way out of the thicket.

W ith a framework for identifying and understanding privacy problems,

courts and policymakers can better balance privacy considerations

against countervailing interests. The theory of privacy I have devel

oped is not meant to be the final word. It cannot be, because privacy is

Privacy: A New Understanding

197

evolving. In the future, new technologies and ways of living will create

new privacy problems and transform old ones. But we need a frame

work, a way of conceptualizing privacy that does not get bogged down

and befuddled by its manifold complexities. This book is the beginning

of what I hope will be a more comprehensive and clear understanding

of privacy.

Notes

1. Privacy: A Concept in Disarray

1. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dis

senting).

2. Ruth Gavison, “Privacy and the Limits of Law,” 89 Yale Law Journal 421,455

(1980); James Rachels, “Why Privacy Is Important,” in Philosophical Dimensions of

Privacy: An Anthology 290, 292 (Ferdinand David Schoeman ed., 1984); Beate

Rossler, The Value o f Privacy 1 (2005); Arthur R. Miller, The Assault on Privacy 212

(1971).

3. Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235 (Minn. 1998); Pub.

Utilities Comm’n v. Poliak, 343 U.S. 451,467 (1952) (Douglas, J., dissenting).

4. See, e.g., Gavison, “Privacy and the Limits of Law,” 422 (lamenting the lack

of a useful, distinct, and coherent concept of privacy); Alan F. Westin, Privacy and

Freedom 7 (1967) (“Few values so fundamental to society as privacy have been left

so undefined in social theory”).

5. Miller, Assault on Privacy, 25.

6. Jonathan Franzen, How to Be Alone 42 (2003).

7. Julie C. Inness, Privacy, Intimacy, and Isolation 3 (1992).

8. Hyman Gross, “The Concept of Privacy,” 43 New York University Law Review

34, 35 (1967).

9. Cohn J. Bennett, Regulating Privacy: Data Protection and Public Policy in Europe

and the United States 25 (1992).

10. Robert C. Post, “Three Concepts of Privacy,” 89 Georgetown Law Journal

2087, 2087 (2001).

11. The “reasonable-expectation-of-privacy” test currently employed by the

Court to determine the applicability of the Fourth Amendment to a particular sit

uation was first articulated in Justice John Marshall Harlan’s concurring opinion in

Katz v. United States, 389 U.S. 347 (1967). A person must demonstrate an “actual

200

Notes to Page 3

(subjective) expectation of privacy” and “the expectation [must] be one that society

is prepared to recognize as ‘reasonable.’ ” Id. at 360-61 (Harlan, J., concurring).

12. Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S.

438 (1972); Roe v. Wade, 410 U.S. 113 (1973); Whalen v. Roe, 429 U.S. 589

(1977); Lawrence v. Texas, 539 U.S. 558 (2003).

13. See Alaska Const, art. I, §22 (“The right of the people to privacy is recog

nized and shall not be infringed”); Ariz. Const, art. II, §8 (“No person shall be dis

turbed in his private affairs, or his home invaded, without authority of law”); Cal.

Const, art. I, §1 (“All people are by their nature free and independent and have in

alienable rights. Among these are enjoying and defending life and liberty, ac

quiring, possessing, and protecting property, and pursuing and obtaining safety,

happiness, and privacy”); Fla. Const, art. I, §23 (“Every natural person has the

right to be let alone and free from governmental intrusion into his private life ex

cept as otherwise provided herein”); see also Haw. Const, art. I, §6; 111. Const, art.

I, §6; La. Const, art. I, §5; Mont. Const, art. II, §10; S.C. Const, art. I, §10; Wash.

Const, art. I, §7. For a further discussion of state constitutional protections of pri

vacy, see Timothy O. Lenz, “ ‘Rights Talk’ About Privacy in State Courts,” 60 A l

bany Law Review 1613 (1997); Mark Silverstein, Note, “Privacy Rights in State

Constitutions: Models for Illinois?” 1989 University of Illinois Law Review 215

(1989).

14. Brazilian Constitution art. 5; South African Constitution §14 (1996); Consti

tution of The Republic of Korea, art. 17, quoted in Electronic Privacy Information

Center & Privacy International, Privacy and Human Rights 288, 904, 917 (2005).

15. Although Canada’s Charter of Rights and Freedoms does not explicitly pro

tect a right to privacy, the Supreme Court of Canada has interpreted it to imply

such a right. Privacy and Human Rights, 323. The Constitutional Court in France

declared in 1995 that the French constitution has an implied right of privacy. Pri