wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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31.476 U.S. 227,238-39 (1986).
32. 468 U.S. 705, 714 (1984).
33. United States v. Knotts, 460 U.S. 276, 277, 281 (1983).
34. See, e.g., Marc Jonathan Blitz, “Video Surveillance and the Constitution of
Public Space: Fitting the Fourth Amendment to a World That Tracks Image and
Identity,” 82 Texas Law Review 1349, 1357 (2004) (“[Contemporary Fourth
Amendment jurisprudence differentiates pervasive video surveillance from more
familiar mass suspicionless searches in one crucial respect: by holding that it is not
a ‘search’ at all”); Christopher Slobogin, “Public Privacy: Camera Surveillance of
Public Places and the Right to Anonymity,” 72 M ississippi Law Journal 213, 233
(2002) (“Meaningful legal strictures on government use of public surveillance cam
eras in Great Britain, Canada, and the United States are non-existent”).
35. Solove, D igital Person, 42-44.
36. Restatement (Second) of Torts §652B (1977).
Notes to Pages 111-113
225
37. 206 A.2d 239,241-42 (N.H. 1964); see also Wolfcon v. Lewis, 924 F. Supp.
1413, 1431 (E.D. Pa. 1996) (finding media surveillance of a couple’s activities in
their home to be actionable under intrusion tort); Rhodes v. Graham, 37 S.W.2d
46,47 (Ky. 1931) (holding that wiretapping a person’s phone gives rise to a tort ac
tion because it violates his right “to the privacy of his home as against the unwar
ranted invasion of others”).
38. See, e.g., Furman v. Sheppard, 744 A.2d 583, 586 (Md. Ct. Spec. App. 2000)
(holding that the defendant was not liable under intrusion tort for trespassing into
a private club to engage in video surveillance of the plaintiff because the club was
not a secluded place); Forster v. Manchester, 189 A.2d 147, 149-50 (Pa. 1963)
(finding no intrusion liability when a private investigator followed and filmed the
plaintiff because the surveillance was conducted in public).
39. Nader v. General Motors Corp., 225 N.E.2d 765, 767, 771, 769 (N.Y.
1970).
40. See ABA Criminal Justice Section’s Standards Comm., ABA Criminal Jus
tice Standards on Electronic Surveillance Relating to Technologically-Assisted
Physical Surveillance §2-6.1(d) to (g) (Draft 3d ed. 1997) (recommending that the
law begin to address the harms of public surveillance).
41. Westin, Privacy and Freedom, 31.
42. Justice William O. Douglas observed in another case, “Monitoring, if
prevalent, certainly kills free discourse and spontaneous utterances.” United States
v. White, 401 U.S. 745, 762 (1971) (Douglas, J., dissenting).
43. Quoted in Leonard W. Levy, O rigins o f the F ifth A m endm ent 273 (1968).
44. John Adams, as quoted in John H. F. Shattuck, R ights o f Privacy xiii-xiv
(1976), and Charles J. Sykes, The E nd o f Privacy: Personal R ights in the Surveillance
Society 14—15 note (1999) (capitalization in original quote altered).
45. U.S. Const, amend. V.
46. David M. O’Brien, Privacy, Law, and Public Policy 92-93 (1979) (emphasis
omitted).
47. Brown v. Walker, 161 U.S. 591, 637 (1896) (Field, J., dissenting).
48. Ullmann v. United States, 350 U.S. 422, 445 (1956) (Douglas, J., dis
senting).
49. Charles Fried, “Privacy,” 77 Yale Law Journal 475, 488 (1968).
50. Mark Berger, “Europeanizing Self-Incrimination: The Right to Remain
Silent in the European Court of Human Rights,” 12 Columbia Journal o f European
Law 339, 341 (2006). Some examples include India, Canada, and New Zealand.
See India Constitution art. 20, §3; Canadian Charter of Rights and Freedoms
§ll(c); New Zealand Bill of Rights Act §25(d). Jewish law also protected against
self-incrimination, forbidding punishment based on self-incriminating statements
gleaned through interrogation, as well as confession. See Samuel J. Levine, “An
Introduction to Self-Incrimination in Jewish Law, with Applications to the Amer
ican Legal System: A Psychological and Philosophical Analysis,” 28 Loyola Los A n
geles International and Com parative Law Review 257 (2006).
51. International Covenant on Civil and Political Rights art. 14(3)(g), Dec. 19,
1996, 999 U.N.T.S. 171.
52. Murray v. United Kingdom, 22 ECHR 29 (1996).
53. See Daniel J. Solove, “Privacy and Power: Computer Databases and Meta
phors for Information Privacy,” 53 Stanford Law Review 1393, 1401 (2001).
226
Notes to Pages 113-116
54. Robert Ellis Smith, Ben Franklin's Web Site: Privacy and Curiosity from Ply
mouth Rock to the Internet 62, 63 (2000).
55. See, e.g., iMiranda v. Arizona, 384 U.S. 436,467 (1966) (explaining the Fifth
Amendment protections against self-incrimination in the context of custodial in
terrogation).
56. Charles I, Letter to the High Commission, Feb. 4, 1637, quoted in R.
Carter Pittman, “The Colonial and Constitutional History of the Privilege Against
Self-Incrimination in America,” 21 Virginia Law Review 763, 770-71 (1935).
57. Levy, Origins o f the Fifth Amendment, 43-82.
58. Ellen Schrecker, M any A re the Crimes: M cCarthyism in America 369-70
(1998).
59. 360 U.S. 109, 127, 134, 144 (1959) (Black, J., dissenting) (emphasis added).
60. As John Henry Wigmore noted, “The simple and peaceful process of ques
tioning breeds a readiness to resort to bullying and to physical force and torture.”
8 John Henry Wigmore, Evidence in Trials a t Common Law §2251 n.l(c) (John T.
McNaughton ed., 4th ed. 1961).
61. Peter Brooks, Troubling Confessions: Speaking G uilt in Law and Literature 40
(2000). The interrogation of Dimitri Karamazov in Fyodor Dostoevsky’s The
Brothers Karamazov is an excellent literary example of how interrogation distorts
the truth even when the interrogators bear no deliberate motivation to distort. See
Richard H. Weisberg, The Failure o f the Word 55-58 (1984) (commenting on “Dos-
toevsk[y]’s belief that the legal investigator, like the novelist himself, is motivated
by an essentially personalized vision of reality”).
62. 364 U.S. 479,488-90 (1960).
63. Baird v. State Bar, 401 U.S. 1, 6-7 (1971). If the government has other pur
poses for asking such information, however, questions about political views and or
ganizations are permissible. See Law Students Civil Rights Research Council, Inc.
v. Wadmond, 401 U.S. 154, 165-66 (1971) (remarking that questions about mem
bership and intent to further a subversive organization’s illegal aims were constitu
tionally proper); Barenblatt v. United States, 360 U.S. 109, 127-28 (1959) (holding
that a person could be compelled to disclose before the House Un-American Ac
tivities Committee whether he was a member of the Communist Party because
questions were related to a “valid legislative purpose”).
64. Baird, 401 U.S. at 6.

31.476 U.S. 227,238-39 (1986).

32. 468 U.S. 705, 714 (1984).

33. United States v. Knotts, 460 U.S. 276, 277, 281 (1983).

34. See, e.g., Marc Jonathan Blitz, “Video Surveillance and the Constitution of

Public Space: Fitting the Fourth Amendment to a World That Tracks Image and

Identity,” 82 Texas Law Review 1349, 1357 (2004) (“[Contemporary Fourth

Amendment jurisprudence differentiates pervasive video surveillance from more

familiar mass suspicionless searches in one crucial respect: by holding that it is not

a ‘search’ at all”); Christopher Slobogin, “Public Privacy: Camera Surveillance of

Public Places and the Right to Anonymity,” 72 M ississippi Law Journal 213, 233

(2002) (“Meaningful legal strictures on government use of public surveillance cam

eras in Great Britain, Canada, and the United States are non-existent”).

35. Solove, D igital Person, 42-44.

36. Restatement (Second) of Torts §652B (1977).

Notes to Pages 111-113

225

37. 206 A.2d 239,241-42 (N.H. 1964); see also Wolfcon v. Lewis, 924 F. Supp.

1413, 1431 (E.D. Pa. 1996) (finding media surveillance of a couple’s activities in

their home to be actionable under intrusion tort); Rhodes v. Graham, 37 S.W.2d

46,47 (Ky. 1931) (holding that wiretapping a person’s phone gives rise to a tort ac

tion because it violates his right “to the privacy of his home as against the unwar

ranted invasion of others”).

38. See, e.g., Furman v. Sheppard, 744 A.2d 583, 586 (Md. Ct. Spec. App. 2000)

(holding that the defendant was not liable under intrusion tort for trespassing into

a private club to engage in video surveillance of the plaintiff because the club was

not a secluded place); Forster v. Manchester, 189 A.2d 147, 149-50 (Pa. 1963)

(finding no intrusion liability when a private investigator followed and filmed the

plaintiff because the surveillance was conducted in public).

39. Nader v. General Motors Corp., 225 N.E.2d 765, 767, 771, 769 (N.Y.

1970).

40. See ABA Criminal Justice Section’s Standards Comm., ABA Criminal Jus

tice Standards on Electronic Surveillance Relating to Technologically-Assisted

Physical Surveillance §2-6.1(d) to (g) (Draft 3d ed. 1997) (recommending that the

law begin to address the harms of public surveillance).

41. Westin, Privacy and Freedom, 31.

42. Justice William O. Douglas observed in another case, “Monitoring, if

prevalent, certainly kills free discourse and spontaneous utterances.” United States

v. White, 401 U.S. 745, 762 (1971) (Douglas, J., dissenting).

43. Quoted in Leonard W. Levy, O rigins o f the F ifth A m endm ent 273 (1968).

44. John Adams, as quoted in John H. F. Shattuck, R ights o f Privacy xiii-xiv

(1976), and Charles J. Sykes, The E nd o f Privacy: Personal R ights in the Surveillance

Society 14—15 note (1999) (capitalization in original quote altered).

45. U.S. Const, amend. V.

46. David M. O’Brien, Privacy, Law, and Public Policy 92-93 (1979) (emphasis

omitted).

47. Brown v. Walker, 161 U.S. 591, 637 (1896) (Field, J., dissenting).

48. Ullmann v. United States, 350 U.S. 422, 445 (1956) (Douglas, J., dis

senting).

49. Charles Fried, “Privacy,” 77 Yale Law Journal 475, 488 (1968).

50. Mark Berger, “Europeanizing Self-Incrimination: The Right to Remain

Silent in the European Court of Human Rights,” 12 Columbia Journal o f European

Law 339, 341 (2006). Some examples include India, Canada, and New Zealand.

See India Constitution art. 20, §3; Canadian Charter of Rights and Freedoms

§ll(c); New Zealand Bill of Rights Act §25(d). Jewish law also protected against

self-incrimination, forbidding punishment based on self-incriminating statements

gleaned through interrogation, as well as confession. See Samuel J. Levine, “An

Introduction to Self-Incrimination in Jewish Law, with Applications to the Amer

ican Legal System: A Psychological and Philosophical Analysis,” 28 Loyola Los A n

geles International and Com parative Law Review 257 (2006).

51. International Covenant on Civil and Political Rights art. 14(3)(g), Dec. 19,

1996, 999 U.N.T.S. 171.

52. Murray v. United Kingdom, 22 ECHR 29 (1996).

53. See Daniel J. Solove, “Privacy and Power: Computer Databases and Meta

phors for Information Privacy,” 53 Stanford Law Review 1393, 1401 (2001).

226

Notes to Pages 113-116

54. Robert Ellis Smith, Ben Franklin's Web Site: Privacy and Curiosity from Ply

mouth Rock to the Internet 62, 63 (2000).

55. See, e.g., iMiranda v. Arizona, 384 U.S. 436,467 (1966) (explaining the Fifth

Amendment protections against self-incrimination in the context of custodial in

terrogation).

56. Charles I, Letter to the High Commission, Feb. 4, 1637, quoted in R.

Carter Pittman, “The Colonial and Constitutional History of the Privilege Against

Self-Incrimination in America,” 21 Virginia Law Review 763, 770-71 (1935).

57. Levy, Origins o f the Fifth Amendment, 43-82.

58. Ellen Schrecker, M any A re the Crimes: M cCarthyism in America 369-70

(1998).

59. 360 U.S. 109, 127, 134, 144 (1959) (Black, J., dissenting) (emphasis added).

60. As John Henry Wigmore noted, “The simple and peaceful process of ques

tioning breeds a readiness to resort to bullying and to physical force and torture.”

8 John Henry Wigmore, Evidence in Trials a t Common Law §2251 n.l(c) (John T.

McNaughton ed., 4th ed. 1961).

61. Peter Brooks, Troubling Confessions: Speaking G uilt in Law and Literature 40

(2000). The interrogation of Dimitri Karamazov in Fyodor Dostoevsky’s The

Brothers Karamazov is an excellent literary example of how interrogation distorts

the truth even when the interrogators bear no deliberate motivation to distort. See

Richard H. Weisberg, The Failure o f the Word 55-58 (1984) (commenting on “Dos-

toevsk[y]’s belief that the legal investigator, like the novelist himself, is motivated

by an essentially personalized vision of reality”).

62. 364 U.S. 479,488-90 (1960).

63. Baird v. State Bar, 401 U.S. 1, 6-7 (1971). If the government has other pur

poses for asking such information, however, questions about political views and or

ganizations are permissible. See Law Students Civil Rights Research Council, Inc.

v. Wadmond, 401 U.S. 154, 165-66 (1971) (remarking that questions about mem

bership and intent to further a subversive organization’s illegal aims were constitu

tionally proper); Barenblatt v. United States, 360 U.S. 109, 127-28 (1959) (holding

that a person could be compelled to disclose before the House Un-American Ac

tivities Committee whether he was a member of the Communist Party because

questions were related to a “valid legislative purpose”).

64. Baird, 401 U.S. at 6.