wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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65. See Harriet R. Galvin, “Shielding Rape Victims in the State and Federal
Courts: A Proposal for the Second Decade,” 70 M innesota Law Review 763, 765-66
(1986) (discussing how rape shield laws reversed the common-law doctrine that al
lowed a defendant to inquire into the complainant’s tendency to engage in extra
marital sexual relations).
66. See 42 U.S.C. §12112(d)(2) (limiting the legality of inquiries during the
preemployment period); id. at §12112(d)(4) (prohibiting inquiries during the em
ployment period). Drug testing is not considered a “medical examination” under
the ADA. Id. at §12114(d)(1).
67. Wis. Stat. Ann. §103.15(2) (West 2002).
68. Mass. Gen. Laws Ann. ch. 15IB, §4(9), (9A) (LexisNexis 1999).
69. See, e.g., Cal. Gov’t Code §12940(o) (West 2005); Conn. Gen. Stat. Ann.
§46a-60(l 1)(A) (West 2004); Del. Code Aim. tit. 19, §711(e) (Supp. 2004); N.Y.
Exec. Law §296.19(a)(l) (McKinney 2004).
Notes to Pages 116—118
111
70. See, e.g., Ariz. Rev. Stat. Ann. §12-2235 (2005) (privileging, in civil actions,
any patient communication to a physician or surgeon regarding “any physical or
mental disease or disorder or supposed physical or mental disease or disorder or as
to any such knowledge obtained by personal examination of the patient”); Cal.
Evid. Code §954 (West 1995) (“[T]he client... has a privilege to refuse to dis
close, and to prevent another from disclosing, a confidential communication be
tween client and lawyer”); 735 111. Comp. Stat. Ann. 5/8-803 (West 2005) (ren
dering privileged any “confession or admission” made to an accredited practitioner
of a religious denomination in her official capacity). As Catherine Ross contends,
privileges protect against “forced betrayal.” Catherine J. Ross, “Implementing
Constitutional Rights for Juveniles: The Parent-Child Privilege in Context,” 14
Stanford Law and Policy Review 85, 86 (2003).
71. William J. Stuntz, “Self-Incrimination and Excuse,” 88 Columbia Law Re
view 1227, 1234 (1988) (footnotes omitted).
72. See Brown v. Walker, 161 U.S. 591,605-06 (1896) (“The design of the con
stitutional privilege [against self-incrimination] is not to aid the witness in vindi
cating his character, but to protect him against being compelled to furnish evi
dence to convict him of a criminal charge”).
73. 350 U.S. 422,430,439 (1956).
74. Id. at 450, 452 (Douglas, J., dissenting).
75. Stuntz, “Self-Incrimination and Excuse,” 1228.
76. See In re Grand Jury, 103 F.3d 1140, 1146 (3d Cir. 1997) (“The over
whelming majority of all courts—federal or state—have rejected such a privilege”).
77. In re A & M, 403 N.Y.S.2d 375, 380 (App. Div. 1978). When Monica
Lewinsky’s mother was subpoenaed to testify against her by Independent Counsel
Kenneth Starr in his investigation of President Bill Clinton, there was an enor
mous public outcry. See Ruth Marcus, “To Some in the Law, Starr’s Tactics Show
a Lack of Restraint,” W ashington Post, Feb. 13, 1998, at A1 (providing reactions
from prosecutors who believed that Starr’s tactics were unwarranted). Critics have
likened the tactic of having parents and children testify about each other to some
of the infamous horrors of totalitarian societies, such as Nazi Germany, where the
government sought to make family members divulge information about each
other. See, e.g., J. Tyson Covey, “Making Form Follow Function: Considerations
in Creating and Applying a Statutory Parent-Child Privilege,” 1990 U niversity o f
Illinois Law Review 879, 890; Wendy Meredith Watts, “The Parent-Child Privi
leges: Hardly a New or Revolutionary Concept,” 28 W illiam and M ary Law Review
583,590-94(1987).
78. Sometimes this quote has been attributed to Aristotle, although it is not
written in any of his texts. Euclid is credited with a similar quote: “The whole is
greater than the part,” which he stated in Elements in the third century b .c .
79. Priscilla M. Regan, Legislating Privacy: Technology, Social Values, and Public
Policy 82 (1995).
80. R. E. Smith, Ben F ranklin’s Web Site, 309-11. But cf. Note, “Privacy and Ef
ficient Government: Proposals for a National Data Center,” 82 H arvard Law Re
view 400,412 (1968) (criticizing the congressional task force for undertaking “only
a surface treatment” of the privacy issue and arguing that “Congress should give
very careful consideration to essential legal and technological safeguards for the
privacy interest”).
228
Notes to Pages 118-122
81. David H. Flaherty, Protecting Privacy in Surveillance Societies 165-69 (1989).
82. Solove, D igital Person, 44-47.
83. See Cohen, “Examined Lives,” 1398 (“A comprehensive collection of data
about an individual is vastly more than the sum of its parts”).
84. See Steven L. Nock, The Costs o f Privacy: Surveillance and Reputation in
Am erica 73 (1993).
85. Solove, D igital Person, 1-10.
86. H. Jeff Smith, M anaging Privacy: Inform ation Technology and Corporate
Am erica 121 (1994) (footnote omitted).
87. United States Dep’t of Justice v. Reporters Comm, for Freedom of the
Press, 489 U.S. 749, 763, 764 (1989).
88. See, e.g., Cordell v. Detective Publ’ns, 307 F. Supp. 1212,1218 (E.D. Tenn.
1968) (“The Court is of the opinion that the plaintiff may not complain of public
disclosure of private facts when the material facts [of concern] are not private but
are matters of public record and are in the public domain”).
89. Restatement (Second) of Torts §652D cmt. b.
90. Id. at §652 B cmt. c.
91. See, e.g., Cutshall v. Sundquist, 193 F.3d 466, 481 (6th Cir. 1999) (con
cluding that Reporters Com m ittee was not applicable to a Megan’s Law challenge).
But see Doe v. Poritz, 662 A.2d 367,411 (N.J. 1995) (following Reporters Committee
and recognizing a privacy interest with respect to a sex offender community-
notification statute).
92. 124 F.3d 1079, 1094 (9th Cir. 1997).
93. 170 F.3d 396, 400, 405 (3d Cir. 1999), a jf’d on reh'g sub nom. Paul P. v.
Farmer, 227 F.3d 98 (3d Cir. 2000) (stating that the holding of Reporters Committee
dealt with the implication of a privacy interest protected by an exemption to the
Freedom of Information Act, not by the Constitution, as in the case of Paul P.).
94. A.A. v. New Jersey, 176 F. Supp. 2d 274, 305 (D.N.J. 2001), o f f d 341 F.3d
206 (3d Cir. 2003).
95. Mark Twain, Puddn'head W ilson 108 (Sidney E. Berger ed., 1980) (1894).
96. Richard Sobel, “The Demeaning of Identity and Personhood in National
Identification Systems,” 15 H arvard Journal o f Law and Technology 319, 349-50
(2002) (foomote omitted).
97. Id. at 350.

65. See Harriet R. Galvin, “Shielding Rape Victims in the State and Federal

Courts: A Proposal for the Second Decade,” 70 M innesota Law Review 763, 765-66

(1986) (discussing how rape shield laws reversed the common-law doctrine that al

lowed a defendant to inquire into the complainant’s tendency to engage in extra

marital sexual relations).

66. See 42 U.S.C. §12112(d)(2) (limiting the legality of inquiries during the

preemployment period); id. at §12112(d)(4) (prohibiting inquiries during the em

ployment period). Drug testing is not considered a “medical examination” under

the ADA. Id. at §12114(d)(1).

67. Wis. Stat. Ann. §103.15(2) (West 2002).

68. Mass. Gen. Laws Ann. ch. 15IB, §4(9), (9A) (LexisNexis 1999).

69. See, e.g., Cal. Gov’t Code §12940(o) (West 2005); Conn. Gen. Stat. Ann.

§46a-60(l 1)(A) (West 2004); Del. Code Aim. tit. 19, §711(e) (Supp. 2004); N.Y.

Exec. Law §296.19(a)(l) (McKinney 2004).

Notes to Pages 116—118

111

70. See, e.g., Ariz. Rev. Stat. Ann. §12-2235 (2005) (privileging, in civil actions,

any patient communication to a physician or surgeon regarding “any physical or

mental disease or disorder or supposed physical or mental disease or disorder or as

to any such knowledge obtained by personal examination of the patient”); Cal.

Evid. Code §954 (West 1995) (“[T]he client... has a privilege to refuse to dis

close, and to prevent another from disclosing, a confidential communication be

tween client and lawyer”); 735 111. Comp. Stat. Ann. 5/8-803 (West 2005) (ren

dering privileged any “confession or admission” made to an accredited practitioner

of a religious denomination in her official capacity). As Catherine Ross contends,

privileges protect against “forced betrayal.” Catherine J. Ross, “Implementing

Constitutional Rights for Juveniles: The Parent-Child Privilege in Context,” 14

Stanford Law and Policy Review 85, 86 (2003).

71. William J. Stuntz, “Self-Incrimination and Excuse,” 88 Columbia Law Re

view 1227, 1234 (1988) (footnotes omitted).

72. See Brown v. Walker, 161 U.S. 591,605-06 (1896) (“The design of the con

stitutional privilege [against self-incrimination] is not to aid the witness in vindi

cating his character, but to protect him against being compelled to furnish evi

dence to convict him of a criminal charge”).

73. 350 U.S. 422,430,439 (1956).

74. Id. at 450, 452 (Douglas, J., dissenting).

75. Stuntz, “Self-Incrimination and Excuse,” 1228.

76. See In re Grand Jury, 103 F.3d 1140, 1146 (3d Cir. 1997) (“The over

whelming majority of all courts—federal or state—have rejected such a privilege”).

77. In re A & M, 403 N.Y.S.2d 375, 380 (App. Div. 1978). When Monica

Lewinsky’s mother was subpoenaed to testify against her by Independent Counsel

Kenneth Starr in his investigation of President Bill Clinton, there was an enor

mous public outcry. See Ruth Marcus, “To Some in the Law, Starr’s Tactics Show

a Lack of Restraint,” W ashington Post, Feb. 13, 1998, at A1 (providing reactions

from prosecutors who believed that Starr’s tactics were unwarranted). Critics have

likened the tactic of having parents and children testify about each other to some

of the infamous horrors of totalitarian societies, such as Nazi Germany, where the

government sought to make family members divulge information about each

other. See, e.g., J. Tyson Covey, “Making Form Follow Function: Considerations

in Creating and Applying a Statutory Parent-Child Privilege,” 1990 U niversity o f

Illinois Law Review 879, 890; Wendy Meredith Watts, “The Parent-Child Privi

leges: Hardly a New or Revolutionary Concept,” 28 W illiam and M ary Law Review

583,590-94(1987).

78. Sometimes this quote has been attributed to Aristotle, although it is not

written in any of his texts. Euclid is credited with a similar quote: “The whole is

greater than the part,” which he stated in Elements in the third century b .c .

79. Priscilla M. Regan, Legislating Privacy: Technology, Social Values, and Public

Policy 82 (1995).

80. R. E. Smith, Ben F ranklin’s Web Site, 309-11. But cf. Note, “Privacy and Ef

ficient Government: Proposals for a National Data Center,” 82 H arvard Law Re

view 400,412 (1968) (criticizing the congressional task force for undertaking “only

a surface treatment” of the privacy issue and arguing that “Congress should give

very careful consideration to essential legal and technological safeguards for the

privacy interest”).

228

Notes to Pages 118-122

81. David H. Flaherty, Protecting Privacy in Surveillance Societies 165-69 (1989).

82. Solove, D igital Person, 44-47.

83. See Cohen, “Examined Lives,” 1398 (“A comprehensive collection of data

about an individual is vastly more than the sum of its parts”).

84. See Steven L. Nock, The Costs o f Privacy: Surveillance and Reputation in

Am erica 73 (1993).

85. Solove, D igital Person, 1-10.

86. H. Jeff Smith, M anaging Privacy: Inform ation Technology and Corporate

Am erica 121 (1994) (footnote omitted).

87. United States Dep’t of Justice v. Reporters Comm, for Freedom of the

Press, 489 U.S. 749, 763, 764 (1989).

88. See, e.g., Cordell v. Detective Publ’ns, 307 F. Supp. 1212,1218 (E.D. Tenn.

1968) (“The Court is of the opinion that the plaintiff may not complain of public

disclosure of private facts when the material facts [of concern] are not private but

are matters of public record and are in the public domain”).

89. Restatement (Second) of Torts §652D cmt. b.

90. Id. at §652 B cmt. c.

91. See, e.g., Cutshall v. Sundquist, 193 F.3d 466, 481 (6th Cir. 1999) (con

cluding that Reporters Com m ittee was not applicable to a Megan’s Law challenge).

But see Doe v. Poritz, 662 A.2d 367,411 (N.J. 1995) (following Reporters Committee

and recognizing a privacy interest with respect to a sex offender community-

notification statute).

92. 124 F.3d 1079, 1094 (9th Cir. 1997).

93. 170 F.3d 396, 400, 405 (3d Cir. 1999), a jf’d on reh'g sub nom. Paul P. v.

Farmer, 227 F.3d 98 (3d Cir. 2000) (stating that the holding of Reporters Committee

dealt with the implication of a privacy interest protected by an exemption to the

Freedom of Information Act, not by the Constitution, as in the case of Paul P.).

94. A.A. v. New Jersey, 176 F. Supp. 2d 274, 305 (D.N.J. 2001), o f f d 341 F.3d

206 (3d Cir. 2003).

95. Mark Twain, Puddn'head W ilson 108 (Sidney E. Berger ed., 1980) (1894).

96. Richard Sobel, “The Demeaning of Identity and Personhood in National

Identification Systems,” 15 H arvard Journal o f Law and Technology 319, 349-50

(2002) (foomote omitted).

97. Id. at 350.