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awkward 15-year-old kid videotaped himself pretending to be a
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character from a Star Wars movie.8 He swung around a golf ball
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retriever pretending that it was a light saber and made his own sound
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effects. Somebody found the video, digitized it, and posted it on the
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Internet. The video created a buzz, and it was downloaded millions of
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times around the world. Versions of the video with music and special
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effects were soon posted. People made fun of the kid in various
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discussions throughout the Internet.
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In December 2005, Gary Brolsma placed on the Internet a clip of
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himself lip-synching and dancing in a chair to a Romanian pop song.9
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He called his performance the “Numa Numa Dance.” The video was
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featured on newsgrounds.com, a website devoted to animation and
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videos, as well as elsewhere on the Internet. Newsgrounds.com alone
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soon received almost two million hits for the “Numa Numa Dance.”
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Brolsma appeared on Good Morning America, and CNN and VHI
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showed his clip.
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Suddenly, however, he decided that he disliked the attention. The
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New York Times reported that Brolsma “has now sought refuge from his
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fame in his family’s small house on a gritty street in Saddle Brook.”
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The article added: “According to his relatives, he mopes around the
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house. . . . He is distraught, embarrassed.” His grandmother quoted him
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as saying: “I just want this to end.”
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Is this simply life in the Internet Age? Does it matter that the parents
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of the “Star Wars kid” alleged that the clip of their son was placed
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online without his permission? In contrast, Brolsma posted the video of
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his dance himself. Is there something that the law can do to protect
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people like the Star Wars kid or the Numa Numa dancer? If so, what?
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Ultimately, Brolsma moved beyond any anguish at his fame or
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notoriety. In September 2006, he released a second video, “New
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Numa,” with corporate sponsorship at newnuma.com. The new video
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features Brolsma and members of a rock band, the Nowadays, and a
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new song. The video was released along with a promotion that allowed
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the public to submit their own videos and win a share of $45,000 in
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prizes. Brolsma also offered a selection of t-shirts and a coffee mug for
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sale to the public. In 2008, he started a website, the Numa Network,
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which has grown to include a YouTube channel and a Facebook
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presence.
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B. INFORMATION PRIVACY LAW: ORIGINS AND TYPES
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Information privacy law is a wide-ranging body of law, encompassing
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common law, constitutional law, statutory law, and international law. This
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section will provide a brief introduction to the various strands of
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information privacy law that will be covered throughout this book. It begins
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by looking in detail at the most important article ever written about privacy.
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1. COMMON LAW
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(a) The Warren and Brandeis Article
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The common law’s development of tort remedies to protect privacy is
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one of the most significant chapters in the history of privacy law. In the late
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nineteenth century, considerable concerns about privacy captured the
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public’s attention, ultimately resulting in the 1890 publication of Samuel
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Warren and Louis Brandeis’s pathbreaking article, The Right to Privacy.10
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According to Roscoe Pound, the article did “nothing less than add a chapter
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to our law.”11 Harry Kalven even hailed it as the “most influential law
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review article of all.”12 The clearest indication of the article’s ongoing
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vitality can be found in the Supreme Court’s decision Kyllo v. United States,
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533 U.S. 27 (2001). The Brandeis and Warren article is cited by the
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majority, those in concurrence, and even those in dissent.
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Several developments in the late nineteenth century created a growing
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interest in privacy. First, the press became increasingly sensationalistic.
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Prior to the Civil War, wide-circulation newspapers were rare. However, the
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development of a new form of sensationalistic journalism, known as
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“yellow journalism,” made newspapers wildly successful. In 1833,
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Benjamin Day began publishing a newspaper called The Sun patterned after
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the “penny presses” in London (so named because they sold for a penny).
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The Sun contained news of scandals, such as family squabbles, public
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drunkenness, and petty crimes. In about four months, the Sun had a
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circulation of 4,000, almost the same as the existing New York daily papers.
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Just two months later, the Sun was reaching 8,000 in circulation. Other
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penny press papers soon followed. In reporting on his travels in America,
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Charles Dickens observed that New York newspapers were “pulling off the
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roofs of private houses.”13 In his great novel of 1844, The Life and
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Adventures of Martin Chuzzlewit, he listed (imaginary) New York
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newspapers called The Sewer, The Stabber, The Family Spy, The Private
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Listener, The Peeper, The Plunderer, and The Keyhole Reporter.14
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Between 1850 and 1890, newspaper circulation increased about 1,000
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percent — from 100 papers with 800,000 readers to 900 papers with more
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than 8 million readers. Joseph Pulitzer and William Randolph Hearst
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became the leading rivals in the newspaper business, each amassing
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newspaper empires. Their highly sensationalistic journalism became the
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paradigm for yellow journalism.15
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Second, technological developments caused great alarm for privacy. In
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their article, Warren and Brandeis pointed to the invention of “instantaneous
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photography” as a new challenge to privacy. Photography had been around
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for many years before Warren and Brandeis penned their article. However,
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the equipment was expensive, cumbersome, and complicated to use. In
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1884, the Eastman Kodak Company introduced the “snap camera,” a
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handheld camera that was small and cheap enough for use by the general
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public. The snap camera allowed people to take candid photographs in
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public places for the first time. In the late nineteenth century, few daily
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newspapers even printed drawings, let alone photographs. Warren and
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Brandeis, however, astutely recognized the potential for the new technology
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of cameras to be used by the sensationalistic press.
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The question of the origin of Warren and Brandeis’s article has led to
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considerable debate. Some scholars suggest that Warren and Brandeis were
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strongly influenced by an article written in 1890 by E.L. Godkin, a famous
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social commentator in his day.16 In the article, Godkin observed:
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. . . Privacy is a distinctly modern product, one of the luxuries of civilization, which is not
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only unsought for but unknown in primitive or barbarous societies. . . .
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The chief enemy of privacy in modern life is that interest in other people and their affairs
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known as curiosity, which in the days before newspapers created personal gossip. . . . [A]s
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long as gossip was oral, it spread, as regarded any one individual, over a very small area, and
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