Do You Have a Right to Privacy in the 21st Century?
Video surveillance, smartphones, Google Glass and drones all potentially record our every move. Add to that 24/7 government surveillance by local police and federal agencies like the FBI, CIA and National Security Agency (NSA) and the question in the minds of many people is exactly how much privacy do we all really have in today’s digital world?
Most Americans feel that their right to privacy continues to be very important. Although it took long enough, it appears the federal and state governments and the courts are all starting to understand the new dynamics and are taking steps to make sure all of our rights are protected. The internet and social media has not made the situation any less complicated but recent events over the past couple of years have brought this issue to light. Bottom line, it appears to us that things are moving in the right direction.
Remember Edward Snowden? He is the former CIA employee who disclosed information many people interpret as proving that there has been a consistent and overbroad surveillance of people and their private information. It now appears that without your knowledge or consent, certain telephone and internet companies have been sharing your private information with the NSA.
To get to the bottom of this unapproved disclosure of private information, transparency lawsuits have been filed by various civil liberty groups demanding the release of information. More than 60 technology companies including Apple, Microsoft, Twitter and Google have formed an alliance seeking greater public transparency as to the NSA surveillance programs. As time passes, we’ll learn more about how much information was shared without our permission.
As we wrote in an earlier post, “revenge porn” has been outlawed in California. New York is following in our footsteps with new legislation making the non-consensual disclosure of sexually explicit images a class misdemeanor. It is noted that in 2004, New Jersey passed an expanded invasion of privacy law prohibiting the distribution of sexual recordings or pictures without consent. Although the term wasn’t widely used back then, once could argue it was the very first state to outlaw revenge porn.
The common law allows for civil causes of action for invasion of privacy. Victims can bring claims based on Article I, Section 1 of the California Constitution.
Many of the traditional theories are set forth in four distinct torts as described in the Second Restatement of Torts. Privacy rights include your right to be free of intrusion into private matters; free from the public disclosure of private facts; free of publicity placing a person in a false light and misappropriate of a person’s name or likeness. Case law expands this a bit to included your freedom to act without observation in a home, hospital, or other private place.
With the advance in technology including the internet and social media, the primary concern we see today is the civil wrong, or tort, of intrusion. Photographs, videotapes, eavesdropping and wiretapping are good examples. The elements of an intrusion claim include (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person.
Another aspect of this particular tort includes the public disclosure of private facts. This includes (1) a public disclosure; (2) of a private fact; (3) offensive and objectionable to the reasonable person; (4) not a legitimate public concern. Each case is different and the facts and harm, if any, must be determined by the trier of fact.
When it comes to your employer being allowed to look at and search the computer you use at work, agreements between you and your employer probably control. California courts have allowed for an employer to do just that when the employee consented in writing. Absent written permission, a strong argument exist that the computer you use at home for work probably cannot be searched by your employer without your prior written permission.
This also includes situations where employers allow employees to use the internet and personal email during work. The stronger argument is that without prior written consent, your employer may not search your computer. Your social media usernames, passwords and private information are probably safe absent allegations of employee misconduct. See Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272 and Labor Code Section 980.
There is a big difference between your public and private right to privacy. You really don’t have an expectation of privacy while walking down a public street. The stronger argument is that you can be photographed, videotaped or otherwise monitored all day and all night long by technology.
When it comes to protecting your privacy behind the closed doors of your home or in the workplace, most people still have a reasonable expectation of the right to privacy. This is the particular right we’re seeing expanded upon and protected by the legislature and courts.
If you have questions about your privacy, contact an experienced lawyer to get answers. If you’re in California and would like free feedback, simply give us a call or share your questions online.
We’ve been helping victims of personal injury and wrongful death since 1986. The chances are good that we can answer your questions and help you too!