Privacy Rights/Limitations - Restrictions/Private curtailment: Difference between revisions
Import-sysop (talk | contribs) (transformed) |
No edit summary |
||
| (2 intermediate revisions by 2 users not shown) | |||
| Line 7: | Line 7: | ||
|contents=Privacy Torts | |contents=Privacy Torts | ||
Privacy violations under tort law was how Warren & Brandeis originally developed the right in [[Probable year::1890]] (Citron, [[Probable year::2010]], [[Probable year::1805]]) . These violations, usually unwanted intrusions or disclosures can result from negligent or intentional actions and result in civil lawsuits rather than questions of constitutional legality (Citron, [[Probable year::2010]], [[Probable year::1806]]; Tort, n.d.). Violations are hard to define as they change with technology (the original call for privacy was in relation to the ‘instant photograph’), which creates more and more opportunities for violations (Citron, [[Probable year::2010]], [[Probable year::1809]]; Warren & Brandeis, [[Probable year::1890]], 195). However, the law changes slower than technology creating some disconnect in legal remedies for new technology (Citron, [[Probable year::2010]], [[Probable year::1810]]) . | Privacy violations under tort law was how Warren & Brandeis originally developed the right in [[Probable year:: 1890]] (Citron, [[Probable year:: 2010]], [[Probable year:: 1805]]) . These violations, usually unwanted intrusions or disclosures can result from negligent or intentional actions and result in civil lawsuits rather than questions of constitutional legality (Citron, [[Probable year:: 2010]], [[Probable year:: 1806]]; Tort, n.d.). Violations are hard to define as they change with technology (the original call for privacy was in relation to the ‘instant photograph’), which creates more and more opportunities for violations (Citron, [[Probable year:: 2010]], [[Probable year:: 1809]]; Warren & Brandeis, [[Probable year:: 1890]], 195). However, the law changes slower than technology creating some disconnect in legal remedies for new technology (Citron, [[Probable year:: 2010]], [[Probable year:: 1810]]) . | ||
Constitutional Privacy | Constitutional Privacy | ||
Constitutions only protect people from government actors and international covenants only affect the laws and regulations which governments put in place (Hudson, [[Probable year::2018]]; Dunn, [[Probable year::2009]]) . Even so, most allowances of government invasions of privacy in the United States have evolved because the government mimicked the actions of private actors, placing private conduct at the baseline of privacy expectations (Kamin, [[Probable year::2004]], 101, 115). | Constitutions only protect people from government actors and international covenants only affect the laws and regulations which governments put in place (Hudson, [[Probable year:: 2018]]; Dunn, [[Probable year:: 2009]]) . Even so, most allowances of government invasions of privacy in the United States have evolved because the government mimicked the actions of private actors, placing private conduct at the baseline of privacy expectations (Kamin, [[Probable year:: 2004]], 101, 115). | ||
At a basic level, once information is willingly given to someone other than oneself, the courts have continuously ruled that there is no longer the expectation for privacy. This holds true with information that is given to both private companies and individuals (Kamin, [[Probable year::2004]], 101). The Katz decision somewhat demonstrates this curtailment of privacy by creating the plain view doctrine. If something is in plain view, even in a private space, it is not private (Kamin, [[Probable year::2004]], 104). This decision extrapolates on the theory that as long as someone else may reasonably have that information, it is an unprotected area under the Fourth Amendment (Kamin, [[Probable year::2004]], 104). So, by letting someone into one’s home or publishing information online, one is inherently limiting their Fourth Amendment protections. As such, authorities can ask private companies to perform searches or subpoena these actors rather than those they are investigating, depending on the company’s privacy policies (Kamin, [[Probable year::2004]], 102, 137). | At a basic level, once information is willingly given to someone other than oneself, the courts have continuously ruled that there is no longer the expectation for privacy. This holds true with information that is given to both private companies and individuals (Kamin, [[Probable year:: 2004]], 101). The Katz decision somewhat demonstrates this curtailment of privacy by creating the plain view doctrine. If something is in plain view, even in a private space, it is not private (Kamin, [[Probable year:: 2004]], 104). This decision extrapolates on the theory that as long as someone else may reasonably have that information, it is an unprotected area under the Fourth Amendment (Kamin, [[Probable year:: 2004]], 104). So, by letting someone into one’s home or publishing information online, one is inherently limiting their Fourth Amendment protections. As such, authorities can ask private companies to perform searches or subpoena these actors rather than those they are investigating, depending on the company’s privacy policies (Kamin, [[Probable year:: 2004]], 102, 137). | ||
In United States v. Jacobsen ([[Probable year::1984]]) privacy protections were tested when officials were able to open a package that FedEx had damaged and opened for insurance purposes (Kamin, [[Probable year::2004]], 99, United States v. Jacobsen, [[Probable year::1984]]) . Upon its opening, FedEx employees suspected the package contained cocaine (Kamin, [[Probable year::2004]], 99 | In United States v. Jacobsen ([[Probable year:: 1984]]) privacy protections were tested when officials were able to open a package that FedEx had damaged and opened for insurance purposes (Kamin, [[Probable year:: 2004]], 99, United States v. Jacobsen, [[Probable year:: 1984]]) . Upon its opening, FedEx employees suspected the package contained cocaine (Kamin, [[Probable year:: 2004]], 99). Had federal officials gotten to it first, it would not have been able to be searched, even if it was damaged, but the information provided by FedEx from the private search was enough to imply the plain view doctrine thus permitting a warrantless search by the DEA (Kamin, [[Probable year:: 2004]], 100; US v. Jacobsen, [[Probable year:: 1984]]) . The Supreme Court upheld the granting of the search and subsequent arrest warrant which was obtained because the DEA confirmed the contents were cocaine based on the ‘tip’ from private actors. The Court said that “[w]hether those invasions were accidental or deliberate, and whether they were reasonable or unreasonable, they did not violate the Fourth Amendment because of their private character” (US v. Jacobsen, [[Probable year:: 1984]]) . Kamin ([[Probable year:: 2004]]) goes as far as to say that “[t]he fact that the private actor did something the government would not have been permitted to do simply did not covert the subsequent, otherwise reasonable, police conduct into a search that implicated the Fourth Amendment” (100-101). That is to say, after the package was opened due to the damage by a non-governmental party, privacy could no longer be expected, despite that it is reasonable to expect privacy during shipping (Kamin, [[Probable year:: 2004]], 100). | ||
References: | |||
Citron, D.K. ([[Probable year::2010]], Dec. 1). Mainstreaming Privacy Torts. California Law Review 98(6). https://www.jstor.org/stable/25799956 | Citron, D.K. ([[Probable year:: 2010]], Dec. 1). Mainstreaming Privacy Torts. California Law Review 98(6). https://www.jstor.org/stable/25799956 | ||
Dunn, C. ([[Probable year:: 2009]], Apr. 28). Applying the Constitution to private actors (New York Law Journal). NYCLU ACLU of New York. https://www.nyclu.org/en/publications/column-applying-constitution-private-actors-new-york-law-journal | |||
Hudson, D.L. ([[Probable year:: 2018]], Oct. 20). In the age of social media, expand the reach of the First Amendment. Human Rights Magazine 43(4), n.p. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/in-the-age-of-socia-media-first-amendment/ | |||
Kamin, S. ([[Probable year:: 2004]], Dec. 1). The private is public: The relevance of private actors in defining the Fourth Amendment. Boston College Law Review 46(1), 83-147. https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=[[Probable year:: 2293]]& context=bclr | |||
Tort. (n.d.). Cornell Law School Legal Information Institute. Retrieved Oct. 15, [[Probable year:: 2021]], from https://www.law.cornell.edu/wex/tort | |||
United States v. Jacobsen, 466 US 109 ([[Probable year:: 1984]]) . https://www.law.cornell.edu/supremecourt/text/466/109 | |||
Warren, S. & Brandeis, L. ([[Probable year:: 1890]], Dec. 15). The right to privacy. Harvard Law Review 4(5), 193-220. http://links.jstor.org/sici?sici=0017-811X%281890[[Probable year:: 1215]]% 294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C | |||
}} | }} | ||
Latest revision as of 04:53, 27 March 2023
Is this right at times curtailed by private actors?
Privacy Torts
Privacy violations under tort law was how Warren & Brandeis originally developed the right in 1890 (Citron, 2010, 1805) . These violations, usually unwanted intrusions or disclosures can result from negligent or intentional actions and result in civil lawsuits rather than questions of constitutional legality (Citron, 2010, 1806; Tort, n.d.). Violations are hard to define as they change with technology (the original call for privacy was in relation to the ‘instant photograph’), which creates more and more opportunities for violations (Citron, 2010, 1809; Warren & Brandeis, 1890, 195). However, the law changes slower than technology creating some disconnect in legal remedies for new technology (Citron, 2010, 1810) .
Constitutional Privacy
Constitutions only protect people from government actors and international covenants only affect the laws and regulations which governments put in place (Hudson, 2018; Dunn, 2009) . Even so, most allowances of government invasions of privacy in the United States have evolved because the government mimicked the actions of private actors, placing private conduct at the baseline of privacy expectations (Kamin, 2004, 101, 115).
At a basic level, once information is willingly given to someone other than oneself, the courts have continuously ruled that there is no longer the expectation for privacy. This holds true with information that is given to both private companies and individuals (Kamin, 2004, 101). The Katz decision somewhat demonstrates this curtailment of privacy by creating the plain view doctrine. If something is in plain view, even in a private space, it is not private (Kamin, 2004, 104). This decision extrapolates on the theory that as long as someone else may reasonably have that information, it is an unprotected area under the Fourth Amendment (Kamin, 2004, 104). So, by letting someone into one’s home or publishing information online, one is inherently limiting their Fourth Amendment protections. As such, authorities can ask private companies to perform searches or subpoena these actors rather than those they are investigating, depending on the company’s privacy policies (Kamin, 2004, 102, 137).
In United States v. Jacobsen (1984) privacy protections were tested when officials were able to open a package that FedEx had damaged and opened for insurance purposes (Kamin, 2004, 99, United States v. Jacobsen, 1984) . Upon its opening, FedEx employees suspected the package contained cocaine (Kamin, 2004, 99). Had federal officials gotten to it first, it would not have been able to be searched, even if it was damaged, but the information provided by FedEx from the private search was enough to imply the plain view doctrine thus permitting a warrantless search by the DEA (Kamin, 2004, 100; US v. Jacobsen, 1984) . The Supreme Court upheld the granting of the search and subsequent arrest warrant which was obtained because the DEA confirmed the contents were cocaine based on the ‘tip’ from private actors. The Court said that “[w]hether those invasions were accidental or deliberate, and whether they were reasonable or unreasonable, they did not violate the Fourth Amendment because of their private character” (US v. Jacobsen, 1984) . Kamin (2004) goes as far as to say that “[t]he fact that the private actor did something the government would not have been permitted to do simply did not covert the subsequent, otherwise reasonable, police conduct into a search that implicated the Fourth Amendment” (100-101). That is to say, after the package was opened due to the damage by a non-governmental party, privacy could no longer be expected, despite that it is reasonable to expect privacy during shipping (Kamin, 2004, 100).
References:
Citron, D.K. (2010, Dec. 1). Mainstreaming Privacy Torts. California Law Review 98(6). https://www.jstor.org/stable/25799956
Dunn, C. (2009, Apr. 28). Applying the Constitution to private actors (New York Law Journal). NYCLU ACLU of New York. https://www.nyclu.org/en/publications/column-applying-constitution-private-actors-new-york-law-journal
Hudson, D.L. (2018, Oct. 20). In the age of social media, expand the reach of the First Amendment. Human Rights Magazine 43(4), n.p. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/in-the-age-of-socia-media-first-amendment/
Kamin, S. (2004, Dec. 1). The private is public: The relevance of private actors in defining the Fourth Amendment. Boston College Law Review 46(1), 83-147. https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2293& context=bclr
Tort. (n.d.). Cornell Law School Legal Information Institute. Retrieved Oct. 15, 2021, from https://www.law.cornell.edu/wex/tort
United States v. Jacobsen, 466 US 109 (1984) . https://www.law.cornell.edu/supremecourt/text/466/109
Warren, S. & Brandeis, L. (1890, Dec. 15). The right to privacy. Harvard Law Review 4(5), 193-220. http://links.jstor.org/sici?sici=0017-811X%2818901215% 294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C