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PRIVACY LAW OUTLINE

4Th Amendment Search


The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
OLMSTEAD v. UNITED STATES
- Police inserted a wire between the phone line (wiretap)
- The court found it was not a search because there was np trespass into the home
- The wires led out of the house thus were not a part of the house or the office
- Trespass doctrine
- Dissent: Justice Brandeis
- Examined the relationship between the wiretap and sending a letter in the mail
- evil incident to invasion of the privacy of the telephone is far greater than that
involved in tampering with the mails
- Unlike mail, the conversation involves all parties
Note Cases
Bugs and Eavesdropping
Goldman v. U.S.: Police placed a dictaphone next to a wall adjacent to an office.
There was no search because there was no trespass
Silverman v. U.S.: Police placed a spike mike into a duct that acted like a
megaphone. The was a search because the microphone physically trespassed.
Misplaced Trust
Hoffa v. U.S.: Misplaced his trust in an informant who testified against him. Did not
rely on the privacy of his hotel room because he invited the informant.
Lewis v. U.S.: Sold drugs to an undercover agent.
On Lee v. U.S.: Informant recorded the conversation electronically. No violation.
LOPEZ v. UNITED STATES
- Electronic wire placed on an informant who spoke to the defendant and recorded
the conversation
- Court rejects the argument because the tape recording is an accurate version of
the conversation, more so than the agents memory
- Concurrence:
- Purpose between On Lee and this case is different. Here, its about
corroborating the testimony. On Lee sought to avoid putting the agent on the
stand
- Dissent:
- Like communicating ones thought on paper, it is no different than
communicating ones thought verbally

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KATZ v. UNITED STATES


- Electronic recorder outside of a phone booth
- Although there was no physical trespass, it was a search
- Court found that the trespass doctrine was no longer controlling
- The fourth amendment protects people and not places
- Concurrence: Justice Harlan
- TEST:
- Person exhibits an actual (subjective) expectation of privacy; and
- That expectation is one that society is prepared to recognize as
reasonable
UNITED STATES v. WHITE
- Conversation overheard by government by monitoring the frequency of a radio
carried by an informant
- Court found no violation of 4th Amend.
- an electronic recording will many times produce a more reliable rendition of what
a defendant has said than will the unaided memory of a police agent
SMITH v. MARYLAND
- Police installed a pen register to monitor outgoing calls by the Defendant
- No actual expectation of privacy in the number people dial
- All subscribers know that they must convey this info to the telephone co.
- Keeps a record of their calls
- Records this information for a variety of legitimate business reasons
- Society is not ready to recognize this expectation as reasonable
- No privacy when a person voluntarily turns over their information
- See U.S. Miller (holding that bank customers who convey their financial
information to a bank have no expectation of privacy because the employees
view this information)
- Dissent:
- Disclosing information is limited for the legitimate business purpose and should
not assume that this information will be released to other persons for other
purpose
CALIFORNIA v. GREENWOOD
- Warrantless search of garbage bags left at the curb outside
- No expectation of privacy leaving trash outside especially in a public area
- No reasonable expectation either
- Dissent:
- Argue that a persons personal human activity ultimately manifests itself in
waste product
- The possibility that someone will look through our trash does not negate the
expectation of privacy, the same way a burglar negates the expectation if
privacy in our homes

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FLORIDA v. RILEY
- Police flew over a greenhouse and spotted marijuana plants growing through
missing tiles in the roof and sides
- Not a 4th Amendment search because:
- He had an expectation of privacy by erecting a fence around the property; BUT
- This expectation is not one society is ready to accept as reasonable
- What a person knowingly exposes to the public is not subject to 4th Amend.
protection
- Police need not obtain a warrant in order to observe what is observable with the
naked eye while traveling through public airways
DOW CHEMICAL v. U.S.
- Police flew over the Dow Chemical plant and used a high resolution map-making
camera
- Not a search
- Even though the police officers naked eye vision was enhanced, it did not give
rise to a constitutional problem
KYLLO v. U.S.
- More than naked eye surveillance by using thermal imaging to inspect a home for
heat signatures to find marijuana growing
- May expose intimate details like what time the lady of the house draws a bath
- Scalia highlights the 4th Amend.s firm line at the entrance to the house
JONES
FEDERAL & STATE ELECTRONIC SURVEILLANCE LAWS
Electronic Communications Privacy Act (ECPA)
- Wire Communications
- Oral Communications
- Electronic Communications
Definitions
wire communication means any aural transfer made in whole or in part through
the use of facilities for the transmission of communications by the aid of wire, cable,
or other like connection between the point of origin and the point of reception
(including the use of such connection in a switching station)
aural transfer means a transfer containing the human voice at any point
between and including the point of origin and the point of reception;
oral communication means any oral communication uttered by a person
exhibiting an expectation that such communication is not subject to interception

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under circumstances justifying such expectation, but such term does not include
any electronic communication;
electronic communication means any transfer of signs, signals, writing,
images, sounds, data, or intelligence of any nature transmitted in whole or in part
by a wire, radio, electromagnetic, photoelectronic or photooptical system that
affects interstate or foreign commerce, but does not include-(A) any wire or oral communication;
Wiretap Act
(1) Except as otherwise specifically provided in this chapter any person who-(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept
or endeavor to intercept, any wire, oral, or electronic communication;
(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to
use any electronic, mechanical, or other device to intercept any oral communication when-(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or
other like connection used in wire communication; or
(ii) such device transmits communications by radio, or interferes with the transmission
of such communication; or
(iii) such person knows, or has reason to know, that such device or any component
thereof has been sent through the mail or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the premises of any business or
other commercial establishment the operations of which affect interstate or foreign commerce; or (B)
obtains or is for the purpose of obtaining information relating to the operations of any business or
other commercial establishment the operations of which affect interstate or foreign commerce; or
(v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or
any territory or possession of the United States;
(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any
wire, oral, or electronic communication, knowing or having reason to know that the information was
obtained through the interception of a wire, oral, or electronic communication in violation of this
subsection;
(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic
communication, knowing or having reason to know that the information was obtained
through the interception of a wire, oral, or electronic communication in violation of this
subsection;

Court Orders
- Under Oath
- Judge must find a Probable Cause that the information will be obtained from the
wiretap
- Alternatives must have been made, and must have failed
Minimization: avoid sweeping communications beyond the purpose of the order
Notice: recorded conversations must be turned over to the court
Exceptions:
- Consent (by one party) unless for tortious or criminal acts
- Communications service provider can intercept while engaged in activity that is
necessary incident to the rendition to his service
Stored Communications Act (SCA)

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Except as provided in subsection (c) of this section whoever-(1) intentionally accesses without authorization a facility through which an
electronic communication service is provided; or
(2) intentionally exceeds an authorization to access that facility;
and thereby obtains, alters, or prevents authorized access to a wire or electronic
communication while it is in electronic storage in such system shall be punished
as provided in subsection (b) of this section.
electronic storage means-(A) any temporary, intermediate storage of a wire or electronic
communication incidental to the electronic transmission thereof; and
(B) any storage of such communication by an electronic communication
service for purposes of backup protection of such communication;
Penalty: no exclusionary rule $1,000 fine
180 Days or Less: Warrant + probable cause
181 Days or More: 1) Prior notice to subscriber and obtain a subpoena or a court
order (reasonable grounds); or 2) warrant but no notice to subscriber
State Consent Laws
- Two-party or One-party consent laws?
- Do both parties need to consent or is it sufficient for one party?
- All Party Consent Law: COMMONWEALTH v. HYDE
- Recorded police without polices consent in violation of the state law
- Dissent: citizens have a role to play when officials conduct is at issue
SEARCHING COMPUTERS
LACEY: upheld a generic warrant on the whole computer
UPHAM: finding a needle in the computers hard drive haystack is not any more
intrusive than searching whole house for a weapon/drugs
CAREY: First warrant was for searching a computer for illegal drug evidence, but
found CP; court found the police need a 2nd warrant
CAMPOS: Police had a warrant to find 2 CP pics, but found 6. Not feasible to search
for only particular computer files
PASSWORD PROTECTED FILES: TRULOCK V. FREEH
- Two computer users with password protected accounts cant give consent on
behalf of the other user to search their files
U.S. v. ANDRUS
- 51 year old who lived with parents, had a password protected computer in his
bedroom
- Police searched the computer; father consented
- Not apparent from the outside whether there was a passcode/password

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- Test: whether the officers belief in the authoritys ability to consent was
reasonable
- the totality of circumstances
- Dissent: computers display outward signs of password protection like login
screens
RILEY v. CALIFORNIA
- Police searched a smart phone and a flip phone after an arrest without a warrant
- Smart phones have so much data; focused on the quantity of information
generated from a phone
- montage of a users life
- Average user has 33 apps + photo
- Search warrant required, even if incident to arrest
Video Surveillance
No Wiretap Act violation if there is no audio because it is not an oral
communication
STEVE JACKSON GAMES, INC. v. U.S. SECRET SERVICE
- Sending message to users through 3rd party forum or Bulletin Boards System
(BBS)
- Send message to server -> server stores message temporarily -> retrieved by
end user
- If the recipient has not retrieved the message, is it an intercept?
- Congress did not intent intercept to apply to stored communication
- Stored Communication Act applies, not Wiretap Act
UNITED STATES v. WARSHAK
- Govt. seized emails
- Court used the Katz 2 subjective & reasonable expectation of privacy test
- Subjective expectation: Yes
- Society finds reasonable: Yes
- Originally mail received high protection, no reason why email shouldn't receive
the same level
- && like a phone call
- ISP had the ability to read the emails. A mere ability does not extinguish the
reasonable expectation of privacy
- Likewise, someone can rip open mail, but does not mean there is no
expectation
- However, if the ISP expresses an intent to audit, inspect, or monitor emails,
then there may not be an expectation of privacy
- Unlike Miller (where the bank received deposit slips), the ISP was an intermediary
and not the intended recipient of the communication
UNITED STATES v. HAMBRICK

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- Gay dad 4 sex chatroom soliciting an alleged 14 year old (under cover cop) to
come live with him
- Subpoena to the ISP revealed the IP address subscriber info (name, address,
credit card info etc.)
- When he surfed the internet, he knowingly disclosed his PII to the ISP
- ISP employees had access to these records for billing and account maintenance
- Distinguish: not the contents of Store Communications (email etc.) See Warshak
UNITED STATES v. FORRESTER
- Pen Register for email and visited websites
- Citing Smith, no expectation of privacy in numbers they dial
- No expectation of privacy of information voluntarily conveyed to 3rd parties
- Constitutionally indistinguishable from Smith and telephone pen registers
- To/From: email info is required by ISPs to route the messages
- Cant see content of emails or websites (just like no content of phone calls)
NATIONAL SECURITY
Domestic
UNITED STATES V. UNITED STATES DISTRICT COURT (KEITH CASE)
- White Panthers bomb the CIA building in Michigan
- Govt conduced a wiretap without a warrant
- Argued National Security
- Nothing contained in this chaptershall limit the constitutional power of the
President to take such measures as he deems necessary to protect
- Congress did not expand the Presidents power, did not confer no additional
power
- Congress left the Presidents power where it found them
- Unchecked surveillance and wiretaps prevents political dissent
- Even so, becomes problematic for private dissent (crucial to a free society)
- NOTE: Court only applied this to domestic aspects of national security
Criminal: Always need warrant
Domestic National Security: 4th Amend. requires a warrant, but the precise
requirements are different than criminal
Foreign Intelligence Gathering: Keith did not address
Foreign
FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)
- Collects foreign intelligence with in United States
- When foreign intelligence gathering is a significant purpose of an
investigation
- Creates a special court Foreign Intelligence Surveillance Court (FISC)
- US PATRIOT ACT expanded judges from 7 to 11

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- Very secret and ex-parte proceedings


- Probable Cause:
- Not whether monitored party is involved in a criminal activity
- Rather, whether theres probable cause that the party to be monitored is a

foreign power or an agent of a foreign power


- If the person to be monitored is a U.S. Citizen, then must establish if the
partys activities may or are about to involve criminal violations
- Surveillance must be solely directed at obtaining intelligence exclusively
from foreign powers
- No substantial likelihood that the surveillance will acquire the
contents of any communications to which a United States person is a
party
- Video Surveillance:
- must submit a detailed description of the nature of the information sough and
the type of communications or activities to be subjected to the surveillance
- Must certify that it cannot reasonably be obtained by normal investigative
techniques
- Orders last for 90 days
- Amendements:
- permits targeting of persons reasonably believed to be located outside the
United States to acquire foreign intelligence information
GLOBAL RELIEF FOUNDATION v. ONEIL
- U.S. based Islamic humanitarian relief organization
- Seized documents without warrant
- The executive directors were agents of a foreign power
UNITED STATES v. ISA
- Parents murdered child
- Members of the Palestine Liberation Organization
- Act requires retention of evidence of a crime
- No requirement that the crime be related to foreign intelligence
USA PATRIOT ACT
In Re Sealed Case
NSA SURVAILLANCE
- Intercepted communications where one party was outside the United States
- Maintained a watch list of U.S. citizens
CLAPPER v. AMNESTY INTERNATIONAL
- Argue that their communications are probably intercepted because they
communicate with clients outside of the U.S. who are suspected of terrorism
(Amnesty International)

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- Court found that their injury was too speculative


- Future injury
- Court outline multiple steps in determining how surveillance takes place and how
unlikely it will be that theyre targeted
- Dissent:
- Harm is not too speculative, in fact it is likely to take place
- Question is whether the injury is actually or imminent?
- Likely to be intercepted because:
- These communications are the kind the Act authorized them to listen to
- Strong Motive to listen
- Govts past behavior
- Harm certainly impeding has never been the requirement of standing
KLAYMAN and FBI: Two cases dealing with NSA surrvailance and come out
opposite ways
KLAYMAN v. OBAMA
- Must have reasonable articulable suspicion (RAS) that the search query is
associated with one or more specified terrorist orgs
- Bulk metadata collection violates a reasonable expectation of privacy
- Distinguished Smith (Pen Register) the govt retains all the data
- Real prospect that the program will go on forever
- Different relationship between phone company in Smith
- Here the phone company is aiding the govt. in massive surveillance
- The technology is different than in the 70s when Smith decision came out
- The technology allows for greater amount of information gathered
- The information in a cell phone is greater than in the 70s
IN RE FBI
- FBI gathered phone records from telephone service providers
- Finds Smith controlling
- Transmit data to 3rd party who uses it during the ordinary course of business
- Only metadata not the content of the communication
- Necessary to know phone meta to uncover terrorist connections
- The data will show many information but cant know what until the data is
aggregated and analyzed
ANONYMITY
TALEY v. STATE OF CALIFORNIA
- Distributing political pamphlets
- LA Ordinance required the true names and addresses of the ownersor agents
of the person sponsoring said hand-bill
- The importance of anonymous political pamphlets
- Might prohibit peaceful political discussion

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McINTYRE v. OHIO ELECTIONS COMMISSION


- Sometimes an author may want to remain anonymous
- Might be more persuasive not knowing the authors identity
- Anonymity pamphleteering is a honorable tradition
- Anonymity is a shield from the tyranny of the majority
- DISSENT:
- Scalia gives examples where people must give their identity
- Ex: parades, public-access tv, on-campus speech sponsorship
- Less likely to lie if held accountable for speech
DOE v. CAHILL
- Small town mayor
- Negative comments posted online
- Comcast revealed the IPs owner
- Summary Judgement standard for unmasking Does identity
- Too easy: chill speech
- Self censoring effect
STANLEY v. GEORGIA
- Alleged bookmaking activities
- Seized obscene movies on 8mm film
- Private possession of obscene material cannot be made a crime
- Right to satisfy his intellectual and emotional needs in the comfort of his private
home
- Regulating privacy does not reach into ones own home
Osborne v. Ohio: does not apply to Child Porn cases
INFORMATION ABOUT 1ST AMEND. ACTIVITIES
STANFORD v. TEXAS
- While investigating allegations of communist affiliations, police performed a
general search
- Police took possession of many documents including marriage certificate, bills,
and personal filed
- All packed into 14 cartons
- Found no evidence
- Constitution prohibits a general warrant
- History: searching documents and literature then destroying it
- Warrants must particularly described:
- things to be seized
- ESPECIALLY when they are books and the ideas that they contain

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Zurcher v. The Stanford Daily: Journalists took photos of a violent protest, police
requested the photos from the newspaper. The court said that the Fourth Amend.
should be applied with scrupulous exactitude.
NAACP v. Alabama: private group doesn't have to disclose name and addresses of
their members.
Barnblatt v. United States: Interest in investigating communist party affiliations
outweighed his rights.
Shelton v. Tucker: Struck down a law requiring teachers to disclose the list of
organizations that belong to.
GONZALES v. GOOGLE
- Govt. requested a sample of 50,000 urls from Googles search index
- Govt. claims the URLs are only to conduct a study on internet trends
- Google claims the loss of trust among users
- And Rule 26 because discovery is duplicative, cumulative, and obtained from a
less burdensome, and less expensive source
- PII can easily be revealed because people do vanity searches
- Includes SSN and CC numbers
MEDICAL INFORMATION PRIVACY
GRISWOLD v. CONN.
PLANNED PARENTHOOD v. CASE
LAWRENCE v. TEXAS
WHALEN v. ROE
CARTER v. BROADLAWS MED. CTR.
DOE v. COROUGH of WARRINGTON
DOE v. SEPTA
FERGUSON v. CITY OF CHARLESTON
IDENTIFICATION
HIBEL v. SIXTH JUDICIAL
- Police is free to ask a person for identification in the ordinary course of business
- Upon reasonable suspicion a police officer can stop and take steps to investigate
further
GREIDINGER v. DAVIS
- SSN for voting
- Compelling state interest for the restriction (requiring SSN)
- Other ways to prevent voter fraud and not necessarily requiring SSN

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PUBLIC ACCESS TO GOVERNMENT RECORDS


DOE v. SHAKUR
- Can an individual (who was sexually assaulted) prosecute someone in a civil suit
under a pseudonym? (Anonymous?)
- Civ Pro Rule 10(a) requires to state names of parties
- However, court can examine several factors to proceed anonymously:
- Challenge the government
- Disclose utmost intimate details
- Admitting details that may lead to criminal prosecution
- Suffer injury if identified
- Prejudiced
- The court did not allow Doe to proceed anonymously because:
- Plaintiff brought the lawsuit
- Requested damages
- Accused the D publicly
- Public has access to the courts
Doe No. 2 v. Kolko: In a sexual abuse case against a rabbi at a private Jewish school,
the Court allowed the P to remain anonymous
FOIA (Freedom Of Information Act)
Exemptions:
- National defense of foreign policy
- Internal personnel rules and agency practices
- Trade secrets and financial information
- Memos and letters between agencies
- Personnel and medical files
- Law enforcement purpose
Exempted info can be redacted
US DOJ v. RCFFP
- Does disclosing FBI rap sheets constitute an unwarranted invasion of personal
privacy under FOIA?
- Because the FBI complies ones records into one summary of an individuals
criminal history, indicates that was intended for internal use and not for public
use
- There may be an interest in an individuals criminal history, but FOIAs purpose is
to act as a check against a federal agency
NATIONAL ARCHIVES v. FAVISH
- Pictures from an apparent suicide requested under FOIA
- FOIA exemption for medical files
- Caselaw and tradition of family members controlling and directing the disposition
of the body of a dead relative

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- Therefore, limit the exposure of their dead relatives pictures of remains to the
public
LA POLICE DEPT. v. UNITED REPORTING PUBLISHING CORP.
KALLSTROM v. CITY OF COLUMBUS
CLINE v. ROGERS
SHEETZ v. MORNING CALL INC.
PAUL P. v. VENIERO
PRIVACY TORTS
INTRUSION UPON SECLUSION
One who intentionally intrudes, physically or otherwise, upon the solitude or
seclusion of another or his private affairs or concerns, is subject to liability to the
other for invasion of his privacy, if the insertion would be highly offensive to a
reasonable person.
1. Intrusion
2. Upon ones solitude
3. Highly Offensive
NADER v. GENERAL MOTORS CORP.
- GM harassed Nader: [list in book page 84]
- Information about plaintiff that is already known could hardly be regarded as
private
- Mere observation in public (and following) is not actionable
- But sometimes can be overzealous and can be actionable
DIETEMANN v. TIME INC.
- Interview with quack doctor in his own home and hidden camera recording
- He invited them into his home, but did not take on the risk of others recording
- Hidden cameras are not indispensable tools of news gathering
- His quackery was private and didn't open up to the public
DESNICK v. AMERICAN BROADCASTING CO.
- Eye Center interview about cataract surgery
- Agreed not to include undercover footage
- Sent a camera crew to a different office
- No violation of privacy:
- No patients in video

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- No disruption
- Open to public (contrast with Dietemann)
SHULMAN v. GROUP W. PRODUCTIONS, INC.
- Recorded an auto accident and broadcast it on TV
- Crash site: no expectation of privacy.
- No control of property
- Public highway/road
- Helicopter ambulance: served as an ambulance and had an expectation of privacy
there
- Placing a microphone on medical personnel to intercept and amplify the
conversation with the patient was a highly offensive
PAPARAZZI
GALELLA v. ONASSIS
CALIFORNIA ANTI-PAPARAZZI ACT
- Liability for
- Knowingly entering land
- Without permission
- To physically invade the privacy of the plaintiff
- Intent to capture pictures video etc.
- When the subject is engaged in personal or familial activity
- Offensive to a reasonable person
VIDEO VOYEURISM
- Purpose of arousing or gratifying sexual desire
- Views photos or videos
- of someone without their knowledge of being recorded
- while in a place where they have reasonable expectation of privacy
Washington v. Glas: upskirt videos not taken in a place where one expects privacy
(public). State changed its laws to cover public places
Note: look @ particular state laws. Look into IL revenge porn statutes
PUBLIC DISCLOSURE OF PRIVATE FACTS
- Give publicity
- To Private life or matter
- If matter is highly offensive to a reasonable person
- Not legitimate public interest

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What is a private matter?


GILL v. HEARST PUBLISHING CO.
- Couple photographed together in a public place in san affectionate pose
- Voluntarily assumed pose in a public place
- Voluntarily exposed themselves to the pubic gaze
- Displays an everyday incident
DAILY TIMES DEMOCRAT v. GRAHAM
- Photo of a skirt being shot up in a newspaper (funhouse)
- Courts even thinks it could be classified as obscene and offensive to modesty
and decency
- Just because the misfortune happened in public, does not mean its not a private
matter
Is it Newsworthy?
Legit public interest? or Morbid Curiosity?
SIPPLE v. CHRONICLE PUBLISHING
- Saved presidents life and was outted for being gay and participating in SF gay
politics
- His sexual orientation was not private fact
- Was private to some regions not all
- Newsworthy
- Dispel notions of homosexuality
- Presidents bias towards homosexuals and delay in thanking Sipple
- Contrast with: morbid and sensational prying into private lives for its own sake
SHULMAN (again)
- Involuntarily involve in car accident
- Add Ps image added nothing significant to story (could have blurred)
- Were the words and face legitimate public interest?
- PROBABLY not
BONOME v. KAYSEN
- Author of book suggesting her boyfriend raped her
- No name of boyfriend but everyone knew who he was
- Have a right to tell her own person story
- P was an incident thereto
FIRST AMEND. LIMITS
COX v. COHN
- Broadcast the name of a dead rape victim in violation of state law
- cannot prohibit because the name was public record already

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FLORIDA STAR v. BJF


- Florida statute prohibiting publishing sexual assault victim names
- Imposing damages for publishing the full name violated the First Amend.
BARTNICKI v. VAPPER
- Union leader on phone was secretly recorded talking about negotiations
- Broadcast on radio station about public affairs
- If a paper obtains information legally, it can publish it
- But here, a third party didn't obtain it legally
- Court balanced the benefits and determine that the speech was public concern
DEFAMATION
- False + Defamatory
- Unprivileged publication to a 3rd party
- Fault at least negligence
Libel: written
- Does not need to show special harm
- Presume damages
Slander: spoken
- Must show a special harm unless Slander Per Se:
- Criminal offense
- Loathsome disease
- Matter incompatible with ones business, trade, profession, or office
- Serious sexual misconduct
ZERAN v. AMERICAN ONLINE, INC.
- Prank giving out phone number to P claiming hes selling Oklahoma bombing tshirts
- Radio station published etc.
- AOL was not the maker of the statement
- CDA 230: No provider or user of an interactive computer service shall be
treated as the publisher or speaker an information provided by another
information content provider
- Meaning, that defamatory statements made on AOLs message boards were not
cause liability for AOL
- Liability if Editorial Function
- If AOL had knowledge of the defamatory statement, they should remove it
- BUT that would chill speech and force AOL and others to delete all negative
message
First Amendment Limits
NEW YORK TIMES CO. v. SULLIVAN

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- Ads in New York Times defaming an elected commissioner


- Slander Per Se: was a public official
- Want to allow criticism of public figures
- Need actual malice
- Knowledge it was false or with reckless disregard of its truthfulness
GERTZ v. ROBERTS WELCH INC.
- Some people achieve pervasive fame or notoriety for all purposes in all context
- In this case, it was a police officer
- Distinction between types of public figures
- All purpose and context: need actual malice
- Limited purpose and context: local figures etc.
- Police officer was not an all-purpose figure; did not need actual malice
FALSE LIGHT
One who gives publicity to a matter concerning another if: 1) it would be highly
offensive to a reasonable person, and 2) actor had knowledge of or acted in
reckless disregard
First Amend. Limits
TIME v. HILL
- Family held prisoner in their home for 19 hours by 3 convicts, the play portrayed
the events differently in a false light
- A jury would find that the portrayal is not accurate, perhaps negligent, and
probably not true
IIED
Extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress
HUSTLER MAGAZINE v. FALWELL
- Advertisement in Hustlers magazine about a priest having drunk sex with his
mom (Campari advertisement)
- Different standard for public figures because cartoonists and satirists would then
be liable
- Must show actual malice because he is a public figure
SNYDER v. PHELPS
- WBC picketing near a soldiers funeral
- For 1st Amend. immunity, was the speech matter of public concern?
- As long as it relates to any matter: political, social, and other interest of the
community
- Contrast: Dun & Bradstreet: credit report info was not a public concern
- WBC spoke of a broader topic of public interestnot just speech related to Snyder
- No liability under IIED

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RIGHT OF PUBLICITY
Name, image, or likeness for commercial use without consent
CARSON v. HERES JOHNNY PORTABLE TOILETS
- Carsons right has been violated because his name was used
- Right of Publicity protects the commercial interest of celebrities identities
RAYMEN v. UNITED SENIOR ASSOCIATION
- Photos of plaintiffs kissing and used in an anti-gay propaganda advertisement
- Big question is whether using an image for a non-profit organization is for a
commercial purpose
- Not commercial purpose, despite the ad solicited political contributions
FINGER v. OMNI PUBLICATION
- Featured picture of family and article about increased fertility
- Newsworthiness exception: liberal construction but must relate to the article
First Amend. Limits
ZACCHINI v. SCRIPP-HOWARD BROADCASTING
- Recorded an entire canon-ball act and showed it on TV
- Deprived of commercial value
- Was newsworthy
- copyright claim.

PRIVACY AT SCHOOL
NJ v. TLO
- Caught smoking in a bathroom and lied -> school searched her possessions and
found that she was selling drugs and had rolling paper
- Notified mother + police
- 4th Amend prohibition on unreasonable searches and seizes applies to school
official?
- YES, but not as strong in schools
- Children have no expectation of privacy in unnecessary objects they bring into
school
- Court thinks this is wrong because students can bring other personal items like
hygiene products and photos
- But the school has an interest in academic disciple and a sound academic
environment
- Warrant are unsuitable, however, for a school environment
- 4th Amend. requires a reasonable search and not a probable cause

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- Test:
- Was the action justified at its conception?
- Was the search reasonably related to the circumstances that justified the
interference in the 1st place?
VERONIA SCHOOL DISTRICT v. ACTON
- School had a random drug testing policy for extracurricular sports because
student athletes were the leaders of the schools drug culture
- Parents must consent before participating in sports
- No warrant required for special needs where it would be too burdensome like in
public schools
- Distinguish TLO: here it is a blanket suspicion vs. TLO was a search based on
individual suspicion of a wrongdoing
- Students have a lesser expectation of privacy (albeit still have Constitutional
rights)
- Vaccinations and physical exams
- Athletes have a lesser expectation of privacy because they get naked in the
locker room suiting up and showering etc.
- Joining a team, the student voluntarily subjected themselves to regulations and
reduced privacy
- The search only determines the existence of drugsnot other factors
- Results only given to school personnel and not the police
BOARD OF EDUCATION v. EARLS
- Like VERONIA + reasonable suspicion for extracurricular activities
- Govt. has a compelling interest in fighting the schools drug problem
FERPA: School Records pg 1008
OWASSO INDEPT. SCHOOL DISTRICT v. FALVO
- Challenged peer grading as exposing students records
- It would be too burdensome for teachers
- Court doubts that Congress intended to intervene so drastically
WORKPLACE PRIVACY
OCONNOR v. ORTEGA
- Entered an office from Ortegas office and obtained personal material from the
locked cabinet and desk
- Whether an employee has a reasonable expectation of privacy is a case-by-case
evaluation
- Ortega had that expectation because he didn't share his office and occupied his
office for 17 years
- Obtaining a warrant would be unduly burdensome for everyday business
- The reasonable standard is sufficient for employees and investigating employee
misconduct

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K-MART v. TROTTI
- Locker + lock provided by employer
- Searched locker and purse to look for a missing price mark gun
- Disregarded the employees expectation of privacy
THOMPSON v. JOHNSON COUNTY COMMUNITY COLLEGE
- Silent video (no oral communication because ECPA violation otherwise)
- Reasonable expectation of privacy?
- No
- Place was exposed and anyone walking by could see
NATIONAL TREASURY EMPLOYEES UNION v. VON RAAB
- Customs officials (high drug trafficking) get drug tested
- Deter drug usage and customs officials have a gun = enough state interest to
justify
- Outweighs the privacy interest of the employees
- Should expect effective inquiry into their fitness
- Scalia:
- no evidence that drug use will encourage bribe taking etc.
CHANDLER v. MILLER
- Requiring public officials/candidates to take a drug test
- No evidence of abuse
BORSE v. PIECE GOODS SHOP
- At will employee forced to sign a consent form for drug testing?
- Was discharged
- Firing an at-will employees permissible unless it violated public policy
- It is an intrusion upon seclusion
- If it was an intrusion it certainly would violate public policy
- If substantial and highly offensive violation of privacy
CONSENTING TO SEARCHES
BAGGS v. EAGLE-PICHER INDUSTRIES Inc.
- Factory = dangerous activities (hydraulic presses and forklifts)
- Drug problem at the plant
- Posted a new drug policy about submitting to a blood or urine test + notified
when they will conduct the test
- If don't submit, they can leave and quit
- No expectation of privacy since on notice about drug testing
TESTING, QUESTIONS, AND POLYGRAPHS

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GREENAWALT v. INDIANA DEPT. of CORRECTIONS


- to keep her job, must submit t a psychological test -> an unreasonable test into
her thoughts?
- 4th Amend should not be interpreted to reach putting questions to a person, even
if they elicit personal or private info
- Implications: no cross-examination
- Police would need a search warrant to ask questions etc.
NASA v. NELSON
- Drug questions are reasonable for fitness of their employees
POLYGRAPH TESTS pg. 1059
TELEPHONE MONITORING
- monitored phone calls at a call center & was allowed to make private calls
- Overheard employee talking about getting a new job -> fired her
- Was this in the ordinary course of business?
- She consented to monitoring sales calls NOT personal calls
- Only can monitor to determine whether the call is a sales call or personal
- Could have listed to determine whether it is a sales or personal call; nothing
more
DEAL v. SPEARS
- EXTENSION of phone with house and business
- Attached a recording device to catch person who committee burglary (thought it
was an inside job)
- WARNED that if she does not cut down on the phone calls they will record
- Used this warning to imply consent of being recorded
- Court does not imply consent
- Recoded 24/7 and beyond ordinary course of business
SMYTH v. PILLSBURY CO.
- No privacy interest in communications over company email
- Invasion upon seclusion
- No person would find a company intercepting emails to be highly offensive
LAVENTHAL v. KNAPEK
- Searched computer for software not allowed (including personal tax software to
run a side business)
- DOT prohibited theft and defined it broadly as stealing company time
- Put the P on notice because sent a letter about unofficial software
- Reasonable expectation of privacy?
- Yes he did
- On society is expected to accept? NOPE
- Employee search = 1) reasonable and 2) justified at its inception

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- Yes because cited he was always late and spent most of his time doing non-DOT
work
- Reasonable because it was related to the reason why the search was conducted
U.S. v. ZIEGLER
- Child porn from work computer -> IT department flagged -> notified FBI
- Company gave consent to search computer
- Computer is the type of workplace property that remains within the control of the
employer
- Had complete admin privileges and monitored the traffic

FINANCIAL INFO
FAIR CREDIT REPORTING ACT (FCRA)
- applies to any consumer reporting agency that furnishes consumer reports
- Consumer report: any communication by an agency about creditworthiness or
reputation or character or reputation etc.
- Consumer Reporting Agency: assembles and evaluates credit or consumer credit
information
- Can sue for negligence or failure to follow the act
U.S. v. SPOKEO, Inc.
- complaint alleging Spokeo is a credit reporting agency
SMITH v. BOB SMITH CHEVY INC
- Dispute arose because dealer gave a double discount on a car and attempted to
collect the difference -> pulled credit history again
- FCRA allows to pull history in connection with a transaction initiated by a
consumer
- Consumer report means to determine eligibility for a benefit
- The dealer pulled the credit history a second time as part of a new event
SARVER v. EXPERIAN
- No strict liability to incorrect info on credit report
- Must give notice for credit reporting agency to investigate
- Cant be liable in absence of notice
- Credit report is generated at the time of inquiry
- Cant have Experian investigate every anomaly after pulling the history
SLOANE v. EQUIFAX
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TORT LAW
WOLFE v. MBNA AMERICA BANK
- Attempting to assert a state negligence claim against a credit card company for
issuing a credit card to a person who stile Ps identity
- Court did not grant a motion to dismiss
- It is foreseeable that identity theft can happen and the bank should implement
some security measure (reasonable and cost effective) to monitory for such risk
DATA SECURITY
PINEDA v. WILLIAMS-SONOMA STORES
- CC transaction required zip code -> led to locating Ps home address
- Is zip code PII?
- Had Ps credit card number, name, and zip recorded in a database
- software looked up Ps address (reverse search)
- PII defined as information concerning the cardholder
- Did congress intend part of an address like Zip? YES
APPLE v. KRESCENT
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