Fall 1999 Human Rights Magazine

By Robert M. O'Neil

Two basic American beliefs about privacy are being tested these days in the most profound ways. One belief is that a person is entitled to privacy in certain places, most especially in the home. The other is the assumption that images and information obtained without physically invading another person’s domain may be freely used, even publicized. For most of our nation’s history, the inevitably uneasy tension between these precepts has created a workable balance, within what the Supreme Court has termed "a sphere of collision between claims of privacy and those of the free press." (Cox Broadcasting Co. v. Cohn, 420 U.S. 469, 491 (1975).) Quite simply, if a photographer broke into a dwelling, or a reporter broke into a secure file, not only might publication of the results be prevented; the trespassing news gatherer would be civilly liable to the person whose privacy had been violated. (E.g., Prahl v. Brosamle, 295 N.W. 2d 768 (Wis. App. 1980).)

Conversely, if a person was photographed or words were overheard from a public place, such as a street or sidewalk, the use of the resulting images or information was fair game, however much the person might have wished to have appeared or spoken differently. (See William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 392 (1960).) In that respect, the United States has been and remains nearly unique; quite recently the Supreme Court of Canada—a nation whose views on most human rights issues closely parallel our own—ruled in favor of a woman seeking privacy-based damages for the publication of a photograph taken from a public street, showing her seated on the steps of an apartment building. (Aubry v. Ice Versa, Inc., 1 S.C.R. 591 (Can. Sup. Ct. 1998).)

Two forces seem now to have charted a collision course in this country. On one hand, the technological capacity to gather information and images from historically private places and spaces appears to many observers out of control. The results are already ominous, and the prospects even more worrisome to guardians of privacy; as Screen Actors’ Guild President Richard Masur has recently warned, "soon they’ll be able to shoot [with infrared devices] right through a wall." (Quoted in Frank James, Privacy Legislation Popular on Capitol Hill, Chi. Trib., May 31, 1999, at 3.)

The other force represents a direct and logical response to such fears, in the form of new laws designed to protect perceptibly eroding levels of privacy. The prime example of this trend is the California Privacy Protection Act of 1998 ( Cal. Civ. Code § 1708 (West 1998)), fully described and endorsed in this issue by one of its drafters and proponents, Professor Erwin Chemerinsky (See p.13 of this issue). In one sense, California’s legislative response may already have been unnecessary; the state’s high court a few months earlier had expanded privacy protection to cover "offensive intrusion" by the media into private areas, through the use of sophisticated electronic devices without a physical trespass. (Shulman v. Group W Products, Inc., 955 P.2d 469, 490 (Cal. 1998).) This is not the time or occasion to take issue with Professor Chemerinsky on the validity, or even less the wisdom, of such legislation. Other First Amendment scholars have taken up that challenge, and soon enough the courts will address the validity of such measures—of which California’s is hardly likely to be the last. Rather, this seems a fitting occasion to place in larger context this inevitable clash between two absolutely basic human rights—freedom of the press on one hand, and privacy of the person and the home on the other.

Privacy is a freedom of the most basic nature, protected not only by the Fourth and Fifth Amendments, but also by the First—ensuring as it does a citizen’s right to associate freely with others, and to refuse government demands to express publicly an abhorrent view or message. Moreover, we easily forget that the Fourth Amendment safeguards not only physical space—mainly a citizen’s home—but also one’s "papers and effects." Thus, there should be no doubt about the impropriety of any image or information gathering that does physically invade either the home or the "effects" of another person—for example, surreptitiously planting a microphone or hiding a camera in that person’s clothing, purse, or briefcase. Breaking into files (whether paper or electronic) to gather material seems equally unacceptable. There may be physical space outside the home where the expectation of privacy is so clear and settled that similar protections should extend—a restroom or dressing room in a store, restaurant, or school, for example—though here the historic basis for protection becomes slightly less clear.

The hard cases are those that lie beyond such relatively familiar and obviously appealing zones of protection. At the far end of that spectrum, the courts have been quite clear in denying legal protection to persons who wish they had not been photographed in a public place with a particular person, wearing (or not wearing) a certain garment, or making an embarrassing gesture. Even where potentially compromising information or images have been obtained without the person’s consent, the Supreme Court has consistently ruled that publication is permissible—indeed, fully protected by the First Amendment—so long as the material is accurate and has public interest, and so long as unlawful methods have not been used to obtain access. (Smith v. Daily Mail Pub. Co., 443 U.S. 97, 102 (1979).) The Court has, in effect, created a presumption that is strong, if not absolute: "State action to punish the publication of truthful information seldom can justify constitutional sanctions." (Id.) Importantly, the key term is "seldom" and not "never," thus leaving open the difficult sorts of issues with which lower courts have struggled over the past few years.

Two poignant situations now test our commitment to these principles. One involves the revelation of a person’s AIDS infection or HIV-positive status. Recently, the federal courts in New York had just such a case. An airline employee was fired because he was AIDS infected, though with the aid of the city Human Rights Commission he regained his job. The agency then issued a celebratory press release, which (though without naming the employee) contained enough details that friends and colleagues could identify the subject. He sued the Commission for invasion of privacy and other wrongs. The case was settled (Doe v. City of New York, 15 F.3d 264 (2d Cir. 1994)), however, the court there, as well as the courts in two other recent AIDS-in-the-workplace cases, (Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371, 379-80 (Colo. 1997); Doe v. Methodist Hospital, 690 N.E.2d 681, 693 (Ind. 1997)); recognized that AIDS infection is profoundly different from any other embarrassing revelation, and hinted that liability might follow even for the truthful disclosure of lawfully obtained information of obvious public importance. If the subject’s condition had come to light by breaking into or intercepting medical records, any court would deem the information to have been "unlawfully obtained." And in the airline employee case there was another special feature—the purpose for which the infected worker sought the agency’s help did not include publicizing its victory at his expense for its own ends.

Thus, the basic precept remains intact, although with appropriate caution about its application in areas of special sensitivity such as, but not necessarily limited to, revelations of HIV status. The other poignant cases come from the realm of imagery, and are the situations that California’s legislators undoubtedly had in mind when they passed last year’s privacy legislation. Until fairly recently, it was easy enough to draw sharp lines between places that were "public" (and thus, fair game for the paparazzi) and "private" (and thus, off limits). Concepts of "virtual trespass" and the like simply did not exist. Dramatic changes in technology have, however, blurred the line and sharply altered the real world of image gathering. The difficult issue is how far such changes should also affect the legal environment.

Those who favor such legislation, including impeccable First Amendment advocates like Professor Chemerinsky, make an appealing case that legal protection for privacy must keep pace with rapidly changing technology. Thus, if high-tech microphones and cameras can capture sights and sounds from places that have historically been protected against physical invasion, it stands to reason that the reach of legal remedies should roughly match the reach of such invasive and intrusive devices. Accordingly, as Professor Chemerinsky argues in his article: "If it is a conversation that otherwise could have been heard only through a physical trespass, listening through technology is likewise made actionable." (Erwin Chemerinsky, Protecting Privacy from New Technologies, Human Rights, Fall 1999, at 14. That is essentially what the California statute accomplishes, by creating the concept of "virtual trespass" and treating those who perpetrate such intrusions roughly the same as those who physically break and enter a dwelling.

There may indeed be situations where the expectation of privacy is so clear, even without a physical trespass, that the failure of the law to embrace it would amount to serious dereliction. So it was that the Supreme Court some years ago ruled in favor of Hugo Zacchini, the "human canon ball," when a television station without his permission filmed his entire act at a county fair and broadcast it on the evening news. The majority of a sharply split court concluded that even though the performance occurred in a public place, Zacchini’s valuable property—his unique and death-defying act—had been used for the station’s gain without his assent or compensation. (Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977).) Or take a quite different case, in which a TV camera crew interviewed several unsupervised children about the slaying moments earlier of two of their playmates—a tragedy of which the subjects first learned, on camera, from the reporter. In allowing recovery for infliction of emotional distress, the appeals court observed that the reporter "was bent upon making news, not gathering it," and might thus be liable for the added trauma caused to the children. (KOVR-TV, Inc. v. Superior Court, 37 Cal. Rptr. 2d 431, 435 (Cal. App. 1995).) Such extreme cases as these suggest that sometimes privacy-like interests can be invaded, even in public places.

Conversely, there may be grave risks in the concept of permitting recovery where technology puts the image or information gatherer in a place one could normally have reached only through physical invasion. For one, the operative standard seems in certain respects illusory; it lacks the certainty we expect when potential liability of the press or the media is at stake. Different people will obviously have quite variant views as to when and where privacy is reasonably expected, and on whether material could have been gathered in simpler times only through physical invasion. More fundamentally, such a basis for recovery departs sharply from the historic concept—deeply rooted in the First Amendment—that a news or image gatherer may benefit from unusually sharp eyes or attentive ears, even when artificially augmented, so long as it does not actually enter or invade a physically protected zone.

Unless we are prepared either to abandon the view that accurate information and images that have public interest and have not been unlawfully obtained may be freely used, or to declare the use of all invasive technologies presumptively unlawful, we would be far better served by striking the balance in favor of the free flow of information. If, in the process, places once deemed inviolable become a bit less so, that may simply be the price an open society ought to pay.

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Robert M. O’Neil is Director of the Thomas Jefferson Center for the Protection of Free Expression, and professor of law at the University of Virginia, where he teaches several courses on First Amendment issues.