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Class notes LAW 533-001 (Privacy) Prof. Yoo and Steinfeld Penn Carey Law
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- LAW 533-001 (PRIVACY)
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- University Of Pennsylvania
Class notes LAW 533-001 (Privacy) Prof. Yoo ans Steinfeld Penn Carey Law
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PRIVACY LAWLAW 533-001
Yoo/Steinfeld
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,I. INTRO: VALUES, FIPPS, STATUTES
A. Privacy and the Values It Supports
Dignity Liberty Safe Space
Stronger European value Stronger American Value
Controlling one’s image, name, and Liberty form State
reputation
Enemy is the media and other Sovereignty of the home Safety is the main concern
broadcasters of embarrassment and
humiliation 🡪 sovereignty of data
Shield individuals from public Limiting government overreach
exposure and respect personal and protecting individual liberty
honor, regarding these as essential against state actions.
for maintaining one's social position Suspicion towards police and
and dignity other officials
Competitive market Individualism and self- Social mores
development
Warren & Brandeis – The Right to Privacy (Harv. L. Rev. 193 (1890))
Impact of modern technologies (photography&press) on personal privacy. Argued that existing laws, such
as those against defamation, were insufficient to protect individuals from invasions of their privacy 🡪
proposed that the common law should be adapted to recognize a new legal right to privacy.
🡪 Expansion of rights to meet the needs and solve problems of the time:
− Evils of newspapers, gossip, and the idle;
− Complexity of life requires retreat;
− Damage to individual subject;
− Damage to society – triviality destroys robustness of thought and delicacy of feeling; lowering of social
standards and of morality.
● The Basis of Privacy Rights:
− Common law secures to everyone the right of determining, ordinarily, to what extent his thoughts,
sentiments, and emotions shall be communicated to others.
− Establishment of a legal right to privacy: "the right to be let alone."
− is not a property right: the value of production is found not in the right to profit from publication (Right
to intellectual and artistic property) but in the peace of mind from preventing publication (right against
wrongful publication);
− The right to privacy is rooted in principles of individual autonomy and personal dignity. This right would
protect individuals from unwanted intrusions into their private lives.
● The Balance with Freedom of Speech:
Free speech and the press need to be balanced with the right to privacy.
− Truth of the matter or absence of malice are not a defense.
− Limitations: privacy right does not prevent:
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, 🢭 Public interest in disclosure – concept of “unwarranted” invasion, namely publication of matters
that are of public or general interest;
🢭 communications made public due to slander and libel;
🢭 Publications in courts and public bodies unless privileged;
🢭 individual's own consent or publication.
● Legal Remedies:
Common law should evolve to provide legal remedies for violations of privacy rights:
− Action of tort for damages (value of mental suffering as a basis for compensation);
− Injunction (Insufficiency of breach of confidence).
B. Fair Information Principles and the Statutory Landscape
Us Department of Justice (DOJ) v. Committee for Freedom of the Press (SCOTUS 1989)
This case involves a dispute over the Freedom of Information Act (FOIA) and the right to privacy regarding
criminal history records, or "rap sheets," maintained by the FBI. The Supreme Court had to determine
whether disclosing these records constitutes an "unwarranted invasion of personal privacy" under the Act,
balancing between the public's right to know v. individuals' privacy rights.
Facts: CBS News reporter Roth requested the FBI for its rap sheets on the Medico family, who were subjects
of his investigation. The FBI denied the request under Sec. 7(C) FOIA exemption that allows withholding
information where disclosure would constitute an unwarranted invasion of personal privacy. The Reporters
Committee for Freedom of the Press joined Roth in challenging the denial, arguing that the public's right to
access information about potential wrongdoing by public figures was in the public interest.
Holding: In favor of the Department of Justice: an individual's interest in keeping personal data private
outweighs the public's right to know. Specifically, disclosure of law enforcement records such as a "rap
sheet" about an individual who is not a public figure is an unwarranted invasion of privacy under
Exemption 7(C) of the FOIA.
Reasoning:
− Difference between the public records that might be found after a diligent search of files/archives vs. a
computerized summary located in a single clearinghouse 🡪 you can protect privacy by making the
information a little harder to get [i.e. credit freeze]🡪 "practical obscurity”.
− The computer can accumulate and store information that would otherwise have been surely forgotten.
Key Principles:
− Privacy vs. Public Interest: scattered public records vs. the comprehensive disclosure of a rap sheet: the
latter hold a different expectation of privacy.
− Scope of FOIA: The ruling clarified that FOIA's intent is to shed light on government actions and
operations rather than expose private information about individuals that the government possesses.
− Balancing Test: privacy interest > the public interest in disclosure: individuals have a strong privacy
interest in the non-disclosure of criminal history records even if such information is publicly available.
− Public vs. Private Figures: The decision distinguished between public and private figures, noting that the
privacy interests of private individuals are generally entitled to greater protection.
🡪 Concerns with computing technologies:
● Unknown/secret collections/compilations of information;
● Easy dissemination;
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, ● Quantity, type, and centralization of the information collected;
● uses for which the information in being collected 🡪 raise of secondary uses (i.e. National Directory
of New Hires, that was a program established in Philly to find parents who were not paying for child
support…but then it become a federal database full of information about who lived/worked).
Impact:
Public Access to Information: This case may limit journalists' and researchers' ability to access detailed
personal information about individuals, even when such information may have public relevance.
1) STATUTORY FRAMEWORK
● Who has the data?
− Credit bureaus 🡪 disciplined by the Fair Credit Reporting Act.
− Federal Government/Agencies 🡪 disciplined by the Privacy Act.
● Lawmaking by Anecdote (enacted in the ‘70/80s):
− FERPA (1974) 🡪 Family Educational Rights and Privacy Act protects the privacy of student education
record and applies to all educational institutions that receive funding from the U.S. Department of
Education.
Enacted after a marketing company went for children in school asking questions about them and
their parents’ preferences.
− VPPA (1988) 🡪 Video Privacy Protection Act protects the privacy of individuals' video rental records.
Passed in response to concerns about the potential misuse of video rental information after Supreme
Court nominee Robert Bork's video rental history was disclosed during his confirmation hearings.
− DPPA (1994) 🡪 Driver's Privacy Protection Act protects the privacy of individuals' personal
information held by state departments of motor vehicles (DMVs). The DPPA establishes strict limits
on the disclosure and use of personal information obtained from motor vehicle records.
− GLBA (1999) 🡪 Gramm-Leach-Bliley Act or Financial Services Modernization Act governs the privacy
and protection of consumers' personal financial information. It is primarily focused on financial
institutions such as banks, insurance companies, and securities firms.
Passed after the segmentation of the financial sector was eliminated, allowing big financial entities
to render all the different lines of service (brokerage, insurance, private banking) using a poll of
information about clients.
● Privacy laws as part of other data-enhancing legal initiatives
− HIPAA (1996) 🡪 Health Insurance Portability and Accountability Act sets national standards for the
protection of individuals' medical records and other personal health information. It was not about
privacy at the beginning, but about standardizing relations between providers and payers in order to
provide efficient payments.
● Other regulators:
− OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data: set of
international principles designed to guide countries in developing policies and regulations for the
protection of personal data and privacy. Established by the Organization for Economic Co-operation and
Development (OECD) in 1980 and were later updated in 2013.
− FTC plays a critical role in enforcing privacy and data security standards for businesses, particularly in the
online and digital spaces.
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