Privacy in the Information Age

8 March

• Interesting-- Vancouver airport had full-body scanners for international flights, by random selection. 7-10 seconds; they describe what you're wearing to the people who are actually viewing the scans.
• Confusion between Thompson and Ortega in the syllabus.
• Thompson: video surveillance doesn't violate the wiretapping law. There were 2 claims: a 4A claim and an amorphous "right to privacy" claim. And also a privacy tort under state law.

  Side-note: good way to think of the rule of a case = "if you were advising a client, and had to use this case as precedent, what advice would you give?" Another side note: O'Connor (the justice, not the plaintiff) tends to be really fact-specific, and remand things down to lower courts, so it can be hard to sniff out precedent there.

  Anyway, we have:

  • Title I of ECPA: court says no, because if it's video only, there's no wiretapping.
  • 4A: court says no expectation of privacy, so we don't even need to do the analysis (i.e., this is like Katz, but in the workplace). A government employer is different, because 4A applies to the government (in its role as police actor or as employer). But this is a community college.
  • Privacy tort under state law: dismissed for lack of jurisdiction, because there's no federal claim remaining.
  Areas where we get privacy causes of action: property law, 4A, 5A, torts, and 1A. (the penumbrae)

  By distinguishing between aural and video surveillance for privacy, the court is saying that privacy has to do with ideas and thoughts (i.e., the words), and also that privacy is not in the vague emanations of the law. It's in the ECPA.

• Vega-Rodriguez v. Puerto Rico Telephone Company
  Same, but here we have a semi-private employer. The constitution creates no free-floating right of privacy, but then it goes on to talk about Roe. You can't just use 9A to make things up.
• It's not realistic to say that you have to be available by Blackberry 24 hours/day but that you can't make personal use of the Internet.

  On the other hand, what about browsing the web on your cell phone while at work?

• See Scalia's dissent in O'Connor v. Ortega: it's about privacy not solitude.
• Caché: French film; good stuff, apparently. A couple gets a videotape of the front of their house.
• Why do we have stalking statutes? Maybe because right-to-privacy claims weren't strong enough to vindicate peoples' rights. But the Wisconsin Statute requires pretty egregious action to trigger a response.
• Note that nearly all anonymity cases are 1A: expressive acts.
• As technology advances, our subjective and objective expectations of privacy shift as well. The law here is reflecting society, not driving-- it lags.