Jane Yakowitz, The New Intrusion

Jane Yakowitz, The New Intrusion

Comment by: Jon Mills

PLSC 2012

Workshop draft abstract:

The tort of intrusion upon seclusion offers the best theory to target legitimate privacy harms in the information age. This Article introduces a new taxonomy that organizes privacy law across four key stages of information flow—observation, capture (the creation of a record), dissemination, and use. Popular privacy proposals place hasty, taxing constraints on dissemination and use. Meanwhile, regulation targeting information flow at its source—at the point of observation—is undertheorized and ripe for prudent expansion.

Intrusion imposes liability for offensive observations. The classic examples involve intruders who gain unauthorized access to information inside the home or surreptitiously intercept telephone conversations, but the concept of seclusion is abstract and flexible. Courts have honored expectations of seclusions in public when the intruder’s efforts to observe were too aggressive and exhaustive. They have also recognized expectations of seclusion in files and records outside the plaintiff’s possession. This article proposes a framework for extending the intrusion tort to new technologies by assigning liability to targeted and offensive observations of the data produced by our gadgets.

Intrusion is a theoretically and constitutionally sound form of privacy protection because the interests in seclusion and respite from social participation run orthogonal to free information flow. Seclusion can be invaded without the production of any new information, and conversely, sensitive new information can become available without intrusion. This puts the intrusion tort in stark contrast with the tort of public disclosure, where the alleged harm is a direct consequence of an increase in knowledge. Since tort liability for intrusion regulates conduct (observation) instead of speech (dissemination), it does not prohibit a person from saying what he already knows, and therefore can coexist comfortably with the bulk of First Amendment jurisprudence.

Jon L. Mills, New Media-Old Law

Jon L. Mills, New Media-Old Law

Comment by: William McGeveran

PLSC 2011

Workshop draft abstract:

Throughout the evolution of what we now call “media law”, several characteristics of the media were a constant, and legal tests were based on those realities. Since the times have changed radically, should those tests and assumptions also change?

1.      Gatekeepers — Since the invention of writing there have been barriers to mass distribution of information. With the advent of the printing press and broadcast media there continued to be practical, legal and financial barriers to mass communications. The barriers have included cost, government licenses and editors. Those barriers are gone because of the internet and the new press.

2.      Community Standards and Mores — Legal tests for obscenity and privacy intrusions, such as public disclosure of private facts, include references to community standards. But, who is the community for judging internet distributions? The courts are struggling to determine whether the test should still be community based to a limited geographic area. For example, parts of opinions in Ashcroft v. ACLU suggest that a national standard may be appropriate because the community is now national. Is that appropriate and how would that standard work?

3.      Anonymity — Free speech and press policies have protected and respected anonymity from the earliest times.  Whistle blowers and anonymous political commentary are part of our culture. Should that protection change based on wide distribution of intrusive comments on the internet. There are cases where courts have protected the identity of bloggers even when the statements were highly offensive and intrusive. In the Krinsky case out of California an anonymous poster on a financial message board insulted a number of officers of a Florida corporation, calling them names that included “cockroach,” “mega scum bag,” and “boobs, losers and crooks.”  The court protected the identity of the blogger

The new media has no gatekeepers, amorphous community standards and allows total anonymity. Add to this an instant news cycle and the Shirley Sherrod incident occurs.  An innocent person is slandered and fired by the President of the United States within twenty four hours. The reports are based on an altered YouTube distribution.  How should the law react?

As a further example of the evolution of media, I will describe the media involvement in five high profile cases that have occurred over the last twenty years. I served as counsel in four of those cases.

1.      Rolling Student Murders — Danny Harold Rolling murdered seven University of Florida students in 1990.  He tortured and mutilated the bodies.  Media sought access to the crime scene photos and autopsy photos.

2.      Death of Dale Earnhardt — NASCAR star Dale Earnhardt died during the Daytona 500 race in 2001.  National, global and electronic media sought access to his autopsy photos.

3.      Murder of Gianni Versace — In 1997, world famous designer Gianni Versace was murdered on Miami Beach. Press sought autopsy photos and investigatory materials.

4.      Death of Nicole Catsouras — Teenager Nicole Catsouras died in an auto crash in 2008.  Graphic accident scene photos were distributed by members of the California Highway Patrol.

5.      Death of SeaWorld Trainer Dawn Brancheau- In February 2010, Dawn Brancheau was killed at SeaWorld by a killer whale. The incident was recorded on video cameras. The media sought access to the videos.

Each of these instances involved all of the legal issues described above and involved a balancing of privacy and press interests.

Jon Mills, The New Global Press and Privacy Intrusions: The Two Edged Sword

Jon Mills, The New Global Press and Privacy Intrusions: The Two Edged Sword

Comment by: Eddan Katz

PLSC 2009

Workshop draft abstract:

The free press is a critical global value.  At the same time, the press continually intrudes on another critical global value, individual privacy.  How should these values be balanced in a complex global society?

First, what is the modern press?  “Nontraditional” reporters are publishing news everyday worldwide.  Should free press protections extend to all of these individuals?  Moreover, modern technology has given this new press a multitude of new ways to collect information and the ability to disseminate that information worldwide.

Advancing, or balancing, the values of free press and privacy requires understanding that privacy invasions that occur across borders and legal jurisdictions with inconsistent laws.  The global context is complicated and contradictory. A matrix of international and national law, treaties, state law, codes, and regulations are the background for borderless press and global intrusions.  Countries vary greatly in their treatment of privacy, especially in how they address privacy violations committed by the media.  One example of a decision affecting global media was an Argentinean court order that required Yahoo to censor its search results for the former soccer star, Diego Maradona.  Finding the court’s language to be broad, Yahoo decided to remove all search results of Maradona.   How many courts would have reached the same decision?  Some forums are more favorable to privacy and some more favorable to free press.  Understanding the nature of the modern global press and the hodge podge of global laws is a necessary predicate to articulating principles to balance these vital values.