The GPS case – the Supreme Court’s decision in U.S. v. Jones – raises a whole host of issues about privacy in public. The case was about the Fourth Amendment and the government’s ability to follow individuals on public roads. Of the three opinions in the case, that of Justice Sonia Sotomayor’s was the most interesting and, potentially, the furthest reaching.
Sotomayor asked “whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.” Sotomayor and all the other justices found limits in the Fourth Amendment. I want to look more broadly.
The Fourth Amendment establishes the boundary for government action, but it does not constrain the private sector. What happens if the government cannot follow people because of Fourth Amendment restrictions but the private sector can? After all, what good is the Fourth Amendment if a private company can follow you down every street and sell the information to marketers, profilers, and government agencies too?
Sotomayor raised this question indirectly when she questioned existing case law that holds that an individual has no expectation of privacy in information given to banks and other third parties:
More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., [Smith v. Maryland – 442 U.S. 735, 742 (1979)] United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.
Many in the privacy community stood up and cheered when reading these words. Privacy advocates were critical of the Miller decision from the start. Much more so than in 1976 when the Court decided Miller, we live in a world where much of our personal information is held by third parties, including banks, schools, utilities, supermarkets, credit bureaus, credit grantors, and Internet providers of goods and services. Many of us live our lives on the Internet and in the cloud. Amazon, Microsoft, Google, EBay, and other companies have our aggregated, detailed data in their files. The issues here are major, and I need to shed complex issues cavalierly as we proceed.
I want to follow the track of “privacy in public” that was at the heart of Jones. If the courts suitably restrict the ability of government to surveil us in public, that may only go so far to protect our privacy. The private sector at present has nearly unbounded ability to track individual activities on the streets, in malls, and elsewhere. Current technology – including cameras, license plate readers, face recognition software, drones and more – would, if more universally employed, allow private companies to follow our every step in public. This is already largely the case online, and I leave that controversy aside for now.
Can we stop private sector data collection in public? If the government seeks to constrain the ability of the private sector to collect information in public spaces, it runs into the First Amendment. For example, if you want to pursue photography and First Amendment issues, you can start with a summary about Photography & the First Amendment at the First Amendment Center website. It’s not simple or easy. The conflicts are real. By the way, restrictions on data use are related to data collection and are just as complex. We’ll leave those use issues aside too.
Privacy conflicts with the First Amendment are nothing new. They arise in libel cases, in privacy tort cases, and elsewhere. Broadly stated, the question is to what extent is it constitutional for the government to restrict First Amendment activity in order to protect an individual’s right of privacy?
This brings us squarely to my point: Two forty-year old cases allowed restrictions on the collection of information about individuals in public space. The main purpose here is to bring these cases to broader attention.
Forty years ago, Ralph Nader was an author and lecturer on automotive safety as well as a critic of the safety and design of General Motors’ (GM) vehicles. The company hired people to follow Nader to collect comprising information about the consumer advocate and, ultimately, made him famous. Nader sued GM, alleging that GM and others conducted interviews with Nader’s acquaintances, kept him under surveillance in public places for an unreasonable length of time, made threatening, harassing and obnoxious telephone calls to him, tapped his telephone and eavesdropped on his private conversations with others, and conducted a continuing and harassing investigation of him. See Nader v. General Motors Corp., 255 N.E.2d 765 (NY 1970), 1970 N.Y. LEXIS 1618.
The court made it clear that not all gathering of personal information is actionable as a privacy tort. The information had to be of a confidential nature and the conduct has to be unreasonably intrusive. Not all of the conduct alleged by Nader to be an invasion of privacy was recognized by the court as sufficient under the law to support a lawsuit. However, the court found that surveillance, even in a public place such as a bank, could be actionable if “overzealous.”
In the court’s opinion, New York Court of Appeal Chief Judge Stanley Fuld wrote:
A person does not automatically make public everything he does merely by being in a public place, and the mere fact that Nader was in a bank did not give anyone the right to try to discover the amount of money he was withdrawing. On the other hand, if the plaintiff acted in such a way as to reveal that fact to any casual observer, then, it may not be said that the appellant intruded into his private sphere. In any event, though, it is enough for present purposes to say that the surveillance allegation is not insufficient as a matter of law.
The court refused to dismiss Nader’s claim of invasion of privacy and returned the case for trial. Nader won, but just barely. The court’s conclusion that the surveillance allegation was “not insufficient as a matter of law” was hardly a ringing endorsement. Nevertheless, the decision gave Nader enough of a victor that GM agreed to settle the case.
Another case involved surveillance of Jacqueline Kennedy Onassis, widow of the President John F. Kennedy, by a self-styled paparazzo who aggressively followed and photographed Onassis and her children. See Galella v. Onassis, 487 F.2d 986 (2d Cir. 1973). The defendant argued in part that the First Amendment’s right of a free press established an immunity that protected newsmen from any liability for their conduct while gathering news. The court readily dismissed this argument because crimes and torts committed in newsgathering are not constitutionally protected. Finding that the photographer “insinuated himself into the very fabric of Mrs. Onassis’ life,” the court issued a detailed injunction limiting the photographer from approaching Onassis. However, the court refused to prevent the taking or selling of photographs about her or her children because the restriction was unsupported by the evidence.
I wrote a bit about these cases a few years ago and suggested that extrapolating from the Nader and Onassis cases is difficult. That’s still true, but the ability to follow individuals in public is much easier and less costly than it was in the 1970s when these cases were decided. It’s not hard to imagine everyone being followed by technology when walking the streets, driving in cars, and shopping in stores. What was done to Nader and Onassis at great expense can be done today to everyone at little cost.
Do the Nader and Onassis cases point the way toward using tort law or other law as a method of controlling surveillance by private actors? I can’t offer any simple or easy answer to this question. I do have a thought. One element common to both cases may apply more broadly: the creep factor. Following individuals too closely in public is just plain creepy. It’s offensive to the average individual. It’s what the Nader court described as “unreasonably intrusive.” It what the Onassis court meant when it said the photographer “insinuated” himself into Onassis’ life.
You may have a First Amendment right to watch me walk down the street, but you may not have the same right to follow me 24 hours a day and look over my shoulder at everything I do. Somewhere, the First Amendment right to observe and collect information butts up against the creep factor. This is why it’s hard to see the Supreme Court finding that laws banning cameras in locker rooms, dressing rooms, and bathrooms violate the First Amendment right to collect information.
Will the creep factor limit data collection on public streets too? I don’t know where to draw lines here. It’s not somewhere in the Twilight Zone but in the creepy zone that this battle between privacy and First Amendment values will be fought. The Nader and Onassis cases may not be so easily dismissed today as extraordinary remedies for high-profile individuals. Technology may give everyone who walks down the street that same high profile.
The marketer who wants to know everywhere you go, everything you do, every item you see in a store, and every link you click on the Web risks being seen as just too creepy. And if a marketer sells that information to the government, it’s a potential way around the restrictions of the Fourth Amendment, creating an additional set of dilemmas.
Walking down the street isn’t as simple as it used to be. It’s a question for a law school exam.
About the author
Robert Gellman, JD is a privacy and information policy consultant in Washington, D.C. He served for 17 years on the staff of a subcommittee in the House of Representatives. He can be reached at bob [at] bobgellman. [dot] com or visit his website at http://www.bobgellman.com/. See also his article Location Privacy: Is Privacy in Public a Contradiction in Terms?