Privacy: a Common Law and Constitutional Crossroads
| Publication year | 2011 |
| Pages | 55 |
2011, June, Pg. 55. Privacy: A Common Law and Constitutional Crossroads
June 2011
Vol. 40, No. 6 [Page 55]
Privacy Law
About the Authors
Kevin C. McAdam is a law clerk to the Honorable John R. Webb, who has been a judge on the Colorado Court of Appeals since 2002. After his year with Judge Webb, McAdam will clerk for U.S. District Judge Christine M. Arguello. The authors thank Tiffany Mortier, senior law clerk to Judge Webb, for her assistance in preparing this article. Editorial review of this article was performedby John E. Hayes.
In several states, privacy rights based on state constitutional provisions are more expansive than those under the U.S. Constitution. This article will assist Colorado practitioners considering whether expansion of the right to privacy is desirable to understand the approaches, counterarguments, and substantive areas involved.
The makers of our Constitution ... conferred, as against the government, the right to be let alone-the most comprehensive of rights and the most valuedby civilized men.
-Olmstead v. United States (Brandeis, J., dissenting)
The right to privacy has two main branches: common law, tort-based privacy, and constitutional privacy. The latter encompasses privacy rights concerning personal information,(fn1) individual autonomy,(fn2) and searches and seizures.(fn3) Colorado recognizes three of the four tort-based privacy theories adopted in many other states. Colorado appellate courts, like those in most states, merely follow federal constitutional law on informational and autonomy-related privacy. However, the Colorado Supreme Court has sometimes interpreted the Colorado Constitution more expansively as to search and seizure.
Among the ten states whose constitutions explicitly protect privacy, most courts have expanded privacy rights beyond federal constitutional requirements in areas such as electronic monitoring of conversations and restrictions on abortion. A few of the states without such provisions also have recognized broader privacy protections than has the U.S. Supreme Court, based on various provisions in their state constitutions, several of which are mirrored in the Colorado Constitution.
This article examines privacy jurisprudence in Colorado, compares that precedent to court decisions in other states, and contrasts such cases from states that have express privacy provisions in their constitutions with those (like Colorado) that do not. It compares rationales in cases that have expanded privacy rights beyond federal constitutional requirements to rationales in Colorado cases that have interpreted similar provisions of the Colorado Constitution more broadly than their federal counterparts in search and seizure and nonprivacy contexts. It concludesby proposing an analysis for practitioners interested in arguing for expanded privacy rights under the Colorado Constitution andby suggesting counterarguments to limit such expansion.
Tort-Based Privacy in Colorado
The Colorado Supreme Court first recognized the tort of invasion of privacy in 1970, but did not "attempt to comprehensively define the right to privacy, nor to categorize the character of all invasions which may constitute a violation of such right."(fn4) Thereafter, the Restatement (Second) of Torts was published, which describes four invasion of privacy torts: (1) unreasonable publicity given to another's private life; (2) unreasonable intrusion on the seclusion of another; (3) appropriation of another's name or likeness; and (4) publicity placing a person in a false light.(fn5)
Publicity
In 1997, the Colorado Supreme Court recognized "a tort claim for invasion of privacy in the nature of unreasonable publicity given to one's private life." This tort involves the following elements:
1) the fact or facts disclosed must be private in nature;
2) the disclosure must be made to the public;
3) the disclosure must be one that would be highly offensive to a reasonable person;
4) the fact or facts disclosed cannot be of legitimate concern to the public; and
5) the defendant acted with reckless disregard of the private nature of the fact or facts disclosed.(fn6)
Seclusion
In 1998, a division of the Colorado Court of Appeals applied the Restatement test for unreasonable intrusion on the seclusion of another:
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.(fn7)
The division explained that "[a]n offensive intrusion requires an unreasonable manner of intrusion or an intrusion for an unwarranted purpose."(fn8) In a later case, however, another division held that the tort of intrusion on seclusion "does not clearly mandate a public policy that an employer may not direct an employee to take a drug test in compliance with a previously established drug policy."(fn9) The division noted that the employer's purpose for obtaining the information had been "plainly recognize[d]" and approvedby statute.(fn10) The Colorado Supreme Court has not addressed this theory.
Appropriation
The Colorado Supreme Court has recognized the tort of appropriation of another's name or likeness, identifying the elements as:
1) the defendant used the plaintiff's name or likeness;
2) the use of the plaintiff's name or likeness was for the defendant's own purposes or benefit, commercially or otherwise;
3) the plaintiff suffered damages; and
4) the defendant caused the damages incurred.(fn11)
However, the Court rejected the Restatement's property-oriented approach to the tortby holding that a plaintiff "who seeks only personal damages ... [need not] prove the value of her identity."(fn12)
False Light
The Colorado Supreme Court has rejected the tort of publicity placing a person in false light,(fn13) concluding that this tort is "highly duplicative of defamation both in interests protected and conduct averted."(fn14) It also expressed concern that the "highly offensive" requirement, which it described as the "subjective component" of the false light tort,(fn15) would "raise[] the spectre of a chilling effect on First Amendment freedoms."(fn16) Since then, no dissent or special concurrence in a Colorado Supreme Court opinion has expressed a willingness to revisit the issue.
Constitutionally Based Privacy
The U.S. Constitution mandates the minimum protection of individual rights that all state courts must provide.(fn17) Some states afford privacy rights greater protection, based on either express privacy provisions or provisions in their constitutions that parallel provisions in the Colorado Constitution. In Colorado, such greater protection could be sought under existing constitutional provisionsby analogy to cases in other contexts where the Colorado Supreme Court has interpreted those provisions more broadly than the U.S. Supreme Court has interpreted similar provisions of the federal constitution.
Federal Constitution
Although the U.S. Constitution contains no express privacy guarantee, the U.S. Supreme Court has recognized a limited right to privacy under: "penumbras, formedby emanations" in various provisions of the Bill of Rights, the First Amendment, the Fourth Amendment, the Due Process Clause, and the Equal Protection Clause. Illustrative cases include:
* Griswold v. Connecticut,(fn18) announcing penumbral theory and holding unconstitutional law prohibiting distribution or use of contraceptives
* Stanley v. Georgia,(fn19) citing Griswold and noting that "also fundamental is the right to be free ... from unwanted governmental intrusions into one's privacy," Court held invalid under First Amendment law criminalizing private possession of pornography
* Wilson v. Layne,(fn20) under Fourth Amendment, holding unconstitutional police officers bringing reporters into home during execution of warrant
* Lawrence v. Texas,(fn21) under Due Process Clause, holding unconstitutional anti-sodomy law, overruling Bowers v. Hardwick
* Planned Parenthood of Southeastern Pennsylvania v. Casey,(fn22) (plurality opinion) under Due Process Clause, reaffirming right to abortion but applying undue burden test to uphold medical emergency, informed consent, waiting period, parental consent, and reporting and recordkeeping requirements
* Zablocki v. Redhail,(fn23) under Equal Protection Clause, holding unconstitutional law requiring court approval of marriage when child support owed.
The U.S. Supreme Court's right to privacy jurisprudence protects only against governmental action. The Court has not been consistent in articulating the level of scrutiny with which it reviews such infringement on the right.(fn24) Also, it has noted that the right to privacy is not necessarily the best vehicle for addressing individual rights.(fn25)
Most state court privacy cases merely follow the U.S. Supreme Court, without significant analysis of their own constitutions.(fn26) However, some state courts have gone further, based on either express constitutional privacy provisions or broader interpretations of more general provisions in their constitutions.
States With Express Privacy Provisions
Constitutions in ten states explicitly protect privacy.(fn27) Despite differences in wording and structure, no such provision explicitly applies to private conduct, and most provisions go beyond simply incorporating privacy language into the state's Fourth Amendment analog. These state constitutional provisions often have served as the foundation for courts to expand privacy protections beyond federal law existing at the time of the opinions. Illustrative...
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