Who is watching your keystrokes? An analysis of M.G.L. ch. 214 [section] 1B, right to privacy and its effectiveness against computer surveillance.

• Author: McNulty, Janine H.

1. INTRODUCTION

   As a Massachusetts citizen, you have a statutory right to privacy. (1) The statute declares, "[a] person shall have a right against unreasonable, substantial or serious interference with his privacy" and gives the Massachusetts Superior Court jurisdiction to hear the cases. (2) In the past thirty years, Massachusetts' courts have held, despite broad language of the statute, that many intrusions do not violate this statute. These intrusions include specific employer actions, (3) telemarketing, (4) newspaper articles, (5) and newspaper pictures. (6) This note applies Massachusetts' case law to hypothetical computer-based invasion of privacy cases to predict how the court would rule when confronted by this emerging problem.

   This note begins with a brief discussion of the Samuel D. Warren and Louis D. Brandeis Law Review article that shaped the common law right to privacy. (7) The note then describes the Restatement of Torts' privacy categories. (8) Next, the note analyzes Massachusetts' privacy cases to determine what actually constitutes a reasonable and substantial or serious violation of privacy. (9) After this analysis, there is a brief overview of current computer technology (10) and a description of how someone uses a computer to invade the privacy of another. After analysis of a New Jersey common law violation of privacy case, (11) this note uses theoretical fact patterns to demonstrate how a Massachusetts state court might rule when confronted with a computer generated invasion of privacy claim.

2. HISTORY

   A law review article written by Samuel D. Warren and Louis D. Brandeis recognized and shaped the common law right to privacy over a century ago. (12) In the first paragraph, they charged that all aspects of a changing society, encompassing the political, social and economic, required the identification of new rights and then used the common law to develop this new right to privacy. (13) The authors understood that with the development of society and civilization, there comes a need to protect the thoughts of man from intrusive, advancing technology. (14) Even in 1890, people knew how important privacy was and therefore recognized that privacy needed additional protection. (15) The "right to be let alone" was born. (16) The evolution of the right to privacy continues to this day.

   The Restatement of Torts codified this right of autonomy. The Restatement contains four categories of invasion of privacy: (1) intrusion upon seclusion, (2) appropriation of identity, (3) disclosure of private facts, and (4) publicity that places another in a false light. (17) The right of privacy protects against an "unreasonable intrusion upon the seclusion of another." (18) The unreasonable intrusion alone is enough for a violation of a privacy right, yet it is not actionable until it becomes highly offensive. (19) The intrusion must be substantial and reach the level where a reasonable man would "strongly object." (20) Intrusion covers violations, such as opening another's mail or searching another's wallet, as well as those violations using mechanical means, such as tapping a phone to eavesdrop on private conversations. (21)

   The second category of privacy invasion is the act of taking another's name or likeness to use for the taker's own benefit. (22) An invasion of privacy occurs when a person or corporation uses the name or likeness of another without permission. (23) A person has exclusive control over how his likeness or name is used. (24) Most of the case samples consist of using the likeness commercially to sell or advertise a product. (25) The person stealing the name or likeness must benefit from using the appropriated name or likeness. (26) Merely using a similar sounding name or likeness does not meet the benefit requirement. (27) The value of the name is the underlying principle of this privacy violation. (28)

   The third category covers a person's private life and aims to prevent unreasonable publicity about that private life. (29) The published information must be highly offensive to the person without being a legitimate concern of the public. (30) The First Amendment protects dissemination of information that the public has a right to know. (31)

   The last category of the Restatement protects against publicity that unreasonably places a person in a false light to the public. (32) The information must be highly offensive and the defendant must have published the information with reckless disregard as to the falsity of the information or with actual knowledge. (33) The facts must be false and published, yet the statements do not have to be defamatory. (34) Once again, Constitutional restrictions apply. (35)

3. MASSACHUSETTS RIGHT TO PRIVACY STATUTE

   Twenty-five states have statutes or provisions within their state constitutions protecting the right to privacy. (36) In 1967, a special commission issued a report detailing privacy issues in Massachusetts. (37) Through 1969, the Massachusetts courts declined to recognize a state action for invasion of privacy. (38) In 1973, the legislature codified the right to privacy in a broad statute: "[a] person shall have a right against unreasonable, substantial or serious interference with his privacy." (39) The Massachusetts Legislature intended this statute to cover the same categories originally articulated by Dean Prosser. (40) The legislature made the statute broader than the Restatement, however, by using one sentence to incorporate three different tort categories. (41) This broad statute allows the court to continue interpreting the right expansively. (42)

   The language of the privacy statute enables the courts to keep current with technology. (43) By implementing a broad statute, the legislature does not need to update or change the law simply because technology improved. (44) During the past thirty years, the Massachusetts courts have interpreted this broad statute as granting the court permission to decide on a case-by-case basis while taking societal values into consideration." (45) Litigation follows whenever someone uses new technology to discover private facts about another because the court interprets the statute on a case-by-case basis.

   When legislators passed the Privacy Statute in 1973, technology was a threat to privacy, but not to the extent that it is today. (46) Even then, one could see that data processing would ultimately become very cheap and easy to use for legitimate or illegitimate purposes. (47) In the past, one could argue that the government and certain businesses must have access to personal information. (48) Today, however, that contention is not as clear. (49)

   1. Massachusetts Legislative Intent

      The legislature wrote the statute as if there are three causes of action within the statute: an unreasonable interference, a substantial interference, or a serious interference. (50) Yet, the word "or" does not mean there are three separate causes of action. (51) A serious or substantial violation, which is reasonable, is not actionable under the Privacy Statute. (52) The perfect example of a violation of privacy that is not actionable is a legal search and seizure. (53) While almost everyone would consider a search and seizure a serious or substantial violation of privacy, it is a reasonable and protected intrusion. (54) The courts have not resolved the issue of whether an attempted violation of privacy is a violation of the Privacy Statute. (55) A complaint must allege a serious or substantial and unreasonable violation, or at least something that the court could interpret as a violation of privacy. (56)

      In Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., (57) the plaintiff sued telemarketers based upon cold call telephone solicitations he received at his business. (58) The plaintiff alleged that the telemarketing calls intruded upon his seclusion and therefore invaded his privacy. (59) The Supreme Judicial Court rejected the argument that there were three separate causes of action created by the language of the privacy statute. (60) The Court confirmed there are times when a serious or substantial violation of privacy occurs, yet because it is reasonable, it is not actionable. (61)

   2. Substantial or Serious Interference

      For an actionable violation of privacy to occur, the conduct must constitute an unreasonable and substantial or serious interference. (62) The trier of fact determines whether behavior reaches the level necessary for an actionable invasion of privacy. (63) If the intrusion does not reach the level of substantial or serious, no cause of action exists. As a result, the Massachusetts courts have ruled that the first step is to determine whether the intrusion reaches the serious or substantial level. (64) The court will look at the circumstances surrounding the intrusion, determine if there was a reasonable expectation of privacy or prior knowledge of the invasion and rule whether the invasion reaches the substantial or serious level. (65)

      In addition to holding there are only two causes of action within the Privacy Statute, (66) the Schlesinger court found the telemarketing calls to be neither substantial nor serious as an intrusion. (67) The Court looked at several factors to make that determination: the frequency of calls, the length of the average call, the intent behind the calls, and whether the calls disrupted the lawyer's activities. (68) The Court concluded that the solicitations which occurred three to five times per year, were short, were business related, and did not disrupt the plaintiff's business. (69) Thus, they did not reach the serious or substantial level required. (70) While the Court explained why this particular holding applies only to the business context, it is easy to see how the court might find differently in a non-business case. (71)

      In a business context, the Supreme Judicial Court ruled that a police cadet's required urinalysis did not satisfy the statute's serious or...