Category Archives: Privacy

Fourth Amendment Protection in the world of Smart Phones: Are we compromising our expectations of privacy?

With the advent of wireless technology, there have been growing concerns about the protection of individual privacy against arbitrary intrusion by government agents. While cell phones help us stay in touch with the important people in our lives, the technology also has the inherent potential for exposing our private lives to others. Over the last couple of decades, the Courts have continued to evolve the Fourth Amendment doctrine to keep up with the privacy concerns raised by the technological advancement in cell phones.

The Fourth Amendment to the United States Constitution guards against unreasonable searches and seizures as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const., amend. IV.

In US v. Katz, 389 U.S. 347, 367 (1967), the U.S. Supreme Court set forth a two-part test to determine whether search was conducted that implicated the Fourth Amendment. Under the two-part test the Courts need to determine:

  1. Whether the individual has exhibited an actual expectation of privacy; and
  2. Whether the society is prepared to recognize that this expectation of privacy is (objectively) reasonable.  

That case was considered a landmark because it made government wiretapping subject to the Fourth Amendment’s warrant requirements.

In 1979, the U.S. Supreme Court also determined that individuals had no reasonable expectation of privacy in the phone numbers used to make or receive calls on their phone.  In that case, Smith v. Maryland, 442 U.S. 735 (1979), the Supreme Court determined that “the installation and use of [a telephone number] pen register was not a “search” within the meaning of the Fourth Amendment, and hence no warrant was required. Pp. 739-746.”  The Court carved out a third party exception to the Fourth Amendment analysis as follows:

Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not “legitimate.” First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as “reasonable.” When petitioner voluntarily conveyed numerical information to the phone company and “exposed” that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information [442 U.S. 735, 736] to the police, cf. United States v. Miller, 425 U.S. 735 .

Id. at 741-746.

It is extremely important to contrast the difference between the data conveyed on the pen register in Smith v. Maryland  and cellular telephone data that is automatically sent to the cell phone carrier even without the subscriber dialing any numbers. The data that is automatically sent to the cell phone carrier also contains the “cell site location information” (CSLI). The historical CSLI identifies the cell tower to which the customer was connected at the beginning of the call and at the end of the call. Thus, the historical CSLI data can be used to track the previous movements of the cell phone user. Similarly, prospective CSLI data can be used to track the movements of the cell phone user in future.

Several federal courts have held that cell phone users have a reasonable expectation of privacy in the cell site location records. Therefore, government cannot access CSLI without a warrant as per the Fourth Amendment. But the majority of federal courts have held that this reasonable expectation of privacy is for the prospective CSLI only.  However, recently, the United States District Court for the Eastern District of New York held that the exception to third party disclosure should also apply to historical CSLI because cell phone users have a reasonable expectation of privacy in the cumulative cell site location records.

As the Fourth Amendment doctrine and the scope of individual’s expectation of privacy continue to evolve with technological developments, attorneys will continue to challenge the legality of government’s access to these technological advances.


© 2012 Nissenbaum Law Group, LLC

California Reader Privacy Law: A Privacy Key for the Digital Age

With the increasing use of digital books and online services to browse, read and buy books, it has become essential to have state laws that safeguard readers. Digital books now outsell paperbacks, and the popularity of e-readers in constantly growing.

The digital book services collect a large amount of personal information including the electronic notes made in the margins; the type of books browsed; and how long each page was viewed. The books people read reveal private, often sensitive information about their religious and political beliefs, their personal lives and their health concerns. Therefore, this data is highly personal and sensitive in nature. The existing California law protects book records of public libraries, but does not protect the book records of private libraries and book sellers. As a result, government and third parties can easily collect these reading records to monitor activists as well as use them in legal proceedings involving insurance disputes, divorce proceedings or custody battles.

California has long recognized the importance of safeguarding reading records and has taken an important step in this direction by passing the Reader Privacy Act of 2011 into law. The law, sponsored by Democratic state Sen. Leland Yee, prohibits government and third parties from disclosing or compelling disclosure of any personal information relating to users reading records. It prevents disclosure of data without a court order in a civil case or a warrant in a criminal case. The law imposes civil penalties on a book service provider for knowingly disclosing a user’s personal information to a government entity in violation of this law. It also requires the government or third parties to give notice to the bookseller as well as provide the bookseller with an opportunity to contest the order demanding the information. The booksellers are also required to prepare a report if they surpass 30 requests for information.

Clearly, this law is a key for updating privacy laws in the digital age.  It remains to be seen if this approach will gain traction in other states or on the federal level.


© 2011 Nissenbaum Law Group, LLC

When Does Being Portrayed in a False Light Invade One’s Privacy?

The legal concept of invasion of privacy by false light could end up leaving the music network MTV in the dark.

In Savely v. MTV Music Television, the Federal District Court for the District of New Jersey denied MTV’s motion to dismiss a suit filed by a street musician. The musician asserted that he did not consent to having footage of his performance included in a documentary the network aired. Savely v. MTV Music Television, 2011 WL 2923691 (D.N.J.).  

Michael Savely, a drummer who performs daily as “Mike Alaska” on New York subway platforms, claimed that he was approached by MTV representatives during one of his routines last November. The representatives asked whether they could film his performance for use in an upcoming documentary. Savely reviewed a contract with which the representatives presented him. He then returned the contract; declined their offer to use footage of him; and told them he did not consent to being filmed. In spite of his refusal, a four-second clip of Savely’s performance was included in a program about the life and career of rap artist Nicki Minaj that debuted on November 28, 2010.

Savely filed suit against MTV asserting three claims of invasion of privacy. The Court granted MTV’s motion to dismiss two of Savely’s claims: (a) invasion by appropriation of name, likeness or identity and (b) invasion by publication of private facts. (A motion to dismiss generally allows a court to throw out prior to trial claims that are without legal merit).

However, the Court denied MTV’s motion to dismiss Savely’s other claims that the network invaded his privacy by false light. According to Savely, the inclusion of the footage of him in the documentary associated him with Minaj, an artist that he said – through her profane lyrics and provocative attire – glorified a lifestyle that was contrary to the image that he chose for himself as a performer and music teacher (drum lessons).

Under New Jersey law, the invasion of privacy can occur under a number of different circumstances. One of them is when “[o]ne who gives publicity to a matter concerning another…places the other before the public in a false light. This breaks down into two elements:

  1. the false light in which the other was placed would be highly offensive to a reasonable person and
  2. the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”

See Cibenko v. Worth Publishers, Inc., 510 F.Supp. 761, 766 (D.N.J. 1981).

Savely asserted that the unprofessional quality and sounds of the footage included in the documentary reflected poorly on him. He also asserted that as a performer, the implied association between Minaj and him portrayed him in a false, unfavorable and disparaging light. In support of this assertion, Savely cited the facts that  the use of the footage caused (a) his fans to criticize him; (b) the parents of his students to terminate his teaching services;  and (c) sales of t-shirts with his image to decline. He said that part of his reason for declining MTV’s offer to be included in the documentary was his fear that association with the “wrong” artist would cost him significant business.

MTV argued, in part, that the footage of Savely was not distorted in any way and that images of him were not distinctly linked to Minaj or any substantive themes of the documentary. However, the Court noted that a claim of invasion of privacy by placing the other before the public in a false light would not require that MTV’s action defamed Savely, but instead merely that the network’s action was “something that would be objectionable to the ordinary reasonable man.” Canessa v. J.I. Kislak, Inc., 97 N.J.Super. 327, 334 (Law Div.1967).

The Court’s decision to deny MTV’s motion to dismiss does not mean the network is guilty for invading Savely’s right to privacy. Instead, it allows Savely’s claim that he was publicized in a false light to continue because the facts he alleged, if proven to be true, could support his claim. Additionally, the Court noted, the question of whether the documentary is capable of bearing a particular meaning that is highly offensive to a reasonable person is one for the Court to decide.

The Court’s decision not to deny MTV’s motion to dismiss is significant for entertainment companies and individuals that record the image and likeness of people for use during those individuals’ projects. Savely’s suit demonstrates the significance of receiving consent from those who are included during a television broadcast, movie or similar medium and the consequences of including those who refuse consent.


© 2011 Nissenbaum Law Group, LLC

What is the current legal status of Europe’s “right to be forgotten” doctrine as it relates to Internet Defamation?

A Spanish court recently asked Internet-search provider Google to remove data about a private individual from its index.  Spain and other members of the European Union made this request under a doctrine that is commonly referred to in Europe as “the right to be forgotten.”

In 1991, a Spanish newspaper published a critical profile of Spanish plastic surgeon, Dr. Hugo Guidotti Russo.  The article referenced a dispute Dr. Russo had with a patient, but failed to mention how meritorious the claims were or how the dispute was ultimately resolved.  According to Dr. Russo’s attorney, the lawsuit was dropped once Dr. Russo was cleared, but no media covered that aspect of the case so it never appeared on the Internet.  Dr. Russo is still a practicing plastic surgeon in Spain and when potential patients use Google to search for him, the critical article regularly appears on page one of the search results.  Dr. Russo believed that the article was harming his ability to attract patients and, with the support of a Spanish court and the Spanish Data Protection Authority (“SDPA”), asked Google to remove the article from its index.

Google refused to remove the article claiming that the Spanish regulators exceeded their authority and that their directive was equivalent to censorship.  The important issue raised was how much control private individuals should have over the information about them that appears on the Internet.  Currently, there is a groundswell of support in Europe for the “right to be forgotten” movement such that it may be codified as law.  The SDPA has previously ruled that freedom-of-expression laws in Spain protect only newspapers and other publications and do not protect search engines.

Other examples of private individuals seeking to “be forgotten” in Spain include:

A high school principal whose citation for urinating in public was published by an official regional government gazette and may still be seen by students and parents alike via a Google search.

A prison guard concerned that a job-related sanction that appeared in Google search results might lead criminals to determine where he works.  Spanish police and prison guards are often granted anonymity due to fears that they might be identified, located, and targeted by the armed Basque separatist group ETA.

An individual accused of homicide forty years prior but acquitted due to mental illness.  A Google search performed forty years later reveals news of the accusation, but no news of his acquittal or the mental illness that justified the acquittal.

Google’s response is that Spain should require the publications that make the material available via the Internet to embed coding that would tell search engines not to index the information.  Privacy experts agree that requiring Google to remove information from its index could have a profound chilling effect on free expression.  Advocates of the “right to be forgotten” rules counter that users of the Internet should have a right to be forgotten when the data is no longer needed or when an affected individual requests that the data be removed.  The legislation being considered by the European Union would focus mainly on data, photos and, videos that individuals post of themselves on sites such as Facebook and Twitter, that the individuals may later want removed.


© 2011 Nissenbaum Law Group, LLC