One of our top legal scholars on the meaning of privacy — and if it will even matter in the years ahead.
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The recent Supreme Court decision which eviscerated Roe v. Wade brought the issues of privacy into bold relief. The right to privacy is not only central to landmark legal cases like Roe, Griswold, Loving, and Obergefell, but it impacts how we all live our lives.
Our guest on this week’s WhoWhatWhy podcast, Amy Gajda, is one of the country’s top legal experts on privacy. She is a professor at Tulane Law School, a former journalist, and the author of Seek and Hide: The Tangled History of the Right to Privacy.
Gajda talks about how privacy has been enshrined in some of our laws and its connection to the Constitution — which never actually mentions the word “privacy.”
Even though we live in a world of social media, personal data dumps, and endless information, she explains why privacy is still relevant. She connects its impact on the press with its larger public policy implications, including the role privacy played in the 2016 Gawker case.
Gajda elaborates on the fundamental tenets of privacy, the right to be forgotten, and the right to be left alone. She also provides some background on the privacy of sexual information, raw law-enforcement data, and what constitutes privacy in public spaces.
It’s an issue that touches on everything we do on- and offline, everything we do in the sanctity of our homes and bedrooms, and in our work and relationships. Yet it’s little understood.
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(As a service to our readers, we provide transcripts with our podcasts. We try to ensure that these transcripts do not include errors. However, due to a constraint of resources, we are not always able to proofread them as closely as we would like and hope that you will excuse any errors that slipped through.)
Jeff: Welcome to the WhoWhatWhy podcast. I’m your host, Jeff Schechtman.
I’ve often quoted the former head of Sun Microsystems Scott McNeilly who said over two decades ago that there is no privacy; get over it. And that was before Facebook, tracking apps, location-based retail, TikTok, et cetera. For decades, the debate about privacy was foundational to the relations between ourselves and our community, between individuals and law enforcement, and between government leaders and the press.
Privacy, as the law defined it and protected by the Fourteenth Amendment, was at the heart of the great social issues of our day: Cases like Roe and Griswold and Loving and Obergefell. But all of this has changed now. What does privacy really mean when it can be taken away by the courts and when, with one click on Twitter, you can do more harm to a reputation than all the stories in The New York Times?
When anyone can publish, when an entire generation seems to have eschewed privacy by virtue of social media, can privacy ever mean what it used to? And if not, how will both the media, the law, and society adapt? We’re going to talk about all of this today with my guest Amy Gajda.
Amy Gajda is the Class of 1937 Professor of Law at Tulane. She’s a former journalist and one of the country’s top experts on privacy in the media. She’s an award-winning legal commentator and has written for numerous publications, including The New York Times, the New Yorker, as well as having appeared on C-SPAN. It is my pleasure to welcome Amy Gajda here to talk about Seek and Hide: the Tangled History of the Right to Privacy.
Amy, thanks for joining us here on the WhoWhatWhy podcast.
Amy: What a lovely introduction. Thank you. And I’m delighted to be here.
Jeff: Well, it’s great to have you here. When we look at privacy today, it feels like it is a moving target. The courts have always been a little strange in terms of the way they define privacy. It seems even harder to define today. Talk about that.
Amy: Sure. So, essentially, what privacy means, and what privacy has meant almost from the very beginning of the United States, is the right to be let alone. And so that is a very common phrase used in a lot of privacy cases all the way back from the mid-1800s through to today. And the idea is that individuals do have some things in their lives that should remain private: Things that they can keep from being published, things that they can do in a private space without others peering in on them.
So there’s always been that sense of privacy. The trick is, as you suggest, is that that idea, that right to be let alone is a very subjective test. And therefore, it can vary from jurisdiction to jurisdiction and come to mean different things in different places, depending on what judge is deciding any particular case.
Jeff: And even Supreme Court Justice Black in writing in Griswold talks about privacy as this kind of abstract and ambiguous concept.
Amy: Yes, and it is in a sense because that word does not appear in the Constitution. And because of that, we’ve had a number of court cases that have suggested that, and moreover, from the very beginning, this notion that the government can’t come into our houses — abortion rights. You think about all these issues that concern privacy in some way.
And that’s very different from the way it is in Europe: There’s a real focus on the individual; there’s a focus on dignity. Here in the United States, there’s always a tension between privacy and other things. And particularly, this right to know and the ability to ferret out and report to publish truth. And so, yes, it’s a really interesting tension, I think, between these constitutional principles, even though privacy doesn’t appear in the Constitution.
Jeff: Talk about the way it has been drawn out of the Constitution. Certainly, there’s freedom of speech; freedom of the press is defined in the First Amendment. But it’s also, in large measure, become part of how it’s teased out of the liberty clause in the Fourteenth Amendment.
Amy: That’s right. And moreover, there’s also this sense of liberty in the First Amendment as well. So, really the courts and the Supreme Court have suggested that there are all sorts of provisions within the Constitution: The First Amendment, the Fourth Amendment, as you suggest, the Fourteenth Amendment, and on and on, this penumbra of ideas to support privacy. And I think that that’s probably one of the reasons why we have great difficulty defining it in any particular way today.
Interesting, though, putting aside the Constitution and, of course, constitutional principles do exist in the things that I’m about to say so that — the constitution exists in this somewhat amorphous way with regard to privacy. But the law itself does define privacy in pretty concrete ways. There’s something called misappropriation: The misuse of someone’s identity generally in advertising. There’s something called intrusion into seclusion. And what that means is generally that if someone peers in on you when you’re in a private space, you can sue them for the peering. Third, publication of private facts. That notion that that’s the gossip tort, I like to call it. That’s where someone reveals private information about you. If that information is not newsworthy in a sense, you can bring a cause of action for the publication of that very truthful information.
And then the other really good example, I think in the law, aside from the constitutional issues here in the tort law, is something called the intentional infliction of emotional distress. And that’s one of those causes of action, the foundation for a lawsuit that suggests that if someone reveals truly private information about you, or looks in on you in a certain way, you can sue those people for inflicting emotional distress upon you.
And so all of those torts, those civil wrongs that people can sue for in the law, are very defined. And generally, they’re the same across the United States. So, as amorphous as privacy may be in the constitution, we do have, in the law, in a sense, very concrete ways of defining when people’s privacy has been invaded. And there are also regulatory laws as well. So the law has worked in some way to attempt to define invasions of privacy and precisely what they mean.
Jeff: Except what mitigates it, it seems today, is the degree to which we give up so much private information — private information, private knowledge about us. And the issue then becomes where that line is. If we’ve moved the line further and further and further in terms of what we’re willing to put out there, it’s harder to define what crosses over that line.
Amy: Yes, that’s a really good point. The way some courts at least are looking at that now is whether or not we really understand what we are giving up. And so, in other words, when we have just clicked through accepting all cookies and such, do we really understand what information we’re giving up, and how that information might be used against us?
So, for example, in the book, I got some of my data from one of these data brokers and was really surprised to find out precisely what sort of information they have about me and that they share with others about me. And I was also very surprised to learn that they share that sort of information with insurance companies, for example. And so I think the more we can get the word out about the sort of information that these companies have on us and with whom they share it, the more understanding we’ll have when we attempt to lobby our politicians to make privacy even stronger. And you see that at courts today. You see judges moving in that direction, even without legislatures or Congress taking action — judges, in effect, throwing up their hands and saying, “We need more privacy, we’re going to make this, or we’re going to try to make it happen through the courts.”
Jeff: A lot of this information that’s out there, information that data brokers have, information that’s out there on social media, is information we’re giving up. Now, we may not read the fine print of the terms and conditions, but that doesn’t change the fact that we’re agreeing to it. It’s a little caveat emptor here.
Amy: Yes, it is, and it’s not. So there’s at least one court out there that has suggested that when we just quickly accept terms and conditions, we don’t really understand what we’re giving up. And therefore, that contract is not enforceable. And so, the more courts that could suggest such a thing, the better off I think we’ll be because it will force, then, these companies that do take our data to better explain precisely what they’re doing and what they’re doing with it.
The other related thing that I think is pretty interesting is that there’s at least one case out there, one court that suggested that when we share information on social media if we intend to share it only with our friend group, for example, that information, even though we put it out there, can still have some sort of privacy in it. And that’s a really surprising decision. It goes against what many early courts suggested, which was once it’s out on the internet, it’s fair game. But it’s proof, I think, that judges are better understanding precisely what’s happening with data today, and how it can be used against us, against our will, and also without our full understanding.
Jeff: And this has been more the European approach with the right to be forgotten, et cetera, which by its very nature implies the privacy of that information you put out there.
Amy: That’s right. And what I think is interesting today in the United States is that we do have these rumblings of the right to be forgotten here, too. And it’s especially in criminal law. So what I mean by that is, when someone is arrested or even convicted for a crime, at some point, that conviction and that arrest is going to get very, very old.
There might be an old mug shot out there, for example. And even though that information was once public information, some courts have suggested that it’s no longer relevant. It doesn’t really concern the individual anymore; we don’t learn much from it because the person was in his or her teens when this happened, and therefore it should be, in effect, wiped away. So there’s at least one case out there, again, that forced someone’s criminal history to be taken off the internet.
There’s another example from a government database online that had a searchable database of all current and former prisoners, and a court decided that that should be taken down as well for privacy concerns. So, even though we think of the right to be forgotten in this very European way, you do have rumblings of that in the United States as well, especially with regard to old criminal history.
And one really quick additional thing: Some legislatures in the United States have recognized these websites that exist solely to publish people’s mug shots and this sort of criminal information, and what they’ve done is they’ve passed laws making it, in effect, wrong for police to release certain mug shots. So what they’re doing is they’re pushing against it both on the publication side but then also on the access side in the first place. If it can’t get out there at all, it won’t ever appear on the internet, and it won’t be there 10 years later to harm the person when the person is older and has changed his or her ways.
Jeff: The other area that is the subset of this, or at least a corollary of this, is this idea that privacy in public spaces has virtually disappeared.
Amy: And if we were having this conversation five to 10 years ago, I would have absolutely agreed and said, “Indeed, if one is in public, one has no privacy there.” But what’s happened is courts especially have noted that there is technology available today that makes what might be something that happens in public that can allow that discussion, for example, to be recorded and then put up on the internet.
So, for example, in California, there’s, I think, a really important case decided by a federal appellate court, the Ninth Circuit, that decided that there is the right to privacy in a public space. And that case concerned a restaurant and a discussion between two people at the restaurant, one of whom, unbeknownst to the other, was recording the lunch discussion and later uploaded it to YouTube. And the Court suggested that this was an invasion of privacy: That the person who was being recorded had no idea that the recording was happening. And because of that technology, because of that technological innovation, and it’s not clear how that was recorded, the court suggested that it seemed that the camera, the recording equipment, was in a pocket of the individual, and it could be that there are pens, for example, that can record audio and video. They look like pens, they work like pens, and so maybe it was done that way.
But in any event, the court said that that sort of technology that can record what appears to be a private conversation between two people, even though there are others around, can, in fact, retain privacy: There can be privacy in public spaces.
Jeff: Doesn’t that relate to the same laws that impact phone calls, in some cases, where, in some states, it’s perfectly okay to record a phone call without the other person knowing it; in some states, it’s not?
Amy: Yes, and that’s a struggle again that courts are looking at today. What at least some courts have said is that sort of recording is very, very different from the actual broadcast of the recording. And so, even if there’s a one-party consent state, for example, that means that at least in certain contexts, one individual’s knowledge that the phone call is being recorded is enough.
But courts in some of those states have suggested that there’s a difference between recording the information and broadcasting it. So just because it’s a one-party consent state for recording doesn’t mean it’s a one-party consent state for publication of the information, and there can still be a valid invasion of privacy claim brought by or brought when that information is later published. So what used to be the law — and a very easy law, because journalists were the ones making those decisions about publication — are no longer easy, because, of course, any one of us can bring our cellphone to a lunch discussion and thereafter, upload it to YouTube without the other person knowing.
And this is, again, I think, a really good example of courts coming in and saying, “Enough is enough. We don’t want to give people the ability to publish whatever they want without at least thinking about the other individual’s privacy interests in the information.”
Jeff: As you say, it is so much more complicated today because, with one click of a button, that information travels literally around the world in seconds. And it always raises the old Ray Donovan question: “Where do I go to get my reputation back?”
Amy: Yes. And that’s why this whole “right to be forgotten” thing is very interesting, too. This notion that maybe once we had a lousy reputation because we were arrested in our teens, but now we’re in our 30s, and we’ve completely changed our lives around, does it make any sense to allow people to delve back into those teen years and then use that information against us?
So that whole question of reputation and who we are as individuals because I have a feeling, of course, that a lot of people are going to say, “Well, it’s highly relevant that someone was arrested in their teens.” And yet what’s happened today is that because people are being googled when they apply for jobs or being googled when people decide whether or not to go out on a date with them, all those things are possible. Courts are coming back and saying, “You know what? Maybe we should take that sort of information down, or at least make it less accessible so that people and their reputations are not saddled with this information for years and years, perhaps throughout their entire lives.”
Jeff: But even that is coming under siege when you think about the idea of some of this information, and this is going forward. But think about some of this information being put on a blockchain somewhere with really no way to take it down.
Amy: Yes. And that’s why this idea of this tort law, so again, putting aside constitutional principles a bit, even though this concerns freedom of the press, the whole idea that publishers can be liable for sharing information in a public sense. So, for example, even though something exists on a blockchain, it’s sort of like the same way that it exists in the files of government, for example. And if someone reveals that information on the blockchain, or if someone reveals that information deep in the files of government, well, there can still be liability for that publisher. Much will come down to whether or not the information is newsworthy.
But it’s that same sense that yes, maybe we don’t — that information is out there someplace, but we should have the ability to bring an invasion of privacy claim when that information is released. So medical records will be, if they’re not already on the blockchain, that we will retain privacy in that information. And if anyone reveals that information about us, even though it’s out there someplace, we can bring a privacy claim. Because privacy and medical information has been protected routinely in the United States since at least the 1800s.
Jeff: I mean, I guess what’s different, in terms of future technology in blockchain, is that, one: We may not know who put it up there, and there isn’t the same ability necessarily to take it down because of encryption. And no matter what the government may have, somebody can go into the dusty files somewhere in the basement of the archives and pull it out. It may not be possible in the future in terms of encrypted information on a blockchain.
Amy: Yes. I mean, that’s true too. So, a lot of the information that’s out there will in fact eventually become newsworthy. And maybe if we encrypt it too much, future generations will never have access to the sorts of things that that we have today that are very, very helpful to researchers and, conceivably, employers and other entities like that that could conceivably make really good use of information from the past.
Jeff: Talk about it with respect to the press and the digital world that we live in today. Because in many ways, the press, because of the nature of media today, the mainstream press, the traditional press, has less access in some ways and less flexibility, which I guess is a better way to put it, than somebody putting information up on Twitter.
Amy: Yes. And what I think is troubling here is that the press has been harmed by publishers with access, as you suggested at the very beginning, to the internet that have the ability to publish something with the click of a button and send it around the world. Because that exists, courts have suggested that certain information like, for example — well, here’s a really good example, I think.
So I used to work, for a long time, as a television news reporter and anchor. And so I covered an awful lot of fatal car crashes, very sadly. When we would go to a car crash, we would never take video of anybody — anyone suffering in any way. So we would never take video of it in the first place. If we had somehow captured something like that, we would never air it. There are ethics concerns in journalism that prevent us from doing those things, and nobody wants to see those things anyway, and so therefore, we would never publish them.
Well, zoom ahead to the internet age, there are websites out there that will in fact publish raw video of accident scenes. And so there are at least a couple of cases out there that suggest more than that. That suggest that there is privacy in those moments of suffering. And the reason why those cases exist is because of the websites that do publish without regard to ethics concerns.
So my worry here is that courts are making these very broad statements, and suggesting privacy in things that have always had some sort of news value. And in that way, they’re not only then harming in a sense those websites that publish that sort of information but also mainstream media because suddenly, mainstream media is chilled in a way that they weren’t before and may second-guess themselves, especially at this moment in time when so many media organizations are struggling financially. Why push the envelope when there could be some sort of privacy claim brought by an individual? So, in that way, I think news is being affected and really stands the chance of being affected even more strongly in the future as privacy concerns move forward.
Jeff: In that sense, what do we take away in this broader idea of privacy with respect to the Gawker case, for example?
Amy: Well, interestingly, that case — I’ll share a story with you. I’ve been teaching information privacy now for more than two decades, surprisingly. So almost at the very beginning of the internet is when I started to teach this. And I’d been saying for a very long time to students that I predicted there would be a website out there that would publish a sex tape featuring a celebrity and that the courts would have to balance the news value in that sex tape versus the right to privacy in the celebrity. And so, when that sex tape featuring Hulk Hogan was published on Gawker, literally, one of my students was the one who sent it to me and said, “You’re right, it’s happened. This is the case.”
And traditionally, for a very, very long time, again, from almost the very beginning of the United States, there has been privacy in sexual information, privacy in nudity. And so, therefore, I knew, and many lawyers out there knew that there was a chance that Gawker was going to lose this case. And some media defense lawyers have said to me: “If Gawker had called me and said, ‘Should we air this videotape?’, the answer would’ve been no.” So it wasn’t a great surprise to those of us who study privacy that the case went in that way.
What I think has happened, though, since then, and this touches on my previous point, is that increasingly now, plaintiffs’ attorneys are recognizing that they can bring these sorts of claims, and that those sorts of claims are winnable. And in that way, then, again, there’s a little bit of a chilling effect in media. Media now understands that it can be liable for publishing private information involving people, but so do plaintiffs’ attorneys, and they can bring these cases, and they’re winnable today.
Jeff: Winnable with Peter Thiel’s money. [laughs] I mean, they’re winnable.
Amy: Yes, that’s right. And yet, as I suggest in the book, and as I believe as an attorney, you can’t win a case on money alone: The law needs to be on your side. And here, as I’ve suggested, from the very beginning of the United States, there’s been privacy around nudity and sexual information because it’s a part of dignity. Because it’s a part of what makes us human in a sense. It’s one of those areas that the law has suggested should be protected for a very long time. And so, therefore, I really believe that, even without Peter Thiel’s money, that this case was winnable. It’s a question about whether or not the attorneys would have taken it on a contingent fee basis, but certainly, the law was there to support that argument. And therefore, it was winnable, I believe, without that sort of bank ruling.
Jeff: Within that context, how has privacy law been affected — in all privacy, in all these areas that we’re talking about — been affected by the way privacy has been used in things like Roe and Loving and Griswold, etcetera?
Amy: Well, again, the focus there is very much on the dignity of the individual. This right to be let alone, the liberty of the individual. And even though we have a number of cases involving media — I’ll say this: Sometimes in cases involving media, for example, Roe comes in. And it doesn’t come in really as a slam dunk precedent, but it comes in, in that idea of dignity and the right to be left alone and liberty. And the clash then with, especially in the cases that we’re talking about here, First Amendment interests in freedom of the press and freedom of expression and freedom of speech.
And so, even though they’re not on a parallel, precisely because abortion is the government deciding what it can and can’t say about an individual’s medical treatment, that sort of thing. You can tell that there are — it’s parallel, in a sense. And so, even though these cases, the facts are very different, those same ideas come up from the cases, and also, oftentimes, they are mentioned in the cases.
The other thing that is often mentioned in these cases is this 1890 Law Review article by Louis Brandeis and his law partner, Sam Warren, called The Right to Privacy. So, that Law Review article suggested that we all do have the right to be left alone. And if there’s one go-to law in the United States — or “legal precedent” — it’s not really precedential like a case would be, a lot of courts have looked to that right to privacy and have suggested that’s really where a lot of the way we think about privacy in law the place where those ideas have come from.
Jeff: But that was Brandeis writing before he was on the court.
Amy: Yes, when he was just a lawyer in Boston, and he used that same language when he became a Supreme Court justice and those same ideas. So there’s the notion that the government can’t come in and wiretap our phones without getting a warrant because there are privacy interests in that, too. That’s different from what they argued in The Right to Privacy Law Review article. In the Right to Privacy Law Review article, they suggested that media was out of control, was reporting too much private information, that technology was facilitating that sort of reporting. And yet the idea was the same: Wiretapping — we don’t want the government coming in and listening to what we’re saying without getting a warrant. In the same way, we don’t want a media organization to report private information about us.
Jeff: One of the things you write about, finally, is that clearly the privacy pendulum swings from one side to the other, historically. Where is it now, and where do you think that it’s going?
Amy: Well, if I had to guess, based on my students today and their responses to privacy, I think we’re currently shifting, and we’ll continue the shift toward privacy in the United States. A lot of my students, both my undergraduate students and my law students, even though they’re on social media, they are posting things in a way that shows that they recognize that they’re not going to reveal all truth because they don’t want that coming back to bite them. And moreover, they’re the ones who’ve made this argument from the very beginning that “Hey, if I’m going to put something on social media, I don’t intend it to be used by an insurance company later on against me. I just want to share this information with my friends.”
And back 10 years ago, when students would say this to me, I would say, “Well, sorry, that’s not the way the law looks at it.” But in fact, today, we do have courts suggesting that they’re precisely right. So, if I had to guess, and in talking with some privacy officers at corporations as well, we are shifting very much toward the European privacy right with a focus very much on dignity of the individual, that there will be data protection that will continue this idea of privacy in public spaces, that will eventually have some sort of a right to be forgotten.
And again, as great as that sounds, we just have to be sure that as we protect privacy, we also want to know about our politicians; we want to continue our democracy and democratic principles. And so therefore, that’s that clash. That’s why we have to draw these lines very, very carefully.
Jeff: Professor Amy Gajda, her book is Seek and Hide: the Tangled History of the Right to Privacy. Amy, I thank you so much for spending time with us here on the WhoWhatWhy podcast.
Amy: Thank you. It was delightful.
Jeff: Thank you.
And thank you for listening and joining us here on the WhoWhatWhy podcast. I hope you join us next week for another radio WhoWhatWhy podcast. I’m Jeff Schechtman.
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