The recorded legal enforcement of privacy dates back to at least 1361, when Justices of the Peace Act in England provided for the arrest of Peeping Toms and eavesdroppers. In the 1760s, English Parliamentarian William Pitt wrote: "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow though it; the storms may enter; the rain may enter – but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement." Translation: One's home is one's castle.
The right to be free from unlawful searches and seizures and intrusions into one's home is among the earliest expressions of the legal right to privacy. Today, privacy has been woven into the fabric of the laws and regulations of most countries throughout the world. The Preamble to the Australian Constitution states: "A free and democratic society requires respect for the autonomy of individuals, and limits on the power of both state and private organizations to intrude on that autonomy. Privacy is a key value which underpins human dignity and other key values such as freedom of association and freedom of speech. Privacy is a basic human right and the reasonable expectation of every person." The 1948 Universal Declaration of Human Rights may well be the first multi-national, international legal document moving privacy to the level of a legally enforceable principle, noting that no one should be subject to arbitrary interference with privacy, family, home or communication, nor attacks on honor or reputation, and that each individual should have the right to legal protection against such interference or attack. In 1965, the Organization of American States proclaimed the American Declaration of the Rights and Duties of Man, which called for protection of numerous human rights, including the right of privacy.
We've come a long way. Today, Google's Peeping Toms are roving street cars equipped with cameras and are allegedly violating privacy rights left and right as they roam through your neighborhood. If you hadn't heard, Google reported earlier this year that in the course of its Street View automobiles roaming the streets of cities in more than 30 countries, its picture-capturing vehicles had also accidentally gathered data over unsecured Wi-Fi systems. Oops! Some of Google's woes stem from mistakenly collecting data it allegedly should not have, although many privacy advocates and some regulators are protesting the actual picture-taking itself – even though the streets are public – not just the inadvertent capture of such data. Google has agreed to delete Wi-Fi data collected accidentally and has apologized (e.g., New Zealand, United Kingdom) for collecting personal data (e.g., personal emails, passwords) from wireless networks.
Although this past October (2010), the FTC in the United States indicated its inquiry into violations of privacy by Google's Street View cars was ended – noting that Google had made efforts to increase its privacy and security processes and compliance procedures – Google is still facing a slew of questions, objections and government inquiries. Inquiries remain pending from attorneys general in a number of U.S. states, and at last count, about six or seven actual or putative class-action suits were pending.
In Germany, regulators have forced Google to agree to allow individuals to opt out of Street View and, when doing so, there will be computer-generated pixilation of their houses, instead of a photo, effectively blurring detail. Even with Google's recent actions to bolster its compliance and sensitivity to privacy concerns, German investigators may still pursue investigations and violations. Indeed, investigations are also underway in Australia, France, Ireland, Italy and Spain.
In the "you can't make this up" category on the subject, Legal Bytes recently saw a report that a woman in Japan is suing Google for about $7,000 for psychological damages because images of her underwear have appeared on the clothes washing/drying line outside her home displayed on Google Maps. Mainichi news service in Japan reports that part of her allegations state: "I was overwhelmed with anxiety that I might be the target of a sex crime. It caused me to lose my job and I had to change my residence."
When do public photographs become grist for the Peeping Tom mills? What about government surveillance? Satellite photos? Drone imagery? I, for one, am giving up sunbathing on the roof from now on!
Privacy is a dynamic and evolving concept – one not uniformly dealt with or perceived around the world, or even within nations. Privacy is often blurred with identity issues or security principles, in some cases overlapping and in others just emotionally charged rhetoric. Witness the recent FTC and Department of Commerce reports, each ostensibly dealing with "privacy." You can read about it on blogs posted by our Global Regulatory Enforcement Group, as well as right here on Legal Bytes (see, 'Tis The Season To Issue Privacy Reports - NTIA Green Paper, Protecting Consumer Privacy - FTC Issues Staff Report and Privacy & Data Security Bills After the Midterm Elections), or search "privacy" in the search box in the left side navigation bar. But there is no substitute for getting the advice, counsel and guidance about your own particular situation from legal representatives who deal with these issues – in the United States and around the globe. So if you do need assistance, call me, Joseph I. ("Joe") Rosenbaum, global chair of Reed Smith's Advertising Technology & Media law practice, or any of the Reed Smith attorneys with whom you regularly work.
