The law of privacy is complicated by the fact that there are at least three separate sources of positive law. First, the Supreme Court has held that informational privacy is a constitutionally protected interest. However, the constitutional right of informational privacy protects only against governmental actors (and does not give an individual any rights against a corporation, for example). Moreover, much involving the Constitutional concept of “privacy” is tied to Fourth Amendment jurisprudence involving search and seizure.
Second, Congress has enacted scores of statutes that affect informational privacy. Several of these statutes govern various features of the internet, and we will focus on two of these statutes later on in the course. Congress, of course, has the power to regulate individual and corporate behavior, as well as to establish the framework for governmental action, so long as it complies with the framework established by the Constitution. We will explore some aspects of these statutes in later modules.
Third, each state and territory of the United States has the power to regulate the privacy rights of its inhabitants, so long as those regulations and rules are consistent with the U.S. Constitution and the statutory framework established by Congress. Many states have adopted one or another of three separate “privacy torts” that give individuals the right to sue for damages if their privacy is invaded in specified ways. However, each state is free to develop its own tort law. Consequently, the variations on the three torts among the 50 states can be substantial.
For now, please read just the short abstracts on the Constitutional concept of informational privacy and the descriptions of the three tort doctrines involving privacy. You will have an opportunity later to read excerpts from the common law tort privacy cases and selected statutes.