Category: First Amendment


Privacy’s Other Path: Recovering the Law of Confidentiality


Dan and I have just uploaded the final published version of our article, Privacy’s Other Path: Recovering the Law of Confidentiality up on SSRN. The paper is in print in the latest volume of the Georgetown Law Journal and we’re both very excited it’s out. Our paper tells the story of how privacy and confidentiality law diverged in Britain and America after 1890, how they have begun to converge once again in recent years, and how the law of confidentiality holds great promise for American law as it continues to grapple with the problems of personal information. Here’s the abstract:

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual’s inviolate personality. English law, however, rejected Warren and Brandeis’s conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law’s divergent paths reveals that each body of law’s conception of privacy has much to teach the other.

Can Antitrust Accommodate Privacy Concerns?

The proposed Google/DoubleClick merger has provoked a complaint from EPIC and concern from many privacy advocates. EPIC claims that Google’s standard M.O. amounts to a “deceptive trade practice:”

Upon arriving at the Google homepage, a Google user is not informed of Google’s data collection practices until he or she clicks through four links. Most users will not reach this page. . . . Google collects user search terms in connection with his or her IP address without adequate notice to the user. Therefore, Google’s representations concerning its data retention practices were, and are, deceptive practices.

One key question raised by the proposed merger is whether privacy concerns like these can be folded into traditional antitrust analysis. Peter Swire argues that they can; he believes that “privacy harms reduce consumer welfare [and] lead to a reduction in the quality of a good or service.” I am broadly sympathetic with Swire’s aims, but I worry that contemporary antitrust doctrine is too etiolated to encompass his concerns.

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The Boy Who Cried “National Security”: The Need for Greater Skepticism About Government Secrecy

redact2.jpgI just blogged about an incident where the 2nd Circuit sought to have Howard Bashman remove an unredacted judicial decision from his site and replace it with a redacted version. Apparently, the redacted version attempted to remove information about a rather dicey interrogation technique the FBI used. According to Tony Mauro of the Legal Times:

Based on a comparison of Bashman’s original posting of the opinion and the redacted version that the 2nd Circuit posted today, the Court acted to keep from view details of the FBI interrogation, in which agents allegedly threatened to turn Higazy’s family in Egypt over to Egypt’s security service, which could use torture and “give his family hell.”

Is such a redaction appropriate? What is the national security benefit of keeping this information secret?

Claims of secrecy in the name of national security must really be put under rigorous scrutiny. Far too often, courts and others defer to the government’s contention that certain information must be kept secret or else a security nightmare will ensue. In many cases, however, claims of secrecy are really attempts by government officials to cover their asses or conceal their misdoings. Recall the Pentagon Papers? The government made lavish claims that national security would be imperiled. Attorney General John Mitchell declared that disclosing the papers would “cause irreparable injury to the defense interests of the United States.” And what did the papers turn out to be? Evidence that the government misled the public about how the US became involved in Vietnam.

Given the current state of the law, there’s little incentive for the government not to cry “national security” to conceal ugly information. At worst, the courts or journalists or others just refuse the government’s request. But often, they capitulate. They will frequently defer to the government’s claims. So why not try? What’s there to lose? There needs to be some mechanism to punish unnecessary claims of “national security” to conceal information that shouldn’t be concealed. And there should be much more skepticism in evaluating such national security claims. How many times does a boy need to cry wolf before we start at least questioning the veracity of his cries?


Who, Exactly, Is a Journalist?

bashman.jpgIs Howard Bashman a journalist? Bashman is the author of How Appealing, a very popular legal blog that many readers here read — and that anybody who wants to keep informed about new cases and legal developments should be reading. Bashman frequently posts or links to court decisions when they are released online, and a recent set of events raised the question of whether he should be considered to be a journalist.

media3a.jpgAccording to the ABA Journal:

federal appeals court quickly withdrew an opinion issued yesterday in a case filed by a Sept. 11 detainee because of concerns it contained information filed under seal.

The opinion by the 2nd U.S. Circuit Court of Appeals revived a lawsuit by Egyptian student Abdullah Higazy who was detained after the attacks. Higazy claimed an FBI agent had coerced him to make a false confession.

The court was not quick enough for the blog How Appealing, which posted the opinion after a reader sent it along by e-mail. A clerk later called blog author Howard Bashman to ask him to take it down, but he has not complied.

The court planned to issue a revised opinion this morning, the New York Sun reports.

Bashman told that by the time he posted the opinion on his blog, hosted by American Lawyer Media, the ruling had already been viewed by hundreds if not thousands of individuals, and it was widely circulated by e-mail to those who were interested in the case.

“In my role as a member of the news media, I determined that it would be inappropriate to take down my posting of the decision based on a general claim that the opinion, issued earlier in the day to the public over the Internet, referred to information contained in an appendix whose contents remained under seal,” Bashman wrote in an e-mail.

Bashman’s account of the incident is posted on How Appealing.

Matthew Felling, writing at CBS’s website, examines Bashman’s claim to be a member of the media:

So not only is this a case of transparency, it’s also an anecdote begging the question “What makes someone a journalist?” Bashman called himself a “member of the news media,” yet as far as this writer could tell from a few clicks, he happens to be a Pennsylvania attorney who also operates a blog. . . .

Does readership define a journalist? Bashman added in a follow-up e-mail that he gets nearly 10,000 readers on “a typical weekday.” Does receiving money for writing make one a journalist, as Bashman does?

As far as this writer is concerned, Bashman fits the bill. But where is the line drawn? This isn’t a classroom discussion, a distinction without a difference, as we enter murky legal waters and a Federal Shield Law is considered on Capitol Hill.

Who is a journalist in an age where anybody can write to a worldwide audience? I believe that anybody can be a journalist — a journalist is what a journalist does. In other words, being associated with a mainstream media entity doesn’t determine who is a journalist and who is not. One doesn’t need to be part of any organization to report information to the public.

When asked by Felling what made him a journalist, Bashman responded that he has long been paid by media entities to run his blog. But being paid money shouldn’t define whether one is a journalist. Bashman is just as much a journalist even if he doesn’t get any money for his efforts — he’s still engaging in the same activity: bringing information to the public.

But are there any lines that can be drawn? Are we at Concurring Opinions journalists? Is the teenager who blogs about her personal feelings and social life a journalist? Is everybody with a MySpace or Facebook page a journalist?

Here are some possible ways to draw the line and some of their pitfalls:

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Eighth Circuit Rules Against MLB In Fantasy Baseball Suit

baseball7.jpgEarlier today, the Eighth Circuit ruled against Major League Baseball in the high-profile fantasy baseball case of CBC Distribution and Marketing, Inc. v. Major League Baseball Advanced Media. The case was brought by CBC, a St. Louis-based fantasy sports company against Major League Baseball seeking a declaratory judgment that CBC’s fantasy baseball games did not infringe upon the players’ rights of publicity or in the alternative that the First Amendment immunized it from liability. Dan and Kaimi blogged about this case last year here and here. In today’s ruling, the Eighth Circuit held that CBC infringed the players’ rights of publicity (which they had licensed to MLB) but that any state-law publicity claim was preempted by CBC’s First Amendment right to use player names and statistics.

I’ve got a lot to say about this case (which I think got the First Amendment issues exactly right), but in the interests of full disclosure, I should note that I consulted with lawyers from the St. Louis office of Harness Dickey in structuring the First Amendment and publicity arguments, and that I helped draft some of the briefs. Since this compromises any appearance of objectivity, I’ll say only this by way of comment: I think the case was straightforward from a First Amendment point of view, but the really interesting implication of the case is what it will mean for the massive (and profitable) fantasy sports industry. CBC had been a licensee of baseball for the statistics, but baseball terminated the license a few years ago, apparently in an attempt to bring all fantasy baseball (and all of its profits) under its control. Today’s holding seems to stand for the proposition that baseball cannot “own” the historical facts of its games (just as famous people can’t own the facts of their biographies), and it protects fantasy sports companies to continue to offer games that are not merely “official” licensed products controlled by the major sports leagues. It’s also a much-needed strike against the rise of unnecessary intellectual property licensing, which my colleague Jennifer Rothman, as well as Jim Gibson and Elizabeth Winston have written about recently.


BBC America and The Virtues of a Free Press

bbc news_final.JPGLike most British expats, I subscribe to the digital cable channel BBC America to help keep in touch with culture back home, whether it’s Graham Norton, The Office, or the fantastically entertaining car-show-that’s-not-really-about-cars Top Gear. BBC America’s lineup used to be largely fluff, though hugely entertaining and well-written fluff. As a First Amendment scholar, though, I was quite interested by their recent decision to produce a nightly BBC News telecast for the American market, which they call BBC World News America (it also airs later each evening under a slightly different name).

I’ve only watched the show a few times, but have been very impressed by it. Two stories in particular struck me for what they say about the potential for television journalism. The first story was an interview with former Pakistan Prime Minister Benazir Bhutto, in which she discussed her intentions to return to Pakistan and run for election as a moderate. Broadly speaking, Bhutto is certainly the kind of candidate that many Westerners would like to see in charge in Pakistan – moderate, Westernized, and a speaker of fluent English. One could thus have forgiven the BBC for giving her an easy time. But they didn’t. The interviewer (also the anchor) Matt Frei gave her a torrid time, asking her tough questions about how she could believe that a moderate woman could effectively lead an increasingly radicalized and fundamentalist Islamic state. Bhutto rose to the challenge, but that’s not really the point. The point is the willingness of a television news reporter to subject a world figure to sustained questioning, going beyond the offered platitudes of a politician to try to get at the truth. It’s something that the major US networks (let’s not mention local news) with the possible exception of PBS could learn from.

The second story was earlier this week – a video of life in Burma smuggled out of the country by a brave BBC journalist who could have been imprisoned or worse for merely making the video. The video showed the streets of Myanmar, armed soldiers, and interviews with pro-democracy activists and Buddhist monks in hiding. It showed the value of an independent press, as well as why the media is often the first thing authoritarians (or would be authoritarians) seek to discredit or control.

My point about all this is not to praise BBC America for airing such a serious program (though they deserve praise, even if the commercials they air during it are a bit odd), but rather to make a more general point about First Amendment law and social norms. In the US, First Amendment doctrine guarantees broad protections for the media, freeing them (in practice, if not overtly in theory) from government control, defamation liability, privacy claims, and other sorts of public or private legal controls. But when it comes to a free, independent, and vibrant press (I’m tempted to say uninhibited and robust also, to quote NYT v. Sullivan), law is not enough. Press protections are necessary but not sufficient. We still need journalists who are willing to ask tough questions of important national and international figures, and we still need journalists who are willing to risk imprisonment or even death to report the news. In other words, the social norms of journalists need to be strong, and they need to be oriented to their traditional mission of informing us about what we need to know. We live in a time of infotainment and profit-driven media where we seem to have more reporters covering Brangelina than the War in Iraq. I also think it’s true that there is more hard news on Comedy Central than on NBC. These realities can (and should) give us pause. But the BBC World News America blueprint is a courageous one, and as someone that cares about a vibrant and aggressive free press, I hope it not only succeeds but catches on.


More on Naming and Orwell (and Pigs)

napoleon pig.jpgTim’s interesting recent post on naming made me think about other strange naming laws, and I was reminded more of some of the intricacies of the French system, in which there is an approved government registry of names (no calling your sons Anakin, Monsieur!). In this vein, the Times recently reported on a peculiar extension of this rule to pig-naming: In France, it is apparently illegal to call your pig Napoleon. Such a law would be a very easy case under American free speech jurisprudence, as it is not only a content-based restriction on political speech, but also arguably viewpoint-based. I wonder whether it would also apply to George Orwell’s Animal Farm, in which the principal villain is a Berkshire Boar named Napoleon. Curiously, in the French translation of the novel, he is named Cesar instead, which was apparently a concession to the political controversy that calling a pig “Napoleon” in France would have created, even in a novel.


A Rush To Condemn

Well, they’re at it again. Twenty House Democrats recently introduced a Resolution that “condemns in the strongest possible terms the personal attacks made by the broadcaster Rush Limbaugh impugning the integrity and professionalism of Americans serving in the Armed Forces who have expressed opinions regarding military actions in Iraq.” The resolution was prompted by Limbaugh’s apparent insinuation that soldiers who oppose the Iraq war are “phony soldiers” (the transcript of Limbaugh’s remarks is here). Republicans have prepared their own Resolution “Honoring all Americans serving in the Armed Forces of the United States and commending broadcaster Rush Limbaugh for his relentless efforts to build and maintain troop morale through worldwide radio broadcasts and personal visits to conflict regions.” Democrats apparently see this as their “General Betray Us” moment. Republicans now have yet another opportunity to discuss and debate something other than the war policies of the nation. The House is, it seems, happily pre-occupied. It is little wonder that Congress’s approval rating hovers below 30%.

As I said in an earlier post concerning the controversy sparked by the “General Betray Us” ad placed in the New York Times by, official condemnation of political expression conveyed by private citizens and organizations is simply not an appropriate function of the Congress. (For a similar perspective, see Geoff Stone’s comments regarding the Senate’s condemnation of the ad). In addition to being a waste of legislative resources, these condemnatory resolutions are an unwarranted interference with what ought to be a “robust” and “wide open” marketplace in political expression. In a new mangling of the First Amendment, the Democrats’ resolution purports not only to condemn Limbaugh’s expression but also to “defend” the First Amendment rights of soldiers who criticize the Iraq war. When the dust from this latest pseudo-controversy settles, perhaps Congress ought to spend some time reviewing the text of the First Amendment. It expressly condemns governmental laws abridging freedom of expression; and it offers no “protection” whatever to soldiers (or anyone else) against “personal attacks” by private citizens like Mr. Limbaugh or private organizations like

The real point of this rather silly exercise is to fire up base constituents and score (very) cheap political points. Sure, Congress is a political body — and yes, it can and does weigh in on matters of public concern. Still, I hope that a principled member of Congress will propose a “Joint Resolution Condemning All Condemnatory Resolutions of Political Expression.”


Roberson for the Social Networking Generation?

Picture (Flour of the Family).JPGThe New York Times has reported on an interesting case involving the alteration of a photograph for advertising purposes. According to the article, a girl was photographed by a friend at a church car wash, who uploaded the photograph onto photo-sharing site Flickr. The photo was then downloaded and altered by an Australian mobile phone company, and used for billboard advertising. The girl was portrayed in the ads as an example of the kind of “loser” pen pal that cell phone subscribers could finally “dump.” The girl has sought legal action against the Australian company under a number of theories.

This is a complex case involving a number of legal issues, including creative commons licenses and copyright law, and the application of U.S. law overseas, but I’m most interested in it as a privacy case, because the facts are strikingly similar to the seminal case of Roberson v. Rochester Folding Box Co., 64 N.E. 442 (NY 1902). In Roberson, a company used the photograph of another young woman to advertise its flour under the terrible slogan “flour of the family.” Although the New York Court of Appeals rejected the young woman’s claim that her right to privacy had been violated, the controversy that the case created resulted in the New York legislature creating a statutory right to privacy shortly thereafter. The privacy tort advocated by Samuel Warren and Louis Brandeis in their influential 1890 Harvard Law Review article “The Right to Privacy” was adopted in a variety of related contexts, but this dimension of privacy — the appropriation of likeness for commercial purposes — has been the most numerous and the least controversial. Dan Solove and I talk more about these cases (including Roberson) here, in an article that is about to go to press.

Assuming that some version of the appropriation tort is applicable to the Australian company (and that’s a fairly big assumption, I think), this case looks to be a straightforward application of the appropriation tort. The basic theory of the tort is that it is unreasonable to allow businesses to use photographs of unwilling subjects for advertising or other commercial purposes. The injury remedied is an emotional one – the hurt feelings stemming from the unwanted exposure of one’s likeness to the public, especially where (as here) it is an unflattering likeness. There are two points worth noting, though.

First, the theory of the appropriation tort contains a good helping of gendered notions of separate spheres. I think it’s no coincidence that most of the early successful privacy litigants were female, as courts recognized the cause of action to preserve Victorian and Edwardian notions of women as delicate beings whose sensibilities could be hurt by too much publicity. I think that even if we put archaic notions of separate gender spheres to one side, the appropriation tort is justifiable, but under a theory about what sorts of commercial activities are reasonable and unreasonable.

The second point is the lurking spectre of the First Amendment in all of this. Courts in 1902 (indeed for most of the twentieth century) rejected any idea that there was a First Amendment interest in commercial activity or even advertising. But with the rise of commercial speech doctrine since the 1970s (ironically first as an offshoot from the constitutional right of privacy to protect abortion services advertising), the commercial world of advertising has become enmeshed with the First Amendment. Although there are First Amendment issues raised by the other privacy torts, the appropriation tort in its core case does not threaten First Amendment values. The right of commercial advertising is founded not on notions of individual expression but on the need of consumers to receive potentially valuable information about new products. Misappropriation of pictures does not threaten that interest at all. If we take First Amendment arguments seriously in this context, it will become difficult to see how there is not a First Amendment right to engage in other kinds of commerce – we will have created (as I argued here) a kind of First Amendment Lochner.

In any event, the Flickr photo case shows that there seem to be legs in the old appropriation tort yet, and it will be interesting to watch this case as it develops.


The Future of Reputation: Gossip, Rumor, and Privacy on the Internet

Cover-new.jpgI‘m very excited to announce that my new book, The Future of Reputation: Gossip, Rumor, and Privacy, is now hot off the presses! Copies are now in stock and available on and Barnes & Noble’s website. Copies will hit bookstores in a few weeks.

From the book jacket:

Teeming with chatrooms, online discussion groups, and blogs, the Internet offers previously unimagined opportunities for personal expression and communication. But there’s a dark side to the story. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent chronicle of our private lives—often of dubious reliability and sometimes totally false—will follow us wherever we go, accessible to friends, strangers, dates, employers, neighbors, relatives, and anyone else who cares to look. This engrossing book, brimming with amazing examples of gossip, slander, and rumor on the Internet, explores the profound implications of the online collision between free speech and privacy.

Daniel Solove, an authority on information privacy law, offers a fascinating account of how the Internet is transforming gossip, the way we shame others, and our ability to protect our own reputations. Focusing on blogs, Internet communities, cybermobs, and other current trends, he shows that, ironically, the unconstrained flow of information on the Internet may impede opportunities for self-development and freedom. Long-standing notions of privacy need review, the author contends: unless we establish a balance between privacy and free speech, we may discover that the freedom of the Internet makes us less free.

For quite some time, I’ve been thinking about the issue of how to balance the privacy and free speech issues involved with blogging and social networking sites. In the book, I do my best to propose some solutions, but my primary goal is to spark debate and discussion. I’m aiming to reach as broad an audience as possible and to make the book lively yet educational. I hope I’ve achieved these goals.

I welcome any feedback. Please let me know what you think of the book, as I’d be very interested in your thoughts.