Articles

This article originally appeared in the March/April 2004 Edition of the Hennepin Lawyer

Where Has Privacy Gone… and Where's It Going?

Marshall H. Tanick
(email)
Mansfield, Tanick & Cohen, P.A.
1700 U. S. Bank Plaza South
Minneapolis, MN 55402
Tel: 800-401-6194
FAX: 612.339.3161

Where have you gone Joe DiMaggio? A nation turns its lonely eyes to you (woo, woo, woo). -- Simon & Garfunkel, Mrs. Robinson (1967)

A little over 10 years ago, privacy law was hailed as "the doctrine of the decade."1Barely five years ago, the principle of privacy was extolled by the Minnesota Supreme Court as "an integral part of our humanity."2

But the law of privacy is reeling in Minnesota today. When the duo of Simon & Garfunkel sang their signature tune, Mrs. Robinson, for the umpteenth time at their pair of sold-out concerts at the Xcel Center in St. Paul last October, the stanza about Joe DiMaggio may have wrung a responsive chord with privacy proponents in this state. Similar to those pining for the Yankee Clipper, privacy advocates are wondering where their rights have gone as a result of recent Minnesota court rulings.

In a trio of significant rulings last summer in administrative, civil, and criminal law contexts, the Minnesota Supreme Court and Appellate Court issued rulings that caused dismay for privacy mavens. On the other hand, the decisions were greeted enthusiastically by many institutions, including prosecutorial authorities and the media, who regard the decisions as an appropriate swing of the pendulum away from expanded privacy rights that stemmed from prior Minnesota court rulings.

Conflicting Currents

Protection of personal privacy seems to be at the vortex of conflicting currents. The growth of technology has alarmed many, fearing that their privacy is in jeopardy from collection and storage of data, surveillance, and other quarters.

But increasing concerns about national security and other safety-related matters have led many to put limitations on personal privacy. These limitations are reflected in the Patriot Act, officially known as "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001."3 Despite its controversial character, the measure probably still has the support of the majority of Americans.

Some pieces of recent legislation seem to blend both privacy and anti-privacy considerations. For instance, the so-called conceal-carry law, known formally as the Minnesota Citizens’ Personal Protection Act, is intended to enhance personal security.4 But some of its provisions have a deleterious impact on personal privacy, such as the requirement that facilities seeking to ban handguns post signage and "personally" notify all entrants of the restriction.5 Yet, the measure also purports to enhance some privacy rights by banning landlords from prohibiting tenants and their guests from packing a pistol.6

At the federal level, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) aims to ensure privacy of medical data.7 But regulations promulgated in 2003 by the Bush administration relax many of its requirements.

Within this context of conflicting considerations, the state Supreme Court and appellate tribunal issued three privacy-related decisions within the past year. One of them retrenched the rights of common law privacy established by the Court in 1998, the second restricted the scope of the constitutional protection against unreasonable searches and seizures under the Fourth Amendment, and the third rejected a constitutionality claim for attorney-client billing information.

Bodah Bodes Badly

In the summer of 1998, the Minnesota Supreme Court declared that a common right law of privacy exists in Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998). The Court proclaimed privacy as "an integral part of our humanity" and an "inherent" right "worthy of protection" against unreasonable or "offensive" intrusion. 582 N.W.2d at 235. Privacy advocates took great heart in the ruling, while opponents viewed Lake as ominously ushering in a potential floodgate of claims.

While there has undoubtedly been an increase in the number of privacy claims after the recognition of the right in the Lake case, their successes have been more of a trickle than a flood. The progeny of Lake has not been very productive for privacy plaintiffs. Indeed, the landmark Lake case itself set a tone for setbacks for privacy claimants.

TheLake case arose out of the allegedly improper distribution by a photo-finishing facility at a Wal-Mart store in Dilworth in northwestern Minnesota, of photographs of two women playfully cavorting in the nude, while on a Mexican vacation. The women sued and, after being rebuffed at the lower and intermediate court levels, achieved the right to pursue a common law privacy claim as a result of the Supreme Court ruling.

But returning for trial in Clay County District Court, the claimants lost. The jury found that any distribution of the photographs was not authorized by the store and, therefore, the facility was not liable.

Other post-Lake privacy claims have generally met similar fates, often being dismissed by trial courts on summary judgment. With some notable exceptions, privacy claimants have not been very successful, not-withstanding some modest or even sizeable settlements.9

But privacy claimants, reeling under restrictive court rulings, suffered a major blow this summer, when the Supreme Court in Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550 (Minn. 2003), dismissed a class action lawsuit brought on behalf of 204 truckers, who claimed that their privacy had been breached by their employer who wrongfully distributed their social security numbers internally within the company.

The Court reversed a ruling of the appellate court, which set aside a decision of the Ramsey County District Court in allowing the case to proceed.

The Supreme Court deemed the case not actionable because the distribution of the social security numbers, which are required to be maintained confidential under federal law,10 was not sufficiently widespread to invoke a common law privacy claim. Relying upon § 652D of the Restatement (Second) of Torts, the Court ruled that: an individual’s "private person" is not violated unless there is "distribution to the public at large" or is "substantially certain to become public knowledge." This requirement of a broad reach "constrains the tort of publication of private facts."

As theBodah Court stated, quoting the Restatement: "it is not an invasion of the right of privacy…to communicate a fact concerning the plaintiff’s private life to a single person or even to a small group of persons."11

But relying on the Restatement, it warned that a privacy claim is actionable for any unwarranted "publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience."12 The Court’s rather outdated technology fails to mention the most pervasive media of all, television, which would presumably be sufficiently "broad" to trigger a claim, or the Internet, whose actionability would depend upon its scope.

TheBodah case bodes badly for privacy claimants. It virtually precludes breach of privacy claims in employment settings and invariably tends to limit those privacy claims to those against the media, where there is widespread dissemination, even though such claims almost inevitably raise First Amendment issues that make tort claims troublesome.

Another irony is that the privacy tort, as first recognized in Lake, dealt with small-scale dissemination to people who knew the claimants most intimately. This limited communication may be more harmful than a more widespread publication to persons who are not familiar with the victim of the privacy breach. Neither Lake nor Bodah, both arising in non-media contexts, addressed constitutional issues arising under the First Amendment, which are bound to occur in the more broad-based privacy cases, primarily against the media, ushered in by the brouhaha of Bodah.

Fishing Fracas

Privacy rights also were submerged in a decision by the Supreme Court in the criminal law context. In State v. Colosimo, 669 N.W.2d 1 (Minn. 2003), the Court held that state law enforcement officials may search the open area of a boat, being driven on land, without probable cause. The fracas arose when a member of a five-person group of fishermen in the Voyageur’s National Park refused to allow an inspector to inspect his boat, which was being portaged on a trailer. Convicted in a bench trial of violation of Minn. Stat. § 97A.251, subd. (1)3, which permits examination of boats for fishing violations, the driver, a prominent Iron Range attorney, challenged the statute on privacy grounds, under the search and seizure provision of the Fourth Amendment to the U.S. Constitution.

The Supreme Court held that the statute does not require probable cause. Because the driver lacked a "reasonable expectation of privacy," the "limited inspection" of the open boat was not subject to Fourth Amendment constraints. At the root of the Court’s reasoning was the bevy of state regulations regarding fishing, which reflected the "unreasonableness" of requiring that officers "personally witness illegal [fish] catch activity," which might take "hours or even days." It viewed the imposition of this type of "particular" observation to be "absurd."

But this explanation did not satisfy Justice Alan Page, who lamented in his dissent that the ruling undermines "privacy expectations" of the occupant of the vehicle. He feared that the decision "opened the door for warrantless searches by any peace officer upon the mere suspicion that an individual is, has been, or will in the future engage in hunting or fishing."13

Privacy also took a backseat to other considerations in City Pages v. State, 655 N.W.2d 839 (Minn. App. 2003). The Twin Cities weekly "alternative" newspaper sued the State under the Government Data Practices Act, Minn. Stat. § 13.01,et seq., for the billing records of outside counsel hired by the attorney general’s office to represent the State in the big tobacco litigation of the 1990s. It claimed that the documents were "public" data under the statute.

The State maintained that the records were private, or nonpublic, because they fall within exceptions for pending civil investigations under § 13.39, as data from independent contractors under § 13.43, subd. 1, and the work-product privileges under § 595.02, subd. 1(b). But the Court of Appeals disagreed, holding that no blanket privacy principle applies and remanded for the trial court to identify any particular portion of the bills that "may be protected under the attorney-client and work-product tenets." The burden was imposed upon the State to overcome the general principle that the records should be "accessible by the public."

Future Forays

While disturbing to privacy advocates, these recent rulings are not that surprising. They are reflective of a common jurisprudential tendency; after new rights are recognized, ensuing decisions are often restrictive, rather than expansive, of the newly established doctrine. Claimants are experiencing this phenomenon as they ponder whither privacy law in Minnesota. Forays into the thicket of privacy law in the future are likely to abound, notwithstanding these recent restrictive rulings.

The desire for personal privacy is reminiscent of the attitude conveyed by many landowners in connection with zoning cases. The concept of NIMBY, signifying Not In My Back Yard, epitomizes much of the current feelings concerning privacy. Individuals generally venerate their own right of privacy, but are more hesitant to embrace the notion for others.

Unlike the balladeers’ Jolting Joe, privacy has not "gone away." It is, to be sure, here to stay. But in what
format remains to be seen.

"What’s that you say, Mrs. Robinson? Joltin’ Joe has left and gone away (hey, hey, hey . . . hey, hey, hey)."

1. R. Reuben, Privacy: The Issue of the 1990’s. 10 Cal. Lawyer at 38-39 (March 1990).

2. Lake v. Wal-Mart Stores, Inc. 582 N.W.2d 231, 235 (Minn. 1998).

3. Pub. L. No. 107-56 (2001).

4. Minn. Stat. 2003 Minn. Sess. Law, Chap. 28.

5. Minn. Stat. § 624.714 subd. 17(b) (1) (2003).

6. Minn. Stat. § 624.714 subd. 17(e) (2003).

7. 42 U.S.C. § 1320 art,et seq.

8. 45 C.F.R. 160, 162, and 164 (2003).

9. M. Tanick, Reflections on Lake: The State of the Right of Privacy in Litigation, Bench & Bar, Oct. 2001, at 41.

10. 42 U.S.C. § 405(c)(2)(C)(viii)(I).

11. 663 N.W.2d at 554.

12. Id.

13. 669 N.W.2d at 13 (Page, J., dissenting).