In our business as trial attorneys representing victims of car, truck, motorcycle and bicycle crashes, dog bites, construction site injuries, and families stricken by the wrongful death of a loved one, we are often asked in the discovery part of the litigation process by opposing parties and their attorneys to have our clients disclose social media posts and pages, friend lists, written and digital communications, logins, passwords, Social Security numbers, and dates of birth. In this context, one question we as attorneys are often asked by our clients is, “What about my right to privacy?”
That is a great question. But unfortunately, it is not an easy one to answer. What makes doing so even more difficult, perhaps, is not only the fact that one's “right of privacy” can mean different things depending on the context in which it is being discussed, but also, that it is subject to change – clarification, refinement, and exceptions – as legislation is enacted and new state and federal court decisions are continuously being handed down.
In reviewing a recent advance sheet of Washington state appellate decisions, I came across a classic example of the struggle that courts are faced with in trying to balance the competing interests and concerns at stake in resolving cases that can fairly be characterized as touching on privacy rights (particularly modern courts in this day and age of rapidly changing technology affecting data access, storage and transmission, and competing interests for protection versus disclosure of personal information photos, video, and documents). In Washington Public Employees v. Washington State Center for CDHL, 450 P.3d 601 (2019), the Washington State Supreme Court had to decide whether state employees have a protected privacy interest against disclosure of public records containing their birth dates associated with their names. In that case, public employees' unions moved for preliminary and permanent injunctions to prevent disclosure of that information, which was contained within public records of various agencies and being sought by an entity (The Freedom Foundation) under Washington's Public Records Act. In an opinion authored by Justice Deborah Stephens, the Washington State Supreme Court concluded that the injunction request should be denied. Writing for a slim majority (a 5-4 decision) Justice Stephens indicated that neither the Public Records Act, RCW Chap. 42.56, nor Washington Constitution Article 1, Section 7, preclude disclosure, given that names and birthdates are widely available in the public domain and that their disclosure in the context at issue therefore would not violate privacy rights. Justice Charles Wiggins joined by two other justices authored a detailed dissenting opinion, and Justice Steven González wrote yet a third opinion concurring in Wiggins' dissent. The details of the three separate written opinions won't be addressed here, suffice it to say that given the split decision and contrary outcomes reached by the majority and the dissenting justices, apparently reasonable minds can differ on what should and should not be protected in the way of personal information and documentation in the name of one's right to privacy. In any event, in the state of Washington – since that opinion was filed on October 24, 2019, and because five of the nine justices decided it should be so – it will now be more difficult to successfully convince any trial court that one's right to privacy supports a refusal to disclose date of birth.
So from what source or underpinnings of law does this notion of a “right to privacy” arise in the first place? Without miring this article in an exhaustive analysis of a topic that could be the subject for an entire book, a right to privacy is touched on in the Fourth Amendment to the U.S. Constitution, which states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Washington state's counterpart to the Fourth Amendment is its constitutional provision mentioned above, Article 1, Section 7. It provides, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”
In 1973 the U.S. Supreme Court in Roe v. Wade cited a line of court decisions that had established a generalized right to privacy which it deemed broad enough to include a woman's right to choose to terminate her pregnancy under certain circumstances, finding privacy rights without government intervention are implied from a holistic reading of the U.S. Constitution, its amendments, and interpreting case law – a doctrine often referred to as the “penumbra” theory. That case, albeit a lightning rod for political enmity which seems to be at the root of the divisiveness paralyzing this country's ability to come together for the greater good of all of us, has not been overturned and as such remains a significant block in the foundation of right to privacy jurisprudence.
There are at the state level several Washington statutory schemes that include the concept of a right to privacy. Not intending to be exhaustive about this, but by way of examples, one is the Public Records Act discussed above. It contains a specific definition of what constitutes an invasion of the right to privacy in RCW 42.56.050 (basically, the right to privacy is invaded or violated only if disclosure of information about the person (1) would be highly offensive to a reasonable person, and (2) is not a legitimate concern to the public). Another is the right to private communications set forth in RCW Chap. 9.73 (making it a crime to intercept telegraph transmissions, to wrongfully open a sealed letter, or to record private electronic communications without consent, a warrant, or other legally authorized basis).
There are also federal right to privacy laws. Again, by way of an example only, consider the Privacy Act of 1974 [5 U.S.C. Section 552(a)], which prevents unauthorized disclosure of personal information held by the federal government. It places restrictions on who can access such information and requires agencies to have simple processes by which consumers can get their information, review it, and make corrections.
While not enacted yet, pending in the U.S. Senate is a bill sponsored by Washington State's Senator Maria Cantwell (among others) that would create comprehensive federal online privacy laws which would more clearly establish privacy rights, outlaw harmful and deceptive practices, and improve data security safeguards for American consumers who now shop and conduct business online. https://www.cantwell.senate.gov/news/press-releases/cantwell-senate-democrats-unveil-strong-online-privacy-rights
An effort to codify the common law definition of a violation of privacy is set out in Restatement (Second) of Torts Section 652D (Am. Law Inst. 1977). It counsels that one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person and (b) is not a legitimate concern to the public. In the recent State Supreme Court decision mentioned above, allowing disclosure of dates of birth over a “right to privacy” objection, this Restatement (Second) of Torts section was heavily relied upon. The following language from Restatement (Second) of Torts Section 652D Comment B, quoted from in Justice Stephens' majority opinion in that case, perhaps helps to best elucidate what will likely be considered private information, and what will not:
Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man's life in his home, and some of his past history that he would rather forget.
Thus there is no liability for giving publicity to facts about the plaintiff's life that are matters of public record, such as the date of his birth, the fact of his marriage, his military record, the fact that he is admitted to the practice of medicine or is licensed to drive a taxi cab, or the pleadings that he has filed in a lawsuit. On the other hand, if the record is not open to public inspection, as in the case of income tax returns, it is not public, and there is an invasion of privacy when it is made so.
Under the right circumstances, such as in the context of a criminal investigation where a search warrant has been lawfully obtained, the courts will require production of things that would normally be pretty clearly considered to be private information. On the other hand, if the right of privacy is being raised in objection to a subpoena duces tecum or request for production in a civil lawsuit, the court may balance its view of how important the need for the requested private information is to the ends of achieving a just outcome from the litigation against its view of what risks and harms compelling the disclosure would engender – and it may or may not compel the objecting party to release the private information.
The point of all this is that, while there is a popular notion that all of us possess some inherently strong, protectable right to privacy, whether that expectation may be counted on and how it will play out in the courts is more complicated, and is nuanced – depending on many factors such as who may be seeking or obtaining the information, what their purpose in trying to get it is, what type of governmental coercion or authority is being used to secure the information, etc. And all of this may be subject to balancing tests which could vary depending on who is the requester, the legitimacy and weight of the need for release of the information at issue, how zealously the individual who is asserting the right to privacy may have otherwise protected that information themselves from public display, etc.
So, when I am working on a case and I get asked by my client, “What about my right to privacy?” (unless the matter at issue is as straightforward as the mere revelation of name coupled with a birth date), hopefully it make sense to you now that my response is usually something along the lines of, “Well, we'll just have to go to court and see. The right to privacy is an elusive and evolving concept.”