hc

Prof. Mark Tunick
tunick@fau.edu

POS 3626 Honors Privacy
Spring 2021

Instructor: Professor Mark Tunick
Office: HC 104; 561-799-8670; tunick@fau.edu
TR 12:30-1:50, 3 credits

Description: The seminar focuses on U.S. law regarding government and individual invasions of privacy. We explore the value of privacy,  the role of technology in shaping societal expectations of privacy, and how we are to weigh the competing interests we have in privacy on the one hand, and in publicity, access to information, crime control, and national security on the other. Our approach is interdisciplinary: readings draw on philosophy, social history, anthropology, literature, economics, legal scholarship, and case law. This course has no pre- or co- requisites.

Requirements: Students can earn up to 100 points: online quizzes and discussion boards (25 points), participation in class discussion (10 points), a group project (25 points), and 3 short papers, averaging 5 pages each (40 points total). Because this is a discussion-based class, attendance is particularly important: each unexcused absence beyond 2 will result in a loss of 2 points.
To facilitate discussion, students are strongly advised to take notes on the readings and class discussions, and to 'brief' the assigned court opinions. A sample brief is online. Be sure to bring to each class the reading for that day's class.
 Students agree to adhere to the honor code (http://www.fau.edu/honors/academics/honor-code.php). You are encouraged to discuss course material with each other, but with the exception of the group project, all assignments must be entirely your own work, and you are not permitted to copy or borrow from the drafts, outlines, or reading notes of others. If you have any doubts about what constitutes plagiarism or a violation of the honor code, consult with the professor beforehand.

Office Hours: TBA. To arrange to meet at another time, phone 6-8670 or email me at tunick@fau.edu

Readings: Böll, The Lost Honor of Katharina Blum (Addison Wesley, 014310540X, 2009) and Glenn Greenwald, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State (2015) are available at the bookstore. All other readings are available in Canvas. Complete text of cases is also available at Westlaw via the FAU library database, where you can also find recommended cases or law review articles. Some recommended readings are available in Canvas.

Following is a preliminary schedule. Check Canvas for updates.

Introduction
1/12. Can we expect privacy anymore?
Rdg: Sweenek v Pathe News, 16 F Supp 746 (1936); Mark Rothstein, "Public Health and Privacy in the Pandemic," American Journal of Public Health 10(9):1374-5 (Sept. 2020).

1/14. Defining privacy
Rdg: Mark Tunick, Balancing Privacy and Free Speech: Unwanted Attention in the age of social media (Routledge: 2016), pp. 1-7, 24-30; Sipple v. Chronicle Publishing Company, 154 Cal. App. 3d 1040 (1984); excerpts from Jeffrey Rosen, The Unwanted Gaze (NY: Random House, 2001)

1/19. Can there be privacy in public places?
Rdg: McNamara v. Freedom Newspapers, Inc., 802 SW 2d 901 (1991); Shulman v. Group W Productions, Inc., 18 Cal.4th 200 (1998); Aubrey v. Editions Vice-Versa [1998] S.C.J. No. 30 (Canada); Planned Parenthood v. CMP, 402 F Supp 3d 615 (2019)
For those interested: Peck v. U.K., [2003] 36 EHRR 4

Historical and anthropological perspectives on privacy:  How do we decide whether someone's expectation of privacy is objectively reasonable? Are there universal standards or principles to decide this, or is the measure of reasonableness relative to one's culture or sub-culture? This section's readings lead us to think about whether the value of privacy is historically and culturally relative.

1/21. Gregor, "Exposure and Seclusion: A Study of Institutionalized Isolation Among the Mehinaku Indians of Brazil," in Tefft, ed., Secrecy: A Cross-Cultural Perspective (1980) 
Film excerpt from Luis Buñuel, Phantom of Liberty on youtube 
For those interested: Background (with photos) on the Mehinaku; Aries, Centuries of Childhood: A Social History of Family Life (1962)

1/26. Flaherty, Privacy in Colonial New England (U. Virg, 1967), chapters1, 2 (pp. 66-84), 3, and 7

The value of privacy: Why is privacy important? Is it good for its own sake, or is it valued because it is a means to some other worthwhile end? Not everyone agrees privacy is so good. David Brin, in The Transparent Society, asks: why should we care about privacy if we have nothing to hide? He also argues that anonymity makes it easier to dehumanize and harm others. So, is privacy really such a good thing?

1/28. Does Privacy have objective value?
Rdg: Adam Moore, Privacy Rights (Penn State UP Press, 2010), ch. 3.
Film: Rear Window, dir. Hitchcock, 1954 (1:54)(on reserve or can be streamed at amazon.com)
Recommended reading for this section: Tunick, Balancing Privacy and Free Speech, pp. 30-61

2/2. Privacy and intimacy, autonomy, dignity
Rdg: Fried, "Privacy" (orig. Yale L.J. 77:475-93 (1968); Benn, "Privacy, Freedom, and Respect for Persons," in Schoeman, ed. Philosophical Dimensions of Privacy (1984); Arndt, "Cult of Privacy," Australian Qtly 21(3):68-71 (1949)
For those interested: Keith Bybee, How Civility Works (2016), ch. 4; Robert Frost, "Mending Walls," available online; Film: The Conversation, dir. Francis Ford Coppola's (1974)(1:53); Theodor Fontane, Effi Briest (and Fassbinder's film version); Ursula K. Le Guin, The Dispossessed (1974); David Brin, The Transparent Society; Tunick, 'Does Privacy Undermine Community?', Journal of Value Inquiry 35:517-34 (December 2001), online

2/4. Privacy and economic efficiency
Rdg: Richard Posner, "The Economics of Privacy," Amer Econ Rev 71(2):405-9 (1981); Joseph Siprut, “Privacy through anonymity: an economic argument for expanding the right of privacy in public places,” 33 Pepp. L. Rev. 311 (2006)

2/9. Privacy and punishment
Rdg: Tunick, 'Privacy and Punishment', Social Theory and Practice 39(4):643-68 (Oct. 2013)
For those interested: Daniel Solove, The Future of Reputation, ch. 1, online

2/11. The case for free speech.
Rdg: Eugene Volokh, "Freedom of Speech and information Privacy: The Troubling Implications of a right to stop people from speaking about you," 52 Stanford Law Review 1049 (2000): excerpts. 

Legal protections of privacy: There are a number of ways in which the law may protect against invasions of privacy. The common law and state statutes recognize some invasions as tortious; the U.S. Constitution's 4th Amendment protects individuals from unreasonable searches by state actors. Federal and state laws, state constitutions, and contract and property law also provide some protections. We focus on torts and on the 4th Amendment.

Torts

2/16. Introduction to privacy torts
Rdg: Warren and Brandeis, 'The Right to Privacy' (1890); Prosser, "Privacy"; Froelich v. Adair, 516 P. 2d 993 (1973); Binion v. Shaqille O'Neal (15-60869 S.D. Fla 2016)

2/18. Intrusion upon seclusion 
Rdg: Lake v Wal-Mart Stores, 582 NW 2d 231 (1998); Green v Chicago Tribune, 576 NE 2d 249 (Ill 1996); Dietemann v Time, Inc., 449 F 2d 245 (1971); original Life article on Dietemann.
Recommended Film: "Cape Fear" (1961) (1:44) 

2/23. Public Disclosure of Private Facts: 'The First Amendment vs. Privacy'
Rdg: Gill v Hearst Pub. Co., 253 P 2d 441 (1953); DeGregario v. CBS, 473 NYS 2d 922 (1984); Penwell v Taft Broadcasting, 469 NE 2d 1025 (1984); Bonome v. Kaysen, 32 Media L. Rptr 1520 (2004); People v. Austin, 2019 IL 123910 (2019)

2/25. Public Disclosure of Private Facts and Europe's 'Right to be Forgotten'
Rdg: Briscoe v. Reader's Digest, 4 Cal 3d 529 (1971); Gates v Discovery Communications, 101 P 3d 552 (2005); State v. Dinegar, 2020 WL 3263918 (2020); Google Spain SL v. Agencia Espanola de Proteccion de Datos (AEPD) [2014] Case C-131/12

3/2 The First Amendment right to publish newsworthy information vs the right to privacy
Rdg: Best v Berard, 776 F. Supp 2d 752 (N.D. Ill 2011); Billings Gazette v City of Billings, 313 P. 3d 129 (Mont 2013); Krakauer v. Montana, 396 Mont 247 (2019); Rodriguez v Fox News, 238 Ariz 36 (2015)
For those interested: Best v. Berard, 837 F. Supp 2d 933 (2011); Film: 'Nobody Speaks: Trials of the Free Press' (2017), on the Hulk Hogan v Gawker Media case: available on Netflix

3/4 Publishing False or Misleading information and CDA Immunity for U.S. ISP's
Rdg: Hellar v Bianco, 244 P 2d 757 (1952); Zeran v. AOL, 129 F 3d 327 (1997); Jones v. Dirty World Ent, 755 F 3d 398 (2014); Jane Doe No. 1 v. Backspage.com, 817 F 3d 12 (2016)
For those interested: Benz v. Washington Newspaper Pub. Co. and Bisney, 34 Media L. Rep. 2368 (D.C., 2006)
Paper One Due

3/9 and 3/11: Spring Break--no class

3/16 Literary interlude
Rdg: Heinrich Böll, The Lost Honor of Katharina Blum 
For those interested: Film version, Lost Honor of Katharina Blum, directed by Victor Schlöndorff (1975) (1:49), available on Kanopy app

4th Amendment

3/18. The REOP (Reasonable Expectation of Privacy) test
Rdg: Olmstead v. U.S., 77 U.S. 438 (1928); Katz v. U.S., 389 U.S. 347 (1967); U.S. v. Longoria, 177 F. 3d 1179 (10th Cir. 1999); State v. Duchow, 310 Wis. 2d 1 (2008)
Recommended: Lasson, History and Development of the Fourth Amendment (pp. 13-61, 79-105); Olmstead v. U.S., 277 U.S. 438 (1928)

3/23. Theories
Rdg: Loewy, "The Fourth Amendment as a device for Protecting the Innocent," 81 Mich L.R. 1229 (1983), section 2; Sundby, "Everyman's Fourth Amendment: Privacy or Mutual Trust between Government and Citizen?", 94 Columbia L.R. 1751 (October 1994), pp. 1755-63, 1775-1782, 1787-1793; Slobogin and Schumacher, "Reasonable Expectations of Privacy," 42 Duke L.J. 727 (1993), pp. 727-58, 774-5.

3/25. Aerial surveillance
Rdg: California v. Ciraolo, 476 U.S. 207 (1986); Florida v. Riley, 488 U.S. 445 (1989)
Paper 2 Due 

3/30. Public restrooms
Rdg: U.S. v. Billings, 858 F. 2d 617 (1988); Smayda v. U.S., 352 F. 2d 251 (1965); Bielicki v. Superior Court of Los Angeles County, 371 P. 2d 288 (1962); Britt v. Superior Court of Santa Clara County, 374 P. 2d 817 (1962)
For those interested: California Penal Code Annotated, Sec. 6471

4/1. Privacy in one's location
Rdg: U.S. v. Knotts, 460 U.S. 276 (1983); U.S. v. Jones, 565 U.S. 400 (2012); Reed v. Toyota Motor Credit Corp., 459 P. 3d 253 (2020)
Recommended: Tunick, "Privacy in Public Places: Do GPS and Video Surveillance Provide a Plain View?", Social Theory and Practice 35(4):597-622 (2009)(online)

4/6. Garbage and heat waste
Rdg: California v. Greenwood, 486 U.S. 35 (1988); U.S. v. Scott, 975 F. 2d 927 (1992); State v. Hempele, (576 A. 2d 793 (1990); Kyllo v. United States, 533 U.S. 27 (2001)

4/8 Recent issues: CSLI and Pole Cameras
Rdg: U.S. v. Carpenter, 585 U.S. __ (2018); Commonwealth v. Mora, 485 Mass. 360 (2020)
For those interested: U.S. v. Miller, 425 US 435 (1976); Smith v. Maryland, 442 US 735 (1979)

Privacy vs National Security:

4/13. The Snowden case
Rdg: Greenwald, No Place to Hide, chs. 1-3

4/15. Rdg: Greenwald, chs. 4-5 and Epilogue
For those interested: Snowden's testimony to the EU (2014); Pres. Obama's remarks on Review of Signal intelligence (2014)

4/20 and 4/22: Group Presentations 
Paper 3 Due. 

Web Resources:

Additional notes:
Policy on Accommodations: In compliance with the Americans with Disabilities Act Amendments Act (ADAAA), students who require reasonable accommodations due to a disability to properly execute coursework must register with Student Accessibility Services (SAS) and follow all SAS procedures. SAS has offices across three of FAU’s campuses -- Boca Raton, SU 131 (561-297-3880); in Davie, LA 131 (954-236-1222); in Jupiter and all Northern Campuses, SR 111F (561-799-8585). Disability services are available for students on all campuses. For more information, please visit SAS website at www.fau.edu/sas/.
Counseling and Psychological Services (CAPS) Center: Life as a university student can be challenging physically, mentally and emotionally. Students who find stress negatively affecting their ability to achieve academic or personal goals may wish to consider utilizing FAU’s Counseling and Psychological Services (CAPS) Center. CAPS provides FAU students a range of services – individual counseling, support meetings, and psychiatric services, to name a few – offered to help improve and maintain emotional well-being. For more information, go to http://www.fau,edu/counseling/
Code of Academic Integrity Policy Statement: Students at Florida Atlantic University are expected to maintain the highest ethical standards. Academic dishonesty is considered a serious breach of these ethical standards, because it interferes with the university mission to provide a high quality education in which no student enjoys an unfair advantage over any other. Academic dishonesty is also destructive of the university community, which is grounded in a system of mutual trust and places high value on personal integrity and individual responsibility. Harsh penalties are associated with academic dishonesty. For more information, see University Regulation 4.001 and the WHC Academic Honor Code at http://www.fau.edu/honors/academics/honor-code.php.
Classroom Etiquette Policy: In order to enhance and maintain a productive atmosphere for education, personal communication devices such as smartphones are to be disabled during class.
Attendance Policy: Students are expected to attend all of their scheduled University classes and to satisfy all academic objectives as outlined by the instructor. The effect of absences upon grades is determined by the instructor, and the University reserves the right to deal at any time with individual cases of non-attendance. Students are responsible for arranging to make up work missed because of legitimate class absence, such as illness, family emergencies, military obligation, court-imposed legal obligations or participation in University-approved activities. Examples of University-approved reasons for absences include participating on an athletic or scholastic team, musical and theatrical performances and debate activities. It is the student’s responsibility to give the instructor notice prior to any anticipated absences and within a reasonable amount of time after an unanticipated absence, ordinarily by the next scheduled class meeting. Instructors must allow each student who is absent for a University-approved reason the opportunity to make up work missed without any reduction in the student’s final course grade as a direct result of such absence.
Florida Atlantic University policies regarding incomplete grades can be found in the University Catalog. Late work is subject to a grade reduction.
Covid 19 Statement: All students in face-to-face classes [which does not apply to this class, which meets online] are required to wear masks during class, and students must sanitize their own workstations upon entering the classroom. Taking these measures supports the safety and protection of the FAU community. Students who do not adhere to these rules will be asked to leave the classroom and/or be removed from the course. Students experiencing flu-like symptoms (fever, cough, shortness of breath), or students who have come in contact with an infected person should immediately contact FAU Student Health Services (561-297-3512).

Updated 9-19-2020