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Suggested Citation:"V. The Right to Privacy Under State Constitutions." National Academies of Sciences, Engineering, and Medicine. 2016. Liability of Transportation Entity for the Unintentional Release of Secure Data or the Intentional Release of Monitoring Data on Movements or Activities of the Public. Washington, DC: The National Academies Press. doi: 10.17226/23586.
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Page 26
Page 27
Suggested Citation:"V. The Right to Privacy Under State Constitutions." National Academies of Sciences, Engineering, and Medicine. 2016. Liability of Transportation Entity for the Unintentional Release of Secure Data or the Intentional Release of Monitoring Data on Movements or Activities of the Public. Washington, DC: The National Academies Press. doi: 10.17226/23586.
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26 The CPBR sets forth aspirational goals for the protection of consumers, but is not equivalent to a federal law or regulations. V. THE RIGHT TO PRIVACY UNDER STATE CONSTITUTIONS A. State Constitutions Recognizing a Right to Privacy Although the Supreme Court has held that there is a narrow zone of privacy protected by the U.S. Constitution, at least 10 state constitutions include protection of an individual’s right to privacy,368 such as those of Alaska,369 Arizona,370 Florida,371 Montana,372 and Washington.373 Alaska’s constitu- tion states that “[t]he right of the people to privacy is recognized and shall not be infringed.”374 Arizona’s constitution states that “[n]o person shall be dis- turbed in his private affairs…without authority of law.’”375 California’s constitution secures individu- als’ “inalienable rights,”376 including their pursuit of “safety, happiness, and privacy.”377 Florida’s consti- tution states that “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be vio- lated.”378 Iowa’s constitution states “All men and women are, by nature, free and equal, and have cer- tain inalienable rights—among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.”379 Other state constitutional provisions mirror the U.S. Constitution’s Fourth Amendment’s protection against unreasonable searches and seizures.380 Some state constitutions provide, or some courts have held, that an individual’s right to privacy must be balanced against a compelling state interest in disclosure. In Cutter v. Brownbridge,381 the court held that, even though a patient has a constitutionally protected interest in his or her medical file, a “disclo- sure may be appropriate in narrowly limited circum- stances to serve a compelling interest.”382 However, when there has been a deliberate disclosure of one’s personal information, the disclosure “leaves no room for the careful balancing that must take place prior to possible infringement of a constitutional right.”383 Hawaii’s constitution provides that “[t]he right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest.”384 Montana’s constitution similarly provides that “[t]he right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”385 In some states the courts have recognized a con- stitutional right to privacy. In 2002, the Supreme Court of Arkansas held that “Arkansas has a rich and compelling tradition of protecting individual privacy” and that a “fundamental right to privacy [is] guaranteed to the citizens of Arkansas.”386 Georgia’s Supreme Court has held that there is an implicit right to privacy in Georgia’s constitution, stating “that Georgia citizens have a liberty of pri- vacy guaranteed by the Georgia constitutional pro- vision which declares that no person shall be deprived of liberty except by due process of law.”387 379 iOWa cONsT. art. 1, § 1 (Lexis 2012). 380 See fLa. cONsT. art. 1, § 12 (2015); haW. cONsT. art. 1, § 7; iLL. cONsT. art. 1, § 6; La. cONsT. art. 1, § 5; S.C. cONsT. art. 1, § 10. 381 183 Cal. App. 3d 836, 228 Cal. Rptr. 545 (Cal. App. 1986). 382 Id. at 842, 228 Cal. Rptr. at 549. 383 Id., 183 Cal. App. 3d at 847, 228 Cal. Rptr. at 553 (citations omitted). 384 haW. cONsT. art. 1, § 6. 385 MONT. cONsT. art. 2, § 10. 386 Jegley v. Picado, 349 Ark. 600, 632, 80 S.W.3d 332, 349–350 (2002). 387 Powell v. State, 270 Ga. 327, 329, 510 S.E.2d 18, 21 (1998) (citing Pavesich v. New England Life Ins. Co., 122 Ga. 190, 197, 50 S.E. 68, 71 (Ga. 1905) (internal citation omitted)). 368 Douma and Deckenbach, supra note 2, at 307. See also NaTiONaL cONfeReNce Of sTaTe LegisLaTURes, Privacy Protections in State Constitutions (citing aLaska cONsT. art. 1, § 22; aRiz. cONsT. art. 2, § 8; caL. cONsT. art. 1, § 1; fLa. cONsT. art. 1, § 12; haW. cONsT. art. I, § 6; iLL. cONsT. art. I, § 6; La. cONsT. art. I, § 5; MONT. cONsT. art. II, § 10; S.C. cONsT. art. I, § 10; and Wash. cONsT. art. I, § 7), avail- able at http://www.ncsl.org/research/telecommunications- and-information-technology/privacy-protections-in-state- constitutions.aspx (last accessed Oct. 12, 2015). 369 aLaska cONsT. art. 1, § 22 (2015). 370 aRiz. cONsT. art. 2, § 8 (2015) (“No person shall be disturbed in his private affairs, or his home invaded, with- out authority of law.”). 371 fLa. cONsT. art. 1, § 23 (2015) (“Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life....”). 372 MONT. cONsT. art. 2, § 10 (2015) (“The right of indi- vidual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a com- pelling state interest.”). 373 Wash. cONsT. art. 1, § 7 (2015) (“No person shall be disturbed in his private affairs, or his home invaded, with- out authority of law.”). 374 aLaska cONsT. art. 1, § 22 (2015). 375 aRiz. cONsT. art. 2, § 8. 376 caL. cONsT. art. 1, § 1 (2015). 377 Id. 378 fLa. cONsT. art. 1, § 12.

27 The Kentucky Supreme Court likewise has stated that “[t]he right of privacy has been recognized as an integral part of the guarantee of liberty in our 1891 Kentucky Constitution since its inception.”388 B. States Recognizing an Implied Cause of Action for a Violation of a State Constitutional Provision In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,389 the United States Supreme Court held that there is an implied right of action for a violation of the U.S. Constitution’s prohibition on unreasonable searches and sei- zures. Since Bivens, although some state courts have held that an “an individual may bring a cause of action for monetary damages for viola- tions of state constitutional provisions,” other states’ high courts have not done so.390 Some state courts that have recognized an implied cause of action under their state constitution did not rely solely on the Supreme Court’s reasoning in Bivens,391 but relied also on the common law392 or Section 874A of the Restatement (Second) of Torts:393 When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not pro- vide a civil remedy for the violation, the court may, if it deter- mines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effective- ness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.394 In 1986, in Cutter v. Brownbridge, a psychothera- pist revealed information about his patient to the patient’s wife while they were in the midst of a divorce, which resulted in the plaintiff ’s loss of his visitation rights.395 A California appellate court held that the privacy provision in the California Constitu- tion “is self-executing[] and needs no legislation to create ‘a legal and enforceable right of privacy for every Californian.’”396 Violation of a privacy right is permissible only “when the need for disclosure out- weighs [the plaintiff ’s] interest in privacy.”397 Because the plaintiff ’s privacy interests outweighed the need for disclosure,398 the court reversed the lower court’s dismissal of the plaintiff ’s complaint.399 In 1990, in Moresi v. State,400 the Louisiana Supreme Court recognized an implied right of action for a violation of Article I, Section 5 of the 1974 Louisiana Constitution.401 Article I, Section 5 states that “[e]very person shall be secure in his person, prop- erty, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy,” and that “[a]ny person adversely affected by a search or seizure conducted in violation of this Sec- tion shall have standing to raise its illegality.”402 How- ever, as had the Supreme Court in Bivens, and later the New York Court of Appeals in Brown, discussed below, the Louisiana Supreme Court recognized a qualified immunity defense for acting in good faith.403 The police 388 Commonwealth v. Wasson, 842 S.W.2d 487, 495 (Ky. 1993). 389 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) (holding that the plaintiff was entitled to redress for his injuries caused by federal agents’ violation of his Fourth Amendment rights), on remand, 456 F.2d 1339 (2d Cir. N.Y. 1972) (holding that the federal agents were not immune from actions for damages based on allegations of constitutional violations but that the defenses of good faith and reasonable belief were available). 390 Sharon N. Humble, Annotation, Implied Cause of Action for Damages for Violation of Provisions of State Constitutions, 75 A.L.R. 5th 619, at [2a] (2000) [hereinaf- ter Humble] (citing Porten v. University of San Francisco, 64 Cal. App. 3d 825, 134 Cal. Rptr. 839 (1st Dist. 1976) (recognizing an implied cause of action for violations of the right to privacy); Fenton v. Groveland Community Ser- vices Dist., 135 Cal. App. 3d 797, 185 Cal. Rptr. 758 (Cal. App. 1982) (recognizing an implied cause of action for a violation of the right to vote); Phillips v. Youth Develop- ment Program, Inc., 390 Mass. 652, 459 N.E.2d 452 (1983) (recognizing an implied cause of action for violation of the right to due process); Johnson v. Wayne Co., 213 Mich. App. 143, 540 N.W.2d 66 (1995) (recognizing an implied cause of action for violations of the rights of equal protec- tion and due process and right to be free from cruel and unusual punishment); and Woodruff v. Board of Trustees of Cabell Huntington Hosp., 173 W. Va. 604, 319 S.E.2d 372 (1984) (recognizing an implied right of action for an alleged violation of the right to free speech)). 391 Humble, supra note 390, at [3b] (citing Porten v. Uni- versity of San Francisco, 64 Cal. App. 3d 825, 134 Cal. Rptr. 839 (1976); Lamartiniere v. Allstate Ins. Co., 597 So. 2d 1158 (La. App. 1992); and Bott v. DeLand, 922 P.2d 732 (Utah 1996)). 392 Id. at [3c] (citing Moody v. Hicks, 956 S.W.2d 398 (Mo. Ct. App. E.D. 1997); DiPino v. Davis, 354 Md. 18, 720 A.2d 354 (1999); and Brown v. Consolidated Rail Corp., 223 N.J. Super. 467, 538 A.2d 1310 (App. Dis. 1988)). 393 Id. at [3a] (citing Brown v. State, 89 N.Y.2d 172, 652 N.Y.S.2d 223, 674 N.E.2d 1129 (N.Y. 1996) and Dorwart v. Caraway, 2002 MT 240, 312 Mont. 1, 58 P.3d 128 (Mont. 2002)). 394 Restatement (Second) of Torts, § 874A (1965). 395 Cutter, 183 Cal. App. 3d 836, 228 Cal. Rptr. 545 (Cal. App. 1986), overruled in part, Jacob B. v. County of Shasta, 40 Cal. 4th 948, 56 Cal. Rptr. 3d 477, 154 P.3d 1003 (2007) (holding that the litigation privilege applies even to a constitutionally based privacy cause of action).. 396 Id. at 842, 228 Cal. Rptr. at 549. 397 Id. at 843, 228 Cal. Rptr. at 552. 398 Id. at 848, 228 Cal. Rptr. at 553. 399 Id. at 844, 228 Cal. Rptr. at 553. 400 567 So. 2d 1081 (La. 1990). 401 Id. at 1093. 402 Id. at 1091–1092 (quoting La. cONsT. art. I, § 5 (1974)). 403 Id. at 1094 (citing Butz v. Economou, 438 U.S. 478, 506–507, 98 S. Ct. 2894, 2911, 57 L. Ed. 2d 895, 916 (1977)).

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TRB's National Cooperative Highway Research Program (NCHRP) Legal Research Digest 71: Liability of Transportation Entity for the Unintentional Release of Secure Data or the Intentional Release of Monitoring Data on Movements or Activities of the Public reviews the statutes, regulations, and common law regarding the release of data collected for transportation purposes. Included in this research are questions concerning the application of public records laws and the application of any constitutional, statutory, or common law privacy rights. The digest also researches and identifies statutes and common law dealing with the collection of data on the activities of the public, includes a literature search of topics addressing these issues, and also includes a search of state and federal laws focusing on this and similar topics.

Appendixes A through D provide background on the research effort.

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