Legal Issues Concerning Transit Agency Use of Electronic Customer Data (2017)

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36 enjoying and defending life and liberty, acquiring, possess- ing and protecting property, and pursuing and obtaining safety and happiness.480 Other state constitutional provisions mirror the U.S. Constitution’s Fourth Amendment’s protection against unreasonable searches and seizures.481 In addition, in some states the courts have recog- nized a constitutional 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.”482 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 privacy guaranteed by the Georgia constitutional provision which declares that no person shall be deprived of liberty except by due process of law.”483 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.”484 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 disclo- sure. 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.”485 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.”486 In Cutter v. Brownbridge,487 a California appellate court held that, even though a patient has a constitu- tionally protected interest in his or her medical file, a “disclosure may be appropriate in narrowly limited circumstances to serve a compelling interest.”488 When there has been a deliberate disclosure of one’s personal information, however, the disclosure “leaves no room do not confer on individuals a private right of action to sue for violations of the policies.468 IX. THE RIGHT TO PRIVACY UNDER STATE CONSTITUTIONS A. State Constitutions that Recognize a Right to Privacy The Supreme Court has held that there is a narrow zone of privacy protected by the U.S. Constitution. At least 10 state constitutions protect an individual’s right to privacy,469 such as in Alaska,470 Arizona,471 Florida,472 Montana,473 and Washington.474 Alaska’s constitution states that “[t]he right of the people to privacy is recognized and shall not be infringed.”475 Arizona’s constitution states that “[n]o person shall be disturbed in his private affairs… without authority of law.”476 California’s constitution secures individuals’ “inalienable rights,”477 including their pursuit of “safety, happiness, and privacy.”478 Florida’s constitution 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 violated.”479 Iowa’s constitution states: All men and women are, by nature, free and equal, and have certain inalienable rights—among which are those of 480 iowa const. art. 1, § 1 (2016). 481 See fla. const. art. 1, § 12 (2016); haw. const. art. 1, § 7 (2016); ill. const. art. 1, § 6 (2016); la. const. art. 1, § 5 (2016); and S.C. const. art. 1, § 10 (2016). 482 Jegley v. Picado, 349 Ark. 600, 632, 80 S.W.3d 332, 349–50 (2002). 483 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 (1905) (internal citation omitted)). 484 Commonwealth v. Wasson, 842 S.W.2d 487, 495 (Ky. 1993). 485 haw. const. art. 1, § 6 (2016). 486 Mont. const. art. 2, § 10 (2016). 487 183 Cal. App. 3d 836, 228 Cal. Rptr. 545 (Cal. App. 1986). 488 Id., 183 Cal. App. 3d at 842, 228 Cal. Rptr. at 549. 468 See, e.g., Gramm–Leach–Bliley Act of 1999, 15 U.S.C. § 6801 (2016) (requiring financial institutions to have pri- vacy policies but not providing for a private right of action). 469 Douma & Deckenbach, supra note 196, 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), http://www. ncsl.org/research/telecommunications-and-information- technology/privacy-protections-in-state-constitutions.aspx (last accessed Sept. 24, 2016). 470 alaska const. art. 1, § 22 (2016). 471 ariz. const. art. 2, § 8 (2016) (“No person shall be dis- turbed in his private affairs, or his home invaded, without authority of law.”). 472 fla. const. art. 1, § 23 (2016) (“Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life....”). 473 Mont. const. art. 2, § 10 (2016) (“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 compel- ling state interest.”). 474 wash. const. art. 1, § 7 (2016) (“No person shall be disturbed in his private affairs, or his home invaded, with- out authority of law.”). 475 alaska const. art. 1, § 22 (2016). 476 ariz. const. art. 2, § 8 (2016). 477 cal. const. art. 1, § 1 (2016). 478 Id. 479 fla. const. art. 1, § 12 (2016).

37 When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide 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.495 In 1986, in Cutter v. Brownbridge, supra, a psycho- therapist 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.496 A California appellate court held that the privacy provision in the California Constitution “is self-executing[] and needs no legislation to create ‘a legal and enforceable right of privacy for every Californian.’”497 Violation of a privacy right is permissible only “when the need for disclosure outweighs [the plaintiff ’s] interest in privacy.”498 Because the plaintiff ’s privacy interests outweighed the need for disclosure,499 the court reversed the lower court’s dismissal of the plaintiff ’s complaint.500 In Moresi v. State in 1990,501 the Louisiana Supreme Court recognized an implied right of action for a viola- tion of Article I, Section 5 of the 1974 Louisiana Constitution.502 Article I, Section 5 states that “[e]very person shall be secure in his person, property, commu- nications, houses, papers, and effects against unreason- able searches, seizures, or invasions of privacy,” and that “[a]ny person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality.”503 The Louisiana Supreme Court recognized a qualified immunity defense for acting in good faith, however,504 as had the Supreme Court in Bivens, and later the New York Court of Appeals in Brown, which is discussed in the following section. The police officers were acting in good faith because their “investigatory stops [were] based on reasonable, articulable suspicion [that] do not violate state constitutional law principles.”505 The officers were not liable for an intentional infliction of emotional for the careful balancing that must take place prior to possible infringement of a constitutional right.”489 B. States Recognizing an Implied Cause of Action for a Violation of a State Constitutional Provision As discussed in Section VII.C, in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,490 supra, the U.S. Supreme Court held that there is an implied right of action for a viola- tion of the U.S. Constitution’s prohibition on unrea- sonable searches and seizures. Some state courts have held that “an individual may bring a cause of action for monetary damages for violations of state constitutional provisions,” whereas other states’ high courts have not done so.491 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,492 but also relied on the common law493 or Section 874A of the Restatement (Second) of Torts:494 489 Id., 183 Cal. App. 3d at 847, 228 Cal. Rptr. at 553 (cita- tions omitted). 490 403 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 federal agents were not immune from actions for damages based on allegations of constitutional violations but that defenses of good faith and reasonable belief were available). 491 Sharon N. Humble, Annotation, Implied cause of action for damages for violation of provisions of state consti- tutions, 75 A.L.R. 5th 619, at [2a], hereinafter referred to as “Humble” (citing Porten v. Univ. of San Francisco, 64 Cal. App. 3d 825, 134 Cal. Rptr. 839 (Cal. App. 1976) (recogniz- ing an implied cause of action for violations of the right to privacy); Fenton v. Groveland Cmty. Servs. Dist., 135 Cal. App. 3d 797, 185 Cal. Rptr. 758 (Cal. App. 1982) (recogniz- ing an implied cause of action for a violation of the right to vote); Phillips v. Youth Dev. 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) (rec- ognizing an implied cause of action for violations of the rights of equal protection 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)). 492 Id. at [3b] (citing Porten v. Univ. 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)). 493 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 (N.J. App. 1988)). 494 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)). 495 Restatement (Second) of Torts, § 874A (1965). 496 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 con- stitutionally based privacy cause of action). 497 Cutter, 183 Cal. App. 3d at 842, 228 Cal. Rptr. at 549. 498 Id., 183 Cal. App. 3d at 843, 228 Cal. Rptr. at 552. 499 Id., 183 Cal. App. 3d at 848, 228 Cal. Rptr. at 553. 500 Id., 183 Cal. App. 3d at 844, 228 Cal. Rptr. at 553. 501 567 So. 2d 1081 (La. 1990). 502 Id. at 1093. 503 Id. at 1091–1092 (quoting la. const. art. I, § 5 (1974)). 504 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)). 505 Id. at 1094, 1096.