How Private is Private?

Tuesday, March 8, 2011

Page 6

IN MY OPINION (Column)

How Private is Private?

BY GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

On Feb.10, 2011, our Magnificent Seven decreed that henceforth retailers could not inquire of a credit card customer his or her zip code number. The case was Jessica Pineda v. Williams-Sonoma Stores, Inc., 11 S.O.S. 821. What is to be expected? An avalanche of class actions which will make fly balls in Yankee Stadium look as isolated as snow balls in July.

Civil Code Sec. 1747.08 is violated. A zip code constitutes personal identification information. The database may not be used to market products. The unsophisticated purchaser may not be so abused, this is here a clear violation of privacy.

What is this right of privacy? Blackstone never heard of it. Neither did our founding fathers who wrote the Constitution. California voters in November 1972 specifically amended Article 1, Section 1 of our state constitution to include among the various inalienable rights of all people, the right of privacy. It is the right to be left alone. It is an important American heritage and essential to the fundamental rights guaranteed by the First, Third, Fourth, Fifth and Ninth Amendments to the U.S. Constitution. Fundamental to our privacy is the ability to control circulation of personal information.

This new doctrine was unleashed not by the courts, not by the Legislature, but by a noted article in the Harvard Law Review in 1890 by Samuel D. Warren and Louis D. Brandeis. The first California recognition occurred in a case known as the Red Kimono in 1931 (Melvin v. Reid, 112 Cal. App. 285) involving a motion picture of a reformed prostitute who had “abandoned her life of shame,” and what made it actionable was the unnecessary mention of her name. Finally, the Restatement of Torts in Sec. 867 gave it eminent social standing.

The expectation of privacy has thus become part and parcel of American living and jurisprudence. How private it private? The courts have struggled, but they have nearly always come down on the side of privacy and human dignity. Privacy has been the tie-breaker in what has become the new jurisprudence. Who would have thought that?

The right to privacy sprouts in as many settings as the imagination of lawyers may allow. There was police surveillance in university classes where no illegal activity was involved; a bank’s disclosure of customers’ bank statements; medical records; random testing of blood and urine of professional and college athletes; yes, even or especially, abortion rights and information and instruction concerning use of contraceptive devices. The concept is truly amorphous, limited only by concepts of newsworthiness or other legitimate inoffensive social values.