Who Is Watching Your Keystrokes? an Analysis of M.G.L. Ch. 214 [Section] 1B, Right to Privacy and Its Effectiveness against Computer Surveillance
McNulty, Janine H., The Journal of High Technology Law
As a Massachusetts citizen, you have a statutory right to privacy. (1) The statute declares, "[a] person shall have a right against unreasonable, substantial or serious interference with his privacy" and gives the Massachusetts Superior Court jurisdiction to hear the cases. (2) In the past thirty years, Massachusetts' courts have held, despite broad language of the statute, that many intrusions do not violate this statute. These intrusions include specific employer actions, (3) telemarketing, (4) newspaper articles, (5) and newspaper pictures. (6) This note applies Massachusetts' case law to hypothetical computer-based invasion of privacy cases to predict how the court would rule when confronted by this emerging problem.
This note begins with a brief discussion of the Samuel D. Warren and Louis D. Brandeis Law Review article that shaped the common law right to privacy. (7) The note then describes the Restatement of Torts' privacy categories. (8) Next, the note analyzes Massachusetts' privacy cases to determine what actually constitutes a reasonable and substantial or serious violation of privacy. (9) After this analysis, there is a brief overview of current computer technology (10) and a description of how someone uses a computer to invade the privacy of another. After analysis of a New Jersey common law violation of privacy case, (11) this note uses theoretical fact patterns to demonstrate how a Massachusetts state court might rule when confronted with a computer generated invasion of privacy claim.
A law review article written by Samuel D. Warren and Louis D. Brandeis recognized and shaped the common law right to privacy over a century ago. (12) In the first paragraph, they charged that all aspects of a changing society, encompassing the political, social and economic, required the identification of new rights and then used the common law to develop this new right to privacy. (13) The authors understood that with the development of society and civilization, there comes a need to protect the thoughts of man from intrusive, advancing technology. (14) Even in 1890, people knew how important privacy was and therefore recognized that privacy needed additional protection. (15) The "right to be let alone" was born. (16) The evolution of the right to privacy continues to this day.
The Restatement of Torts codified this right of autonomy. The Restatement contains four categories of invasion of privacy: (1) intrusion upon seclusion, (2) appropriation of identity, (3) disclosure of private facts, and (4) publicity that places another in a false light. (17) The right of privacy protects against an "unreasonable intrusion upon the seclusion of another." (18) The unreasonable intrusion alone is enough for a violation of a privacy right, yet it is not actionable until it becomes highly offensive. (19) The intrusion must be substantial and reach the level where a reasonable man would "strongly object." (20) Intrusion covers violations, such as opening another's mail or searching another's wallet, as well as those violations using mechanical means, such as tapping a phone to eavesdrop on private conversations. (21)
The second category of privacy invasion is the act of taking another's name or likeness to use for the taker's own benefit. (22) An invasion of privacy occurs when a person or corporation uses the name or likeness of another without permission. (23) A person has exclusive control over how his likeness or name is used. (24) Most of the case samples consist of using the likeness commercially to sell or advertise a product. (25) The person stealing the name or likeness must benefit from using the appropriated name or likeness. (26) Merely using a similar sounding name or likeness does not meet the benefit requirement. (27) The value of the name is the underlying principle of this privacy violation. (28)
The third category covers a person's private life and aims to prevent unreasonable publicity about that private life. …