Privacy in the Private Sector: Use of the Automotive Industry's "Event Data Recorder" and Cable Industry's "Interactive Television" in Collecting Personal Data
Katz, David M., Rutgers Computer & Technology Law Journal
While the mention of the term "Big Brother" typically arouses suspicion of the government, many privacy advocates have been expressing concern over the private sector's access to and use of valuable personal information. One example of this possible encroachment upon privacy rights occurs within the automotive industry, specifically the use of "Event Data Recorders" ("EDR") in vehicles. These devices, akin to the "black boxes" of the aviation industry, record the vital statistics of an automobile's operation in five-second loops, thereby saving the final five seconds prior to impact. (1) Some of the notable data recorded include airbag deployment, seatbelt use, speed prior to impact, acceleration or deceleration, and braking. (2)
Another illustration of modern technology encountering privacy issues is the emergence of a new media, known as "Interactive Television" ("ITV"). With sophisticated set-top cable boxes, consumers will be able to interact with their television, thus focusing the content of programming, advertising, and "t-commerce"(3) to suit individual preferences. (4) The privacy debate involves the cable company's ability to collect and share personal information recorded through the consumer's interaction with the technology. (5) The breadth of this forthcoming technology thus impacts many industries, including: cable, programming, advertising, marketing, and retail, among others. (6)
This Note seeks to explore the interrelationship between privacy rights and the modern technology of the private sector, with particular emphasis on "information privacy." I will set forth the statutory and common law protections of privacy rights, and analyze their applicability to the technology of today and tomorrow, focusing on the Event Data Recorder and Interactive Television. Further, I will show that most privacy concerns are ill-founded, as the practices of the private sector are, by-and-large, in accordance with both the law and sound public policy. Similarly, technology such as the EDR and ITV represent societal progress in the areas of safety and convenience, thus thoroughly outweighing any nominal social cost to personal privacy. Finally, I will provide suggestions to the legislature, private sector businesses, and the public-at-large for maintaining the crucial balance between preserving inherent privacy rights and expanding the boundaries of technology.
II. ORIGINS OF PRIVACY RIGHTS
A. Common Law Tort
The development of common law privacy rights began with the oft-quoted Harvard Law Review article of Samuel Warren and Louis Brandeis in 1890. (7) In the article, privacy was characterized as the "right to be let alone." (8) Inspired by the overzealous and intrusive nature of the press, a private sector industry, Warren and Brandeis argued for the creation of a new privacy right in personal information. (9) Later, Dean William Prosser further developed the common law privacy right, as he classified invasions of privacy into four distinct causes of action in tort law. (10) These four categories are: (1) intrusion upon one's seclusion or solitude, (2) publicly disclosing private facts of one's life, (3) placing another in a false light in the public eye, and (4) appropriation of name or likeness. (11) Prosser's classifications were later adopted by the Restatement (Second) of Torts. (12) It is the "intrusion upon seclusion" (13) cause of action that forms the basis of the information privacy concerns relevant to the EDR and ITV.
B. United States Constitution
The right to privacy is not mentioned explicitly in the United States Constitution. However, the United States Supreme Court, in i v. Connecticut held that the "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance," which create "zones of privacy." (14) Despite the privacy right created from an aggregation of the guarantees of the Bill of Rights, the Constitution only provides protection from state actions that violate an individual's privacy. …