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Tuesday, October 5, 2010

Will the Supreme Court Ever Hear an Information Privacy Case?

by Thomas O'Toole

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 The U.S. Supreme Court's landmark privacy cases, cases like Roe v. Wade that found in the Due Process Clause a right to reproductive freedom, or Cruzan v. Missouri Dept. of Health that found a constitutionally protected liberty interest in making end-of-life decisions, have conditioned people to believe that the wise men and women on the U.S. Supreme Court will save us from the worst excesses of government and our fellow citizens.

I don't think that this belief is well-founded when it comes to information privacy.

A case in point: yesterday's decision by the U.S. Supreme Court to deny certiorari to reviewBoring v. Google Inc., a Third Circuit ruling that a homeowner's Pennsylvania common law right of privacy was not violated by the internet publication of photographs of the outside of a private residence taken from the adjoining public street. The case involved the online publication of the plaintiffs' property as part of the Google Street View product.

To the outside world, the case was about privacy ("Supreme Court Refuses Invasion of Privacy Claim Against Google Street View"). Up close, however, the Boring's petition for high court review didn't raise a single privacy-related question. The case wasn't about privacy at all. And for good reason. The U.S. Supreme Court has very little interest in deciding the state common law questions that the Borings alleged against Google.

No doubt recognizing this fact, the Borings tried as hard as they could to dress their case up in federal garb. Their petition for certiorari asked the high court to review the case to sort out allegedly thorny issues of federal procedure. Such as whether the lower courts improperly conducted ex parte “Googling” research to make final fact determinations in the case. They also asked the high court to take the case in order to examine whether the lower courts properly applied the court's recent pleading cases, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 75 U.S.L.W. 4337 (2007), and Ashcroft v. Iqbal, 77 U.S.L.W. 4387 (U.S. 2009), when they dismissed the Boring's common law privacy claims. Yawn. Not only were the Boring's Pennsylvania common law privacy claims not suitable for high court review, their federal claims were ... boring.

The main run of current online privacy questions -- behavioral advertising, online publication of embarrassing facts, location privacy -- don't implicate federal statutory or constitutional law at all. Not yet anyhow, and as much as inside-the-beltway folks like to believe they are the epicenter of public policymaking, that belief is likely untrue in the area of information privacy. Those rights will have to come from the state high courts, if at all.
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