Identification: The development of a body of state and federal law determining the application of constitutional provisions for the protection of American freedoms contained in the Bill of Rights, and of privacy tort law.

The right of privacy in the United States is constantly evolving. The courts interpret state and federal constitutions and statutes protecting privacy in various limited respects against government intrusion on individual rights. Most state courts have also recognized the personal right of privacy, at least in some respects, under state statutes or common law. State-recognized civil privacy rights may be enforced by filing a civil lawsuit against another private person who violates those rights in a manner that causes the plaintiff some legally recognized harm.

In 1891, the United States Supreme Court recognized the important common law values giving rise to the personal right of privacy and autonomy in Union Pacific Railway Company v. Botsford, 141 U.S. 250. The plaintiff sued the railroad company for personal injuries she suffered in a sleeping car when an upper sleeping berth collapsed and fell on her. Shortly before trial, the defendant railroad asked the court to order a surgical examination of the plaintiff to confirm her diagnosis. The trial court refused to do so, and the Supreme Court agreed, holding the trial court had no authority to require the plaintiff to undergo a surgical diagnostic examination for the benefit of the railroad. The Court reasoned, “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law” (Botsford).

In some cases, state common law or statutory privacy rights have been limited by the courts to acknowledge that personal rights must sometimes give way to constitutional rights of free speech and freedom of the press. In that sense, privacy rights continue to evolve by judicial interpretation to balance the personal right of privacy against important governmental interests. The courts also seek to balance the rights of private individuals to exercise their constitutional rights free of restriction by state and federal courts in the process of enforcing personal privacy rights.

Under current law, the right of privacy includes two major types of privacy classifications. The first is generally known as informational privacy, or the right of an individual to control the distribution to others of personal information about oneself. The second has become known as personal autonomy, or the right to make important decisions about one’s most intimate relationships, family life, and bodily functions. The common law values the Supreme Court acknowledged in Botsford support both major classifications of privacy interests.

Informational privacy is protected by constitutional rights as well as by different federal and state laws. Personal autonomy, however, is protected primarily by judicial interpretation of constitutional privacy rights. Because the right of privacy in the United States was first recognized as a matter of constitutional law, the next section traces the development of federal constitutional privacy rights. In many cases, state courts have interpreted comparable provisions of their respective state constitutions similarly, although some state constitutions provide even more extensive protection for personal privacy.

Constitutional right of privacy. Early in the history of the United States, privacy rights were first recognized as a matter of federal constitutional law, primarily by judicial interpretation of the Fourth Amendment protection against unreasonable searches and seizures by government officials looking for evidence of criminal activity. In fact, the very purpose of adopting the Fourth Amendment to the U.S. Constitution was in part to protect citizens against general warrants then in common use in England, and writs of assistance used in the colonies (Steagald v. United States, 451 U.S. 2014 (1981)).

A writ of assistance was a general warrant allowing the British customs official holding it to search any place of his choice and seize any contraband that might be found. Its purpose was to assist customs authorities in enforcing laws against smuggling. British merchants sought to restrict colonial trade with other countries, and smuggling was commonplace as a means of avoiding duties on imported goods. Law-abiding colonists considered these writs of assistance especially offensive because customs officials could use them indiscriminately against anyone, not just suspected smugglers. The purpose of the Fourth Amendment was to prevent the kinds of abuses by British customs officials that the writs of assistance had authorized. The Fourth Amendment reads in its entirety as follows:

While the Fourth Amendment does not expressly state individual citizens have a constitutional right of privacy, the U.S. Supreme Court has consistently interpreted the Fourth Amendment in a manner consistent with its original purpose: to protect individual privacy interests against unreasonable governmental intrusions. For example, in Johnson v. United States, 333 U.S. 10 (1948), the Supreme Court acknowledged that when the Fourth Amendment is implicated, the court must balance “the need for effective law enforcement against the [individual’s] right of privacy.”

The Fourth Amendment does not prohibit all government searches—only unreasonable ones. As a general rule, a neutral judicial officer known as a magistrate, rather than a law enforcement officer, must decide when the government’s interest in searching for evidence of criminal activity outweighs the personal right of privacy. If so, the judicial officer issues a search warrant that must specifically identify the place to be searched and the things to be seized.

The law generally presumes a law enforcement search conducted in a manner consistent with a search warrant is a reasonable one, which is all the Fourth Amendment right of privacy requires. However, legal presumption may be rebutted, or overcome, if a criminal defendant establishes the facts presented to the magistrate were legally insufficient to qualify as probable cause. Generally, the term refers to facts available to a law enforcement officer would support a belief by a reasonably cautious person that contraband or evidence of a crime is present in the place to be searched. If the finding of probable cause is challenged, the court considers “the totality of the circumstances” in determining whether the government has met the constitutional standard (Florida v. Harris, 133 S.Ct. 1050 (2013))

Historically, a person’s home has been considered especially private, so much so the courts routinely hold that government officials should not be permitted to intrude without a very compelling reason. The Supreme Court has often acknowledged a person’s home is his castle and has fought to protect privacy rights within the home (Georgia v. Randolph, 547 U.S. 103 (2013)). Therefore, in interpreting the Fourth Amendment, the Court has always considered a person’s residence and the immediate surrounding area, known as the curtilage, as deserving special protection against unreasonable government searches (Florida v. Jardines, 569 U.S. 1 (2013); Kyllo v. United States, 533 U.S. 27 (2001)). Traditionally, the courts analyzed the special protections of the home and its surroundings based on the law related to trespassing on private property. For example, if a law enforcement officer spotted unlawful activity by visual observation without trespassing, courts held that the owner’s Fourth Amendment right of privacy was not implicated (United States v. Jones, 389 U.S. 347 (1967)).

However, in 1967, the Supreme Court held “the Fourth Amendment protects people, not places” (Katz v. United States, 389 U.S. 347 (1967)). In Katz, the Court held the Fourth Amendment prohibited law enforcement officials from making a warrantless tape recording of a telephone conversation in a glassed-in public telephone booth. Therefore, the constitutional right of privacy against unreasonable searches and seizures is not limited to places, like the home, in which courts have historically assumed individuals have had a reasonable expectation of privacy.

More recently, the Court has clarified Katz expanded the reach of Fourth Amendment beyond the physical areas in which a person has a reasonable expectation of privacy. Therefore, the concept of physical intrusion into a private place, such as the home, continues to be an important basis for Fourth Amendment privacy rights, as well as nonphysical intrusion by visual, auditory, or electronic means, including sense-enhancing technology of the sort that is not in the general public use or readily available to the public (Kyllo). As the Court observed in Kyllo, “[t] his assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”

Even if the Fourth Amendment does apply the right of privacy it protects can be waived if a person’s conduct is inconsistent with an expectation of privacy. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection” (Katz). Thus, an individual can waive Fourth Amendment rights by knowingly making his private affairs public. And if a person voluntarily consents to a search or seizure, the Fourth Amendment is not violated (Georgia v. Randolph).

Even if a person does not waive privacy rights or consent to a search, the Supreme Court has carved out many exceptions to the Fourth Amendment warrant requirement. These court-recognized exceptions do not mean the individual does not have a constitutionally protected right of privacy; rather, they acknowledge the government interest advanced by the search outweighs the personal privacy interest at stake.

One important example of an exception to the warrant requirement is a search of the interior of an automobile when lawfully stopped by police for a traffic violation. The purpose of this exception is to protect officer safety and to prevent the destruction of evidence of a crime. For that reason, the search of the car’s trunk, or a closed container inside the car not within easy reach of an occupant, is generally not within the scope of the exception. “[A]n automobile search incident to a recent occupant’s arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains ‘evidence relevant to the crime of arrest’” (Davis v. United States, 131 S.Ct. 2419 (2011)).

Another important exception to the warrant requirement is a search incident to a lawful arrest, which serves the same government interests as the automobile exception: officer safety and preservation of evidence (Arizona v. Gant, 556 U.S. 332 (2009)). On the other hand, the Court has imposed limits on the scope of this exception.

In 2014, for example, the Supreme Court held even when a cellphone is seized by law enforcement incident to a lawful arrest, the Fourth Amendment protection against warrantless searches generally extends to the contents of the arrested person’s cellphone (Riley v. California, 134 S.Ct. 2473). The Court acknowledged cellphones are commonly used by individuals to store a wide variety of private information and the reasons for the warrant exception for searches incident to arrest are not sufficiently served by expanding the scope of that exception to include the contents of cellphones. Therefore, even if police lawfully arrest a driver, they must obtain a search warrant from a neutral magistrate before they can lawfully search the contents of the arrested driver’s cellphone.

Even if one of the many judicially recognized exceptions applies and a warrant is therefore not required, the Fourth Amendment requires any search must be reasonable. This fundamental constitutional requirement of reasonableness applies to both the scope of the search and the manner in which it is conducted (Maryland v. King, 486 U.S. (1988)). Therefore, even if a law enforcement officer has a search warrant, the search may still be held unlawful if the search exceeds the scope of the warrant’s authority or if a court determines that the nature of the search is otherwise unreasonable.

The Court has narrowly defined what qualifies as a Fourth Amendment search in the first place. For example, even if a person has a subjective expectation of privacy in a place to be searched or the information seized, that does not necessarily mean the Fourth Amendment applies. The Supreme Court has interpreted the constitutional protection against unreasonable searches to apply only if the person has an expectation of privacy society recognizes as objectively reasonable (California v. Greenwood, 486 U.S. (1988)). If a court determines a particular challenged search does not qualify as a Fourth Amendment search, law enforcement officers are not required to obtain a warrant, nor must the search even be reasonable, as that term is used in the Fourth Amendment.

While the Fourth Amendment restricts only actions by federal officers and agents, the Supreme Court enforces the Fourth Amendment right of privacy against the states through the due process clause of the Fourteenth Amendment (Mapp v. Ohio, 367 U.S. 643 (1961)). Federal and state courts both apply the exclusionary rule as a sanction to deter law enforcement from engaging in searches violating the Fourth Amendment. The exclusionary rule is a judge-made rule that refuses to admit evidence at trial against a criminal defendant if evidence was obtained in violation of the Fourth Amendment. Under the fruit-of-the-poisonous-tree doctrine, the exclusionary rule also bars admission of evidence obtained as a direct result of an unlawful search or seizure (Wong Sun v. United States, 371 U.S. 471 (1963)).

The Fourth Amendment is not the sole source of federal constitutional privacy rights, and the Fourth Amendment alone does not provide a general right of privacy (Katz). The Supreme Court has held privacy protections are primarily the subject of state law rather than federal law:

In particular, many state constitutions include guarantees against unreasonable searches and seizures, and in some cases the state courts have interpreted those constitutional protections to be broader even than those guaranteed by the U.S. Constitution. The Supreme Court has repeatedly held a state, as a matter of its own law, may impose greater restrictions on law enforcement activities than those imposed by the U.S. Constitution (Oregon v. Hass, 420 U.S. 714 (1975)).

Other amendments to the U.S. Constitution provide individuals with limited privacy rights beyond those guaranteed by the Fourth Amendment (Katz v. United States). For example, the First Amendment explicitly protects individual privacy with respect to the freedom of association (Katz v. United States; Nat’l Ass’n for Advancement of Colored People v. State of Ala. ex rel. Patterson, 357 U.S. 449 (1958)). Also, the Supreme Court has interpreted the First Amendment’s freedom of speech as protecting an individual’s right to speak anonymously, without revealing one’s identity. That freedom extends to protect anonymous advocacy of political causes, as illustrated by the “secret ballot, the hard-won right to vote one’s conscience without fear of retaliation” (McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)). As the Supreme Court has often observed, “[T]he First Amendment has a penumbra where privacy is protected from governmental intrusion” (Griswold v. Connecticut, 381 U.S. 479 (1965)).

The Third Amendment to the U.S. Constitution prohibits the government from appropriating citizens’ homes for quartering soldiers. This protection reflects the strongly held value in protecting the sanctity and privacy of one’s home against government intrusion (Katz).

Finally, the Fifth Amendment right against compelled self-incrimination in part protects the individual’s right to privacy. In Griswold, the Court observed, “The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.”

In 1965, in Griswold v. Connecticut, the Supreme Court first recognized the constitutional right of privacy with respect to reproductive decisions. There, the Court held married couples have a constitutional right to decide for themselves whether to use contraceptives, striking down a Connecticut statute prohibiting their use. The Court reasoned the “very idea [of searching the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives] is repulsive to the notions of privacy surrounding the marriage relationship.”

In reaching this conclusion, the Court did not link the ancient right of privacy to any particular constitutional provision, reasoning only the right “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees” (Griswold). The Court acknowledged, however, the right of privacy, at least with respect to the marital relationship, is so fundamental it predates even the founding of the United States.

Griswold was the first of many Supreme Court decisions recognizing a constitutional right of privacy related to an individual’s personal autonomy to make decisions about private matters, including intimate family relationships. As noted earlier, this important, evolving branch of the right of privacy has become known as the right of personal autonomy. The most important of these decisions involve procreation, intimate relationships, and the right to refuse medical treatment.

In 1973, the United States Supreme Court recognized a constitutional right of privacy with respect to a woman’s decision about abortion. The Court held that whether married or unmarried, a pregnant woman has a constitutional right to decide, in consultation with her physician, whether to terminate her pregnancy during the first trimester (Roe v. Wade, 410 U.S. 113 (1973)).

In 1990, the Court acknowledged that an individual has a constitutional right of privacy, grounded in the liberty interests protected by the due process clause, to refuse medical treatment, including life-sustaining medical treatment (Cruzan by Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261 (1990)). This case set the precedent that abortion was a privacy issue, and as such should be protected as a constitutional right.

In 2003, in Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court held state laws criminalizing sodomy unconstitutional when applied to intimate sexual activity between consenting adults in the privacy of their home. That decision reversed Bowers v. Hardwick, 478 U.S. 186 (1986), issued by the Court just seventeen years earlier, upholding a state criminal sodomy statute in a factually similar case. The Court in Lawrence recognized adult couples have a constitutional right to privacy with respect to consenting intimate relationships. “Our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and that the Constitution demands respect for “the autonomy of the person in making these choices” (Lawrence).

Most recently, in 2015, the Supreme Court struck down state laws and constitutional provisions that forbade same-sex marriage (Obergefell v. Hodges, 135 S.Ct. 1039 (2015)). While the Court’s decision relied primarily on related constitutional concepts of substantive due process and equal protection, it also reasoned the right to marry implicates personal autonomy.

By interpreting several specific constitutional provisions as well as the Constitution as a whole, the Supreme Court continues to develop the right of privacy consistent with modern developments in technology and societal norms. A task that has been most difficult given the lack of precedent on these issues not previously dealt with due to technological changes and advancements.

Civil Right of Privacy. The Supreme Court has often recognized a right of privacy existed in common law, even before the adoption of the Bill of Rights as a supplement to the U.S. Constitution (Griswold). However, the common law right of privacy in existence then was generally understood to prevent invasions of privacy by government officials and agents. To a limited extent, early common law crimes also recognized a personal right of privacy against other kinds of intrusions by punishing “peeping Toms” who engaged in voyeurism, as well as private individuals who engaged in eavesdropping.

In 1967, for example, the Supreme Court recognized the historical roots of privacy rights with respect to eavesdropping:

Laws against the crime known at common law as burglary also protected against intrusions into the home. Burglary was committed by a person who engaged in a trespassing by breaking and entering a dwelling of another at night, with an intent to commit a felony inside the home. The common law definition of burglary as a trespassory crime of invasion of another’s dwelling echoed the traditional focus on the value of personal privacy with respect to the home.

While the common law generally provided for criminal recourse against peeping Toms, eavesdroppers, and burglars, it did not allow a person whose privacy rights were violated by another to sue in court to recover monetary compensation for the resulting harm. The government itself prosecuted criminal violators, and the individual victim had no direct remedy against the perpetrator for the privacy invasion.

It was not until the last decade of the nineteenth century that scholarly debate addressed what we now know as the common law right of privacy. Since then, the civil right of privacy has evolved primarily as a matter of state common law. However, several states have enacted statutes to supplement, clarify, or limit the scope of the common law right of privacy as a protection against invasions by private persons, including corporations. While most states have judicially recognized the right of privacy in some form, “other common law jurisdictions languish in a quagmire of indecision and hesitancy.”

In 1890, an influential law review article published in the Harvard Law Review urged the courts to recognize a personal right of privacy of the kind that had never before been recognized at common law. Samuel D. Warren and his former law partner, future Supreme Court Justice Louis D. Brandeis, co-authored an article calling for a new cause of action for invasion of privacy. Cases decided in the early years of the twentieth century debating the existence of a personal right of privacy against other private parties were a direct outgrowth of that law review article. In part, the motivation for the article was the “yellow journalism” common in the late 1800s, as well as the availability of potentially invasive new technologies, including hand cameras and moving pictures.

For example, in one 1890 case, Marion Manola, a comic opera celebrity, successfully sued and obtained a court order to prevent the theater manager from taking flash photos of her performance and distributing the images. By the end of the nineteenth century, photography had become commonplace in the United States. The Kodak box camera was patented by George Eastman in 1888, which made photography available to the general public. Shortly after the turn of the last century, the first Brownie camera could be purchased for just one dollar. The affordability of the portable camera made it possible for many members of the public to engage in surreptitious photography. Private persons who were offended by the taking and publishing of photographs without their consent filed civil lawsuits for violating what the 1909 Rhode Island Supreme Court called “the right of circulating portraits” (Henry v. Cherry & Webb, 73 A. 97 (1909)).

In urging courts to recognize a new civil cause of action for invasion of privacy, Warren and Brandeis argued the right was merely a reflection of the “more general right of the individual to be let alone.” As discussed earlier, that right had been recognized as a matter of common law, at least in some respects, since before the United States had declared its independence from Great Britain. Warren and Brandeis drew from a legal treatise authored by Professor Thomas Cooley, first published in 1878, that sketched the outlines of a general right of “personal immunity” that would later become known more specifically as the right of privacy. “The right to one’s person may be said to be a right of complete immunity; to be let alone.”

During the next decade, New York trial courts issued a series of decisions granting court orders, known as injunctions, which prohibited publication or distribution of photographs without the consent of the individual subjects portrayed in them. However, courts in other states refused to recognize the right of privacy urged by Warren and Brandeis. In 1899, for example, the Michigan Supreme Court declared, “We are not satisfied that one has a right of action either for damages or to restrain the possessor of a camera from taking a snap shot at the passer-by for his own uses” (Atkinson v. John E. Doherty & Co., 80 N.W.2d 285)).

In 1902, the highest New York appellate court issued a closely divided opinion rejecting the existence of any common law right of privacy in that state (Roberson v. Rochester Folding Box, 171 N.Y. 538). The New York Court of Appeals reversed the trial court’s award of money damages to Abigail Roberson. A minor under New York law at that time, Roberson was an 18-year-old young woman whose studio photograph had been printed and displayed without her consent on 25,000 posters advertising baking flour. The court refused to recognize a common law right of privacy under New York law that would allow Roberson to recover a money judgment for the commercial use of her photograph.

After the New York court had issued its decision reversing the lower court’s judgment, the outcome was resoundingly criticized across the country. In 1903, in direct response to the public outcry, the New York legislature enacted a limited statutory right to privacy, the first statute of its kind promulgated by any state. The New York statute was narrowly framed to provide a civil remedy for those whose names or “likenesses,” such as Roberson’s photograph, were used by anyone for trade or advertising purposes without the person’s written consent. A violation of the statute was also defined as a criminal misdemeanor.

Several other state appellate courts followed the New York Court of Appeals, declining to recognize a state common law right to privacy. Many courts were reluctant to declare a new common law right, reasoning state legislatures were better suited to define any new civil right of privacy. A few state legislatures enacted legislation, similar to New York’s, that recognized a limited right to recover money damages for certain kinds of privacy invasion. For example, Virginia enacted a statute in 1904 and Utah in 1909.

On the other hand, several other state courts recognized a more sweeping right to privacy. The earliest court to do so, in 1905, was the Georgia Supreme Court. In Pavesich v. New England Life Insurance Co., 122 Ga. 190 (1905), the court held Paolo Pavesich had a valid claim for invasion of his right of privacy because the insurance company used his photograph in a newspaper advertisement without his consent. In recognizing a claim against a private company for invasion of privacy, the court drew from natural law principles as well as state and federal constitutional laws protecting personal liberty interests. The court also relied on a Georgia statute authorizing any court to frame a civil remedy for a violation of any right within the court’s jurisdiction. The opinion issued by the Georgia Supreme Court went so far as to predict that one day, the right of privacy would be generally recognized in the United States:

After the decision in Pavesich, other state and federal courts adopted varied positions regarding the state right of privacy. The Rhode Island Supreme Court, following the New York Court of Appeals, rejected the common law right of privacy in 1909, noting it was “unable to discover the existence of the right of privacy contended for” (Henry). That same year, the Arkansas Supreme Court acknowledged the issue in a case in which two criminal detainees, not yet convicted of any crime, challenged the use of their photographs in a “rogues’ gallery” (Mabry v. Kettering, 122 S.W. 115 (1909)). However, the Arkansas Supreme Court decided that law enforcement officers’ use of the photographs solely for identification purposes was not improper.

Other state courts followed the trend set by Georgia. In 1911, a Missouri appellate court, relying on Pavesich, recognized a five-year-old boy’s common law cause of action against a Kansas City jewelry store for using his image in a newspaper advertisement without consent (Munden v. Harris, 153 Mo. App. 652 (1911)). Just a year later, a federal district court sitting in Missouri pointedly declined to resolve “the irreconcilable conflict of opinions and views of courts of last resort in various jurisdictions” (Vassar Coll. v. Loose-Wiles Biscuit Co., 197 F. 982 (WD Mo., 1912)). The court concluded even if a right of privacy did exist, it did not extend to Vassar College, a public educational institution, that asked the court to grant an injunction to prevent a biscuit company from using the college’s name and emblems for commercial purposes to promote sales of “Vassar Chocolates.” Later courts have agreed the common law right of privacy is a personal right that does not extend to institutions or corporations.

In 1939, the American Law Institute, a nonprofit organization of noted scholars and judges, recognized the evolving common law right of privacy when it published the Restatement of Torts § 867 (1939). The American Law Institute is highly influential in the development of common law by state appellate courts. According to this first version of the Restatement, “[a] person who unreasonably and seriously interferes with another’s interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other” (Restatement of Torts § 867).

The Restatement outlined a single common law right of privacy that could be violated in two different ways: first, by disclosing another person’s private affairs to others; and second, by exhibiting another’s likeness to the public. To recover money for a violation, a plaintiff needed to convince a court the invasion was an unreasonable and serious interference with the plaintiff’s privacy interests. Also, the defendant must have been able to predict the plaintiff would have reason to feel “seriously hurt” by the defendant’s conduct. If the plaintiff could prove these elements, it was not necessary to prove physical harm or monetary loss as a result.

Almost immediately, state courts relied on this initial Restatement of Torts provision in recognizing a common law remedy for privacy invasions that went well beyond the essential elements outlined by the Restatement. For example, in 1941, the Oregon Supreme Court recognized an invasion of privacy when an optical corporation, without consent, signed the plaintiff’s name to a telegram lobbying the governor to veto a bill that would have disallowed corporations from dispensing glasses (Hinish v. Meier & Frank Co., 113 P.2d 438). Although the company did not disclose the plaintiff’s private affairs to the public and did not exhibit the plaintiff’s likeness, the court held that the company unlawfully “appropriated for [its] own purposes [plaintiff’s] name, his personality, and whatever [political] influence he may have possessed” (Hinish v. Meier & Frank Co.).

In 1960, law school dean William Prosser published a law review article mapping out four related but distinct aspects of the common law right of privacy. The four kinds of privacy invasions proposed in the article included (1) intrusion on seclusion, solitude, or private affairs; (2) public disclosure of embarrassing private facts;

(3) publicity casting plaintiff in a false light in the public eye; and (4) appropriation of name or likeness for the defendant’s advantage. Each of the four privacy torts protects related but distinct privacy interests. In 1977, the American Law Institute revised the Restatement of Torts to incorporate the four distinct kinds of common law invasion of privacy outlined by Dean Prosser in 1960 (Restatement (Second) of Torts §§ 652A–652E (1977)). Since then, most states have followed the Restatement’s explanation of these four kinds of claims for violation of the common law right of privacy. The American Law Institute is in the process of issuing portions of the Restatement (Third) of Torts, but the sections relating to the common law right of privacy have not yet been released.

Over the decades since the American Law Institute last updated the Restatement of Torts in 1977, many technological developments, including the Internet, cellphones, electronic surveillance, and drones, have raised difficult new issues implicating personal privacy interests. The common law right of privacy recognized by many states has not addressed these new developments, which raise a host of important new issues that have not yet been resolved. Federal and state statutes have been enacted to address some of these concerns, but in large part the law of privacy in the United States leaves many of these novel issues open for future debate and resolution.