The Massachusetts Supreme Judicial Court has rendered a thought-provoking judgment about postmortem access to a decedent's Yahoo! e-mail account. The case is Ajemian v. Yahoo!, Inc., No. SJC-12237, Oct. 16, 2017, per Justice Lenk. The SJC nabbed the case sua sponte from Mass. App. The case will be available soon from Mass.gov new slip opinions.
Yahoo! denied access to the personal representatives of the decedent's estate on two grounds: (1) that access was prohibited by the preemptive, federal Stored Communications Act (SCA) (1986), essentially a sectoral privacy statute, and (2) that the representatives' common law property interest in digital assets was superseded by Yahoo! terms of service (ToS).
The trial court ruled in favor of Yahoo! on the SCA grounds and opined only indeterminately on the ToS argument. The SJC reversed and remanded. The Court employed a presumption against implied preemption to find the representatives outside the "lawful consent" terms of statutory exemption in the SCA, which would require actual owner consent. The SCA therefore provided no barrier to access under state law on these facts. This is an important precedent in state construction of federal law to limit the reach of the SCA.
Tantalizingly on the ToS front, the trial court held that it could not opine definitively on Yahoo!'s position because of unresolved questions about the formation and enforceability of the ToS as contract. The SJC reiterated that the trial judge had not established whether a "meeting of the minds" had occurred as purported prerequisite to contract. That's a compelling observation in our world, awash as it is with
click-wrap adhesion agreements being held enforceable by the courts without
serious scrutiny. "Meeting of the minds," however much a staple of 1L Contracts, has been pretty much read out of the analysis in today's boilerplate world.
The case will be one to watch if it generates another appeal, but I'll be surprised if on these facts, Yahoo! goes to the mat if that means risking the ToS on the record.
Monday, October 16, 2017
Decedent's reps fight Yahoo! for email access, beat federal preemption argument in state high court
Saturday, September 23, 2017
Can ‘Star Trek’ put the U back in –topia?
This weekend will see the premiere of the newest entrant in
the Star Trek franchise, CBS’s Star Trek: Discovery (trailer). Notwithstanding CBS’s dubious bid to build a new
model for content delivery in CBS All Access—creative initiatives crushed by commercial
imperatives is a tradition in Star Trek
history—Discovery marks a worthwhile
moment to take stock of where we are now as a global village, 51 years after
the premiere of Gene Roddenberry’s groundbreaking Star Trek, now “The Original
Series.”
Roddenberry’s vision was a utopian one. It seems almost cliché now to recount the novel
“enterprise” of a multi-national crew spreading humanist idealism throughout the
galaxy. Despite its military trappings, Star
Fleet was tasked with exploration of the final frontier on behalf of a United
Federation of Planets (UFP). Star Trek represented all the good parts
of cultural imperialism and mitigated all the bad with deep, moral self-reflection.
Martin-Green (CC 2.0 Gage Skidmore 2016 via flickr) |
It looks like Discovery
will resonate in the Roddenberry tradition.
The series, which might vary perspective and setting across seasonal sub-arcs,
opens with a strong black female lead in Sonequa Martin-Green (The Walking Dead’s Sasha) and a female
captain of color in Michelle Yeoh (Crouching
Tiger’s Yu). Discovery takes place after humankind’s first forays into deep
space, which were depicted a decade ago by Star
Trek: Enterprise, but still before the adventures of James T. Kirk and crew
in the 1960s Original Series and the current
movie-reboot series. The nascent UFP is in a cold war with the Klingon Empire. This fictional era
and the name of the starring ship, U.S.S. Discovery, suggest fealty to Roddenberry’s vision of a “wagon train
to the stars.”
But can that vision get traction in today’s world?
However much our multi-platform electronic environment has
served up an embarrassing surfeit of science fiction, we remain awash in dystopian
imaginings. Disclaimer one, yes, I
realize that dystopian fiction is not new; even 1984 dates to 1949. Disclaimer
two, let me be no hypocrite; I have devoured it all, from The Hunger Games to The
Handmaid’s Tale, having just finished the latter’s s1 yesterday. (Nick is going to save her, right? right?!)
Yet many a commentator has observed the peculiar resonance of dystopian
fiction today, in a world in which hunger and poverty persist, the wealth gap
widens, and our standard of living and expectation of leisure seem after all
not to have skyrocketed in consonance with technological ingenuity.
There was a time after the Berlin Wall fell, in the 1990s amid
perestroika and glasnost, that it seemed like we might be on an upward
trajectory. The turn of the century brought
with it a cautious optimism. Maybe the
era of world war and nuclear nightmare could be put to bed, and humankind would
rise from those ashes and turn at last to the business of life on, and beyond,
earth.
Then 9-11 happened. The
world went back to war, and we’re still in it.
Our American streets fill with protests fueled by racial division. An unprecedented humanitarian crisis tears at
the seams of European socio-economic union.
The septuagenarian United Nations—real-world analog of the thinly veiled
UFP—seems impotent to stop a threatened nuclear detonation in the atmosphere. And oh yeah, the ice caps: they’re melting.
Inevitable dystopia seems the apt model to envision our
future on earth. Wherefore art thou, Discovery, into our world of social and political
fracture? Can we even recognize
ourselves in utopian science fiction?
It bears remembering that the world to which Roddenberry first
introduced Star Trek was itself no
utopia. The Original Series tendered commentary that might seem trite now—e.g., TV’s first interracial kiss
between Kirk (Shatner) and bridge officer Uhuru (Nichelle Nichols), the “black
on the ‘right’ side” racism of Let That
Be Your Last Battlefield, the futile primitive conflict of A Private Little War. But that commentary was sophisticated and
controversial in its time. Star Trek’s very proffer of earthbound east
and west in common pursuit of human survival and space exploration was a calculated
critique of Jim Crow, the space race, Vietnam, and the Cold War. Star
Trek’s utopian vision was launched amid the civil rights fire that forged our
second national reconstruction.
So maybe now is exactly the time for Star Trek. Maybe we need
utopia now more than ever, precisely because it is so unfamiliar.
As Star Trek
turned 50 in 2016, Sir Thomas More’s enigmatic Utopia turned 500. More’s Utopia was a social critique, not a social
blueprint. Critique always has been the raison
d’être of science
fiction. There is no utility in only imagining the future. The endgame is to
hold up that parallel world next to your own, to see how the two compare.
For Star Trek, the
final frontier is not space. The final
frontier—the discovery—always has been us.
Monday, September 18, 2017
Video resources for teaching theory of intent in tort law
I've created some new video resources to help in teaching common law torts. These videos all relate to theoretical points in the introductory unit on intent. The videos are available on my public YouTube channel. They can be used in any torts course, though they track Shapo & Peltz-Steele, Tort and Injury Law (3d ed. 2006) (CAP, FB, Amazon), and Steele's Straightforward Torts (free from SSRN).
Study: Intent in U.S. Tort Law. This video offers a study in the theory of intent in U.S. tort law. A movie clip is analyzed to demonstrate analysis of intent in battery. Running time: 8:50.
Explainer: "Pound Progression" in U.S. Tort Law. This video briefly explains the three steps Dean Roscoe Pound observed in the development of civil justice systems. Running time: 2:19.
Explainer: Eggshell Plaintiff Rule in U.S. Tort Law. This video briefly explain the operation of the eggshell plaintiff rule, as well as the reason for its inapplicability to intentional infliction of emotional distress. Cited is Vosburg v. Putney (Wis. 1891). Running time: 2:36.
Explainer: Culpability Spectrum in U.S. Tort Law (Pound to Intent). This video examines the culpability spectrum in U.S. tort law with an emphasis on variations on intent. The video further explains how culpability can be varied to compensate for the uncertainty implications of the Pound progression. Running time: 3:44.
Study: Intent in U.S. Tort Law. This video offers a study in the theory of intent in U.S. tort law. A movie clip is analyzed to demonstrate analysis of intent in battery. Running time: 8:50.
Explainer: "Pound Progression" in U.S. Tort Law. This video briefly explains the three steps Dean Roscoe Pound observed in the development of civil justice systems. Running time: 2:19.
Explainer: Eggshell Plaintiff Rule in U.S. Tort Law. This video briefly explain the operation of the eggshell plaintiff rule, as well as the reason for its inapplicability to intentional infliction of emotional distress. Cited is Vosburg v. Putney (Wis. 1891). Running time: 2:36.
Explainer: Culpability Spectrum in U.S. Tort Law (Pound to Intent). This video examines the culpability spectrum in U.S. tort law with an emphasis on variations on intent. The video further explains how culpability can be varied to compensate for the uncertainty implications of the Pound progression. Running time: 3:44.
Tuesday, September 12, 2017
Justice Oliver Wendell Holmes, Jr., was kind of a pompous ass
Justice Oliver Wendell Holmes, Jr. (FJC), “the great dissenter,” was kind of a pompous ass. That probably should not have surprised me, given his birthright in Massachusetts aristocracy. And that probably should not have been my chief take-away from the book, The Great Dissent (2013) (Amazon; Macmillan), the impressive accomplishment of author and law professor Thomas Healy at Seton Hall Law. Somehow I am stubbornly surprised every time a person I admire turns out to be no more than human.
The subtitle of The Great Dissent reads, How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America. That refers to a monumental shift, now legendary in constitutional law, that seemed to have occurred in Holmes’s thinking over the summer of 1919. In the spring of 1919, Holmes and the Court majority were eagerly doing their part to condemn targets of the First Red Scare, such as labor agitator Eugene Debs, for criminal violation of the post-WWI Espionage Act. Then in fall 1919, Holmes suddenly turns up in dissent to further convictions. He used almost the same language, the same rules that he had authored and joined earlier in the year. But in the fall, with not even a wink at the reader, he seemed to think the words had acquired entirely different meaning.
Partnering with Justice Louis Brandeis, Holmes’s powerful dissents in 1919 and following years outlined a philosophy of free speech that ultimately passed the test of time. Holmes veritably gushed ideas, such as “clear and present danger” and “marketplace of ideas,” that became benchmark norms in 20th-century civil rights law—not only in the United States but in democracies around the world.
So what happened to Holmes in the summer of 1919? To answer that question, Healy takes the
reader on a spellbinding journey into the social and political dynamics of
America’s intellectual class—and last survivors of the Civil War—as they
struggled to maneuver the country in a new world order shaped by the ravages of
an unprecedented war.
There is an apocryphal answer to the 1919 question. The free speech analysis that Holmes and
Brandeis worked out after 1919 bore a striking resemblance to an earlier proposition
advanced by Judge Billings Learned Hand as trial judge in a 1917 case in
federal court in New York. Hand and
Holmes knew one another, if not well, and their contrasting judicial
philosophies, co-existing in era, frequently prompt comparison by scholars. So it was once speculated that perhaps Holmes
had met with Hand in precisely that summer.
It’s the kind of story that would make an exciting two-man show for the law-and-theater
crowd.
As Healy tells it, Hand did play a role, if less direct, in reshaping
Holmes’s thinking. Another figure
emerges as a key intermediary in Healy’s narrative, British political scientist
Harold Laski. Laski did interact with
Holmes quite a bit, before, during, and after the summer of 1919, and his
influence is plain. Of course the full
story is a good deal more complex, and Healy constructs it masterfully. More than that, I won’t spoil. Read the book.
Holmes in 1861 daguerreotype. |
I was struck by three points of the story, and they all
relate to Holmes not really being the paragon of personhood I wish he were.
First, Holmes was an
elitist. He read 50 books in the
summer of 1919, Healy recounts. He was
always eager to immerse himself in the rich intellectual legacy of the Greek
philosophers. He was much less eager to
take up Justice Brandeis’s invitation to visit textile mills in the summer of
1919 to witness for himself the unsettling state of labor and labor strikes in
post-war America. On the one hand, it’s
fabulous that Milton’s Areopagitica
and Mill’s On Liberty were part of
the deep knowledge of the man who shaped modern free speech law. On the other hand, it’s hard to tell whether
he really understood the implications of dissent on the ground.
As my law school is now in the process of hiring a new dean, I think about Holmes's elitism in relation to the transformative trauma
unfolding in legal education today. Law
schools are entranced with experiential
education and are dumping jurisprudence in an effort to get students more
time in practice training. Ian Holloway and
Steven Friedland recently
located legal education in tension between a “grand university” model and a “Hessian
craft guild" model. Holmes was all grand
university, and that is not ideal. But
modern free speech would not be what it is today if we were depending on the
Hessian craft guild to build it. It’s
really important to have room for both.
Second, Holmes was a
little slow on the uptake, even on free speech doctrine. There was in fact correspondence between Hand
and Holmes, though it pre-dated 1919.
And Healy reports how Holmes just missed the point. Had he gotten the point, he might have
started dissenting a bit earlier, and maybe even saved some demonstrators and harmless
Bolsheviks from long prison terms.
A good example of Holmes’s fumbling start is the “clear and
present danger” doctrine, which was born before the summer of 1919, but only
later acquired its more rights-protective meaning. “Clear and present” was indicative of Hand’s
influence, suggesting as it did what today we might call a behavioral economic
approach to legal reasoning. But Holmes
rather blew it, because his use of the test was highly subjective. He gave the test no meaning, so allowed it to
be perverted by the fever of the Red Scare.
Later evolution of the test would reveal a dynamic relationship between
variables such as the “imminence” and “gravity” of the danger. That more sophisticated analysis prophylactically
protects speech that might be subversive, but poses no real threat, and also allows
free speech doctrine to realize its critical anti-majoritarian function. Hand understood that in 1917. It took Holmes quite a while to work it out.
Third, Holmes was not
a friend you could count on. Amid
the Red Scare, Holmes’s dear friends Laski and Felix Frankfurter, on the
Harvard Law faculty, suffered virulent persecution for their politics and identities. The “Red Summer” was the very summer of
1919. Both men were sympathetic with
labor, and both were labeled Bolsheviks.
Frankfurter, who was Jewish and Austrian, was further denigrated by post-war
anti-Semitic and anti-German sentiments.
Critics of Laski, a British national, demanded his expulsion from teaching
at Harvard Law. Imagine!—persecution on
a law faculty based on the politically correct zeitgeist. How last century.
To be fair, Holmes and Harvard Law Dean Roscoe Pound did
take steps to defend Laski and Frankfurter.
But their efforts, especially Holmes’s, were lackluster. Despite the loving affection that Holmes
professed for like-a-son Laski in private correspondence, Holmes resisted early
entreaties to help. Holmes was afraid of
offending Laski and Frankfurter’s persecutors on the Harvard Law faculty, whom
Holmes regarded as friends. Holmes
preferred to distance himself from the conflict and retreat to the sanctified solitude
of his private library. The great
dissenter, a Civil War veteran wounded in action, whose famous diction dominated
doctrinal opponents, shrank from moral defense of his friends, lest the
comforts of his social and economic status be placed in jeopardy.
Huh.
An honorable biographer, Healy is straightforward and matter
of fact when it comes to Holmes the man.
Holmes was a voracious reader, brilliant thinker, and surely was one of
the greatest jurists, perhaps the greatest jurist, in American history. Civil rights as we know it today, and much of
human rights as it is known in the world today, owes a debt to Holmes.
Holmes also cheated on his wife.
“If anyone, then, knows the good they ought to do and doesn’t
do it, it is sin for them.” James 4:17.
Friday, August 25, 2017
Landmark Indian Supreme Court ruling recognizes constitutional right of privacy
In a landmark ruling akin to U.S. Supreme Court Justice
William O. Douglas’s famous foray into the “penumbras, formed by emanations” in
the U.S. Constitution in 1965 (Griswold on FindLaw), the Supreme Court of
India has recognized a constitutional right of privacy, including informational
privacy. Here are some highlights from
the unanimous 266-page disposition, per Justice Dhananjaya Y. Chandrachud
(overruling his father, according to some
commentary), in Puttaswamy v. Union of India. Download the opinions in PDF here. A very heartfelt hat tip from me to attorney Shruti Chopra for
bringing this blockbuster to my attention.
The case revolved around the government’s “Aadhaar card
scheme” (¶ 3). A project of
extraordinary scope, Aadhaar means to
assign a unique identity number to every one of India’s 1.3bn residents based on
demographic and biometric data. The
91-year-old named plaintiff is himself a retired judge; read more at
The Indian Express.
The Court examined the origin of privacy, beginning with
Aristotle’s distinction between “public and private realms” (¶ 29). The Court traced privacy through Blackstone
(¶ 30), John Stuart Mill (¶ 31), Madison (¶ 33), Warren and Brandeis (¶ 34), and
Cooley (¶ 36). “Conscious as we are of
the limitations with which comparative frameworks of law and history should be
evaluated, the above account is of significance,” the Court explained. “It
reflects the basic need of every individual to live with dignity…. The need to
protect the privacy of the being is no less when development and technological
change continuously threaten to place the person into public gaze and portend
to submerge the individual into a seamless web of inter-connected lives.”
Speaking favorably to the evolution of “natural rights,” the
Court cited Locke (¶ 40), Blackstone (¶ 40), Roscoe Pound (¶ 42), and
Ronald Dworkin (¶ 46), as well as the American Declaration of Independence (¶
41) and French Declaration of the Rights of Man and of the Citizen (¶ 41). Applying “a settled position in
constitutional law,” the Court regarded constitutional rights as “emanat[ing] from
basic notions of liberty and dignity” (¶ 24).
The court regarded recognition of informational privacy as
consistent with India’s obligations under the Universal Declaration of Human
Rights and International Covenant on Civil and Political Rights (¶ 66). “India’s commitment to a world order founded
on respect for human rights has been noticed along with the specific articles of
the UDHR and the ICCPR which embody the right to privacy” (¶ 91; see also ¶¶ 129-130). The Court found collateral international
legal support in the Convention on the Elimination of Discrimination against
Women (¶ 132). The Court rejected the “theory
that civil and political rights are subservient to socio-economic rights” (¶
154).
Textually, the Court invoked the Preamble of the Indian
Constitution, which commits itself to values of “justice,” “liberty,” “equality,”
and “fraternity” (¶¶ 93-95). “The
submission that recognising the right to privacy is an exercise which would require
a constitutional amendment and cannot be a matter of judicial interpretation is
not an acceptable doctrinal position. The argument assumes that the right to
privacy is independent of the liberties guaranteed by Part III of the
Constitution. There lies the error. The right to privacy is an element of human
dignity.” (¶ 113.)
A basic, “inalienable” right to live, the Court reasoned,
must predate the Constitution. “It would
be preposterous to suggest that a democratic Constitution without a Bill of
Rights would leave individuals governed by the state without either the
existence of the right to live or the means of enforcement of the right” (¶
119).
With regard to originalism and living constitutionalism, the
Court wrote: “Now, would this Court in interpreting the Constitution freeze the
content of constitutional guarantees and provisions to what the founding
fathers perceived? The Constitution was drafted and adopted in a historical
context. The vision of the founding fathers was enriched by the histories of
suffering of those who suffered oppression and a violation of dignity both here
and elsewhere. Yet, it would be difficult to dispute that many of the problems
which contemporary societies face would not have been present to the minds of
the most perspicacious draftsmen. No generation, including the present, can
have a monopoly over solutions or the confidence in its ability to foresee the
future. As society evolves, so must constitutional doctrine. The institutions
which the Constitution has created must adapt flexibly to meet the challenges
in a rapidly growing knowledge economy. Above all, constitutional interpretation
is but a process in achieving justice, liberty and dignity to every citizen.” (¶
116.)
The court rejected strict originalism and pledged fealty to living
constitutionalism expressly in a meditation upon technology: “Today’s technology renders models of application
of a few years ago obsolescent. Hence, it would be an injustice both to the draftsmen
of the Constitution as well as to the document which they sanctified to constrict
its interpretation to an originalist interpretation. Today’s problems have to
be adjudged by a vibrant application of constitutional doctrine and cannot be
frozen by a vision suited to a radically different society. We describe the
Constitution as a living instrument simply for the reason that while it is a
document which enunciates eternal values for Indian society, it possesses the
resilience necessary to ensure its continued relevance. Its continued relevance
lies precisely in its ability to allow succeeding generations to apply the
principles on which it has been founded to find innovative solutions to
intractable problems of their times.” (¶
151.)
With regard to precedentialism, the Court rejected precedents
incompatible with a constitutional right to privacy. The Court cited U.S. decisions Buck v. Bell (U.S. 1927) (approving compulsory
sterilization) (Oyez)
and Korematsu (U.S. 1944) (approving
Japanese-American internment) (Oyez) as examples of court
decisions contrary to human rights and so appropriately “consigned to the
archives, reflective of what was, but should never have been” (¶ 121).
With further regard to comparativism, the Court cautioned
that “[f]oreign judgments must ... be read with circumspection ensuring that the
text is not read isolated from its context” (¶ 134). That said, the court explicated precedents
from the United Kingdom, United States, South Africa, and Canada, as well as the
European Court of Human Rights, the Court of Justice of the European Union, and
the Inter-American Court of Human Rights.
In U.S. case law (pp. 141-65), the Court pointed to:
- Boyd v. United States (U.S. 1886) (private papers),
- Meyer v. Nebraska (U.S. 1923) (teaching in foreign languages),
- Pierce v. Society of Sisters (U.S. 1925) (compulsory schooling),
- Olmstead v. United States (U.S. 1928) (Brandeis, J., dissenting) (telephone wiretap),
- Griswold v. Connecticut (U.S. 1965) (contraceptives),
- Katz v. United States (U.S. 1967) (telephone wiretap),
- Stanley v. Georgia (U.S. 1969) (obscene content in home),
- Eisenstadt v. Baird (U.S. 1972) (contraceptive information),
- Paris Adult Theatre I v Slaton (U.S. 1973) (obscene films),
- Roe v. Wade (U.S. 1973) (abortion),
- United States v. Miller (U.S. 1976) (bank records),
- Carey v. Population Services International (U.S. 1977) (contraceptive advertising and sale),
- Nixon v. Administrator, General Services (U.S. 1977) (presidential papers),
- Whalen v. Roe (U.S. 1977) (prescription drug information),
- Smith v. Maryland (U.S. 1979) (pen register),
- Bowers v. Hardwick (U.S. 1986) (sexual privacy),
- Planned Parenthood v. Casey (U.S. 1992) (abortion),
- Minnesota v. Carter (U.S. 1998) (home window view),
- Minnesota v. Olson (U.S. 1990) (home overnight guest),
- Kyllo v. United States (U.S. 2001) (thermal imaging of home),
- Lawrence v. Texas (U.S. 2003) (sexual privacy),
- NASA v. Nelson (U.S. 2011) (background checks),
- United States v. Jones (U.S. 2012) (Scalia opinion and Sotomayor concurrence) (GPS tracking),
- Florida v. Jardines (U.S. 2013) (Scalia opinion and Kagan concurrence) (dog sniff),
- Riley v. California (U.S. 2014) (digital cell phone contents), and
- Obergefell v. Hodges (U.S. 2015) (gay marriage).
Examining informational privacy, the Court reiterated Indian
precedents rejecting the U.S. Fourth Amendment third-party doctrine (¶¶ 66, 77).
The Court spent many pages engaging with commentators on and
critics of privacy doctrine, including Richard Posner and Robert Bork (¶ 140,
p. 197), Catherine McKinnon (p. 198), Alan Westin (p. 199), Roger Clarke (p.
200), Anita Allen (p. 200), and Bert-Jaap Koops, et al. (p. 201).
Specifically with regard to the formulation of an informational privacy
right, the Court discussed the works of Christina Moniodis (¶ 174), Yvonne
McDermott (¶ 174), Daniel Solove (¶ 175), and Posner again (¶ 179). The Court discussed privacy principles
developed through the legislative efforts to update Indian data protection,
including notice, choice and consent, collection limitation, purpose
limitation, access and correction, disclosure, security, transparency, and
accountability (¶ 184).
Regarding the protection of life and liberty in article 21
of the India Constitution, the Court wrote: “Life is precious in itself. But
life is worth living because of the freedoms which enable each individual to
live life as it should be lived. The best decisions on how life should be lived
are entrusted to the individual. They are continuously shaped by the social
milieu in which individuals exist. The duty of the state is to safeguard the
ability to take decisions – the autonomy of the individual – and not to dictate
those decisions. ‘Life’ within the meaning of Article 21 is not confined to the
integrity of the physical body.” (¶
106.)
“To live is to live with dignity. The draftsmen of the
Constitution defined their vision of the society in which constitutional values
would be attained by emphasising, among other freedoms, liberty and dignity. So
fundamental is dignity that it permeates the core of the rights guaranteed to
the individual by Part III [of the Constitution]. Dignity is the core which unites
the fundamental rights because the fundamental rights seek to achieve for each individual
the dignity of existence. Privacy with its attendant values assures dignity to the
individual and it is only when life can be enjoyed with dignity can liberty be
of true substance. Privacy ensures the fulfilment of dignity and is a core
value which the protection of life and liberty is intended to achieve.” (¶ 107; see
also ¶¶ 168-169.)
The Court listed privacy rights previously recognized under
article 21 of the India Constitution: right to travel abroad, right against
solitary confinement, right of prisoners against bar fetters, right to legal
aid, right to speedy trial, right against handcuffing, right against custodial
violence, right against public hanging, right to doctor aid at public hospital,
right to shelter, right to healthy environment, right to compensation for
unlawful arrest, right against torture, right to reputation, and right to pursue
a livelihood (¶ 150).
The Court rejected the recognition of privacy in statute or in
common law as a basis to refuse recognition in constitutional law. Citing the Max Planck Encyclopaedia of
Comparative Constitutional Law, the Court found validity in privacy as both a
negative right and a positive right. (¶
158.) With regard to the separation of
powers, the Court heralded the importance of judicial review as “a powerful
guarantee against legislative encroachments on life and personal liberty,” not
to be surrendered easily (¶ 166). The
Court frowned on the proposition of recognizing privacy only as ancillary to
substantive due process, pointing with disapproval to consequent “vagaries of
judicial interpretation” in U.S. law (¶ 167).
The Court concluded,
in key parts:
- “Privacy is a constitutionally protected right which emerges
primarily from the
guarantee of life and personal liberty in Article 21 of the
Constitution. Elements of
privacy also arise in varying contexts from the other facets
of freedom and dignity
recognised and guaranteed by the fundamental rights
contained in Part III” (part T(3)(C), p. 262).
- “At a descriptive level, privacy postulates a bundle of
entitlements and interests” (part T(3)(E), p. 262).
- “Privacy includes at its core the preservation of personal
intimacies, the sanctity of family life, marriage, procreation, the home and
sexual orientation. Privacy also connotes a right to be left alone. Privacy
safeguards individual autonomy and recognises the ability of the individual to
control vital aspects of his or her life” (part T(3)(F), p. 263).
- “While the legitimate expectation of privacy may vary from
the intimate zone to the private zone and from the private to the public
arenas, it is important to underscore that privacy is not lost or surrendered
merely because the individual is in a public place” (part T(3)(F), p. 263).
- “This Court has not embarked upon an exhaustive enumeration
or a catalogue of entitlements or interests comprised in the right to privacy.
The Constitution must evolve with the felt necessities of time to meet the
challenges thrown up in a democratic order governed by the rule of law. The
meaning of the Constitution cannot be frozen on the perspectives present when
it was adopted” (part T(3)(G), p. 263).
- “An invasion of life or personal liberty must meet the
three-fold requirement of (i) legality, which postulates the existence of law;
(ii) need, defined in terms of a legitimate state aim; and (iii)
proportionality which ensures a rational nexus between the objects and the
means adopted to achieve them” (part T(3)(H), p. 264).
- “Privacy has both positive and negative content. The
negative content restrains the state from committing an intrusion upon the life
and personal liberty of a citizen. Its positive content imposes an obligation
on the state to take all necessary measures to protect the privacy of the
individual” (part T(3)(I), p. 264).
- “Informational privacy is a facet of the right to privacy.
The dangers to privacy in an age of information can originate not only from the
state but from non-state actors as well. We commend to the Union Government the
need to examine and put into place a robust regime for data protection” (part
T(5), p. 264).
Additional and collateral opinions run from PDF page 267
through 547.
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