Or, How One Really Bad Idea Helped Clarify Tennessee Privacy Law

Burnette v. Porter is about as non-technological a case as you’ll find. The Internet plays a minor role, which mostly just shows how ubiquitous the internet has become in our everyday lives. The decision matters, though, because it’s now pretty much the leading decision on privacy law in Tennessee, and state privacy laws are one of the four main sources of internet-privacy law. The more clarity we have on the issue, the better off we’ll be in the long run. Those of us who live and do business on the internet now have a slightly better idea of what is and is not permitted.

* The four main sources are: (1) the Stored Communications Act (and to a lesser extent the Wiretap Act); (2) the Computer Abuse and Fraud Act; (3) the state common law of privacy; and (4) the state law of conversion. Each is tremendously flawed in its own way. Together, they make up a patchwork of internet-privacy law that succeeds mainly in over-punishing minor infractions while failing to cover major invasions of privacy.

Spy Kids Do Spying!

There’s this man (the “Man”) and this woman (the “Woman”). They’re married but not to each other. The Woman has two teenaged sons from her marriage (the “Teenagers”–they’re important). Nevertheless, the Man and the Woman have an affair. The Woman bears the Man’s child. The Man and the Woman then end the affair. Amazingly, their respective spouses do not divorce them but take them back. The problem is that the Man and the Woman cannot agree on who should be responsible for raising their child; they both want custody. This leads to a protracted and tense custody dispute.

The Man gets an idea. He suspects that the Woman has the legal upper hand. He thinks, though, that if he can show that she’s a bad parent to the Teenagers, he can wrest custody of the Lovechild from the Woman. He has a friend (the “Friend”) whose son is about the same age as the Teenagers. He asks the Friend if his son could make friends with the Teenagers and dig up dirt on the Woman’s parenting practices. The Friend’s son agrees and enlists the aid of his girlfriend. The Friend’s son and his girlfriend shall henceforth be referred to as the “Spy Kids,” because they’re kids who do spying.

The girlfriend uses her mad internet skillz to reach out to the Teenagers and make friends with them. The Spy Kids start to hang out with the Teenagers. The Teenagers invite the Spy Kids to their house a few times. On one occasion, the Spy Kids observe the Teenagers at home drinking and smoking (the “Dirt”). The Spy Kids think they have made a significant discovery. They report their discovery to the Man.

The Man tries to use the Dirt in the child-custody hearing. The problem is that, in doing so, he has to reveal the whole scheme. You never find out in the opinion who won custody, but one strongly suspects that the probative value of the Dirt was substantially outweighed by the conniving way it was obtained. Which is to say, the Dirt probably ended up saying more about the Man’s fitness than it did about the Woman’s.

The Woman, her husband and the Teenagers feel taken advantage of. They invited the Spy Kids into their home because they thought the Spy Kids were friends. The fact that they openly drank and smoked in front of the Spy Kids, during the pendency of a child-custody dispute, shows a certain degree of trust (or lack of judgment). They respond the way any American would. They sue for invasion of privacy.

Four Flavors of Privacy

Invasion of privacy is a creature of state common law. Although it arises from a common source (William Prosser’s 1960 Privacy article in the California Law Review and the Restatement of Torts), there is often a great deal of variation from state to state.* Because it is common law (i.e., judge-made law), it develops slowly because it develops (if at all) only when a privacy case is appealed and the appellate court issues a reported decision**. Remember, most cases settle, so, unless the state is quite large, most issues won’t be seen by an appellate more than once a year, if that. Even if one is reported, the force of the opinion is limited to the particular set of facts at issue in the decision. In other words, the court can only answer the specific question raised by the specific set of facts. This means that many of the really basic questions that you’d really like to be answered don’t get answered. The overall result is that state privacy law is generally underdeveloped and a bit contradictory. Because internet cases usually involve multiple states, a lot could be riding on which state’s law applies to your case.

* There is an exception to the rule, which arises when the government, usually in its capacity as employer, is the one accused of invading privacy. In that case, the Fourth Amendment right against unreasonable searches and seizures kicks in. Yes, it’s the same right that criminals use to try to exclude illegally obtained evidence. It’s not clear if the exact same standards apply between the criminal and civil applications of the Fourth Amendment, and what relationship they bear to state law.

** In some states and Circuits, all appellate decisions have the force of law, whether they’re “reported” or not. This is actually a fairly controversial issue.

There are four flavors of invasion of privacy:

  1. “Intrusion upon Seclusion.” Hey, it rhymes! This is your classic invasion-of-privacy tort, consisting either of physically looking into someone else’s privacy, or rifling through someone else’s private affairs. It’s the flavor at issue in the Burnette case and the one we’ll be discussing in this post.
  2. Misappropriation of Likeness. This is the “publicity” claim we discussed in connection with the Vampire Weekend Contra album cover art and the Hart v. EA case.
  3. Publicizing Private Facts. The flip-side of Intrusion upon Seclusion, it’s where you tell the world (or a sizable portion thereof) of embarrassing privacy information about someone else, even though you might have obtained the information legally.
  4. False Light. The vaguest and most controversial of the bunch, it’s the one least likely to be recognized by a given state. It’s where you portray someone accurately to the world but somehow do it in a way that makes the person look worse than he or she is. In all my years of handling and observing privacy actions, I still don’t really have a firm grasp of what this tort means, and I suspect most courts don’t either. It is recognized in Tennessee.

The State of Privacy Law in Tennessee

Intrusion upon seclusion was first recognized by the Tennessee Court of Appeals (our intermediate appellate courts) in 2001, in Roberts v. Essex Microtel Assocs., 46 S.W.3d 205 (Tenn. Ct. App. 2000), then by the Tennessee Supreme Court in 2002, Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 2002). In both cases, the courts adopted the Restatement of Torts’ treatment of the tort: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” Restatement (Second) of Torts § 652B (1977).

However, the fact patterns in both Roberts and Givens were so unusual that neither court actually relied on the Restatement. You could almost argue that their endorsement of the Restatement was dicta (i.e., not part of the binding part of the decision). Roberts appeared to turn on consent (it’s hard to tell), which is more like a defense, and in any event is not easily connected to the Restatement’s definition. In Givens, the Supreme Court ended up concocting a separate test to deal with its specific fact pattern, one that bore no obvious resemblance to the Restatement.

In Roberts, a clerk at a motel became suspicious of the plaintiff’s behavior and asked to see the plaintiff’s driver’s license, which she photocopied, although it was not the motel’s usual policy. The clerk was concerned enough about the plaintiff that she called the local police and provided them identifying information from the driver’s license. By stroke of very bad luck*, a man with the same name, date of birth and general physical description was the subject of an open warrant in another state. The police then arrested the plaintiff (after confirming the physical description) and questioned him at the police station for several hours. By that time, the police were able to compare fingerprints, and they determined that the plaintiff was not their man.

* The plaintiff’s name was pretty common, not “John Smith” common, but pretty common. What are the odds that someone else would share both his name and his birthdate? And what are the odds that his doppelgänger would be wanted by police?

The plaintiff’s theory was that the information contained on this driver’s license was private and that, by communicating this information to the police, the clerk (and thus the motel) invaded his privacy. The majority of the Court of Appeals disagreed, holding that, because the plaintiff handed over the driver’s license voluntarily, he had essentially consented to the invasion of privacy. It also made the more salient point (in my opinion) that the information on a driver’s license just isn’t all that private. In a strongly-worded dissent, one of Tennessee’s better jurists, Judge Susano, argued that (1) that the question of whether a driver’s license is private was for a jury to decide* and (2) the plaintiff provided the information for a limited purpose that didn’t include calling the police.

* The case has come before the Court of Appeals on a motion for summary judgment.

What no one mentioned (or apparently argued) is the public-policy point that we don’t wish to discourage hotel clerks from calling the police and providing the police with  pertinent information. What if the plaintiff really was the wanted man, would he still have a cause of action? Also, no one took issue with causation. The clerk was fearful for her and her customers’ safety. The plaintiff’s arrest was the result of a series of unforeseeable coincidences.

Givens, like Burnette, arose out of previous lawsuit (funny how that works), in this case, a car accident. The plaintiff had sued to recover for damages she sustained in the accident. The driver of the other car was insured, and his insurance company hired a competent local attorney to defend the other driver. He did a workmanlike job, but the insurance company fired him anyway and hired a new law firm. The new law firm began to engage in very aggressive litigation tactics, including serving her with 237 interrogatories (an absurd amount in a car-accident case!). Among other things, the new law firm issued many document subpoenas to all of the plaintiff’s doctors, hospitals, insurers and so forth, seeking information that could fairly be said to be personal and embarrassing, such as medical records. She successfully “quashed” these subpoenas but not in time to prevent some of the recipients from complying with the subpoenas.

The Tennessee Supreme Court held that the plaintiff did not have a claim for invasion of privacy. It reasoned that private information isn’t subject to such a claim if the plaintiff is required to make it available for public inspection, so the question turned on whether the subpoenas rendered her medical information open for public inspection. The Court then crafted a four-element test that seems applicable only to the obtaining of private information in the course of litigation. This test could be summarized as: “You knew you couldn’t obtain the information through litigation, yet you did anyway, and doing so was both objectively highly offensive and caused injury.” The court found that information sought by the subpoenas was, in the abstract, appropriate for the litigation and, therefore, the information was not “private” as to the new law firm.*

* It was not all bad news for the plaintiff. The court held that she had a claim for abuse of process, which covers mis-using subpoenas for the purpose of harassment.

What makes Givens unusual and difficult to apply is that the private information was being sought through litigation. Obviously, personal and embarrassing information is going to be dug up in lawsuits, and there is a general policy in favor of letting parties obtain what they think they need in lawsuits. A court, therefore, is going to be reluctant to describe the act of obtaining private information in the course of a lawsuit as an invasion of privacy.

Burnette to the Rescue!

Believe it or not, with Burnette, we actually have a pretty straightforward invasion of privacy claim, once you peel away the adultery, child-custody and ill-feeling and focus just on the spying. To be sure, it does involve a pre-existing lawsuit, and the spying was carried out in order to obtain evidence for that lawsuit. But the spying was not authorized by the court or rules of procedure, so it’s not the same kind of situation as with Givens. Also, for whatever reason, Judge Stafford, who wrote the Burnette opinion, just decided that he was going to make the extra effort to do a thorough, scholarly job on the issue.

What Judge Stafford decided, how he decided it, and the implications for internet-privacy law will be the subject of the next post.

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.