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Electronic Surveillance

Common Law

State COMMON LAW provides a third avenue of legal protection against electronic surveillance. Throughout the twentieth century, common law increasingly recognized a sphere of private activity beyond public consumption. The sometimes-amorphous right to privacy consists of three discrete interests: secrecy, seclusion, and autonomy. The right to secrecy prevents nonconsensual public disclosure of valuable, confidential, embarrassing, or discrediting information. The right to seclusion creates a realm of personal solitude upon which society may not trammel. The right to autonomy represents the freedom to determine one's own fate unfettered by polemical publicity.

Common law protects these distinct privacy interests by imposing civil liability upon anyone who publicizes private facts; besmirches some-one's reputation; profits from another's name, likeness, or ideas; or otherwise intrudes upon an individual's private affairs. Common-law protection of privacy interests is broader than Title III because it is not limited to wiretapping and bugging but extends to photographic and video surveillance as well. Thus, video surveillance of restrooms, locker rooms, and dressing rooms may give rise to a claim for invasion of privacy under common law but not under Title III.

At the same time, common law is narrower than Title III because liability is only established by proof that the published information was sufficiently private to cause outrage, mental suffering, shame, or humiliation in a person of ordinary sensibilities. Title III creates liability for any nonconsensual, intentional disclosure of electronically intercepted information, thus establishing a much lower threshold. For example, a newspaper would not be liable under the common-law invasion-of-privacy doctrine for accurately reporting that someone had engaged in criminal conduct. However, the nonconsensual, electronic interception of such information would give rise to liability under Title III.

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