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The Right to Privacy in Pennsylvania

What is the right to privacy?

Under Pennsylvania law, individuals are protected by the right to privacy. This can mean several things. In criminal law, it means the state cannot seek personal information, physically intrude on spaces where you reasonably expect privacy, or seize and interfere with your possession of property without a warrant or a special exception. Civilly, this means that a person has the right to be left alone, to keep personal information private, to be free from unwarranted publicity, and to control one’s reputation and standing in the community. With advances in technology, the internet, and surveillance equipment, it may seem like privacy is a thing of the past, but the law still upholds several privacy rights for individuals.

Terms to Know

Consent: Consent is when an individual approves of or agrees with something. If you have consented to a business or individual accessing private information or searching your belongings, you have waived your right to privacy in that particular circumstance.

Expectation of privacy: The expectation of privacy covers areas where an individual would reasonably expect seclusion from others, especially where steps have taken to protect privacy. This expectation includes two parts. First, you must actually, sincerely believe you are in private. Second, this subjective expectation must be one society is objectively willing to protect as being a “reasonable” expectation. The courts and lawmakers have clarified many areas where you have a reasonable expectation of privacy. This can include your home and a place you’re residing at like a hotel or friend’s house. It can also include your bank, your phone, bathrooms and changing rooms, and your front yard.

But there are degrees to this. You do have an expectation of privacy in your car, but it is a lesser degree of protection. You may have an expectation of privacy in your office, employee locker or something similar, but these are also weaker. And then there are times you will have zero reasonable expectation, even if you believe you are being private. These include the information you send out on the internet, your garbage, or an open field, like a farming area or large backyard on your land.

Public spaces: Public spaces are generally considered to have lower expectations of privacy. This mean individuals in public may be subject to things like security cameras and street photography. Examples of public spaces include streets, sidewalks, and parks. Even in public, you may have some privacy. A private booth at a club or restaurant, a cabana by the pool, or a payphone booth (when those existed), may have some degree of reasonable expectation of privacy.

The Main Types of Privacy Protections

We can divide privacy actions into two main types: criminal and civil.

Criminal Privacy Actions

In the criminal context, for law enforcement to invade an expectation of privacy—such as by a search, a wiretap, or detention of private property—they need a warrant issued by a court. Sometimes some searches and seizures of property do not need a warrant. Police can search a person’s clothes if they reasonably believe the person is engaged in criminal activity and may be armed and dangerous. Or the police can pull you over, invading the privacy of your car, based on a reasonable suspicion you might be committing a traffic violation.

If a person is arrested and prosecuted, and they think the right to privacy has been infringed upon, they can file a motion to suppress or exclude the evidence found in violation of their rights. If there has been a violation, the court will prohibit the state from using that evidence in the prosecution. The state may then have to drop the charges, or they can appeal.

Civil Privacy Actions

In the civil context, there are four main types of protections provided by state privacy laws. Those include protections against the following:

Intrusion upon seclusion—Intrusion upon seclusion protects your right to privacy while you are in a private space in which you have a reasonable expectation of privacy. This prohibits people from recording or photographing you through your home’s windows, peeking inside, listening to your private conversations, or maybe even going through your phone.
Public disclosure of private facts—This protects your right to keep the details of your private life private. In most circumstances, information about your private life will have little to no bearing on the public. Private information can include details about your health, your financial status, your sexual conduct, and the content of private conversations.
False light— This is perhaps the most confusing of the privacy rights to non-lawyers. “False light” is a type of lawsuit you can bring if someone publicizes information that prevents you from controlling your own reputation with the public or creates an offensive image of yourself. In other words, it protects the privacy you have with others—your private ability to control the way you give an impression—since you should control the impression you give others. That is a part of being an individual in society. “False light” may occur if someone gives wide publicity to your political affiliation or opinions. It may occur if someone portrays you as victimized or handicapped with a serious disease when you feel that you have overcome that disease. It may occur when someone portrays you as a victim of crime if you think you have stood up to the criminal and would never consider yourself a “victim.” “False light” may even be actionable if the information is true. It doesn’t have to be a lie. But of course, a lie can be false light. Let’s say someone portrays you as associating with a known criminal when you do not. That would be false light if enough publicity were given to it. The central point is, you should be able to be private when you introduce yourself to others, allowing them to know only the parts of your life you want them to know. The information publicized must be “highly offensive.” A judge or jury would determine how offensive it is.
Appropriation—This protects your right to control the use of your name and likeness. Appropriation claims are often filed against someone who has used your name or photograph without your consent, often for an economic benefit. This may take the form of someone saying you use their product when you do not, or using your name as though you’ve sponsored the product when you have not. This typically applies to famous people. Implying a false association or affiliation between you and a product is also a method of “unfair competition,” something you have a remedy for through federal trademark law.

If your privacy has been violated in any of the above ways, you have up to one year to file a claim and pursue compensation for any damages. Contact the attorneys at Cornerstone Law Firm for help.

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Other Types of Privacy Protections

Beyond the types mentioned above, Pennsylvania also protects individuals against:

Defamation—While defamation is similar to a right to privacy, there are important distinctions. It doesn’t vindicate your right to privacy but rather your right to a good reputation. If someone says something that appears to be a fact (not an opinion; there is no defamation for bad opinions) in order to harm your reputation, you have a remedy in court. You should contact an experienced attorney immediately.
Employer monitoring—While your employer may have rights to monitor work-related activities, like your use of a company computer or phone, there must be a legitimate, business-related reason for doing so. You are protected against your employer monitoring you during off hours and recording or photographing you through work computers without your consent.
Polygraphs—The state of Pennsylvania prohibits employers from making or asking their employees to take lie detector tests.
HIPAA violations—HIPAA stands for Health Insurance Portability and Accountability Act. This is a federal law that protects information about your health from being disclosed without your consent. Under HIPAA, you have a right to know how health information about you will be used and who can or cannot access it. This is a very strict law, and you may sue anyone—a doctor, a private person, a secretary, an insurance company, a pharmacy, whomever—for violating your right to medical privacy.
Voyeurism—Voyeurism typically refers to invasions of privacy “for the purpose of arousing or gratifying the sexual desire of any person.” You have protections against someone recording or photographing without your consent (or sharing recordings or photographs of you without your consent) while you are nude or partially nude. This applies to locations where you would have a reasonable expectation of privacy, including your home, a bathroom, a changing room, or a locker room.
Criminal history records—The Criminal History Record Information Act (“CHRIA”) prevents employers from looking at records of an arrest that hasn’t led to conviction, or a record of dismissed charges. It also prevents them from looking at summary offenses. These are things like public intoxication or minor harassment charges. Finally, if you have been convicted of a felony or misdemeanor, an employer can only use it against you if it relates to your qualifications or fitness for the job. For example, a restaurant can’t refuse to hire you as a server because of a DUI because there is no logical relation between the two. Amazon, however, could refuse you an offer to drive one of their delivery vans if you’ve had a DUI.
The Mental Health Procedures Act—This law creates one of the most stringent privacy protections there is for people who have voluntarily or involuntarily gone to a psychiatric hospital. No one is allowed to share the information, with certain exceptions, like with your other doctors or with the court in the case of an involuntary hospitalization.
Testimonial privileges—Certain private conversations and private information can never be presented in court, whether criminal, civil, or family. These include conversations with a clergyperson, a lawyer, a doctor, or a therapist. It also prevents a spouse from sharing private conversations with the other spouse when testifying in court.
Attorneys—An attorney can never tell anyone anything you have told them. An attorney can’t even tell anyone that you are a client.
Contracts—A contract can create a right to privacy by prohibiting disclosure of personal information protected by the contract. Sometimes when a person settles a lawsuit, the settlement agreement states that the other party can’t say anything negative about you or talk about the facts of the lawsuit at all.
Tortious interference—If you have a contract with someone else, sometimes including an employment contract, a person can’t use private information about you in order to destroy the contractual relationship. Let’s say your business has a contract to sell your product to another business. Your ex can’t contact your client and give them private information about your personal life in order to paint you as a “bad person” and break your business relationship with them. If this ever happens, contact an attorney immediately.
Fair Debt Collection Practices Act—If you owe a bill that has gone to collections, the collection agency must respect your privacy by following certain rules and cannot harass you or invade your privacy.
Fair Credit Reporting Act—This provides protection against credit bureaus who want to use private information against you in certain ways.
The Gramm-Leach-Bliley Act—This created strict regulations on the way financial businesses and banks can collect private information about you and share it with each other or with the public.

If your right to privacy has been violated, either in a criminal context or a civil one, contact the attorneys at Cornerstone Law Firm to defend your rights.

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What should you do if your right to privacy has been violated…

By an individual?

If an individual has violated your right to privacy, there are steps you can take to protect yourself and seek any damages to which you may be entitled. Those steps include:

Documenting the details of the violation—Record the date, time, location, and circumstances surrounding the privacy breach. If there is physical evidence, like photographs or videos, keep a copy of those as well.
Contacting the person who has violated your privacy—If you are able to contact them, ask them to stop immediately.
Filing a complaint against the individual—Depending on the type of violation, you may be able to file a complaint with the Department of Justice, the Department of Education, or another relevant agency.
Contacting an experienced attorney—An attorney, like the ones at Cornerstone Law Firm, can keep you informed about your rights and help you pursue any damages for the privacy breach.
Securing your information—If a breach of privacy has occurred, it may be a good idea to change any passwords, limit what you share online, and take other steps to secure your information.

By the government?

If the government has violated your right to privacy, know that you have rights. You can take steps to protect yourself and your private information. Those steps include:

Contacting an experienced attorney—Experienced privacy law attorneys can discuss the options you have, help you defend your rights, and help you seek any damages for a privacy breach. It is vital to get legal counsel if you believe the government has violated your right to privacy.
Filing a complaint—While it may feel counterintuitive, the government is still responsible to other parts of the government. Depending on the type of violation, you may be able to file a complaint with another section of the government.
Filing a lawsuit—Like filing a complaint, filing a lawsuit will ultimately depend on the type of violation and the details of the case. If the privacy violation resulted in significant harm, a lawsuit may be appropriate.
Securing your information— If a breach of privacy has occurred, it may be a good idea to change any passwords, limit what you share online, and take other steps to secure your information.
Contacting the media—In some cases, pressure from media or certain advocacy groups may be the best way to see a response from government entities. Discuss this option with an attorney before making any decisions.

When can you collect damages?

It’s important to note that every case is different and not all cases will be resolved in the same way. That being said, you may be eligible for compensation if:

You have suffered emotional distress as a result of the privacy violation. This may take the form of anxiety, depression, embarrassment, shame, or other upsetting emotions.
You have suffered a loss of reputation, status in your community, or quality of life as a result of the privacy violation.
You have been physically injured as a result of the privacy violation.
Your business has lost wages or the capacity to earn future wages as a result of the privacy violation.

Compensation for any damages you have suffered may help to cover lost wages, medical expenses (like therapy), consortium loss, and more. If you believe your right to privacy has been violated, contact Cornerstone Law Firm today. Our attorneys can help you review your case, discuss your options, and seek justice for you.

Security Cameras and the Right to Privacy

Homeowners and businesses are generally allowed to use security cameras. The use of security cameras must be legitimate, like deterring crime or protecting property. These types of uses are not considered an invasion of privacy. If, however, the security cameras are used in areas where there would be a reasonable expectation of privacy (like bathrooms, changing rooms, etc.) then they would be considered an invasion of privacy.

Government agencies, like law enforcement, may have limitations placed on their use of security cameras and other surveillance technology. The Fourth Amendment protects citizens against unreasonable searches and seizures. There are also tests that government agencies must pass, like the reasonableness test, the expectation of privacy test, and the balancing test. These can all have impacts on how government agencies use security cameras.

Drones and the Right to Privacy

With proper FAA licensing, individuals are legally allowed to fly drones in most places. Pennsylvania prohibits drone operators from using a drone to knowingly conduct surveillance of someone in a private place. If a drone operator has invaded your right to privacy in your yard or through your windows, you have legal standing to take action against them.

The right to privacy is important. If your privacy has been violated, either by an individual or a government entity, contact Cornerstone Law Firm. Our attorneys can assess your case, discuss your options, and rigorously defend your rights.

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