The California Supreme Court filed a new privacy decision on March 2, 2009 in an opinion which goes beyond the case particulars to offer the Court’s overall analytical framework for addressing privacy claims arising under the state Constitutional privacy provision, which provides:  “All people are by nature free and independent and have inalienable rights.  Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”  [emphasis added]  The Court’s concrete ruling on the controversy in front of it is that a private entertainment venue such as a football stadium cannot absolutely and categorically escape constitutional privacy scrutiny for physical pat-down searches of all entering ticketholders, merely on the basis that entry is voluntary and can be deemed contractual consent.  Thus defendant The San Francisco 49ers, Ltd. cannot have plaintiff ticketholders’ privacy complaint dismissed unanswered, and the team will instead need to defend its search policy in trial court and demonstrate that on balance, it is a reasonable intrusion for safety purposes.  (Sheehan v. The San Francisco 49ers, Ltd., California Supreme Court No. S155742, March 2, 2009).

The Supreme Court’s Sheehan decision lays out a fairly comprehensive analytical framework for the Court’s interpretation of the California Constitutional privacy clause and may serve as a substantial and updated guide to state Constitutional privacy.  The Court’s privacy analysis centers on reasonableness, and is attacked by a dissent as providing “extreme deference” to private judgments on what is reasonable in a commercial or nongovernmental context.  Set forth below is our reconstruction of the Court’s stated analytical framework, drawing from the Court’s own language wherever possible. 

As noted, the California Constitution, Article I, Section 1, provides:  “All people are by nature free and independent and have inalienable rights … [including] privacy”, as added to the Constitution by a voter initiative in 1972.  The state Supreme Court has already interpreted the Constitution to find that legally protected privacy interests “are generally of two classes:  (1) interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (‘autonomy privacy’).”  (Sheehan, quoting Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1, 35).  The Court describes “the first of these classes, informational privacy, as the ‘principal focus’ or ‘core value’ of the constitutional privacy right”. 

The Sheehan decision restates “the showing a person must make to state a violation of California’s constitutional right to privacy … the ‘right of privacy protects the individual’s reasonable expectation of privacy against a serious invasion.’”  (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.3d 4th, 360, 370).  “The party claiming a violation of the constitutional right of privacy established in article I, section 1 of the California Constitution must establish (1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) a serious invasion of the privacy interest.”  International Federation of Professional Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 338).  “A defendant may prevail in a state constitutional privacy case by negating any of the three elements just discussed or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests.” 

“Confronted with a defense based on countervailing interests, the plaintiff may undertake the burden of demonstrating the availability and use of protective measures, safeguards, and alternatives to the defendant’s conduct that would minimize the intrusion on privacy interests … The particular context, i.e., the specific kind of privacy interest involved and the nature and seriousness of the invasion and any countervailing interests, remains the critical factor in the analysis.”  (Sheehan, quoting Hill)

“Subsequent opinions have explained that the three ‘elements’ set forth in Hill properly must be viewed simply as ‘threshold elements’ that may be utilized to screen out claims that do not involve a significant intrusion on a privacy interest protected by the state constitutional privacy provision.  These elements do not eliminate the necessity for weighing and balancing the justification for the conduct in question against the intrusion on privacy resulting from the conduct in any case that raises a genuine, nontrivial invasion of a protected privacy interest … Hill was the first case in which our court addressed the question whether the state constitutional privacy clause applies to private as well as to governmental entities.  Having concluded that the privacy clause applies to private entities and also that the legal concept of ‘privacy’ potentially has a very broad sweep, the Court in Hill determined that it was appropriate to articulate several threshold elements that may permit courts to weed out claims that involve so insignificant or de minimis an intrusion on a constitutionally protected privacy interest as not even to require an explanation or justification by the defendant.  Hill cannot properly be read, however, to have adopted a sweeping new rule under which a challenge to conduct that significantly affects a privacy interest protected by the state Constitution may be rejected without any consideration of either the legitimacy or strength of the defendant’s justification for the conduct.”  Loder v. City of Glendale (1997) 14 Cal.4th 846, 893-894, fn. omitted, quoted in American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 331.

Where a legally protected privacy interest has been identified, a valid claim “must establish a reasonable expectation of privacy under the circumstances.  ‘A “reasonable” expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.  [C]ustoms, practices, and physical settings surrounding particular activities may create or inhibit reasonable expectations of privacy.  …  A plaintiff’s expectation privacy in a specific context must be objectively reasonable under the circumstances, especially in light of the competing social interests involved’.”  …  “We have explained that, in order to establish a reasonable expectation of privacy, the plaintiff ‘must have conducted himself or herself in a manner consistent with an actual expectation of privacy, i.e., he or she must not have manifested by his or her conduct a voluntary consent to the invasive actions of defendant.  If voluntary consent is present, a defendant’s conduct will rarely be deemed ‘highly offensive to a reasonable person’ so as to justify tort liability.  …  But the validity of the consent theory depends on the totality of the circumstances”, which may require discovery or other factual development before the Court can resolve it. 

“[A]lthough consent is an important factor in determining whether California’s constitutional privacy right is being infringed”, it does not mean that a person who chooses to participate “consents to any security measures the promoters may choose to impose no matter how intrusive or unnecessary.”  …  “Thus, a person can be deemed to consent only to intrusions that are reasonable under the circumstances.”

One relevant circumstance in determining the reasonableness of a privacy intrusion is whether it involves private, as opposed to government, action.  “Two reasons for the difference might apply here.  ‘First, the pervasive presence of coercive government power in basic areas of human life typically poses greater dangers to the freedoms of the citizenry than actions by private persons.  …  Second, “an individual generally has greater choice and alternatives in dealing with private actors than when dealing with the government.”. . .  Initially, individuals usually have a range of choice among landlords, employers, vendors and others with whom they deal.  …  [V]arying degrees of competition in the marketplace may broaden or narrow the range.'” 

“‘These generalized differences between public and private action may affect privacy rights differently in different contexts.  If, for example, a plaintiff claiming a violation of the state constitutional right to privacy was able to chose freely among competing public or private entities in obtaining access to some opportunity, commodity, or service, his or her privacy interest may weigh less in the balance.  In contrast, if a public or private entity controls access to a vitally necessary item, it may have a correspondingly greater impact on the privacy rights of those with whom it deals’.”
“Another factor to consider is the existence of less restrictive alternatives.  … But to establish the reasonableness of the policy, the [defendant does] not have to show that they have adopted the least restrictive alternative.  …  [T]he argument that such a ‘least restrictive alternative’ burden must invariably be imposed on defendants in privacy cases derives from decisions that:  (1) involve clear invasions of central, autonomy-based privacy rights, particularly in the areas of free expression and association, procreation, or government-provided benefits in areas of basic human need; or (2) are directed against the invasive conduct of government agencies rather than private, voluntary organizations.”  In contrast, “We have been directed to no case imposing on a private organization, acting in a situation involving decreased expectations of privacy, the burden of justifying its conduct as the ‘least offensive alternative’ possible under the circumstances.  Nothing in the language [or] history of [California’s constitutional privacy clause] justifies the imposition of such a burden.” 

In applying the above analysis to the defendant’s pat-down searches of ticketholders as a condition of stadium entry, the Court stated that it “does not decide whether every measure is necessary, merely whether the policy is reasonable.  The state constitutional right of privacy does not grant courts a roving commission to second-guess security decisions at private entertainment events or to micromanage interactions between private parties.  . . .  Private entities that present entertainment events, like the 49ers’, necessarily retain primary responsibility for determining what security measures are appropriate to insure the safety of their patrons, subject, when those security measures substantially infringe on a privacy interest, to judicial review for reasonableness.” 

A dissent to the Court’s decision was filed by three of the state Supreme Court justices, including Chief Justice George.  The dissent references prior state Supreme Court privacy decisions to observe, among other things, that the “issues involved in a privacy balancing are issues of degree:  just how great is the justification, how intrusive the policy, and how feasible (and intrusive) are any alternatives?  …  The existence of less intrusive alternatives thus may well bear critically on proving an invasion of privacy.”  The dissent also emphasizes the strong public policy of California’s Constitutional privacy clause, and questions the Sheehan majority’s supposed “level of extreme deference to the judgment of private interests, implying that any careful scrutiny of privately adopted policies would amount to impermissible micromanagement of private interactions.”  However, our reading of the Court’s decision is that the existence of less restrictive or offensive alternatives is indeed a factor in determining the reasonableness of a privacy intrusion – it simply does not require use of the least restrictive alternative, especially in the nongovernmental intrusion context.

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