Privacy

KEY LAWS TO KNOW ABOUT PRIVACY IN CALIFORNIA

1. Photography and recordings

Are other people allowed to photograph or record me in public?Paparazzi

In California, generally yes. Where you don’t have a “reasonable expectation of privacy,” including most public places, pretty much anything you do can be photographed or recorded.1Cal Penal Code §§630638Sanders v American Broadcasting Cos. (1999) 20 C4th 907

However, they may not “commercialize” (make money from it) your image, voice, name, or other “likeness” without your consent2Civ Code 3344 unless it is “newsworthy” or in the public interest.3See Dora v Frontline Video, Inc. (1993) 15 CA4th 536, interpreting Civ Code 3344(d) which exempts use “in connection with any news, public affairs, or sports broadcast or account”

Are other people allowed to photograph or record me in private?

In California, generally no. You have the right to be free from “unwarranted and undesired publicity.”4Gill v Curtis Publ’g Co. (1952) 38 C2d 273, 278; also see White v Davis (1975) 13 C3d 757, 775; Cal Const art I, §1

Specifically, it is an illegal physical invasion of privacy to enter the land or airspace above the land of a person without permission in order to take photo, video, etc (this is also considered illegal trespass).5Civ Code 1708.8(a)

Whether there was physical trespass or not, it is also an illegal invasion of privacy to use a device, like a telescopic lens, to take photos of a person engaging in any “private, personal, or familial” activity.6Civ Code 1708.8(b)

Posting nude photos of someone on the Internet

It is illegal to take nude photos of someone without that person’s consent (unless the subject is nude in public).7Cal Civil Code Sec 1708.8(b)

  • Even if you didn’t take the photos, it’s also illegal to pay the person who took the photos, knowing that the pictures were taken in violation of the person’s privacy, and then post the pictures online.8Cal Civil Code Sec 1708.8(f)(1)
  • It is NOT illegal for a different person to repost the photos once they have already been posted.9Cal Civil Code Sec 1708.8(f)(3)
  • Revenge porn: If you agree to have someone take nude pictures of you, where you have an understanding that the photos will remain private, it is illegal for that person to then post the photos online (or otherwise send them to people) intending to cause you emotional harm.10SB255, codified at Cal Penal Code Sec 647(j) It is a crime with the possibility of up to 6 months in jail and/or $1,000 fine; may suspend driver license. You can also sue a person for it beginning July 1, 2015.11AB2643, to be codified at Cal Civil Code Sec 1708.85

See more about privacy and the Internet at Key Laws to Know about the Internet

2. Privacy & Employers

What are my privacy rights with regard to my employer?

In California, whether you are an employee or prospective employee, your (prospective) employer may not require or request you to disclose your username or password for any social media, emails, texts or other similar communication. Your employer also may not ask you to access these in their presence so they can see it.12Cal. Labor Code Sec 980

Exceptions: your employer may do these things if part of an investigation into misconduct, or if necessary to access an employer-provided device.13Cal. Labor Code Sec 980

3. Privacy & the government

What are my privacy rights with regard to the police/government?

You have the right to be free from “unreasonable” searches by the government/police of your body or anything you are wearing, your home, and some other personal areas.14U.S. Constitution, 4th amendment. Also see Brinegar v U.S. (1949) This essentially means that before law enforcement is allowed to search you, they must convince a judge that they will find evidence of a crime in the search, and if the judge agrees, he/she will issue a warrant.15the legal term for this is “probable cause” which means that a police officer reasonably believes it is more likely than not that you have committed a crime. This is a highly complex area of law with many specific rules that are constantly evolving. If you think your rights have been violated, you should definitely speak to a lawyer who specializes in criminal and constitutional law.

Specifically, some of the situations police ARE allowed to search you without getting a warrant include:

  • any kind of surveillance that an average citizen could do, including use any technology that an average citizen could possess16Katz v U.S.
  • search (and take) your garbage, once you put it on the sidewalk or street17California v Greenwood
  • view and take photos or video of you or anything you do in public, or anything which is visible from a place where law enforcement is legally allowed to be, such as the street or sidewalk
  • “stop and frisk” (see below)

Some of the situations police MUST get a warrant before searching you include:

  • Searching the contents of your cellphone or computer, even if you are arrested, and even at a U.S. border crossing.18Riley v CA (2014); U.S. Const., 4th amendment; Federal district court ruling May 12, 2015
  • Hotel guest records19City of Los Angeles v. Patel, U.S. Supreme Court, No. 13-1175
  • California state agencies may not search ANY business metadata or digital communications (texts, emails, etc) without a warrant. (this does not apply to the federal government)20California Electronic Communications Privacy Act

See more at our Police Conduct page

Can the government collect and store bulk records on all Americans?

No. The National Security Agency used to have the power to collect records in bulk, such as when the government required Verizon to turn over all of its millions of customers’ phone “metadata.”21metadata includes the number dialed, how long the call was, etc., but generally not the content of the call But they can’t do this anymore.22USA Freedom Act

4. Medical records

Do my health care providers or other professionals have the right to share my medical information with others without my permission?

Generally, no. They must protect the privacy of your medical records.23U.S. Code of Federal Regulations, Title 45, Sec. 164.508 The relevant law is called the Health Insurance Portability and Accountability Act, and here is a fun example of a violation.


EXERCISE YOUR RIGHTS

  • If a crime has been committed, contact local law enforcement
  • Find a privacy law, civil rights, or employment law attorney

MORE RESOURCES

Digital Media Law Project:

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