Право на неприкосновенность частной жизни в США: история и современные аспекты.

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Privacy laws of the United States deal with several different legal concepts. One is the invasion of privacy, a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into their private affairs, discloses their private information, publicizes them in a false light, or appropriates their name for personal gain. The essence of the law derives from a right to privacy, defined broadly as "the right to be let alone". It usually excludes personal matters or activities which may reasonably be of public interest, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity violating the right. These include the Fourth Amendment right to be free of unwarranted search or seizure, the First Amendment right to free assembly, and the Fourteenth Amendment due process right, recognized by the Supreme Court of the United States as protecting a general right to privacy within family, marriage, motherhood, procreation, and child rearing. Attempts to improve consumer privacy protections in the U. S. in the wake of the 2017 Equifax data breach, which affected 145.5 million U. S. consumers, failed to pass in Congress.

The early years in the development of privacy rights began with English common law, protecting "only the physical interference of life and property". The Castle doctrine analogizes a person's home to their castle – a site that is private and should not be accessible without permission of the owner. The development of tort remedies by the common law is "one of the most significant chapters in the history of privacy law". Those rights expanded to include a "recognition of man's spiritual nature, of his feelings and his intellect." Eventually, the scope of those rights broadened even further to include a basic "right to be let alone," and the former definition of "property" would then comprise "every form of possession – intangible, as well as tangible." By the late 19th century, interest in privacy grew as a result of the growth of print media, especially newspapers. Samuel D. Warren and Louis D. Brandeis, partners in a new law firm, feared that this new small camera technology would be used by the "sensationalistic press." Seeing this becoming a likely challenge to individual privacy rights, they wrote the "pathbreaking" According to legal scholar Roscoe Pound, the article did "nothing less than add a chapter to our law", and in 1966 legal textbook author, Harry Kalven, hailed it as the "most influential law review article of all".

Public disclosure of private facts arises where one person reveals information which is not of public concern, and the release of which would offend a reasonable person. "Unlike libel or slander, truth is not a defense for invasion of privacy." If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.</blockquote>

For this wrong, money damages may be recovered from the first person by the other. At first glance, this may appear to be similar to defamation (libel and slander), but the basis for the harm is different, and the remedy is different in two respects. First, unlike libel and slander, no showing of actual harm or damage to the plaintiff is usually required in false light cases, and the court will determine the amount of damages. Second, being a violation of a Constitutional right of privacy, there may be no applicable statute of limitations in some jurisdictions specifying a time limit within which period a claim must be filed. Consequently, although it is infrequently invoked, in some cases false light may be a more attractive cause of action for plaintiffs than libel or slander, because the burden of proof may be less onerous. What does "publicity" mean? A newspaper of general circulation (or comparable breadth) or as few as 3–5 people who know the person harmed? Neither defamation nor false light has ever required everyone in society be informed by a harmful act, but the scope of "publicity" is variable. In some jurisdictions, publicity "means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." Moreover, the standards of behavior governing employees of government institutions subject to a state or national Administrative Procedure Act (as in the United States) are often more demanding than those governing employees of private or business institutions like newspapers. A person acting in an official capacity for a government agency may find that their statements are not indemnified by the principle of agency, leaving them personally liable for any damages. Example: If someone's reputation was portrayed in a false light during a personnel performance evaluation in a government agency or public university, one might be wronged if only a small number initially learned of it, or if adverse recommendations were made to only a few superiors (by a peer committee to department chair, dean, dean's advisory committee, provost, president, etc.). Settled cases suggest false light may not be effective in private school personnel cases, but they may be distinguishable from cases arising in public institutions.

Although privacy is often a common law tort, most states have enacted statutes that prohibit the use of a person's name or image if used without consent for the commercial benefit of another person. Appropriation of name or likeness occurs when a person uses the name or likeness of another person for personal gain or commercial advantage. Action for misappropriation of right of publicity protects a person against loss caused by appropriation of personal likeness for commercial exploitation. A person's exclusive rights to control their name and likeness to prevent others from exploiting without permission is protected in similar manner to a trademark action with the person's likeness, rather than the trademark, being the subject of the protection.

The Video Privacy Protection Act of 1988 (VPPA) was signed into law by President Ronald Reagan to preserve the privacy of people's information collected when they rented, purchased, or delivered audio visual materials, and specifically videotapes. The law arose out of the Bork tapes controversy surrounding the Washington City Paper's publication of a list of films rented by Robert Bork, a politician who was running for a spot on the United States Supreme Court at the time. The law prohibits the disclosure of personal information collected by video tape service providers unless it falls under certain exceptions. The VPPA became a focus of attention in the legal industry once again around 2022. Its revival came as part of a larger trend in consumer class actions filed based on privacy law violations, both through new laws like the California Consumer Privacy Act and older laws like the VPPA and wiretapping statutes.

Signed in law on August 21, 1996, Health Insurance Portability and Accountability Act (HIPAA) is a piece of legislation passed in the United States that limits the amount and types of information that can be collected and stored by healthcare providers. This includes limits on how that information can be obtained, stored, and released. HIPAA also developed data confidentiality requirements that are a part of "The Privacy Rule."

The Gramm Leach Bliley Act (GLA) is a federal law that was signed into effect on November 12, 1999. This act placed increased limits and requirements for data collection by financial institutions, as well as limited how that information could be collected and stored. It focused on requiring financial institutions to take specific measure to increase the safety and confidentiality of the information being collected. In addition to this, the law also put limitations on what type of data could be collected by financial institutions and how they could use that information. A core provision under COPPA is that a website operator must "obtain verifiable parental consent before any collection, use, or disclosure of personal information from children."

Although the word "privacy" is actually never used in the text of the United States Constitution, there are Constitutional limits to the government's intrusion into individuals' right to privacy. This is true even when pursuing a public purpose such as exercising police powers or passing legislation. The Constitution, however, only protects against state actors. Invasions of privacy by individuals can only be remedied under previous court decisions. The First Amendment protects the right to free assembly, broadening privacy rights. The Fourth Amendment to the Constitution of the United States ensures that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Fourth Amendment was the Framers' attempt to protect each citizen's spiritual and intellectual integrity. A government that violates the Fourth Amendment in order to use evidence against a citizen is also violating the Fifth Amendment. The Ninth Amendment declares that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

On August 22, 1972 the Alaska Right of Privacy Amendment, Amendment 3, was approved with 86% of the vote in support of the legislatively referred constitutional amendment. Article I, Section 22 of Alaska's constitution states, "The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section."

The California Constitution articulates privacy as an inalienable right. CA SB 1386 expands on privacy law and guarantees that if a company exposes a Californian's sensitive information this exposure must be reported to the citizen. This law has inspired many states to come up with similar measures. California's "Shine the Light" law (SB 27, CA Civil Code § 1798.83), operative on January 1, 2005, outlines specific rules regarding how and when a business must disclose use of a customer's personal information and imposes civil damages for violation of the law. California's Reader Privacy Act was passed into law in 2011. The law prohibits a commercial provider of a book service, as defined, from disclosing, or being compelled to disclose, any personal information relating to a user of the book service, subject to certain exceptions. The bill would require a provider to disclose personal information of a user only if a court order has been issued, as specified, and certain other conditions have been satisfied. The bill would impose civil penalties on a provider of a book service for knowingly disclosing a user's personal information to a government entity in violation of these provisions. This law is applicable to electronic books in addition to print books. The California Privacy Rights Act created the California Privacy Protection Agency, the first data protection agency in the United States.

Article I, §23 of the Florida Constitution states that "Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law."

Article 2, §10 of the Montana Constitution states that "The right of individual privacy is essential to the well being of a free society and shall not be infringed without the showing of a compelling state interest".

Article 1, §7 of the Washington Constitution states that "No person shall be disturbed in his private affairs, or his home invaded, without authority of law". Law enforcement are required to obtain a warrant before using IMSI catcher technology. Private individual's text messages are protected from warrantless searches.

The right to privacy is protected also by more than 600 laws in the states and by a dozen federal laws, like those protecting health and student information, also limiting electronic surveillance.

Several of the US federal privacy laws have substantial "opt out" requirements, requiring that the individual specifically opt out of commercial dissemination of personally identifiable information (PII). In some cases, an entity wishing to "share" (disseminate) information is required to provide a notice, such as a GLBA notice or a HIPAA notice, requiring individuals to specifically opt out. These "opt out" requests may be executed either by use of forms provided by the entity collecting the data, with or without separate written requests.

The Health Information Technology for Economic and Clinical Health Act (HITECH Act) is an important piece of legislation in the United States that relates to the privacy of health related information. Enacted as part of the American Recovery and Reinvestment Act of 2009, the HITECH Act addresses the privacy and security concerns associated with the electronic transmission of health information.