Over at Concurring Opinions, the always-interesting Dan Solove has a neat post up about a privacy case arising out of a California high school, which the New York Times covered last week. The case involves a homosexual teenager who was "out" to many fellow students, but not to her parents. A school administrator learned of the teen's orientation, and informed her parents, causing a great deal of family turmoil. One of the legal questions raised is whether the teenager had a "reasonable expectation of privacy" in her sexual orientation. The court said "yes," and Dan Solove likes that result, invoking a paper I recently published in our law review to support the court's decision.
I'm always happy to see my arguments cited by others, but I'd part ways with Dan (and the court) on this interesting case. While U.S. courts often protect privacy too little, I think the California court here may be on the path toward overprotecting privacy.
It is certainly the case, as Dan notes, that high school teens and parents often inhabit different social networks, and parents can be oblivious to information that circulates widely among the teens. That said, openly gay and lesbian students remain relatively rare at most high schools, and, as a result, I suspect that such relationships prompt higher-than-usual levels of gossip activity among teens. If, as the opinion suggests, scores of students knew of the plaintiffs' sexual orientation, then it certainly seems plausible that one of these teens would have told his or her parents about the plaintiff's conduct, and one of these parents might have told the plaintiff's parents that their daughter was engaged in a same-sex relationship. The test, for whether there is a "reasonable expectation of privacy," it seems to me, is whether in the absence of the defendant's conduct, there would have been a non-trivial possibility that the previously private information about the plaintiff would have been disseminated. If so, then there is no reasonable reasonable expectation of privacy. Were I the trial judge in this case, I'd want to know more about the nature of the community and social relations among parents and teens, but I suspect that on these facts, the plaintiff lacked an objectively reasonable expectation of privacy, whatever her subjective expectations.
Two other points are worth making about the case. The first is that if the plaintiffs' allegations are true, then the school administrator's actions might well have violated the plaintiff's (non-privacy-related) civil rights. The second is that as a general matter, telling a few people a private fact shouldn't form the basis for tort liability, as I argue in the same article. This case is unusual in that the defendant is a public school administrator, and the plaintiff is therefore alleging a (state) constitutional violation of her information privacy rights. When friend A reveals sensitive secrets about friend B to friends C, D, and E without B's consent, I think the appropriate remedy is the cessation of A and B's friendship, not a lawsuit. In cases where the government is the entity doing the disclosing, however, self-help may provide inadequate protections for privacy, so legal remedies may be appropriate.