†1996 Patricia Mell.

† Associate Professor of Law, Detroit College of Law at Michigan State University; A.B. with Honors, Wellesley College, 1975; J.D. Case Western Reserve University Law School, 1978. The author wishes to express her appreciation to those individuals who gave their assistance, technical and otherwise, to this project. Individuals deserving of special thanks include the author's mother, Thelma W. Mell, a constant source of support and inspiration, and her aunt, Dr. Leatrice Emeruwa. In addition, thanks are extended to her colleagues at Detroit College of Law at Michigan State University: Professors John Apol, Susan Bitensky, Cynthia Starnes, Alvin Storrs and Nicholas Revelos; Professor Eileen Cooper, Librarian, Widener University School of Law; Eric Martin, Director of Computing Services, Detroit College of Law at Michigan State University; Charlotte Bynum, Associate Librarian for Reference Services, Detroit College of Law at Michigan State University; and Dr. Roland M. Smith, Vice President of Student Life, University of Delaware.

1. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information . . . " Whalen v. Roe, 429 U.S. 589, 605 (1977). In 1976, it was determined that the federal government maintained 3.9 billion files on private citizens. 45 U.S.L.W. 2161 (Sept. 28, 1976). See also PRIVACY PROTECTION STUDY COMM'N, PERSONAL PRIVACY IN AN INFORMATION SOCIETY 4 (1977) [hereinafter PRIVACY PROTECTION STUDY]. See also Bruce Clark, Note, The Constitutional Right to Confidentiality, 51 GEO. WASH. L. REV. 133, 133 n.1 (1982). By 1989, that number had grown to on the average of 18 files on each individual on the federal level and 15 on the state level. ROBERT E. SMITH, PRIVACY AND HOW TO PROTECT WHAT'S LEFT OF IT 82 (1980). Private industry maintains significant amounts of information on individuals as well. In 1988, TRW, Trans Union and Equifax (the Big Three credit bureaus) held a combined 410 million files on individuals. Jeffrey Rothfelder, Is Nothing Private?, BUS. WK., Sept. 4, 1989, at 81.

2. This was pointed out in the statement of purpose of the Privacy Act: "[T]he increasing use of computers and sophisticated information technology, while essential to the efficient operations of the Government, has greatly magnified the harm to individual privacy that can occur for any collection, maintenance, use or dissemination of personal information . . . " Privacy Act of 1974, Pub. L. No. 93-579, § 2(a)(2) (1974). For a diagram of several federal statutes which ostensibly protect the individual's privacy in specific contexts, see the appendix to this article [hereinafter App.]. See also Clark, supra note 1, at 135.

3. The first computer, called ENIAC, was developed by the U.S. Army in 1946. The next generation computer, UNIVAC, was developed for use by the Census Bureau for the 1950 Census. ENCYCLOPEDIA OF COMPUTER SCIENCE AND ENGINEERING 532 (Anthony Ralston ed., 2d ed. 1983).

4. See generally J. THOMAS MCCARTHY, THE RIGHTS OF PUBLICITY AND PRIVACY (1995); Patrick J. Heneghan & Herbert C. Wamsley, The Service Mark Alternative to the Right of Publicity: Estate of Presley v. Russen, 14 PAC. L.J. 181, 182 (1983).

Information has been defined as knowledge, facts and data. WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY (1985). It comes in a variety of forms, many of which are interchangeable-pictures, works, speech, writing-and in varying formats. Here the word is used to include any information presented electronically in any form, embodied in any format and handled by any computer processor.

The term "personal information" refers to any information which identifies or relates to a specific individual. See LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW, §§ 15-17, at 966 (1978). With respect to the term "persona," see MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 1.01[B][1][c] (1978).

5. NIMMER & NIMMER, supra note 4, § 1.01[B][1][c].

6. Id.

7. Anne R. Field, Electronic Data Could Make Trouble for the Law, BUS. WK., Oct. 27, 1986, at 128.

8. See George B. Trubow, Information Law Overview, 18 J. MARSHALL L. REV. 815, 817 (1985).

9. See JOHN M. CARROLL, CONFIDENTIAL INFORMATION SOURCES: PUBLIC & PRIVATE 10 (2d ed. 1991).

10. Id. at 11-12.

11. This would include such transactions as using credit cards; getting or losing a driver's license; taking standardized tests for school or for employment; getting employed or fired; contributing to charitable or political causes; buying or selling; getting married or divorced; paying taxes or not; having children; paying bills promptly or not.

12. For the most part, the flow of information away from the individual to third parties is carried out almost without any involvement by the individual. The flow of information was described in the following manner:

The private and public bureaucracies are the repositories of the planning power in the economy . . . . The two bureaucracies coordinate with each other through a blizzard of forms and reports, and through the revolving door between industry and government. Expertise is exchanged through the purchase of R&D, consulting, and management, and . . . extracted by regulatory commissions, requested by Congressional committees, offered gratuitously through lobbying, or simply transferred as a result of people changing jobs.

 Marc U. Porat, The Information Economy 41-42 (1976) (unpublished Ph.D. dissertation, Stanford University).

13. Much of the information about the individual is collected by governmental agencies, both state and federal, pursuant to their administrative or regulatory function. In this respect, the information is "public," meaning that it is often freely available to any seeker. These personae can consist of any number of combinations of intimate, embarrassing or purely public, non-sensitive information about the individual. On the other side, there is some authority for the proposition that any attempt to distinguish between the private and the public is futile. See generally Howard Radest, The Public and the Private: An American Fairy Tale, 89 ETHICS 280 (1979); Duncan Kennedy, The Stages of the Decline of the Public/Private Distinction, 130 U. PA. L. REV. 1349, 1351-57 (1982).

14. COMPUTER-BASED NATIONAL INFORMATION SYSTEMS 19 (Stephen J. Andriole ed., 1984).

15. See id.

16. Id.

17. See discussion infra part V. concerning the nature of the electronic persona.

18. This is particularly true since there is no central repository for all files. There have been at least two attempts to create a central repository for federal information files. Both were defeated. See SMITH, supra note 1, at 85. See also ELLEN ALDERMAN & CAROLINE KENNEDY, THE RIGHT TO PRIVACY 326 (1995).

19. See discussion infra part II.B. concerning how the information files are created. "Most substantial personnel systems are capable of capturing an abundance of information about each employee. For example, a major vendor of a mainframe personnel/payroll package suggests 140 data elements" on each employee. Donald Harris, A Matter of Privacy: Managing Personal Data in Company Computers, PERSONNEL, Feb. 1987, at 38. The way the persona is configured by the programmer could give rise to a persona that does not "favor" the real individual at all. Donald N. Michael, Speculations on the Relation of the Computer to Individual Freedom and the Right to Privacy, 33 GEO. WASH. L. REV. 270, 279-80 (1964).

20. Michael, supra note 19, at 280.

21. Id.

22. Martin Lee Dement spent two years in a Los Angeles county jail because of a botched use of the California Automated Latent Fingerprint System, which uses a computer to identify the suspect's fingerprints. Manual checks of another suspect's fingerprints finally cleared Dement. TOM FORESTER & PERRY MORRISON, COMPUTER ETHICS: CAUTIONARY TALES AND ETHICAL DILEMMAS IN COMPUTING 137 (2d ed. 1994). See also Michael, supra note 19, at 274-76.

23. ALAN WESTIN & MICHAEL A. BAKER, DATA BANKS IN A FREE SOCIETY (1972). See also Harris, supra note 19, at 34-35 (discussing human resource managers' increasing awareness of the need to restrict access to personal employee information).

24. See Robert C. Post, Rereading Warren and Brandeis: Privacy, Property and Appropriation, 41 CASE W. RES. L. REV. 647, 668 (1991).

25. "If derogatory information is stored and used against a man long after an event," individuals could never have a "new start." "People tend to forget and forgive, computers do not." Toby Solomon, Personal Privacy and the "1984" Syndrome, 7 W. NEW ENG. L. REV. 753, 755 (1985).

False and inaccurate information can cause equally devastating results for individuals. In 1989, James Russell Wiggins was hired for a $70,000 per year job in sales at District Cablevision in Washington, D.C. Six weeks later, a routine check showed that Wiggins had been convicted of cocaine possession. Since he had not disclosed this to Cablevision, he was fired. Wiggins insisted that the record was wrong. It was finally discovered that Equifax had made a mistake by "pulling the criminal record of James Ray Wiggins and folding disparate files together to provide a mosaic that was not only wrong but very damaging to the career and livelihood of an innocent person." FORESTER, supra note 22, at 140.

26. See discussion infra parts IV.A.-C. concerning the difference in treatment of solitary files and compilations of records.

27. See ALDERMAN & KENNEDY, supra note 18, at 326.

28. Mary J. Culnan, How Did They Get My Name?: An Exploratory Investigation of Consumer Attitudes Toward Secondary Information Use, MGMT. INFO. SYS. Q., Sept. 1993, at 347-59.

29. See infra App.

30. See, e.g., ARTHUR MILLER, THE ASSAULT ON PRIVACY 24-53 (1971) [hereinafter MILLER, ASSAULT]; WESTIN & BAKER, supra note 23, at 466-85; Vern Countryman, The Diminishing Right of Privacy: The Personal Dossier and the Computer, 49 TEX. L. REV. 837, 868-70 (1971); Arthur Miller, Computers, Data Banks and Individual Privacy: An Overview, 4 COLUM. HUM. RTS. L. REV. 1, 3 (1972) [hereinafter Miller, Computers]; Robert S. Peck, Extending the Constitutional Right to Privacy In the New Technological Age, 12 HOFSTRA L. REV. 893, 894 (1984).

31. As stated by Professor Zimmerman, "[t]he phrase a 'right to privacy' as used in law has almost as many meanings as Hydra had heads." Diane Zimmerman, False Light Invasion of Privacy: The Light that Failed, 64 N.Y.U. L. REV. 364, 364 (1989). The following definitions are but a few of the many penned during the last three decades:

[P]rivacy exists where the persons whose actions engender or become the objects of information retain possession of that information, and any flow outward of that information from the persons to whom it refers (and who share it where more than one person is involved) occurs on the initiative of its possessors.

 Edward Shils, Privacy: Its Constitution and Vicissitudes, 31 LAW & CONTEMP. PROBS. 281, 282 (1966).

"[P]rivacy is the condition of human life in which acquaintance with a person or with affairs of his life which are personal to him is limited." Hyman Gross, The Concept of Privacy, 42 N.Y.U. L. REV. 34, 36 (1967).

"[P]rivacy is the claim of individuals, groups or institutions to determine for themselves when, how, and to what extent information about them is communicated to others." ALAN WESTIN, PRIVACY AND FREEDOM 7 (1967).

"[P]rivacy is a limitation of others' access to an individual . . . . [A] person enjoys perfect privacy when he is completely inaccessible to others . . . . [I]n perfect privacy no one has any information about X, no one pays attention to X, and no one has physical access to X." Ruth Gavison, Privacy and the Limits of Law, 89 YALE L. J. 421, 428-29 (1980).

"[P]rivacy denotes a degree of inaccessibility of persons, their mental states, and information about them to the senses and surveillance of others." ANITA ALLEN, UNEASY ACCESS: PRIVACY FOR WOMEN IN A FREE SOCIETY 34 (1988).

The traditional inquiry in the United States would separate alleged breaches of the individual's privacy into two camps: one for breaches by the government, and another for breaches by private concerns. Many of these definitions do not make such a distinction.

32. "Warren and Brandeis attempted to carve out an interest-viewed by some as a 'personality interest' and by others in more proprietary terms-without concomitantly attempting a clear description of that interest." Sheldon Halpern, The "Inviolate Personality"-Warren and Brandeis After One Hundred Years: Introduction to a Symposium on the Right of Privacy, 10 N. ILL. U. L. REV. 387, 389 (1990). "The simple word 'privacy' has taken on so many different meanings in so many different corners of the law that it has largely ceased to convey any single coherent concept." MCCARTHY, supra note 4, § 5.7[A]. See discussion infra part III.A. concerning the origins of privacy in property concepts.

33. In the United States, the source of information privacy is the Fourth Amendment, which guarantees the individual's privacy in his home and papers. U.S. CONST. amend. IV. For a discussion of the Fourth Amendment, see generally NELSON LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION (1970).

34. See discussion infra part V.A.2. Since the subject of a personal information file often does not know that an electronic persona concerning him is being either compiled or used, he can be divested of an electronic persona without his knowledge. Since the persona is identifiable to a specific individual, the electronic persona should be recognized as being "owned" by that person. In this respect, the electronic persona is similar to the name and likeness aspects recognized by the appropriation tort as delineated by Prosser. See William L. Prosser, Privacy, 48 CAL. L. REV. 383, 406 (1960). The quality of being divested makes the persona personalty-property. This ownership is not necessarily exclusive. See discussion infra part IV.F.

35. Each person is aware of the gap between what he wants to be and what he

actually is, between what the world sees of him and what he knows to be his much more complex reality . . . . Every individual lives behind a mask in this manner, indeed the first meaning of the word "person" etymological was "mask," indicating both the conscious and expressive presentation of the self to a social audience.

 WESTIN, supra note 31, at 33.

36. U.S. DEP'T OF HEALTH, EDUC. & WELFARE, SECRETARY'S ADVISORY COMM. ON AUTOMATED PERSONAL DATA SYSTEMS, RECORDS COMPUTERS AND THE RIGHTS OF CITIZENS 41-42 (1973) [hereinafter AUTOMATED PERSONAL DATA SYSTEMS].

37. Id.

38. For examples of these definitions, see supra note 31.

39. This definition takes into consideration the individual's "control over . . . the intimacies of personal identity[:] . . . intimacy, identity, and autonomy" as limitations and applications of the concept of privacy. Tom Gerety, Redefining Privacy, 12 HARV. C.R.-C.L. L. REV. 233, 281 (1977).

40. The fact that society must now reconsider its notions of privacy is not the computer's fault. The computer merely forces the issue. The accumulation of mass quantities of information about individuals had become a characteristic of industrialized society well before the arrival of computer technology. See WESTIN & BAKER, supra note 23, at 15.

41. See COMPUTER-BASED NATIONAL INFORMATION SYSTEMS, supra note 14, at 49-50.

42. See discussion infra part III.

43. See generally Bruce Mazlish, The Fourth Discontinuity, 8 TECH. & CULTURE 1 (1967). The other three gaps or discontinuities in man's understanding of the world around him were closed by the discoveries of Copernicus, Darwin and Freud. Id. at 2-3.

44. Id.

45. See generally DANIEL BELL, THE COMING OF THE POST-INDUSTRIAL SOCIETY 47-119 (1973). Bell cites three stages in the development of society: the pre-industrial, the industrial and the post-industrial or information society. Id. For the purposes of this article, which investigates the status of personae in the United States, these three periods correlate roughly to the years 1750 to 1850 for pre-industrial; 1850 to 1950 for industrial; and 1950 to the present as the post-industrial or information age.

46. See Daniel Bell, Communications Technology-For Better or for Worse, HARV. BUS. REV., May-June 1979, at 20.

47. Id. at 22.

48. For a more detailed account of this development, see BELL, supra note 45, at 47-120.

49. Each stage of society required a different type of service. Pre-industrial society was based in large part on physical labor, while the industrial society used services, such as transportation or financial services, to support the production of goods. The human services that comprise the basis of post-industrial society, however, are human services based on the codification of human knowledge. Id.

50. See Anthony G. Oettinger, Information Resources: Knowledge and Power in the 21st Century, 209 SCIENCE 191, 191 (1980). The society of each stage of development was "an information society and every organization an information organization . . . " Id.

51. In 1988, the three largest credit bureaus generated the following revenues from selling credit information about private citizens: TRW, $335 million; Trans Union, $300 million; and Equifax, $259 million. For Equifax, the sale of credit information constituted only 35% of its overall revenues but made up 75% of its profits. Rothfelder, supra note 1, at 80. See also Oettinger, supra note 50, at 194 (comparing gross revenues of information industries over a seven-year period).

52. Cf. Jim Seymour, PC MAG., August 1991, at 89 ("[P]rivacy is not a 'computer problem,' but a human and societal one, amenable to exactly the same kinds of remedies we apply to other societal problems.").

53. See discussion infra part III.B. concerning the premises of Fourth Amendment protections against warrantless search and seizure as protection of the persona. Unauthorized access to information in a "protected" area is founded in recognized tenets of possession and ownership of the information. Ownership of the information necessarily makes the information property. See also Wendy Gordon, On Owning Information: Intellectual Property and the Restitutional Impulse, 78 VA. L. REV. 149, 150-51 (1992) (discussing the initial reluctance of the courts to create common law property rights in intangibles).

54. See Diane L. Zimmerman, Information As Speech, Information As Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 WM. & MARY L. REV. 665, 670 (1992); Margaret J. Radin, Property and Personhood, 34 STAN. L. REV. 957, 957-68 (1982).

55. The vast majority of laws passed to protect the individual's privacy have been passed during the last 30 years. These years correspond to the time during which institutional intrusion into the individual's life has reached an unprecedented frequency. See infra App.

56. BELL, supra note 45, at 124 (citing HISTORICAL STATISTICS OF THE UNITED STATES 14, 74 (1960)).

57. In 1860, approximately 42% of labor was in agricultural industries and 5% in information industries. In 1980, the positions occupied by the two industries were reversed, with information industries holding 46% and agricultural only 2%. Porat, supra note 12, at 189 fig. 7.2.

58. The current system of compulsory education in the United States is the product of a system of state laws which require attendance for children at either a public school or at some other learning institution. LAWRENCE KOTIN & WILLIAM F. AIKMAN, LEGAL FOUNDATIONS OF COMPULSORY SCHOOL ATTENDANCE 9 (1980). The universality of the requirement has been traced to the early 20th century and the perceived "need to integrate foreign immigrants quickly and to the subsequent 'Americanization' movement of the early 20th century." Id. at 26-27.

59. The federal government's ability to tax the income of U.S. citizens was authorized by the enactment of U.S. CONST. amend. XVI.

60. The first credit reporting agency was not created until 1869 when post-Civil War migration made it a necessity. See JAMES B. RULE, PRIVATE LIVES AND PUBLIC SURVEILLANCE 180-81 (1973).

61. The United States Census was first taken in 1790. The authority to take the census was provided by Article I, Section 2 of the U.S. Constitution which provided for the taking of a population census "within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years." U.S. CONST. art. I, § 2. It was the first of the modern censuses to be conceived as an integral part of the machinery of government. 6 THE ENCYCLOPEDIA AMERICANA: INTERNATIONAL EDITION 169 (1981).

62. RICHARD F. HIXSON, PRIVACY IN A PUBLIC SOCIETY 26 (1987) (citing ESTHER FORBES, PAUL REVERE & THE WORLD HE LIVED IN 70 (1942)).

63. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 328-29 (Peter Laslett ed. 1965).

64. Milton R. Konvitz, Privacy and the Law: A Philosophical Prelude, 31 LAW & CONTEMP. PROBS. 272, 275 (1966) (quoting JOHN LOCKE, THE SECOND TREATISE OF CIVIL GOVERNMENT 129 (Everyman's Library 1924)).

65. This was the interpretation suggested in Konvitz's article. Id.

66. Edward Shils, Privacy: Its Constitution and Vicissitudes, 31 LAW & CONTEMP. PROBS. 281, 290 (1966).

67. See Bell, supra note 46, at 22.

68. In a sense, the individual's loss of physical seclusion was a double-edged sword, one that provided both more and less privacy. Western pioneers had privacy born of their physical seclusion from others in the vast spaces of the West. As people left the family farm for the city and factory jobs, however, this seclusion was no longer possible. Robert Copple described this forced exposure as "the impetus for the creation and adoption of . . . legal means to protect personal privacy and to officially recognize the right to a . . . degree of social distance." Robert F. Copple, Privacy and the Frontier Thesis: An American Intersection of Self and Society, 34 AM. J. JURIS. 87, 88 (1989). A similar phenomenon, reflected in the loss of the extended family and population mobility of the 20th century, was cited by Alan Westin as creating "greater situations of physical and psychological privacy." WESTIN, supra note 31, at 21.

69. See Bell, supra note 46, at 22.

70. Ralph W. Emerson, Essay on Fate, in THE CONDUCT OF LIFE 40-41 (1899).

71. Konvitz, supra note 64, at 275.

72. The invention of the telegraph has been referred to as the birth of modern society's information infrastructure. See, e.g., Bell, supra note 46, at 20.

73. See id.

74. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 195-97 (1890).

75. Oettinger, supra note 50, at 191.

76. The result was a merging of the computer and communications industries in powerful ways that challenge society's traditional notions of public versus private information. Id. at 192.

77. See infra text accompanying notes 204-07 (discussing Olmstead v. United States, 277 U.S. 438 (1928)).

78. See DAVID J. SEIPP, THE RIGHT TO PRIVACY IN AMERICAN HISTORY 43-44 (Harv. U. Program on Info. Resources Policy Pub. P-78-3, 1978).

79. See Porat, supra note 12, at 189 fig. 7.2.

80. By 1971, there were at least 2,000 credit bureaus and TRW held over 30 million files. RULE, supra note 60, at 181. The first modern credit card was Diners' Club card issued in 1950. Diners' Club was followed shortly by American Express and Carte Blanche in 1958. Id. at 226. By 1971, American Express and Diners' Club had 3.5 million and 2 million cardholders, respectively. BankAmericard (predecessor to VISA) was the earliest bank-based credit card, starting in 1959. By 1971, BankAmericard had over 28 million cardholders. Id. at 230. For a general discussion of credit bureaus, see also SMITH, supra note 1, at 42-43.

81. U.S. CONST. amend. XVI.

82. Arthur Miller, Personal Privacy in the Computer Age: The Challenge of a New Technology in an Information-Oriented Society, 67 MICH. L. REV. 1091, 1108-09 (1969) [hereinafter Miller, Challenge]; Miller, Computers, supra note 30, at 8.

83. Miller, Challenge, supra note 82, at 1108-09.

84. See infra parts III.A.-B. for a discussion of the origins of constitutional, common law and intellectual property theories in the United States for protection of the persona.

85. Theories used to prevent the use of personae varied from agency to contract and trust theories. The tort concept of privacy could compensate individuals under certain circumstances. For a discussion of privacy and government agencies, see infra part IV.C.

86. See generally BELL, supra note 45, at 47-119.

87. "Services exist in all societies, but in pre-industrial societies, they are primarily domestic services. In industrial societies, these are ancillary to the production of goods, such as transportation, utilities, and financial services. In post-industrial societies, the emphasis is on human services (education, health, social services) and professional services . . . " Bell, supra note 46, at 22.

88. See generally id. See also Oettinger, supra note 50, at 192.

89. Since its invention in the 1940s, the computer has become a fundamental tool in the operation of government, commercial and academic industries. Institutions as varied as the Federal Reserve Bank, the Department of Defense, the local community college and department stores all base their information management upon a computer or a system of computers. The growth of the technology in this field has made it possible for the office or home computer to communicate with computer network systems around the world with relative ease. What this means is that almost no individual in an "advanced society" can escape the effect of computer-stored information on his life. See, e.g., Patricia Mell, The Criminal Law Aspects of Unauthorized Access, Information Theft and Other Pests Associated with Computer Use, DEL. LAW., Fall 1989, at 28. See generally ENCYCLOPEDIA OF COMPUTER SCIENCE AND ENGINEERING, supra note 3, at 532-54 (discussing the history of digital computers).

90. The federal government collects an average of 18 files on each man, woman and child in the United States. SMITH, supra note 1, at 85.

91. Information collection in the form of IRS returns, Social Security filings, census reports, licensing of professions, governmental services programs, testing requirements at all levels of education, selective service requirements and employment applications makes government a pervasive force in private individuals' lives. PRIVACY PROTECTION STUDY, supra note 1, at 4.

92. See SMITH, supra note 1, at 90.

93. See Countryman, supra note 30, at 837-39.

94. Bell, supra note 46, at 21.

95. Id.

96. "In 1951, Univac I, the first commercial computer, cost $701,000 and occupied 10 cubic feet; the same amount of computing power today can be stored in a one centimeter square silicon chip that costs $19." JAMES V. VERGARI & VIRGINIA SHUE, FUNDAMENTALS OF COMPUTER-HIGH TECHNOLOGY LAW 247 (1991).

97. KENT GREENAWALT, LEGAL PROTECTIONS OF PRIVACY: FINAL REPORT TO THE OFFICE OF TELECOMMUNICATIONS POLICY EXECUTIVE OFFICE OF THE PRESIDENT 42 (1976).

98. Id.

99. See MICHAEL R. RUBIN, PRIVATE RIGHTS, PUBLIC WRONGS 64-66 (1988).

100. For the number of statutes that require contextual accuracy of the information before adverse action is taken, see infra App. Computer systems which receive data from third parties and which impact interests of consumers are usually designed with the capability to detect and adjust common factual errors in data presented to the system. The standard by which the system is judged is whether the system proprietor acted reasonably in constructing a system that covered some contingencies, but not others. The reasonable care standard also applies to errors in encoding and data entry errors. See RAYMOND T. NIMMER, THE LAW OF COMPUTER TECHNOLOGY ¶ 13.07 (2d ed. 1992).

101. State ex rel. Tarver v. Smith, 470 P.2d 172 (Wash. 1970), cert. denied, 402 U.S. 1001 (1971).

102. 470 P.2d at 173-74.

103. Id.

104. See id. at 176.

105. United States v. Miller, 425 U.S. 435 (1976). This case antedates the Right to Financial Privacy Act of 1978, 12 U.S.C. §§ 3401-22 (1994). Miller demonstrates the myopia of the courts in recognizing individuals' right to control, within limits, the contents and distribution of information about them.

106. Miller also argued that the requirement in the Bank Secrecy Act, 12 U.S.C. § 1829b(d) (1994), that banks maintain microfilm copies of the checks for two years was an unconstitutional invasion of his Fourth Amendment right against unreasonable search and seizure. The district court rejected Miller's arguments and he appealed. 425 U.S. at 438-40.

The Fifth Circuit Court of Appeals also rejected Miller's claim that the Bank Secrecy Act was unconstitutional, as that issue had already been resolved by the U.S. Supreme Court in 1974 in California Banker's Ass'n v. Schultz, 416 U.S. 21 (1975). The court of appeals agreed, however, that Miller's rights as well as the bank's were threatened and that he should be accorded the right to challenge the validity of the grand jury's subpoenas. The court of appeals saw Miller's interest in the bank records as derived from the Fourth Amendment protection against unreasonable searches and seizures, which protected him against the "compulsory production of a man's private matters to establish a criminal charge against him." United States v. Miller, 500 F.2d 751, 757 (5th Cir. 1974), rev'd, 425 U.S. 435 (1976) (quoting Boyd v. United States, 116 U.S. 616 (1886)).

107. 425 U.S. at 440-46.

108. Id. at 440-41.

109. See infra App.

110. The number of computers worldwide jumped from 4 million in 1981 to 173 million in 1994. Global Shift: More TVs, Fewer Frogs, DET. FREE PRESS, May 22, 1995, at 4A. In 1979, 221 companies provided electronic databases. Richard Eisenberg, How to Get Rich in Today's America, MONEY MAG., Aug. 1985, at 41. By 1984, this number had grown to 1,316. Id.

111. A computer network consists of data communications systems and associated management software. See VERGARI & SHUE, supra note 96, at 23-24.

112. Sharing is the common function of all networks. Information sharing takes place when a communications program allows one computer to "talk" to another. Id.

113. See id. at 24-25.

114. See ENCYCLOPEDIA OF COMPUTER SCIENCE AND ENGINEERING, supra note 3, at 448-50.

115. See id. at 450-51.

116. By 1988, 46 of the 50 U.S. states had statutes prohibiting "unauthorized access" to computers. ROBERT E. SMITH, COMPILATION OF STATE AND FEDERAL PRIVACY LAWS 8-9 (1988). By contrast, only 24 of these states had specifically provided a right to privacy to their citizens. Id. at 28-29. While the interests of the individual and the collector are the same on both the procedural and substantive levels, a discussion of the procedural aspects is beyond the scope of this article.

117. See id.

118. See Mell, supra note 89, at 28.

119. "[I]t is essential to expose the ways computer technology is magnifying the threat to informational privacy-a threat that we have faced in some form ever since man began to take notes about himself and his neighbors." MILLER, ASSAULT, supra note 30, at 23.

120. See infra App.

121. Jan C. Greenburg, E-mail Leaves Legal Trail, DET. FREE PRESS, Sept. 26, 1995, at 1A. The retrieval of deleted files recently cost a company $250,000 when its supposedly deleted computer files were retrieved and revealed derogatory remarks about a fired employee. Id.

The "delete" function works in the following manner: a file is identified by the computer by the first byte (character) of its file name. If the computer is directed to "forget" something, it responds by marking the first byte of the file with a special code, which indicates that the file has been erased. Then the computer clears the file's entries from the file allocation table. Thus, an individual who knows the "code" can retrieve the deleted file. VERGARI & SHUE, supra note 96, at 13-14.

122. See Kenneth J. Langan, Computer Matching Programs: A Threat to Privacy?, 15 COLUM. J.L. & SOC. PROBS. 143, 144-46 (1979) (describing the mechanics of a computer matching program).

123. See Oversight of Computer Matching to Detect Fraud and Mismanagement in Gov't Programs: Hearings Before the Subcomm. on Oversight of Gov't Mgmt. of the Senate Comm. on Governmental Affairs, 98th Cong., 2d Sess. 25 (1984) [hereinafter Hearings]. See also Langan, supra note 122, at 147; Note, Privacy and Computers, 65 TEX. L REV. 1395, 1406-07 (1987).

124. Hearings, supra note 123, at 25.

125. OSCAR H. GANDY, JR., THE PANOPTIC SORT: A POLITICAL ECONOMY OF PERSONAL INFORMATION 55 (1993).

126. To understand the interests involved, one must comprehend the parameters of the environment in which they occur. There are four universal stages of each network system: 1) manual initiation of data, 2) conversion of data into computer-acceptable format (i.e., data capture), 3) computer processing and input and 4) distribution of output. See, e.g., ENCYCLOPEDIA OF COMPUTER SCIENCE AND ENGINEERING, supra note 3, at 370-72 (discussing major hardware components of computer systems). Each of these stages has two aspects in the computer context: the procedural aspect and the substantive aspect. The procedural aspect deals with issues of access to and security of the information and is beyond the scope of this article. The substantive aspect deals with issues of information accuracy, the power to prevent disclosure (privacy), and the power to limit disclosure (confidentiality). This system is not limited to national borders; the telecommunications system allows global access. This indicates the need for guidelines establishing the parameters of the individual's rights versus those of a private or public information-gathering organization, domestic or foreign. See Oettinger, supra note 50, at 196-97.

127. 814 F.2d 1381 (9th Cir. 1987).

128. Id. at 1383.

129. Id.

130. Id.

131. Some statutes specifically exempt states from filling requests that are unduly burdensome. See, e.g., ILL. REV. STAT. ch. 116, para. 203(f) (1985). Many an individual has been faced with the following words concerning the computer's purported inability to perform in a particular manner: "It [the computer] doesn't do that." See also McGhee v. Central Intelligence Agency, 697 F.2d 1095, 1110 (D.C. Cir. 1983), modified in part on reh'g, 711 F.2d 1076 (D.C. Cir. 1983); Founding Church of Scientology v. National Sec. Agency, 610 F.2d 824, 834 (D.C. Cir. 1979).

132. 779 F.2d 1378, 1383 (8th Cir. 1985).

133. 5 U.S.C. § 552 (1994).

134. Most of the authors in the original debate in the 1970s focused their attention on only this "primary" use of information. COMPUTER-BASED NATIONAL INFORMATION SYSTEMS, supra note 14, at 76. Viewed in that context, the transfer of the information becomes a part of the contract between the individual and the service provider. See id. This article goes beyond the initial transaction to focus on the "secondary use" of information. Secondary use is the collection and manipulation of information by parties with whom the individual has not dealt directly. As such, the contract theory proposed in the 1970s does not apply to secondary use of information.

135. In a very few instances, federal and state agencies will combine efforts to combat widespread privacy abuses. In 1991, TRW settled a lawsuit with the Federal Trade Commission and 19 states for alleged violations of consumer privacy and for making reporting errors that damaged the credit ratings of thousands of consumers. TRW was required to change several of its procedures and to pay $300,000 to the states. 17 SOFTWARE ENGINEERING NOTES 12 (1992).

136. The Privacy Act requires each agency to publish in the Federal Register "notice of the existence and character of the system of records it holds." 5 U.S.C. § 552a(e)(4) (1994). This provision would give the public such information as the categories of individuals whose records are held. Ostensibly, this provision would allow the individual to object if he did not want his records disclosed.

The General Accounting Office (GAO) investigated federal compliance with the public notice requirements and found that 292 of 910 federal databases were in violation of the provisions. To further compound the problem, the report noted that "78% of th[e] computer systems [studied were] interconnected," which GAO interpreted to mean that "data collected on individuals without their knowledge or consent [was] widely available to gov[ernment] and commercial users." Big Brotherism Feared: GAO Report Raises New Computer Privacy Concerns, COMM. DAILY, Aug. 31, 1990, at 6.

137. Two cases are illustrative of this issue. Terry Dean Rogan lost his wallet, which held his driver's license and credit cards. An impostor then committed two murders and two robberies. These crimes resulted in a warrant for Rogan being placed in the National Crime Information Center (NCIC) database. After the first arrest, Rogan attempted to get the problem corrected. Despite his efforts, he was arrested another four times during the next fourteen months. Finally, Rogan sued the Los Angeles police department and won $55,000. PETER G. NEUMANN, COMPUTER RELATED RISKS 194-95 (1995).

Also note the case of Clinton Rumrill III, who had credit card and traffic problems resulting in civil and criminal charges against him. A childhood "friend" was impersonating him by using his name and social security number. Police were informed of the problem but had failed to distinguish between Rumrill and the impostor. The computer continued to operate as if Rumrill and the impostor were the same person. Rumrill was told that the easiest solution would be for him to change his name and his Social Security number. Id. at 195.

138. Much of the personal information existing about individuals comes from federal and state government records. See infra note 278 for a list of the types of records maintained by states on individuals. As public documents (with a few exceptions) do not yet have many legal restrictions on their disclosure by government, anyone who knows how to find the information will have little trouble obtaining it. The information collected by private industry is available for a fee. While disclosure is generally restricted to those with a "bona fide" business purpose, those purposes are generally not verified. See infra App. (concerning the Fair Credit Reporting Act).

" 'It bothers me that credit reports are being sold by business and persons who don't give a damn about the legality of their doing so . . . . It also bothers me that the right connection can secure personal banking information, unlisted telephone numbers, medical records and numerous other personal records.' " Simson Garfinkle, Social Security Numbers and Other Telling Information, WHOLE EARTH REV., Fall 1989, at 81 (quoting E.A. Fleming, president of Super Bureau, a California consumer reporting firm).

139. In 1988, TRW, Trans Union and Equifax made $335 million, $300 million and $259 million, respectively, from the sale of personal information files concerning individuals. Rothfelder, supra note 1, at 81. States are also realizing the wealth they have in information. The state of Florida considered legislation that would charge a staggered rate per byte for computerized information up to a cap of $3,000 for any one request. It was willing, however, to sell the entire database of motor vehicle records to a newspaper for $3 billion. Larry Rohter, Florida Weighs Fees for Its Computer Data: Some See Profits, Others Too High a Price, N.Y. TIMES, Mar. 31, 1994, at A12.

140. See discussion infra part III.A.

141. [T]here came a recognition of man's spiritual nature, of his feelings and his

intellect. Gradually, the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life-the right to be left alone; the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession-intangible, as well as tangible.

 Warren & Brandeis, supra note 74, at 193.

142. There is some disagreement as to whether any common ground can be found between the protection of privacy under tort law and that found under constitutional law. See, e.g., MCCARTHY, supra note 4, § 5.7[B] (finding no substantial similarity between the two theories). On the other side of the inquiry, see Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. REV. 962, 976-77 (1964).

143. Intellectual property rights protected the persona in certain contexts but were not extended to protect the non-literary, non-copyrightable and non-commercial aspects of the persona. See discussion infra part III.A. concerning the inapplicability of most current intellectual property doctrines to the protection of persona in the informational privacy sense.

144. See discussion infra part III.B.

145. See Bloustein, supra note 142, at 977; RICHARD C. TURKINGTON, ET AL., PRIVACY CASES AND MATERIALS 67 (1992) [hereinafter TURKINGTON, PRIVACY CASES] (citing Richard C. Turkington, Legacy of the Warren and Brandeis Article: The Emerging Unencumbered Constitutional Right to Informational Privacy, 10 N. ILL. U. L. REV. 479, 487-502 (1990) [hereinafter Turkington, Legacy]).

146. TURKINGTON, PRIVACY CASES, supra note 145, at 19.

147. TRW, Trans Union and Equifax held a combined 410 million individual files in 1988. Rothfelder, supra note 1, at 81.

148. See discussion infra part V. concerning current views on the property interest in personae.

149. True, there is no instant formula for clearly marking the fuzzy boundaries

of what we call the "private," but there are sound theoretical and practical reasons for not conflating privacy with established public freedoms that are frequently associated with it . . . . What the Court has found in those hazy penumbras of some constitutional amendments has sometimes to do with privacy, but other times merely with personal autonomy, personal sovereignty, or what the Court calls "personal liberty." . . . . It is true that in most accounts the protection of privacy has something to do with inviolate personhood; but everything that is either personal or fundamental or both, is not necessarily private . . .

Keith C. Boone, Privacy and Community, 9 SOC. THEORY & PRAC. 1, 21 (1983).

150. 36 Eng. Rep. 670 (1818).

151. Id. at 678. See also Woolsey v. Judd, 11 How. Pr. 49, 53-55 (N.Y. 1855) (emphasizing that a property right must be violated for the court to take jurisdiction). See also Zimmerman, supra note 54, at 698 (noting that labor theory justified a property right in a product of the human mind).

152. 47 Eng. Rep. 1313 (1825).

153. 41 Eng. Rep. 1171, aff'd, 64 Eng. Rep. 293 (1849).

154. 64 Eng. Rep. at 294.

155. Id. at 299.

156. Zimmerman, supra note 54, at 697. This approach is similar to that taken by the U.S. Supreme Court in United States v. Carpenter, 484 U.S. 19, 26-27 (1987), in which the Court recognized that confidential business information could be misappropriated. Misappropriation is a property concept. See id.

157. See THOMAS COOLEY, COOLEY ON TORTS 29 (2d ed. 1880).

158. 9 N.W. 146 (Mich. 1881).

159. Id. at 149.

160. The actress's name was Marion Manola. The case was apparently unreported but appeared in the newspapers of the time. Warren and Brandeis referred to the case in their article, The Right to Privacy, to illustrate the proprietary aspect of the right to privacy. See Warren & Brandeis, supra note 78, at 195 n.7; Dorothy Glancy, The Other Miss M, 10 N. ILL. U. L. REV. 401, 417 (1990).

161. Warren & Brandeis, supra note 74, at 194.

162. Glancy, supra note 160, at 417.

163. Warren & Brandeis, supra note 74, at 207.

164. Id. at 205.

165. Glancy, supra note 160, at 417-19.

166. Warren & Brandeis, supra note 74, at 205.

167. Id. at 199, 205.

168. Glancy, supra note 160, at 417-19.

169. See Abernethy v. Hutchinson, 47 Eng. Rep. 1313, 1316-18 (1825).

170. Warren & Brandeis, supra note 74, at 211.

171. Zimmerman, supra note 54, at 699. "Warren and Brandeis were less interested in remedying particularized injuries than in giving individuals exclusive control over their 'inviolate personalit[ies].' " Id.

172. Warren & Brandeis, supra note 74, at 213.

173. In their article, Warren and Brandeis track the development of the law toward the recognition of this right and document the fact that, until Cooley's designation of the right to be let alone in 1880, there was no cognizable interest in personal information. Id. at 193-213.

174. See Zimmerman, supra note 54, at 699 n.250. The advances in personal information management technology now allow privacy to be alienated just like any other chattel. This difference now justifies a new "sense" of property concepts to protect the individual's interest in personae.

175. 64 N.E. 442 (N.Y. 1902).

176. Id. at 449. The decision was highly criticized, and Judge O'Brien, a member of the majority, felt obliged to write a justification of the court's decision in a law review article. See Denis O'Brien, The Right of Privacy, 2 COLUM. L. REV. 437 (1902).

177. One year later, the state legislature of New York enacted a statute which created the right in the individual to control the use of his "name, portrait, or picture" for "advertising purposes." 1903 N.Y. Laws ch. 132 §§ 1, 2.

178. N.Y. CIV. RIGHTS LAW §§ 50, 51 (McKinney 1992).

179. Id.

180. In Pasevich v. New England Life Ins. Co., 50 S.E. 68, 69 (Ga. 1905), the court decided that a plaintiff whose photograph and name had been used in advertisements without his consent had stated a cause of action.

181. Id. at 70.

182. See, e.g., RESTATEMENT (SECOND) OF TORTS § 867 (1977) (stating that "a person who reasonably and seriously interferes with another's interest in having his affairs known to others or his likeness exhibited to the public is liable to the other"). See also Peay v. Curtis Publishing Co., 78 F. Supp. 305, 309 (D.D.C. 1948); Reed v. Real Detective Publishing Co., 162 P.2d 133, 138-39 (Ariz. 1945); Melvin v. Reid, 112 Cal. App. 285, 290-91 (1931); Onassis v. Christian Dior-N.Y., Inc., 472 N.Y.S.2d 254, 260-61 (Sup. Ct. 1984); Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).

183. Prosser, supra note 34, at 389.

184. See discussion infra part IV.F. concerning the regulation of commercial interests, which analyzes the applicability of Prosser's torts to the protection of the electronic persona.

185. See COMPUTER-BASED NATIONAL INFORMATION SYSTEMS, supra note 14, at 76.

186. Id.

187. This was the origin of the Fair Information Practices Doctrine. See generally C.J. BENNETT, REGULATING PRIVACY: DATA PROTECTION AND PUBLIC POLICY IN EUROPE AND THE UNITED STATES (1992).

188. See infra App. for the respective effective dates of the statutes enacted to protect personal information.

189. 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987).

190. Id. The property being protected was actually Salinger's privacy. Salinger would have been unsuccessful in a suit alleging that the unauthorized publication of personal information in the letters had invaded his privacy.

The information [was] freely communicated and legitimately available to the public by its deposit into various libraries . . . . T]he information was not the sort of intimate and personal disclosure the publication of which would shock the conscience of the ordinary reader . . . . In short, the book contained information that tort law would not protect.

 Zimmerman, supra note 54, at 670-72.

191. See discussion infra part IV.F. on regulation of the commercial interest in the persona.

192. See generally LASSON, supra note 31; WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE 97-107 (1985).

193. Ex Parte Jackson, 96 U.S. 727 (1877).

194. Id. at 733.

195. 116 U.S. 616 (1886). Boyd is also important for the Supreme Court's recognition that, under certain circumstances, the protection of informational privacy under the Fourth Amendment and the privilege against self incrimination under the Fifth Amendment "run almost into each other." Id. at 630. More recently, however, the Fifth Amendment has been restricted to the protection of testimonial evidence. See, e.g., Schmerber v. California, 384 U.S. 757, 765 (1966). See also LAFAVE & ISRAEL, supra note 192, at 97-99.

196. Boyd, 116 U.S. at 630. Justice Bradley here quoted from Lord Camden's opinion in the English case of Entick v. Carrington, 19 Howell's State Trials 1029 (1762), where the seizure of certain books and papers under a general warrant was found to have been actionable as a trespass.

197. Boyd, 116 U.S. at 633.

198. Olmstead v. United States, 277 U.S. 438 (1928).

199. Id. at 464.

200. Justice Brandeis, who had co-authored the article The Right to Privacy, Warren & Brandeis, supra note 74, dissented in Olmstead. While that article was not cited, it was noted that several of its passages were included almost verbatim within the dissent. See Bloustein, supra note 142, at 976-77. See also TURKINGTON, PRIVACY CASES, supra note 145, at 67.

201. Olmstead, 277 U.S. at 473-74 (Brandeis, J., dissenting).

202. The same issue is the basis of an intrusion tort analysis. This similarity has prompted some commentators to argue that there is in reality little difference between constitutional and tort privacy claims, the injury to the individual being the same. See Turkington, Legacy, supra note 145, at 487-502. See discussion infra part IV.F.1.b. concerning the intrusion tort as a basis for protecting persona.

203. Cf. Harkey v. Abate, 346 N.W.2d 74 (Mich. Ct. App. 1983).

204. Clinton v. Commonwealth, 130 S.E.2d 437 (Va. 1963), rev'd, Clinton v. Virginia, 377 U.S. 158 (1964).

205. Stoner v. California, 376 U.S. 483 (1964).

206. Carroll v. United States, 267 U.S. 132 (1925).

207. Schmerber v. California, 384 U.S. 757 (1966).

208. After Olmstead, the Supreme Court largely maintained its adherence to the necessity of a trespass as a basis for invoking privacy protection. See, e.g., Goldman v. United States, 316 U.S. 129 (1942); On Lee v. United States, 343 U.S. 747 (1952); Silverman v. United States, 365 U.S. 505 (1961). For a complete history of this development, see generally 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE (1978).

209. 388 U.S. 41 (1967).

210. 389 U.S. 347 (1967).

211. Berger, 388 U.S. at 51.

212. Id. at 58-59.

213. Id. at 59.

214. Id. at 59-60.

215. Id. at 62-63.

216. Katz, 389 U.S. at 350.

217. Id. at 351-53.

218. LAFAVE & ISRAEL, supra note 192, at 97-98.

219. [T]he underpinnings of Olmstead and Goldman have been so eroded by our

subsequent decisions that the "trespass" doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.

 Katz, 389 U.S. at 353.

220. Referring to the majority's statement that the Fourth Amendment "protects people, not places," Justice Harlan argued, "[t]he question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a 'place.' " Id. at 361 (Harlan, J., concurring).

221. Id. at 364 (Black, J., dissenting).

222. See, e.g., United States v. Miller, 425 U.S. 435 (1976) (regarding the individual's expectation of privacy in his bank records); Smith v. Maryland, 442 U.S. 735 (1979) (concerning the individual's expectation of privacy in a governmental recording of numbers dialed from a person's telephone by use of a pen register). In both cases, the Court held that there is no legitimate expectation of privacy in information which the individual has voluntarily exposed to a third party. Consequently, the information seizure by the government was not violative of the Fourth Amendment. See Miller, 425 U.S. at 442; Smith, 442 U.S. at 745. For a critical review of the Court's position, see Tracey Maclin, Constructing Fourth Amendment Principles From the Government Perspective: Whose Amendment Is It, Anyway?, 25 AM. CRIM. L. REV. 669, 682-83 (1988).

223. See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489, 497 (1977).

The Fourth Amendment cannot be translated into a general constitutional right to privacy . . . . [T]he protection of a person's general right to privacy-his right to be left alone by other people-is, like the protection of his property and of his very life, left largely to the law of the individual States.

 Katz, 389 U.S. at 350.

Justice Brennan later encouraged the states to actively promote the protection of-among other constitutional rights-individual privacy rights under the Fourth Amendment. See Brennan, supra, at 502. The states have responded with a more liberal approach on these issues. See TURKINGTON, PRIVACY CASES, supra note 145, at 100; Symposium: The Emergence of State Constitutional Law, 63 TEX. L. REV. 959-1338 (1985); Developments in the Law, The Interpretation of State Constitutional Rights, 95 HARV. L. REV. 1324 (1982). See also State v. Hunt, 450 A.2d 952 (N.J. 1982).

224. See, e.g., United States v. White, 401 U.S. 745 (1971); Miller, 425 U.S. 435.

225. The restriction of the Fourth Amendment's protection of informational privacy in bank records resulted in the enactment of the Right to Financial Privacy Act in 1978 and in the more liberal protection of privacy by the States. See infra App. for diagram of the protection afforded by the Right to Financial Privacy Act. Four states have interpreted their constitutions as providing more privacy protection than that afforded by the federal Constitution. Those states are Michigan: People v. Beavers, 227 N.W.2d 511 (Mich. 1974), cert. denied, Michigan v. Beavers, 423 U.S. 878 (1975); Alaska: State v. Glass, 583 P.2d 872 (Alaska 1978), modified on reh'g, 596 P.2d 10 (Alaska 1979); Florida: State v. Sarmientao, 397 So. 2d 643 (Fla. 1981); and Louisiana: State v. Reeves, 427 So.2d 403 (La. 1982). With the exception of Alaska, these states expansively interpreted the right to privacy in construing the reasonableness of the state's search and seizure provisions. Alaska's view was based upon a specific state constitutional privacy provision. 583 P.2d at 881-82.

226. See discussion infra part V.

227. See infra App.

228. 381 U.S. 479 (1965).

229. Prosser, supra note 34, at 383.

230. 381 U.S. at 484-86 .

231. The distinction between informational privacy and autonomy was pointed out in Whalen v. Roe, 429 U.S. 589, 598-600 (1977). WESTIN, supra note 31, at 32-42.

232. Statutes and administrative regulations are two effective ways to control both commercial and government handling of information. See infra part V.D.

233. 429 U.S. at 601-02 .

234. Id. at 593.

235. Id. at 594.

236. See also Schulman v. New York City Health & Hospitals Corp., 335 N.Y.S.2d 343 (N.Y. Sup. Ct. 1972), vacated and remanded, 341 N.Y.S.2d 242 (N.Y. App. Div.), judgment reinstated, 346 N.Y.S.2d 920 (N.Y. Sup. Ct. 1973); Roe v. Ingraham, 480 F.2d 102 (2d Cir. 1973). In these cases, the claim was made that a person's constitutional right to privacy includes the character of his physical ailments and doctor's prescriptions for them. Consequently, the state must show a strong need before it can require the druggist's disclosure of that information. See Ingraham, 480 F.2d at 109; Schulman, 335 N.Y.S.2d at 348.

237. Whalen, 429 U.S. at 605.

238. This system was self-contained and maintained off line. Id. at 594.

239. See, e.g., Peninsula Counseling Center v. Rahm, 719 P.2d 926 (Wash. 1986) (where the information collected included the name and diagnosis of government funded mental health patients); Perkey v. Department of Motor Vehicles, 721 P.2d 50 (Cal. 1986) (where the government collected the fingerprints of drivers licensed by the state).

240. See, e.g., United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989).

241. In Buckley v. Valeo, 421 U.S. 1 (1976) (per curiam), plaintiffs argued that requiring the disclosure of names of minorities might have the chilling effect of deterring some people from making contributions to minority parties. The court said that these effects were too remote to overcome the public interest served by the collection of the information. This is contrary to the Court's prior ruling in NAACP v. Alabama, 357 U.S. 449 (1958), in which the Court struck down a requirement that the NAACP disclose its membership rosters.

242. See discussion infra part IV.B. concerning the individual's interest in the persona.

243. 15 U.S.C. §§ 1681-1681t (1994).

244. 5 U.S.C. § 552a (1994).

245. 20 U.S.C. § 1232g (1994).

246. 12 U.S.C. §§ 3401-3422 (1994).

247. 42 U.S.C. §§ 2000aa to 2000aa-12 (1994).

248. 44 U.S.C. §§ 3501-3520 (1988).

249. 5 U.S.C. § 552a(o) (1994).

250. 18 U.S.C. § 2710 (1994). Other statutes passed during this same time period provided protection against unwarranted invasions of the individual's privacy even though the protection of privacy was not their primary focus. Among them were the Crime Control Act of 1973, Pub. L. No. 93-83, 87 Stat. 197 (1973); the Tax Reform Act of 1976, Pub. L. No. 94-455, 90 Stat. 1520 (1976); and the Electronic Fund Transfer Act, 15 U.S.C. §§ 1693-1693r (1994).

251. 5 U.S.C. § 552 (1994).

252. For a view of the deficiencies, see infra App.

253. See infra App.

254. In a 1984 study by the Congressional Office of Technology Assessment (OTA), only three "values" were identified as being in conflict: commercial, private and public. See COMPUTER-BASED NATIONAL INFORMATION SYSTEMS, supra note 14, at 49.

255. See discussion infra parts IV.B.-D. concerning these interests.

256. Confidentiality deals with the ability of the individual to prevent disclosure of information to third parties. Privacy, on the other hand, deals with the ability of the individual to prevent collection of the information.

The statutes of some states specifically focus confidentiality on the protection of medical records of the individual as they relate to specific medical conditions. Forty-eight states have such confidentiality provisions. See, e.g., FLA. STAT. ANN. § 381.606 (West 1986) (tests for infectious diseases). California has the most comprehensive protection requiring the written permission of the patient before his medical records are disclosed. CAL. CIV. CODE § 56 (West 1985).

257. See discussion infra part IV.E.

258. See infra App.

259. See generally Rothfelder, supra note 1.

260. See infra App.

261. For a description of different standards of protection provided by federal statutes, see infra App.

262. From 1952 to 1980, the average computer system cost dropped from $1.26 to $0.0025 per 100,000 calculations. COMPUTER-BASED NATIONAL INFORMATION SYSTEMS, supra note 14, at 4 fig. 2 (citing OFFICE OF TECHNOLOGY ASSESSMENT AND PRESIDENT'S REORGANIZATION PROJECT, FEDERAL DATA PROCESSING REORGANIZATION STUDY: BASIC REPORT OF THE SCIENCE AND TECHNOLOGY TEAM 29-30 (1978)).

263. BELL, supra note 45, at 49-119.

264. There can be no interest in collecting or disclosing inaccurate information about the individual. NIMMER, supra note 100, at 16-26.

265. Under the Privacy Act, the following procedure is provided to contest the accuracy of information in a federal file. The individual may inspect the record and, if he finds it to be inaccurate, he may file a statement disagreeing with it. The agency has 10 days to respond. If the agency declines to change the record, the individual may request a review, at both the agency and judicial levels. 5 U.S.C. § 552a (1994). If correction is ordered, the agency is required to notify all persons who received a copy of the inaccurate record of the change. In like manner, the Fair Credit Reporting Act (FCRA) allows the individual to challenge inaccuracies found in reports about him. 15 U.S.C. § 1681 (1994). Unlike the Privacy Act, however, there are no requirements under FCRA that the agency notify all users of record of its correction. Unfortunately, under both statutes the correction process is begun only when the subject of the file discovers that the information is incorrect, which may be after the individual has been denied some benefit. See discussion infra part IV.

266. See, e.g., Koppes v. Waterloo, 445 N.W.2d 774 (Iowa 1989) (information in the report stigmatized the individual).

267. See, e.g., In re Bagley, 513 A.2d 331, 388 (N.H. 1986) ("Today governments collect great quantities of data about their citizens, data which, when stored in computers, potentially are available to large numbers of people. The dangers presented by governmental possession and use of inaccurate information are greater than ever. The principles of due process are our most effective shield against these dangers.").

268. See infra note 454 on Freedom of Information Act.

269. See American Fed'n of State, County & Mun. Employees v. County of Cook, 555 N.E.2d 361 (1990) (requiring disclosure of computer tape as public record under Illinois law; the terms of this open records law are contrasted to FOIA). See infra App.

270. See infra App.

271. "The connection . . . between informational privacy rights in constitutional law and torts is in the nature of the injury and not in the character of the actor that causes the injury. It is the loss of the condition of privacy and the intellectual tradition that is the foundation of privacy rights that links informational privacy rights in tort and constitutional law." Turkington, Legacy, supra note 145, at 490-91.

272. In 1973, the HEW Secretary's Advisory Committee on Automated Personal Data Systems: Records, Computers and the Rights of Citizens developed the stated consensus on the basic protection persons should be afforded in their personal information. It was called the code of Fair Information Practices. See GREENAWALT, supra note 97, at 57. See also infra App. (comparing several federal statutes' effectiveness in achieving these goals).

273. See generally Countryman, supra note 30.

274. GREENAWALT, supra note 97, at 6.

275. Id. at 7.

276. SMITH, supra note 1, at xi-xiii.

277. MICHAEL R. RUBIN, PRIVATE RIGHTS, PUBLIC WRONGS 45 (1988).

278. The government's collection of information for research on trends, and the development of statistics, does not generally impact on privacy issues since the information does not need to be tied to a specific individual. Only the collection of information on a specific individual raises privacy concerns. This would include such information as would be necessary for the assessment of a specific individual's eligibility for government benefits; qualifications for employment; criminal records; draft records; real estate transactions; marriage; birth and death records; automobile registration; and tax liability. See NIMMER, supra note 100, § 16.09.

279. Approximately 40 states sell the information you provide when registering a vehicle or applying for a license. Typically this information includes your age, sex, social security number and, through deduction, your income range. Big Brother May Be Closer Than You Thought, BUS. WK., Feb. 9, 1987, at 85.

280. See infra App.

281. See discussion infra concerning the conflict between the policy of open government and the individual's desire to keep his transactions to himself.

282. The federal government maintains on the average 18 files on each citizen, adult and child. SMITH, supra note 1, at 82.

283. RICHARD F. HIXSON, PRIVACY IN A PUBLIC SOCIETY: HUMAN RIGHTS IN CONFLICT 209 (1984).

284. For a discussion on the interests competing for use of the persona, see infra part IV.A; see infra App.

285. Id.

286. Charles A. Reich, The New Property, 73 YALE L.J. 728, 737-38 (1964).

287. See Bell, supra note 46, at 32.

288. Id. See also WESTIN, supra note 31, at 158-68.

289. See Bell, supra note 46, at 34.

290. Id. at 161. See also Jonathan P. Graham, Computers and the Commercial Dissemination of Personal Information, 65 TEX. L. REV. 1395, 1396 (1987).

291. There is some authority for the position that the protection of personal information is not an issue of privacy, but rather one of confidentiality. All of these interests can be characterized as interests in privileged access to the information. Privileged access is more a question of confidentiality than it is of privacy. "Because privacy protects intimacy, personal information that is not of the most intimate nature is not so much private as it is confidential." Privacy and Computers, supra note 123, at 1407 (citing Gerety, supra note 39, at 282). "Gerety contrasts the concepts of privacy and confidentiality. In his view 'specially private information includes only information that is necessary to the intimacies of our personal identities for standards of intimacy, unlike standards of confidentiality, cannot be created simply by mutual agreement.' " Id.

292. Personal autonomy issues arise when the individual's choice of activity conflicts with the government's right to regulate the activity of its citizens. While the choices of life style and choice of association do "tell" about the specific individual, this is not exactly the same issue as the protection of informational privacy of the persona. Privacy, in the autonomy sense, has been used as the basis for recovery for such diverse intrusions as door-to-door solicitations (Saia v. New York, 334 U.S. 558 (1948); Kovacs v. Cooper, 336 U.S. 77 (1949)), and the decision on whether or not to have an abortion (Roe v. Wade, 410 U.S. 113 (1973)). In neither situation has information about the individual been disclosed. Similarly, a search of the marital bedroom invades the privacy of the family independently of any information discovered there. GREENAWALT, supra note 97, at 4.

293. While there is no recognized general federal constitutional right to privacy, in 1986 it was noted that at least 10 states did provide such a right. See SMITH, supra note 116, at 2. See also Perkey v. Department of Motor Vehicles, 721 P.2d 50, 55-56 (Cal. 1986). Not all matters of sexual choice have received constitutional protection. See, e.g., Bowers v. Hardwick, 478 U.S. 186 (1986).

294. Data collection on the part of the government was denied in NAACP v. Alabama, 357 U.S. 449 (1958). There the Court invalidated a requirement that the NAACP disclose membership rosters on First Amendment freedom of association grounds. See supra part IV.A; infra App.

295. See infra App. According to the Office of Management and Budget (OMB), the approximately 7,000 federal data banks hold personal information files on 3.8 billion identifiable individuals. SMITH, supra note 1, at 82. Only half of these are kept to evaluate government programs and to determine the individual's eligibility for benefits. Id.

296. See discussion infra part IV.A. concerning how the competing interests have framed the discussion. See also infra App.

297. 88 Stat. 1896 (1974) (current version at 5 U.S.C. § 552a (1994)).

298. "Routine use" means that a record may be disclosed for a purpose which is compatible with the purpose for which it was collected. 5 U.S.C. § 552a(a)(7) (1994). While these routine uses are published annually in the Federal Register, the importance of this disclosure may not be apparent to the general public.

299. 44 U.S.C. § 3501 (1988).

300. See Computer Matching and Privacy Protection Act of 1988, 102 Stat. 2507-14 (1988) (current version at 5 U.S.C. § 552a(o) (1994)). See also infra App.

301. The statute is strengthened by the mandated creation of Data Integrity Boards for every agency participating in a matching program. The board approves matching programs requested by the agency and makes public reports concerning the matching program conducted by the agency. 5 U.S.C. § 522a.

302. 5 U.S.C. § 552a(a)(8)(A).

303. 5 U.S.C. § 552a(a)(8)(B).

304. 5 U.S.C. § 552a(o)(1). The agreement gives the recipient a great deal of information concerning the purpose and authority for the program; the justification for the program; a description of what records will be matched; the procedures to be used to verify information; and the procedures to be followed to notify individuals that the information will be subjected to matching. Id.

305. 5 U.S.C. § 552a(o)(1)(E) (1994).

306. See Langan, supra note 122, at 146.

307. See NIMMER, supra note 100, at 16-27.

308. Jaffees v. Secretary of Health Educ. & Welfare, 393 F. Supp. 626 (S.D.N.Y. 1975).

309. Id. at 629.

310. Id.

311. See, e.g., Welfare Recipients v. King, 474 F. Supp. 1374, 1387 (D. Mass. 1979); Greater Cleveland Welfare Rights Org. v. Bauer, 462 F. Supp. 1312, 1312-13 (N.D. Ohio 1978); Pichler v. Jennings, 347 F. Supp. 1061, 1068 (S.D.N.Y. 1972); United States v. Liddy, 354 F. Supp. 217, 221 (D.D.C. 1973).

312. See NIMMER, supra note 100, at 16-30.

313. JOHN M. CARROLL, CONFIDENTIAL INFORMATION SOURCES: PUBLIC AND PRIVATE 47 (2d ed. 1991).

314. 44 U.S.C. §§ 3501-3520 (1988). See also infra App.

315. See Right to Financial Privacy Act, 12 U.S.C. §§ 3402-3409 (1994).

316. See 12 U.S.C. § 3402 (1994).

317. See 20 U.S.C. § 1232g (1994).

318. A bipartisan bill, the Medical Records Confidentiality Act of 1995, was proposed as S. 1360, 104th Cong., 1st Sess. (October 24, 1995).

319. Examples of this phenomenon include public support of libraries, schools and museums; a tradition of academic freedom and a system of openly scholarly publication; the guarantees of the First Amendment; and freedom of information laws.

320. See, e.g., Techniscan Corp. v. Passaic Valley Water Comm'n, 549 A.2d 1249 (N.J. 1988) (holding that a company searching public records for profit has the same right of access as any other party under the state's right-to-know law).

321. NIMMER, supra note 100, at 16-39. This relationship is not necessarily voluntary. See, e.g., Department of Justice v. Tax Analysts, 442 U.S. 136 (1989). The Supreme Court held that a commercial publishing house was entitled to weekly access in an ongoing publication. The costs of the enterprise are apparently shared by the government and the commercial recipient. Id.

322. In Paul v. Davis, 424 U.S. 693, 713 (1976), the issue was whether the general constitutional law or more specific statutes or regulations preclude a disclosure that the government desires to make. The Supreme Court concluded that no privacy right was infringed by dissemination of a list of active shoplifters from arrest records. Collection and distribution of those records did not disclose otherwise confidential information. See also Minnesota Medical Ass'n v. State, 274 N.W.2d 84, 91-94 (Minn. 1978); State v. Harder, 641 P.2d 366 (Kan. 1982) (disclosure of abortion reimbursement records was not a violation of privacy rights of either the doctors or the patients where there was no showing that disclosure would alter the actions of the doctors).

323. 5 U.S.C. § 552a (1994).

324. See supra note 91 and accompanying text.

325. NIMMER, supra note 100, at 16-27 to 16-28.

326. The exemptions are as follows: 1) national security material; 2) material related solely to internal personnel rules and practices; 3) documents and information exempted by other statutes; 4) information that pertains to "trade secrets and commercial or financial information"; 5) "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency"; 6) personnel, medical and other files, "the disclosure of which would constitute a clearly unwarranted invasion of personal privacy"; and 7) records compiled pursuant to a law enforcement investigation. These records are exempt only to the extent disclosure would interfere with the enforcement proceedings or a fair trial, constitute unwarranted invasions of personal privacy, disclose the identity of a confidential source or investigatory techniques, or endanger the safety of enforcement personnel. 5 U.S.C. § 552(b) (1994).

327. 489 U.S. 749, 750-51 (1989) (citing 5 U.S.C. § 552(b)(7)(C) (1994)).

328. Id.

329. See, e.g., Painting & Drywall Work Preservation Fund, Inc. v. Department of HUD, 936 F.2d 1300 (D.C. Cir. 1991); Reed v. NLRB, 927 F.2d 1249 (D.C. Cir. 1991) (disclosure of names and addresses of employees eligible to vote in union election declared to be exempt as a clearly unwarranted invasion of personal privacy); Oliva v. United States, 756 F. Supp. 105 (E.D.N.Y. 1991) (disclosure of social security numbers and birth dates was unwarranted privacy invasion).

330. See, e.g., Sidis v. F-R Publishing Corp., 113 F.2d 806 (2d Cir. 1940). Plaintiff, William James Sidis, was a child prodigy. He lectured mathematicians on the fourth dimension at age 11 and graduated from Harvard at 16 years of age. During adolescence, however, Sidis withdrew entirely from the limelight. Several years later, the New Yorker found Sidis and published a story about his life in obscurity. Despite its terrible effect upon Sidis, the court found that there was no cause of action because the story would not be objectionable to the ordinary person.

331. Warren & Brandeis, supra note 74, at 204. See also Zimmerman, supra note 54, at 713 (arguing that what is notable about Warren and Brandeis is that they advocated the right of the individual to "recover in a court of law for the publication of accurate information about themselves, simply for the reason that such publicity was unwarranted"). See also RESTATEMENT (SECOND) OF TORTS § 652 (1977).

332. Legi-Tech, Inc. v. Keiper, 766 F.2d 728 (2d Cir. 1985).

333. "[M]odern Americans inhabit a social environment virtually composed of formal organizations. The main source of . . . privacy controversies . . . has been the demands of formal organizations for information on the people with whom these organizations must deal." JAMES RULE ET AL., THE POLITICS OF PRIVACY 30 (1980).

334. "For the written records of one's life, in modern America and other developed countries, shape the treatments one receives by organizations. And the role of organizations, both private and public, is powerful indeed." Id. at 2.

335. See infra App., at row 7.

336. RULE, supra note 60, at 208-12.

337. Culnan, supra note 28, at 346.

338. Id.

339. See generally PRIVACY PROTECTION STUDY, supra note 1.

340. See supra part II. "The growth of an enterprise, for example, requires specialization and differentiation and very different kinds of control and management systems when the scales move from, say, $10 million, to $100 million to $1 billion." Bell, supra note 46, at 32.

341. Jonathan P. Graham, Privacy, Computers, and the Commercial Dissemination of Personal Information, 65 TEX. L. REV. 1395, 1396 (1987).

342. Warren & Brandeis, supra note 74, at 196.

343. Miller, supra note 30, at 174. For other examples of this tort, see Von Thodorovich v. Franz Josef Beneficial Ass'n, 154 F. 911 (E.D. Pa. 1907); Stryker v. Republic Pictures Corp., 238 P.2d 670 (Cal. Ct. App. 1951); Edison v. Edison Polyform & Mfg. Co., 67 A. 392 (N.J. 1907).

344. See Young v. Greneker Studios, 26 N.Y.S.2d 357 (N.Y. Sup. Ct. 1941).

345. See supra part VI. See also GREENAWALT, supra note 97, at 47.

346. Miller, supra note 30, at 174.

347. Stephen Phillips, Never Mind Your Number-They've Got Your Name, BUS. WK., Sept. 4, 1989, at 81.

348. Ward v. Superior Ct., 3 Comp. L. Serv. Rep. 206 (1972). This tort could be used by the database owner to redress nonauthorized access to electronic personae included in a database.

349. See, e.g., Young v. Western & A.R. Co., 148 S.E. 414 (Ga. App. 1929); Newcomb Hotel Co. v. Corbett, 108 S.E. 309 (Ga. App. 1921); Prosser, supra note 34, at 389-90.

350. Rhodes v. Graham, 37 S.W.2d 46 (Ky. 1931) (eavesdropping by use of a wiretap); Brex v. Smith, 146 A. 34 (N.J. 1929) (considering the issue of looking at an individual's bank account without his consent).

351. Id.

352. Prosser, supra note 34, at 390-91.

353. Pearson v. Dodd, 410 F.2d 701 (D.C. Cir. 1969).

354. Id. at 704; see also MILLER, ASSAULT, supra note 30, at 174-175.

355. 410 F.2d at 704.

356. In another case, the court considered several allegedly intrusive activities by General Motors and its agents into the privacy of consumer advocate Ralph Nader. Nader v. General Motors Corp., 307 N.Y.S.2d 647 (N.Y. 1970). These included having Nader accosted by young women making illicit proposals. Id. at 650. The court decided the case on narrow grounds, finding all of the conduct to be offensive but only the telephone tap and the surveillance to be actionable as intrusion torts, since only those activities could be said to be for the purpose of gathering information of a private and confidential nature. Id. at 654.

357. UNIFORM TRADE SECRETS ACT, § 1.2(ii)(B)(I) (1985).

358. Warren & Brandeis, supra note 74, at 195-197. See also Prosser, supra note 34, at 392.

359. "It is an invasion of the right [against the public disclosure of private facts] to publish in a newspaper that the plaintiff does not pay his debts." Prosser, supra note 34, at 393 (citing Trammell v. Citizens News Co., 148 S.W.2d 708 (Ky. 1941)).

360. The dissemination of the information to an unauthorized but consistent purpose user should constitute a violation. See MILLER, ASSAULT, supra note 30, at 184-85.

361. Prosser, supra note 34, at 394.

362. Rothfelder, supra note 2, at 82.

363. See MILLER, ASSAULT, supra note 30, at 185-87.

364. ALDERMAN & KENNEDY, supra note 18, at 325. In response to this killing, California enacted legislation to restrict the disclosure of this type of information. Congress has enacted a law, to become effective in 1997, which will limit the disclosure of driving and registration records. Id.

365. See Sidis v. F-R Publishing Corp., 113 F.2d 806 (2d Cir. 1940).

366. See supra part III.B.

367. MILLER, ASSAULT, supra note 30, at 177.

368. Prosser, supra note 34, at 393.

369. The privileges are twofold: 1) newspapers are privileged to print the newsworthy, and 2) the subject has consented to the disclosure. Prosser, supra note 34, at 412, 419.

370. WILLIAM J. PROSSER, LAW OF TORTS 776 (5th ed. 1984).

371. Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985). While other federal statutes allow the individual to correct inaccurate information in records held about him, only the Fair Credit Reporting Act and the Privacy Act deal directly with protecting the individual's rights in these records. The other statutes are the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692o (1994), which regulates the manner in which debt collectors can contact the debtor, and the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691-1691f (1994), which restricts the type of information which can be collected.

372. Greenmoss, 472 U.S. at 763.

373. Martin v. Johnson Publishing Co., 157 N.Y.S.2d 409 (N.Y. Sup. Ct. 1956). In this case, the plaintiff's picture was used with a story captioned: "Man Hungry. She had a good man but that wasn't enough . . . " Id. at 410. Miller suggests that this tort could be expanded to the personal data file that has become inaccurate due to the age of the information or has been reported out of context. MILLER, ASSAULT, supra note 30, at 184-85.

374. But see Austin v. Bankamerica Serv. Corp., 419 F. Supp. 730 (N.D. Ga. 1974). In that case, Austin was denied credit on two occasions by the First Atlanta Bank. As its reason the bank cited a credit report which stated that Austin was a named defendant in a lawsuit. The report failed to state that Austin was named in this suit only in his official capacity as Deputy Marshal for DeKalb County. The court found for the defendant, finding that the report was true. This "technically correct" view of accuracy was not followed in Pinner v. Schmidt, 805 F.2d 1258, 1262-63 (5th Cir. 1986).

375. See, e.g., Pasevich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905).

376. For a discussion of solutions to the problem, see infra part V.

377. See Sheldon Halpern, The Right of Publicity: Commercial Exploitation of the Associative Value of Personality, 39 VAND. L. REV. 1199, 1200 (1986).

378. Id. at 1200-01.

379. The doctrine is said to have been created by the Second Circuit in Haelen Lab., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir.), cert. denied, 346 U.S. 816 (1953). SHELDON HALPERN, THE LAW OF DEFAMATION, PRIVACY, PUBLICITY AND "MORAL RIGHTS," CASES AND MATERIALS ON PROTECTION OF PERSONALITY INTERESTS 504 (1988).

380. See Crump v. Beckley Newspapers, 20 S.E.2d 70 (W. Va. 1983).

381. HALPERN, supra note 379, at 491.

382. See, e.g., Haelen Lab., 202 F.2d at 868-69.

383. Id. at 867.

384. Id. at 868.

385. Id.

386. Id. See infra part V. (concerning the inapplicability of this theory to the electronic persona).

387. Peter L. Felcher & Edward L. Rubin, Privacy, Publicity, and the Portrayal of Real People by the Media, 88 YALE L.J. 1577, 1593 (1979).

388. There are three primary types of database products: those deriving value from their highly creative content; those deriving value from the organization of facts as they reflect the compiler's judgment as to relevance for potential users; and those deriving value from their comprehensive coverage of relevant facts. NIMMER, supra note 100, at 15-24. The electronic persona could be a part of a database of the second or third type.

389. Id. at 15-25 (citing Feist Publications v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)); Victor Lalli Enters. v. Big Red Apple, Inc., 936 F.2d 671 (2d Cir. 1991); BellSouth Advertising & Publishing Corp. v. Donnelly Info. Publishing, Inc., 999 F.2d 1436 (11th Cir. 1993) (en banc), cert. denied, 114 S. Ct. 943 (1994).

390. See, e.g., Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865, 1868-70 (1990); Robert C. Denicola, Copyright in Collections of Facts: A Theory for Protection of Nonfiction Literary Works, 81 COLUM. L. REV. 516, 524-35 (1981).

391. See Copyright Act of 1976, 17 U.S.C. § 101 et seq. (1994). If the compiler offers the database in an on-line service, however, the value of the database would be in the compiler's ability to control access to the product. NIMMER, supra note 100, at 15-24.

392. See supra part V.A.

393. "Works of authorship" which would be protected include literary works, musical works, dramatic works, choreographic works, pictorial, graphic and sculptural works and sound recordings. This right is limited in duration to the life of the author plus 50 years for individuals and the period of 75 years from the first publication or 100 years from creation, whichever expires first, for works made for hire or by employees. 17 U.S.C. § 302(a)-(c) (1994). See also Aldon v. Spiegel, 738 F.2d 548 (2d Cir. 1984).

394. 17 U.S.C. § 102 (1994).

395. The owner of a copyrighted thing acquires through copyright no property in the name by which it is designated. Lone Ranger v. Cox, 39 F. Supp. 487, rev'd on other grounds, 124 F.2d 650 (1941).

396. See NIMMER & NIMMER, supra note 5, at 1-22 to 1-25.

397. Some authorities would protect personal identity as a form of unfair competition. See, e.g., RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 46 (1985). A full discussion of these issues is beyond the scope of this article. By analogy, however, copyright does suggest some solutions for allowing the individual to assert a property interest in the persona. See infra part V.

398. Post, supra note 24, at 648.

399. Heneghan & Wamsley, supra note 4, at 183.

400. See supra part IV.

401. Id.

402. Personal property is generally divisible into two types: 1) corporeal personal property, which includes movable and tangible things; and 2) incorporeal property, which consists of such rights as stocks, shares, patents and copyrights. RAY A. BROWN, THE LAW OF PERSONAL PROPERTY 9-12 (1975).

403. The difficulty is reflected in the complicated system of patents and copyright, which has been developed to protect against the unwarranted use of information as property. Porat, supra note 12, at 21.

404. Certain types of information are clearly public goods, such as television

broadcasts and libraries. The only "price" that can be exacted is one of congestion or time costs faced by the library patron, or the (negligible) effect of people moving into regions that receive better [television] reception. Other types of information are strictly private goods, in that if one person owns them, the benefit to all others is zero.

 Id.

405. Id. See supra introduction to part V.

406. See Radin, supra note 54, at 957-59.

407. This has been the history of the creation of all forms of property. See ROGER A. CUNNINGHAM, ET AL., THE LAW OF PROPERTY 1-29 (1984).

408. Computer technology, which dramatically facilitates the transfer of this commodity, has transformed the world into a global village in which the domain of strictly private action is steadily being eroded. See Porat, supra note 12, at 19-22.

409. Since this common resource is managed by use of a means of interstate commerce (telephone, satellite, etc.), any statute regulating this resource must be federal to ensure consistent treatment. See infra part V.D.

410. Prosser, supra note 34, at 408.

411. See discussion supra part IV.F.1.a. concerning use of the appropriation tort to protect the persona. The appropriation tort stands between personal tort and property rights concepts. RESTATEMENT (SECOND) OF TORTS § 652 cmt. a (1977); MILLER, ASSAULT, supra note 30, at 23.

412. In the following cases, the database is considered to be a good: Daniel v. Dow Jones, 520 N.Y.S.2d 334 (N.Y. 1987); Gutter v. Dow Jones, 490 N.E.2d 898 (Ohio 1986). In both instances, the plaintiff sought compensation for sustaining damages due to reliance on an inaccurate database.

413. See discussion supra parts IV.A.-C.

414. See infra App.

415. See discussion supra part IV.D. concerning the tension between the public's interest in the publication or disclosure of the information and the individual's right to prevent disclosure.

416. A compilation of facts can be copyrighted even though the facts themselves can not. 17 U.S.C. § 10 (1994); Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991); West Publishing Co. v. Mead Data Cent., Inc., 799 F.2d 1219 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987).

417. ANNE W. BRANSCOMB, WHO OWNS INFORMATION? 174-86 (1994).

418. Banks maintain a number of records on transactions between themselves and the federal government pursuant to federal nondiscriminatory policies in credit and mortgage applications. See, e.g., Equal Credit Opportunity Act, 15 U.S.C. §§ 1691-1691f (1994).

419. Graham, supra note 290, at 1397-1402.

420. Id.

421. See, e.g., Equal Credit Opportunity Act, 15 U.S.C. §§ 1691-1691f (1994) (restricts the collection of information which could be used to discriminate against the individual on the basis of race, religion, sex or marital status in the granting of credit).

422. United States Dep't of Justice v. Reporters for Freedom of the Press, 489 U.S. 749 (1989).

423. Id. at 773-74, 764. See 5 U.S.C. § 552(b) (1994).

424. See discussion supra part IV.F.3. (concerning copyright as protection of commercial interests in the persona). See also PAUL GOLDSTEIN, COPYRIGHT 85-98 (1989); UNIFORM TRADE SECRETS ACT, supra note 357, at 434-36.

425. Warren & Brandeis, supra note 74, at 193.

426. See WESTIN, supra note 31, at 158-63.

427. See infra App. (detailing the number of statutes requiring contextual accuracy).

428. For example, a parcel of property may be owned in fee simple by X, with a life estate in Y, a lease of five years in Z, and a sublease in AA and rights to farm in BB and mineral extraction rights in CC. The same phenomenon is recognized in personal property as bailment. We term the person in whom the various rights in a thing normally and customarily reside the "owner" thereof, and one of the attributes of his ownership is the power to confer upon others one or more of his various interests in it while retaining others. BROWN, supra note 402, at 7.

429. See discussion infra part V. (concerning ranking of these uses); Trubow, supra note 8, at 821-22 (discussing the changing nature of the relationship between the interest in disclosure and the interest in maintaining the privacy of the information "depending on the role of the party seeking disclosure or privacy").

430. See discussion supra part III.A.

431. See discussion supra part V.B.

432. NIMMER & NIMMER, supra note 4, at 1-22 to 1-24.

433. See Harry Kalven, Jr., Privacy in Tort Law: Were Warren and Brandeis Wrong? 31 LAW & CONTEMP. PROBS. 326, 331 (1966); cf. James M. Treece, Commercial Exploitation of Norms, Likenesses, and Personal Histories, 51 TEX L. REV. 637, 643 n. 28 (1973) (arguing that payment for the use of the persona can only be premised upon the existence of a legally mandated payment).

434. Ideas are considered to be in the public domain and uncopyrightable. See 17 U.S.C. § 102(b) (1994). See also NIMMER & NIMMER, supra note 4, at § 16.01. This concept applies here, since a great deal of the information from which the persona is collected comes from "public" or free sources.

435. The term "individual" would be broadly defined to include natural persons, groups, classes, associations or government.

436. At common law, a breach of the warranty of authority would subject the unauthorized agent to liability on a contract entered into purportedly on behalf of the principal. See Albert S. Abel, Some Spadework on the Implied Warranty of Authority, 48 W. VA. L. REV. 96, 110 (1942).

437. Cf. Fair Health Information Practices Act of 1994, H.R. 4077, 103d Cong., 2d Sess. (1994). Proposed by Rep. Gary Condit (D-Calif.) in March 1994, the Act became an amendment to President Clinton's Health Security Act, H.R. 3600, 103d Cong., 1st Sess. (1994). The Act suggested naming insurance companies as trustees on behalf of the subject of their records.

438. Unlike the FCRA, the Privacy Act does allow the individual to request information pertaining to him. 5 U.S.C. § 552a(d)(1) (1994). See infra App.

439. Personae should not be based upon the fact that criminal charges were at one time filed against an individual, but later dropped. See Brown v. Jones, 473 F. Supp. 439 (N.D. Tex. 1979); see also In re Bagley, 513 A.2d 331, 340 (N.H. 1986) (discussing the need to notify persons who have criminal records or charges filed, stored and later used without their knowledge). These cases take the position that preliminary matters which are potentially embarrassing cannot be disclosed (i.e., arrest without conviction or the filing of a lawsuit without finding of liability). Wisconsin v. Constantineau, 400 U.S. 433 (1971) (the individual should be afforded an opportunity for a hearing before highly derogatory information is generally disclosed). See also NIMMER, supra note 100, at 16-26.