IUS - Prong 1

What are the elements of IUS?

1. Defendant Intentionally Intrudes (Physically or Otherwise) WITHOUT Consent

2. Upon Plaintiffs’ Solitude/Seclusion or Private Affairs or Concerns

3. In A Manner That is Highly Offensive to a Reasonable Person

How should you analyze Element 1 of IUS on the exam?

Element 1:

1. Overarching Rule

2. Subrules: What is D Doing, What is P Doing, Where is P? (including Nader)

3. Application of subrules paired with each rule statement raised by the specific facts

4. Scope of Consent Analysis

5. Consent by Fraud 3 Step Analysis

6. CONCLUSION on Element 1

What are the overarching rules for Element 1 of Intrusion Upon Seclusion (intrusion)?

1. IUS is concerned with the act of gathering information, not publication.

2. A physical intrusion may occur through a trespass, while an otherwise intrusion may occur through the use of technology, such as taking a photograph, video recording, or audio recording.

How are the subrules organized for Element 1 of IUS?

1. What is D Doing?

2. What is P Doing?

3. Where is P?

What is D Doing: Subrules

1. Unreasonably Intrusive (Nader Minority): Conduct must be "unreasonably/truly intrusive" and designed to elicit info not available through normal inquiry or observation.
   

2. Nader Minority: Intrusion is only actionable if done with the purpose of gathering CONFIDENTIAL information (e.g. banking info).

2. Majority: Intrusion must be for the purpose of gathering PRIVATE information (e.g. sleeping on couch).

What is “confidential information” from Nader?

Information that isn’t available through normal inquiry or observation and not voluntarily revealed to another.

What is Plaintiff Doing: Subrules

Voluntarily Revealing (Nader): No intrusion where info is left open to public view or voluntarily revealed to others.

Where is Plaintiff: Subrules

Public Space ≠ Public Info: A person does not make everything public merely by being in a public place. (e.g. standing in line at bank doesn’t mean someone taking picture of your banking information isn’t intrusion).

Mere Observation: Observation in a public place does not typically amount to invasion of privacy.

Interviewing P's acquaintances (Nader). Intrusion?

NO — P assumes risk person would breach confidentiality

Using prostitutes for entrapment (Nader). Intrusion?

NO — not for gathering confidential info

Harassing phone calls / surveillance (Nader). Intrusion?

NO — not for gathering confidential info.

High volume of harassing phone calls / surveillance. Intrusion?

YES

Wiretapping/photographing/video recording (Nader). Intrusion?

YES

Overzealous public surveillance (hovering close enough to a bank customer to see the denominations of currency being withdrawn) (Nader). Intrusion?

Possibly (depends on whether P revealed)

Receiving stolen information (Dodd). Intrusion?

NO

Obtaining trash from outside bin (Danai). Intrusion?

YES (though fails on Element 2)

Obtaining trash from office bin (Danai). Intrusion?

YES

Filming accident scene on a public road (Shulman). Intrusion?

YES

Placing mic on nurse to record nurse-patient conversation (Shulman). Intrusion?

YES - use of technology to intercept private talk

Entering backstage with camera. Intrusion?

YES — camera exceeded the scope of physical permission

Physically entering/trespassing into a home via fraud (Dietemann). Intrusion?

YES — fraud was ineffective because D recorded private activities

Looking into upstairs window w/ binoculars (Nader). Intrusion?

YES — technological/overzealous surveillance

Using concealed mics or cameras to record in a home (Dietemann). Intrusion?

YES — technological invasion of a private sanctuary.

Surreptitious electronic recording (Dietemann). Intrusion?

YES — technology used as a "plus factor" for liability

Opening private mail / searching safe or wallet. Intrusion?

YES — classic examples of physical/otherwise intrusion

Using forged court order to inspect documents. Intrusion?

YES — intentional act without valid consent

Filming inside helicopter (private ambulance) (Shulman). Intrusion?

YES — physical trespass into vehicle plus filming

Observing person on public street / in grocery store (Nader). Intrusion?

NO — mere observation is not an intrusion

Naturally overhearing conversation (unaided ears) (Shulman). Intrusion?

NO — only technological amplification triggers the prong

Under Element 1, what are the broad implications for the Consent component?

1. Scope of Consent

2. Consent by Fraud

Scope of Consent: Rules

1. Consent is a DEFENSE. Consent is limited to the specific terms of the invitation. Exceeding the scope = intrusion.

2. Withdrawal: Consent can be revoked at any time. Once revoked, D’s continued presence or activity becomes an intrusion.

• Example: Consent to physical entry does NOT imply consent to being recorded. (Berosini)

Scope of Consent: Example

Entering a bedroom when only invited into the living room

What are the three steps for Consent by Fraud analysis?

1. Where Are We?

2. What is P’s Status?

3. THE POSNER TEST — Did the lie harm the interest the tort protects?

Consent by Fraud: Main Rule

Would P have allowed/wanted D to enter if she had known the truth?

Step 1: Where Are We - Subrules

1. Semi-Public Sphere/Public/Business Space: Low expectation of privacy because P wanted the public to come in→ Fraud likely EFFECTIVE (D wins)

• Private Sanctuary (e.g. home): Maximum expectation of privacy → Fraud likely VOID (P wins)

Step 2: What is P’s Status - Subrules

Professional (inviting the public for business, weighs in favor of no intrusion - Desnick) or Non-Professional (performing services at home, weighs in favor of intrusion)

Step 3: THE POSNER TEST — Did the lie harm the interest the tort protects? - Subrules

If the lie was COLLATERAL (motive/feelings): → Fraud is EFFECTIVE (D wins). P assumed the risk that the guest was a "fake friend".

If the lie was ESSENTIAL (nature of interaction): → Fraud is VOID (P wins). D used a lie to gain access for a purpose that violates the sanctuary of the home (e.g., meter reader, competitor stealing secrets).

Public Behavior, which is what anyone in that room could see, makes the fraud likely effective. (e.g., A doctor talking to a patient in a waiting room)

Secret/Confidential Behavior, which is what only a trusted person would see, makes the fraud void. (e.g., A doctor performing surgery).

Restaurant critic poses as a customer. Is consent by fraud effective?

Yes

A "friend" who secretly dislikes you but acts civilly at dinner. Is consent by fraud effective?

Yes

Person goes to car dealer claiming he can find a lower price elsewhere. Is consent by fraud effective?

Yes

Busybody poses as meter reader to enter a home. Is consent by fraud effective?

No

A competitor poses as customer to steal trade secrets. Is consent by fraud effective?

No

Woman has sex with a man who concealed an STD. Is consent by fraud effective?

No