In August, a Kansas news story brought attention to privacy in regard to physical mail—specifically, postcards. A Kansas man, only identified as Scott, received a postcard from the Kansas Department of Children and Families (DCF) as a reminder to pay child support. He claims that sending this reminder regarding child support on a postcard, rather than a sealed letter, is an “invasion of privacy.” DCF, however, stated that child support records are not private since they are available through public court records. Furthermore, DCF asserted that these postcards are only sent to the non-custodial parents who are delinquent on payments.
It’s unclear from the local news article whether Scott intends to bring suit for the alleged invasion of privacy; it’s quite possible that he was merely using the phrase in a general sense. However, this story raises several interesting issues regarding “invasion of privacy” in the context of unfavorable information being disclosed: Would an individual in this type of situation have grounds to bring a claim for invasion of privacy? Additionally, what sort of oversight is there for mail carriers maintaining confidentiality?
What is “invasion of privacy”?
The common law tort of “invasion of privacy,” as set forth in the Restatement (Second) of Torts § 652A, is framed under four claims: (1) intrusion upon seclusion, (2) appropriation of name or likeness, (3) public disclosure of private facts or (4) false light. Generally, most states recognize “invasion of privacy” according to these four categories.
In Scott’s case, he acknowledged that he does in fact pay child support. Therefore, the most likely claim for invasion of privacy he might allege is public disclosure of private facts. Under this claim, the private life of a person that is publicized must be of a kind that (a) would be highly offensive to a reasonable person and (b) not a legitimate concern to the public. In short, the matter that is disclosed must be private and not already available to the public.
For Scott, the requirement that a “private fact” was disclosed is not satisfied. As DCF stated, the fact that Scott was paying child support is publicly available through court records. In Kansas, as with most other states, court records are considered “public record,” and public access to those records promotes public policy. As a result, the disclosure of Scott’s obligation to pay monthly child support does not provide grounds for Scott to bring a claim for public disclosure of private facts as an “invasion of privacy.”
Are postal employees restricted from reading mail or required to keep mail confidential?
If a person in Scott’s position would not likely have success bringing civil action for invasion of privacy, how does the role of a mail carrier play into the circumstances? After all, Scott expressed concern that the postcard reminder would lead to his community learning about his need to pay child support.
Postal employees are bound by certain federal regulations. Furthermore, according to the United States Postal Service’s Administrative Support Manual:
The Postal Service must preserve and protect the security of all mail in its custody from unauthorized opening, inspection, or reading of contents or covers; tampering; delay; or other unauthorized acts. Any postal employee committing or allowing any of these unauthorized acts is subject to administrative discipline or criminal prosecution leading to fine, imprisonment, or both.
Under this provision, a postal worker must not open, inspect or read the contents of mail that he or she handles. In relation to a postcard, however, the contents are exposed and are in plain view. As a general rule, “there is no reasonable expectation of privacy in information placed on the exterior of mailed items and open to view and specifically intended to be viewed by others.” Thus, it’s unlikely that a mail carrier would be found to have violated the Postal Service provision by reading the exterior of a postcard. Nor would this conduct likely fall within the purview of federal criminal legislation.
What considerations can be made for the future?
Although there are a number of limitations based on context and application, emails are subject to additional laws that do not extend to physical mail. For example, legislation like the CAN-SPAM Act shows that efforts have been made to better regulate emails and consumer privacy online. Because online communication has become a fixture in today’s society, the privacy concerns remain focused on the context of the internet. Unsolicited “snail mail” is still an area that is seldom looked at through a lens for privacy concerns.
It’s notable that the U.S. Postal Service acknowledges the Federal Trade Commission’s Fair Information Practice Principles. As a recommendation to the private sector, these principles encourage data privacy practices to take into account the ideals of notice, choice, access, security and redress. Although these principles simply act as a guideline for companies to follow through self-regulation, they provide a strong foundation for consumer-friendly management of information.
Prof. Daniel Solove frames access to public records as a balance between two interests: transparency and privacy. Solove recognizes that these competing interests of transparency (including access to the courts and public records) and privacy can be balanced through “limitations on the access and use of personal information in public records.” By implementing use-restriction laws that better regulate the personal information that is attainable through public records, both individual privacy interests and public policy are served.
Scott’s postcard story reiterates the other crucial component of information privacy, which is consumer trust. Although the use of postcards for child support reminders may very well be permissible, there are more consumer-friendly alternatives available. As Scott mentioned himself, sending the reminders in standard envelopes is an option. For privacy professionals, promoting consumer trust is often a critical goal that goes hand-in-hand with legal privacy compliance. Thus, endorsing actions that keep the consumer in mind goes a long way in serving both parties’ relationship.
There certainly is no single, clear solution to address privacy concerns like Scott’s receipt of the child support postcard. However, proactive legislation, continued self-regulation, and increased consideration for growing societal privacy issues are all possibilities. Given the constantly evolving privacy landscape, a combination of these mechanisms will continually be built upon.
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