A trio of Wyoming Supreme Court decision released Dec. 19 have established an avenue for plaintiffs to collect damages for privacy invasion in the Cowboy State for the first time.
In the cases, Casper area residents Steve Winn, Audrey Kinion and Gretchen Howard had separately filed suit against defendant Aaron’s Sales and Leasing, franchised by Aspen Way Entertainment, Inc.
The rent-to-own company had invaded their privacy, the plaintiffs asserted, by renting them laptop computers which came with software pre-installed to track physical location, monitor key-strokes, capture screen shots and remotely activate the devices’ webcams.
The consumers said Aaron’s Sales and Leasing never informed them the software was installed on their devices.
First in Natrona County Circuit Court, and then in Wyoming’s Seventh District Court before judge Catherine Wilking, Aspen Way argued successfully that Wyoming law recognizes no such right to privacy and therefore the consumers lacked standing to sue.
The Supreme Court decision reverses those findings, and sends the cases back to Circuit Court for further adjudication.
The decision, written by Justice William Hill, due to retire in February, finds that many other jurisdictions recognize a right to privacy even in the absence of specific legislation codifying such a right.
Wyoming has no such statutes on the books, and Aspen Way’s legal team “contends that [the Court] should defer to the legislature to create a privacy cause of action because ‘this Court has had ample opportunity to explicitly adopt a common law cause of action for the invasion of privacy, and has failed to do so,’”a footnote in the 14-page decision reads.
Chief Justice E. James Burke, and Justices Hill, Kate Fox, Keith Kautz and Michael Davis were not swayed.
“Currently, the vast majority of states recognize the intrusion strand of invasion of privacy either under common law or by statute,” the decision states.
Indeed, in 46 states a right to privacy is either enshrined in law or recognized under a framework laid out in the American Law Institute’s “Restatement of Torts, Second,” a 1977 treatise on common law in the United States.
According to the decision, New York and Virginia explicitly refuse to recognize a right to privacy, while, before this decision, North Dakota and Wyoming had issued no definitive rulings on the question.
For more than a century, Wyoming has recognized common law as the rule of the land unless specifically contravened by state or federal statute. “The determination we must therefore make is not whether this Court should ‘adopt’ the tort of intrusion upon seclusion, but rather whether the tort has been repealed by statute or is otherwise inconsistent with Wyoming law,” Hill wrote.
The Court found it is not.
Buttressing the Court’s determination was the high-esteem in which Wyoming courts have previously held privacy rights.
Hill wrote that a 1936 Wyoming Supreme Court decision held that “the home is a favorite of the law. It is there that the citizen can claim the right of privacy, the right to be let alone, on clear grounds.”
The computers rented Winn, Kinion and Howard were alleged to have been capable of taking pictures and video of users without their knowledge or consent.
On the legislative side of precedent, Hill cited laws prohibiting the undisclosed monitoring of university and community college students’ communications, anonymous harassing phone calls, and peeping-Tom style spying on places where an “expectation of privacy” exists. Those laws indicate “The Wyoming legislature has recognized the need to protect its citizens’ privacy interests and has acted on this need,” Hill said.
With that basis, he concludes “Given our state’s policy favoring privacy interests and the legislative enactments protecting those interests, we find the tort of intrusion upon seclusion to be well adapted to our circumstances and state of society.”
A separate federal law suit making many of the same allegations was filed by a Casper-area couple in 2011 and has been ongoing since.