'The Right to be Let Alone: The Kansas Right of Privacy' by J. Lyn Entrikin
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In the early years of the twentieth century, Kansas was among the states that took the lead in recognizing a common law right of privacy. Since then, the Kansas courts have generally followed the Restatement (Second) of Torts in defining and recognizing actionable invasion of privacy claims. With limited exceptions, however, the Kansas Legislature has been slow to recognize or even limit the right of privacy by statutory enactment. And both the Kansas and federal courts have repeatedly recognized a variety of absolute and qualified defenses to Kansas common law privacy claims. The result is a well-established common law right of privacy, but with several traps for the unwary. What was a remarkably progressive approach in 1918 to the right of privacy has since evolved to become a relatively constrained set of privacy rights compared to the statutory and common law rights of privacy recognized by a majority of other states.
In recent years the Kansas Legislature has enacted comprehensive criminal statutes prohibiting identity fraud, identity theft, breach of privacy, computer crime, and other privacy invasions. However, very few Kansas criminal statutes allow a victim of these crimes to pursue a private cause of action against the perpetrator. Moreover, the Kansas courts have been reluctant to recognize common law privacy claims on the basis of criminal statutes that do not explicitly authorize private causes of action. With respect to civil claims for invasion of privacy, the Kansas courts have been slow to recognize the significant implications associated with the rapidly developing computer and internet technology for the dissemination of private personal information.
Part I of this article briefly addresses the history of the common law right of privacy in the United States. Part II discusses the evolution of the Kansas right of privacy, beginning with Kunz v. Allen, 172 P. 532 (Kan. 1918), the leading Kansas case. Part III addresses each of the four common law privacy claims as they have evolved in Kansas, together with the specific defenses the courts have recognized with respect to each variation. Part IV addresses available remedies and proof of damages. Part V addresses Kansas statutory enactments that may implicate the Kansas right of privacy. Part VI identifies unresolved issues, including some that other states have struggled to resolve but that Kansas courts have yet to address. Part VII concludes by urging Kansas courts and lawmakers to address the significant gaps and unresolved issues in Kansas privacy law.
