DRUG TESTING TENANTS: DOES IT VIOLATE RIGHTS OF PRIVACY?

Real Property, Probate and Trust Journal, Fall 2003 by Aalberts, Robert J

Common law rights of privacy, actionable under tort law, have been adopted more or less by all American jurisdictions and generally are based on the Restatement (Second) of Torts ("Restatement"), section 652A.79 The law currently recognizes four distinctive privacy strands.80 The strand that will most likely apply to an invasion of a person's privacy in the home is section 652B of the Restatement: "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person."81

Unlike the other types of invasion of privacy, this strand does not depend on whether the victim can prove the existence of publicity (i.e., public awareness of his private affairs).82 Rather, the invasion consists of an intentional interference into the plaintiffs private affairs or concerns.83

Comment b accompanying Restatement section 653B further provides examples of how the intrusion, which is generally physical in nature, may occur. It may consist of:

intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiffs room in a hotel or insists over the plaintiffs objection in entering his home. It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiffs private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents.84

A. Privacy Rights and Tenant Drug Testing

In addition to Comment b accompanying the Restatement, the cases falling under this strand of privacy rights have also included the invasion of a person's solitude or seclusion while residing in the home. These cases, discussed by Keeton et al., include "peering into the windows of a home," "eavesdroppping [sic] upon private conversations by means of wiretapping," and "persistent and unwanted telephone calls" to a person's home.85 Furthermore, this strand also has been applied in a few cases involving the intrusion into a person's body, such as an "illegal compulsory blood test."86 Thus, this privacy right is asserted in situations involving the privacy of a person's home and body. Of course, both of these types of privacy come into play with tenant drug testing.87

B. Do the Reasons for Drug Testing Tenants justify the Means?

To determine whether a person's privacy has been unreasonably intruded upon, according to Keeton et al., the courts have generally applied two criteria: (1) whether the means used to gain access to the private information are abnormal, and (2) the defendant's reasons for obtaining the information.88 In essence, the courts are balancing the extent of the intrusiveness imposed on the victim against the motives of the person seeking the private information. Put another way, when drug testing tenants, one would ask whether the ends or reasons for drug testing justify the means used.