Privacy Rights/Contributions
What specific events or ideas contributed to its identification as a fundamental right?
Privacy, conceptualized as a named legal right, has been fairly new. As stated by Negley, “Few philosophers would argue that privacy is a "natural" right or that the intrinsic nature of privacy establishes it as a legal right” (319). Rather, identification of privacy as a right and not just a value has resulted from various violations of the right throughout modern history. In a United States context, the right to privacy is often associated with the Supreme Court case, Griswold v. Connecticut in 1965, in which the Court overruled a Connecticut law banning contraceptives for married couples by using “the personal protections expressly stated in the First, Third, Fourth, Fifth, and Ninth Amendments to find that there is an implied right to privacy in the Constitution” (“Privacy”). Griswold expanded and highlighted legal and political discourse around privacy as a specific right protected by the US Constitution. The Third and Fourth Amendments, which deal with quartering soldiers in citizens’ houses and unlawful searches and seizures of citizen property, came about because colonists felt violated by the British government’s actions to maintain control of the colonies in the years leading up to the Revolutionary War: “The 1774 [Quartering] Act expanded British officers’ ability to refuse unsuitable housing and seize ‘uninhabited houses, out-houses, barns, or other buildings’ for purposes of quartering soldiers,” (“Historical Background”). Additionally, “the colonists, still under the thumb of the British king, were subject to arbitrary and invasive searches under the “Writs of Assistance,” which allowed British troops and government officials to search homes and private property looking for goods that were imported illegally or on which a tax had not been paid,” (Burling, 2021). This context contributed to early codification of rights related to privacy in the United States.
In 1890, Boston lawyers Samuel Warren and Louis Brandeis wrote an article for the Harvard Law Review entitled, “The Right to Privacy.” The article is often cited by scholars as the invention of the concept of the “right to privacy” in American law (Glancy, 1979). Glancy places the article within the context of “the post-Civil War decades [that] had brought to Boston and the rest of the United States ‘countless, little-noticed revolutions’ in the form of a variety of inventions which made the personal lives and personalities of individuals increasingly accessible to large numbers” (Glancy, 1979, 7). Technological advancement correlating with an increase in discourse about the right to privacy in this era can be mirrored with modern concerns over privacy and technology.
Concerns over government surveillance efforts in the late 20th and early 21st centuries further brought the right to privacy into the spotlight of American politics:
“During the Cold War, the federal government was involved in various programs that spied on the American public’s telephone calls, radio signals, and mail. In programs such as the FBI’s COINTELPRO and the CIA’s Operation CHAOS, not only were individuals considered to be ‘threats to national security’ targeted, but also unrelated citizens who got caught up in the searches. The 9/11 terrorist attacks and the subsequent War on Terror led to another wave of mass surveillance, extending to citizens and their luggage on airplanes, automated drones, and the burgeoning field of global Internet communications” (“Constitutional Amendments”).
These efforts resulted in much discourse about the right to privacy, with supporters claiming that the surveillance was justified under the protection of national security, and opponents arguing that the widespread and invasive nature of the programs was not necessary and therefore a major violation of the right to privacy (“Constitutional Amendments”).
Additional events that contributed to privacy being considered as a fundamental right were the Snowden and Cambridge Analytica scandals, which also brought the right to privacy to light in an international context. Though the right to privacy is enshrined in Article 12 of the United Nations Universal Declaration of Human Rights, according to Humble “the right to privacy has historically not been at the forefront of discussions within the international community and the United Nations. This position changed after the Edward Snowden and Cambridge Analytica revelations.” In 2013, Edward Snowden leaked information on the National Security Agency’s information-gathering programs, revealing “how vulnerable our everyday digital communications are to government surveillance, and how much governments want to collect our information, no matter how trivial or unrelated it may be to any tangible national security threat” (PoKemper, 2014). Additionally, the Snowden scandal changed “the vocabulary through which [the right to privacy] was articulated. At the UN, states are supposed to employ a universal vocabulary, enabling therefore claims for the recognition of privacy as a human right. The enactment of a universal vocabulary destabilizes the core of mass surveillance practices,” (Bauman et al., 2014, 128-129). The Cambridge Analytica scandal, which revealed how users’ personal data on the Facebook social media platform was being collected and used, similarly shed light on issues relating to data privacy rights around the world. The scandal also highlighted users’ opinions about their right to privacy. In a study of young adults in Israel who chose to continue their use of Facebook after the scandal, “in-depth interviews suggest that users perceive privacy not as an integral component of one’s civil rights but as a negotiable commodity traded according to societal norms,” and that “it is the users’ responsibility to manage their privacy, as it is Facebook and other social media companies’ right to profit from activities on their platforms” (Afriat et al., 2021, 116). These individuals viewed privacy not as a fundamental right but rather as a commodity. As technology around the world advances, discourse about the right to privacy as a fundamental right will likely become more present.
References:
Afriat, Hagar, Shira Dvir-Gvirsman, Keren Tsuriel, Lidor Ivan. 2021. “‘This is capitalism. It is not illegal’: Users’ attitudes toward institutional privacy following the Cambridge Analytica scandal.” The Information Society, 37 no. 2 115-127. https://doi.org/10.1080/01972243.2020.1870596
Bauman, Zygmunt, Didier Bigo, Paulo Esteves, Elspeth Guild, Vivienne Jabri, David Lyon, RBJ Walker. 2014. “After Snowden: Rethinking the Impact of Surveillance.” International Political Sociology, 8 no. 2 121-144. https://doi.org/10.1111/ips.12048
Burling, James. 2021. “The 4th Amendment to the Constitution: A Primer.” Pacific Legal Foundation. https://pacificlegal.org/fourth-amendment-primer/?psafe_param=1&gad_source=1&gclid=CjwKCAjw5Ky1BhAgEiwA5jGujndXaC_UxPEgAFNOTC857KpBtWo4qgdidNIMhpLa7QjXW-hiOzn5xhoCvT0QAvD_BwE
“Constitutional Amendments - Amendment 4 - ‘The Right to Privacy.’” Ronald Reagan Presidential Library and Museum. The National Archives. Accessed August 1, 2024. https://www.reaganlibrary.gov/constitutional-amendments-amendment-4-right-privacy
Glancy, Dorothy. 1979. “The Invention of the Right to Privacy.” Arizona Law Review, 21 no. 1. https://law.scu.edu/wp-content/uploads/Privacy.pdf
“Historical Background of the Third Amendment.” Cornell Law School, Legal Information Institute. https://www.law.cornell.edu/constitution-conan/amendment-3/historical-background-of-the-third-amendment
Humble, Kristian. 2021. “International Law, Surveillance, and the Right to Privacy.” The Right to Privacy Revisited. Routledge Imprint. https://www.taylorfrancis.com/chapters/edit/10.4324/9781003252191-2/international-law-surveillance-protection-privacy-kristian-humble
Negley, Glenn. “Philosophical Views on the Value of Privacy.” Duke Law. Accessed August 1, 2024. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3111&context=lcp
PoKemper, Dinah. 2014. “Dispatches: How Snowden Changed the World.” Human Rights Watch. https://www.hrw.org/news/2014/06/05/dispatches-how-snowden-changed-world?gad_source=1&gclid=CjwKCAjw5Ky1BhAgEiwA5jGujvY_OUa9teDuEfKpXAEkeAFI7h7HVZPk-sobJksUty5h4NiQVLrOXxoCA1sQAvD_BwE
“Privacy.” Cornell Law School, Legal Information Institute. Accessed August 1, 2024. https://www.law.cornell.edu/wex/privacy
United Nations General Assembly. 1948. “Universal Declaration of Human Rights.” Accessed August 2, 2024. https://www.un.org/en/about-us/universal-declaration-of-human-rights