Privacy Rights/Country forces
What historical forces or events, if any, contributed to a widespread belief in its importance?
The right to privacy accentuates the belief that a citizen’s private information should be fundamentally protected from public scrutiny. With the rapid evolution of technology brings the consequence of third party control on personal information, inspiring pivotal debate on a right that is not explicitly mentioned in the constitution: privacy. In 2012 it became evident that due process and regulations on the collection and use of private information have also evolved (Jones, 2009, 1).
Expectations on privacy rights fluctuate depending on situational factors and the circumstance of state and federal governments. Historically, both state and federal laws have the power to ultimately limit individual privacy rights with a justification of creating a “safer public (Jones, 2009, 2). Although not specifically spelled out in the constitution, privacy is oftentimes implied, as it is embedded in the first, third, fourth, fifth, ninth and fourteenth amendments. For example, the first amendment clearly outlines that citizens should have the freedom to hold any type of religious belief and keep those beliefs private. The third amendment then protects the right to privacy of a citizen’s home (Brandeis, 1890). The fourth further expands on privacy in regards to the protection of the home from unreasonable searches and seizures by the government. The fifth legitimizes the right against self-incrimination, justifying the right to private information.
Furthermore, the ninth amendment which states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” has been established by the Supreme Court as a right to privacy in cases such as Griswold v Connecticut (1965) (Garrow, 2001, 57). Lastly, the fourteenth amendment, one of the nation’s most cherished amendments, protects citizens from state laws that may infringe upon personal autonomy. In addition, its due process clause is reflective of the fifth amendment in terms of fundamental rights and procedural protections of life liberty and property (Chapman, 2022). From these amendments, the “right to privacy” is inferred or enumerated similarly to other rights like the First Amendment’s right to assembly or the third amendment's right to be free from quartering soldiers.
Interestingly enough, a legal definition of privacy does not exist and the world itself is perceived differently across international borders. In the United Kingdom Calcutt Committee on privacy suggests its own definition for privacy in Britain being “The right of the individual to be protected against intrusion into his personal life or affairs, or those of his family by direct physical means, or by publication of information” (Jones, 2009, 1). Through another lens, Samuel Warren and Louis Brandeis, in their 1890 The Right to Privacy article, characterized tangible and intangible aspects of privacy. They concluded that the fundamental purpose of their law review was to highlight that “the individual shall have full protection in person and in property,” acknowledging the fluidity of social, economic and political changes (Garrow, 2001, 64). Most specifically the justices discussed “the right to be let alone,” while examining cases of defamation, property and patents. Brandeis characterizes threats to protection of privacy as invasions of the “sacred precincts of private and domestic life” (Brandeis-Warren, 197, 1890). However, both Warren and Brandeis summarized a vague set of limitations of the newly coined right to privacy, emphasizing the importance of general or public interest. For example, the right to privacy cannot prohibit any publication of information that would be advantageous to the public such as a leader's fitness for federal office (Brandeis-Warren, 196, 1890). Some of the most noteworthy and high profile cases acknowledging the need for protection of privacy other than previously mentioned Griswold v Connecticut are Roe v. Wade (1973), and Lawrence v. Texas (2003).
Another major decision further considering a citizen’s right to privacy was held in a 6-3 ruling (Lawrence v Texas) that citizens are protected by the constitution to have sexual privacy, consensual, adult sexual intimacy in the home without government intrusion. Being so, the Texas "homosexual conduct" law was declared uncconsitutional and thereafter same-sex sexual activity became legal in every U.S. state and territory (Jones, 2009, 17). However, prior to 9/11 governmental interference regarding privacy was not as much of a widespread concern. According to Pew Research Center currently, approximately 63% of Americans believe that the government collects data on their daily lives and that they have little control over how these entities use their personal information.
The public continues to express worries regarding their digital privacy. These concerns first stemmed from legislation during the “War on Terror”, that impacted all sectors of life. The New York City Police Department along with Departments in other majorly populated cities vouched to install surveillance cameras on the streets to halt both terrorism and street crimes (Jones, 2009, 18). The NYCPD alone installed approximately 500 surveillance cameras in the Brooklyn Borough. Terrorism became an issue of national security fully executed by the federal government. Therefore, now rather than state governments and local leaders’ influence of privacy rights, Washington launched strict prevention programs and legislation like the Total Information Awareness project (TIA), The Patriot Act and the Terrorist Information and Prevention Systems (TIPS) (Pozen, 2016, 236). The collection of average citizens data like phone numbers, credit card transactions, online activity financial records and medical records would be categorized analytically to measure linkage that individual could have with terrorism. In addition the TIA was also given the ability by law to gather information on its own including consumer data. However in 2003 over concerns about civil rights, this initiative was stopped until proven that it is needed. However, the most controversial legislation, championed in 2002 by Attorney General John Ashcrof, was the Patriot act. Its notable provisions being: enhanced sentences for terrorist related crimes, elimination of the statute of limitation for certain terrorist crimes, ability of law enforcement to obtain a warrant anywhere a terror related incident occurs (Pozen, 2016, 237). Many critics such as Belgian sociologist Jean-Claude Paye (2006) claim that the patriot act has infiltrated emergency initiatives permanently into the U.S federal law, giving the executive branch an overwhelming amount of power over private rights (Jones, 2009, 19). For example, under the Patriot Act's article 215 and 216 the government has the ability to conduct mass surveillance of Americans' telephone records while also allowing federal judges to issue warrants in order to acquire any exchange of electronic connection data. Is there a way to prevent terrorism but protect civil liberty and privacy rights at the same time? If citizens were more informed of their privacy rights, a solution to this highly debated discrepancy would be more attainable. There is an obvious lack of understanding when it comes to privacy laws among the average American citizen, as 78% of them stated they understand very little or nothing at all about the regulations surrounding their data privacy (Auxier, 2019). Overall, as we as citizens become more engulfed by a data driven environment, “the right to privacy” will continue evolving as a core issue of debate in Washington. George Orwell, in his “cautionary commentary” 1984, carefully warns his readers of their dwindling rights: “ They could spy upon you night and day, but if you kept your head, you could still outwit them. With all their cleverness, they had never mastered the secret of finding out what another human being was thinking.”
Sources:
Chapman, Nathan, S, Yoshino, Kenji, “The Fourteenth Amendment Due Process Clause.” Interpretation: The Fourteenth Amendment Due Process Clause - The National Constitution Center (2022) Accessed June 13, 2022. https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/701.
GARROW, DAVID J. “Privacy and the American Constitution.” Social Research 68, no. 1 (2001): 55–82. http://www.jstor.org/stable/40971438.
Head, Tom. “Does the Government Guarantee a Right to Privacy?” ThoughtCo. ThoughtCo, October 28, 2019. Last modified October 28, 2019. Accessed June 13, 2022. https://www.thoughtco.com/right-to-privacy-history-721174.
Jones, Jesse. “The Birth of Big Brother: Privacy Rights in a Post-9/11 World.” West Texas A&M University, 2009. Last modified 2009. Accessed June 13, 2022. https://www.wtamu.edu/webres/File/Academics/College%20of%20Education%20and%20Social%20Scie nces/Department%20of%20Political%20Science%20and%20Criminal%20Justice/PBJ/2009/1n1/1n1_03J ones.pdf.
Pozen, David E. “Privacy-Privacy Tradeoffs.” The University of Chicago Law Review 83, no. 1 (2016): 221–47. http://www.jstor.org/stable/43741598. Samuel Warren and Louis Brandeis, “The Right to Privacy”, 1890