Privacy Rights/History/Noteworthy written sources
Is there another noteworthy written source from the past that mentions this right?
TThe right to privacy has diverged in many ways since its most notable first mention in The Right to Privacy by Samuel Warren and Louis Brandeis. What started in 1890 as the idea of protection against gossip about oneself and the ability to enjoy life uninterrupted has evolved into various international and national conventions and laws. The right to privacy was first enshrined at a supranational level before it was established in individual states (Krishnamurthy, 2020, 26). The right’s first appearance in legal documentation was in the United Nation’s (UN) 1948 Universal Declaration on Human Rights (UDHR). Article 12 of the UDHR (1948) states “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” The UHDR is not a treaty, so the right was not yet entrenched and more of a suggestion for states to incorporate into their laws and practices. Two years later, the Council of Europe passed the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) which has similar tones in Article 8, though with an exception for national security in Article 8 (2) but is legally binding (1950). Article 8 of the ECHR specifically protects one’s family life, personal life, correspondence, and home (Roagna, 2021, 9). Worldwide, the right to privacy became codified in 1966 with the passage of the UN’s International Covenant on Civil and Political Rights (ICCPR), in which Article 17 has almost identical language to the UDHR’s Article 12. In subsequent UN treaties, this right to privacy was explicitly granted to children and migrants as well (Convention on the Rights of the Child, 1989, Art. 16; International Covenant on the Protection of All Migrant Workers and Members of Their Families, 1990, Art. 14). Complying with the ICCPR: In the United States, the right to privacy was not originally codified but established through a variety of Supreme Court cases beginning in the 1960s (Privacy, n.d.). In 1965, the Court ruled on Griswold v. Connecticut. The majority opinion written by Justice Douglas claims that the express personal freedoms named in the First, Third, Fourth, Fifth, and Ninth Amendments create an implied “zone of privacy” (Privacy, n.d.). Justice Harlan’s concurring opinion, referenced in later Supreme Court privacy cases, claims privacy zones derive from the Fourteenth Amendment (Privacy, n.d.). Later, legislation was passed regulating specific sectors, beginning in 1974 with the Family Educations Rights and Privacy Act (FERPA), which protects student data, and the Privacy Act which regulates the use of data by federal agencies (History of privacy timeline, 2021). The European Court of Human Rights has refined the implementation of ECHR Article 8 through case law (Roagna, 2021, 7). In deciding these cases, the Court must decide if the complaint is related to Article 8 and, if so, if the right has been interfered with outside of the exceptions laid out in Article 8 (2) (Roagna, 2021, 11). For this reason, there is no clear-cut definition as to which national laws may conflict with Article 8 (Roagna, 2021, 12). The Court has provided protections for ‘quasi-familial’ relationships, relationships that may develop later (i.e., one has the right to adopt), the development of personality, photographs, and data collection, ruling these areas are part of private and/or family life (Roagna, 2021, 10-19). The Court has also provided lengthy protections to family life with a broad definition of family which evolves with European customs (Roagna, 2021, 27). The protection of a home has also been interpreted broadly, requiring continuous ties to a location, mostly due to the French translation of “home” to “domicile” (Roagna, 2021, 30-31). The Court rules for high protection of means of communication as it can be easily breached (Roagna, 2021, 32). This protection includes information gathered from monitored internet use and remains in places no matter the content of the message (Roagna, 2021, 32). The Digital Era: Since these international conventions have become effective and enforceable, there has been a lot of technological change and little change in these agreements (Human right to privacy, n.d.). The UN Human Rights Committee (UNHRC) noted in General Comment 16, adopted regarding ICCPR’s Article 17 in 1988, that the legislation in many states was not enough to ensure the “protection against both unlawful and arbitrary interference,” and that data collection “must be regulated by law” (Krishnamurthy, 2020, 27; UN Human Rights Committee, 1994, para. 2 & 10). In essence, this comment was requesting states enact more protective privacy law legislation, and, specifically, data regulation law, as the right to privacy evolved to be dominated by electronic data (Krishnamurthy, 2020, 27). There have been two approaches to this call for better data privacy regulation: general regulation and regulation by sector. The European Union has taken the general regulation approach with the passage of the 1995 European Data Protection Directive and the 2016 General Data Protection Regulation (GDPR). The GDPR affects people and companies worldwide, requiring that data collected is truly needed, accurate, processed safely, and that all of this is done in a clear, legal, and transparent way (Krishnamurthy, 2020; Wolford, n.d.). The United States has chosen to regulate privacy data by sector, beginning with FERPA in 1974 (Krishnamurthy, 2020, 29; History of privacy timeline, 2021). This approach has led to some strict laws preventing unauthorized access to personal information in some areas regulated by specific legislation (Krishnamurthy, 2020, 29). In areas without specific legislation, however, Americans take great liberties while collecting data (Krishnamurthy, 2020, 29). Put in combination with the lacking legislation preventing interference or data attacks, some question how compliant the United States is with Article 17 of the ICCPR (Krishnamurthy, 2020, 29). However, as of 2020, 29% of states are still drafting or have yet to draft such legislation (UN Committee on Trade and Development). Privacy in Former Sovereign States It is worth noting that some states have always had some privacy rights since they gained independence because their previous constitution and laws contained such provisions. This is the case with states that were formerly in the Soviet Union. The 1977 Constitution (Fundamental Law) of the Union of Soviet Socialist Republics, which was then implemented in nearly identical form in the various republics as their own constitution, protected “the privacy of citizens, and of their correspondence, telephone conversations, and telegraphic communications” in Article 56 (USSR, 1982, 35). Additionally, Czechoslovakia protected privacy rights of the person, home, and correspondence in Article 30 & 31 in the 1960 constitution (Czechoslovakia, 1964, 233).
REFERENCES:
Convention for the Protection of Human Rights and Fundamental Freedoms. The Council of Europe. Nov. 4, 1950. https://rm.coe.int/1680a2353d
Convention on the Rights of the Child. United Nations (UN) General Assembly (UNGA). Nov. 20, 1989. https://www.ohchr.org/en/professionalinterest/pages/crc.aspx
Czechoslovakia. (1964). Constitution of Czechoslovakia July 11, 1960. Orbis: Prague. From https://www.worldstatesmen.org/Czechoslovakia-Const1960.pdf
History of privacy timeline. (2021). The University of Michigan. Retrieved Sept. 9, 2021, from https://safecomputing.umich.edu/privacy/history-of-privacy-timeline
Human right to privacy in the digital age, The. (n.d.). American Civil Liberties Union. Retrieved Sept. 8, 2021, from https://www.aclu.org/other/human-right-privacy-digital-age
International Covenant on the Protection of All Migrant Workers and Members of Their Families. UNGA. Dec. 18, 1990. https://www.ohchr.org/Documents/ProfessionalInterest/cmw.pdf
International Covenant on Civil and Political Rights. UNGA. Dec. 16, 1996. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
Krishnamurthy, V. (2020, Jan. 6). A tale of two privacy laws: The GDPR and the International Right to Privacy. AJIL Unbound 114, 26-30. doi:10.1017/aju.2019.79 Privacy. (n.d.). Cornell Law School Legal Information Institute. Retrieved Sept. 8, 2021, from https://www.law.cornell.edu/wex/privacy
Roagna, I. (2012). Council of Europe human rights handbook: Protecting the right to respect for private and family life under the European Convention on Human Rights. Council of Europe. https://www.echr.coe.int/LibraryDocs/Roagna2012_EN.pdf
UN Committee on Trade and Development. (2020). Data Protection and Privacy Legislation Worldwide. Retrieved Sept. 9, 2021, from https://unctad.org/page/data-protection-and-privacy-legislation-worldwide
UN Human Rights Committee. (1994). General Comment 16. Thirty-third session. HRI/GEN/1/Rev. 1 Retrieved Sept. 9, 2021, from https://undocs.org/HRI/GEN/1/Rev.1
Universal Declaration on Human Rights. UNGA. Dec. 10, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights
USSR. (1982). Constitution (Fundamental Law) of the Union of Soviet Socialist States: Adopted at the Seventh (Special) Session of the Supreme Soviet of the USSR, Ninth Convocation, on October 7, 1977. Novosti Press Publishing House: Moscow. From https://www.marxists.org/history/ussr/government/constitution/1977/constitution-ussr-1977.pdf
Wolford, B. (n.d.). What is GDPR, the EU’s new data protection law? GDPR EU. Retrieved Sept. 9, 2021, from https://gdpr.eu/what-is-gdpr/