Right/Privacy Rights/Conflicts with other Rights

Privacy Rights

History | Legal Codification | Philosophical Origins | Culture and Politics | Conflicts with other Rights | Limitations / Restrictions | Utilitarian / Fairness Assessments | Looking Ahead | Policy Recommendations

Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this? 🖉 edit

“Privacy claims began gradually to be made independently of the trespass rules essential to property rights” (Heffernan, 2016, 102). The connection between these rights was recognized early on by Hixon (“the right to privacy…carried at least an implied right of property”) from Warren & Brandeis’s 1890 writing and by New York Court of Appeals judge John C. Grey (Hixon, 1987, 39). These rights are protected and exercised jointly in many constitutions and states, likely as privacy rights’ origins are rooted in property rights (Heffernan, 2016, 113). For instance, in Grenada Article 1(c) of the 1973 constitution protects both privacy and property (Constitute Project, Grenada 1973, reinst. 1991, rev. 1992) . Without the right to privacy, property rights would be lessened as it would only grant the right to ownership and, barring other protections, leave the property vulnerable to searches that may expose private information. When exercised in conjunction with property rights, privacy protections expand. This is explicit in the constitution of Saint Kitts and Nevis, which, in granting privacy rights, also prevents the deprivation of property without compensation (Constitute Project, Saint Kitts and Nevis 1983) .

The right to privacy also convenes with the right to be forgotten in some states. This right is “the right of a past individual to be forgotten by people in the present” (Gadja, 2018, 205). The European Court of Justice (ECJ) ruled in 2014 that the right to privacy granted in Europe extended to past economic troubles and that this lack of privacy that caused the lawsuit was harming his ability to move past these troubles (Gadja, 2018, abstract). This ruling allowed the past troubles to be forgotten. Since this ruling in 2014, the United States courts have also alluded to the right to be forgotten as a sect of privacy rights, despite many believing at the time “this right [would not] cross the Atlantic” because of the First Amendment and others believing this right was present before the conventional right to privacy (Gadja, 2018, 206). While the US Supreme Court has not ruled on this right, lower courts have, as the California Supreme Court did in Briscoe v. Reader’s Digest Association in 1971. Briscoe opined that while the reports of previous crimes were newsworthy, the “identification of the actor in reports of long past crimes usually serve[d] little independent public purpose” other than curiosity given the rehabilitation that had taken place (Briscoe v. Reader’s Digest Association, 1971) . The plaintiff was allowed to have his past forgotten and the press was not allowed to take this right away, in this instance (Gadja, 2018, 212). However, this right is not internationally recognized, as other states such as Brazil have not supported this right (Library of Congress, 2021) .

The right to be forgotten and property combine to create the right to one’s name and likeness which is especially important for those in the public eye (Mills, 2008, 220). It is accepted that people have a right to profit off of their own image, much like they have the right to profit off of their inventions or intellectual property (Mills, 2-008, 217-218). This right became clear in court cases soon after the 1890 publication of the Warren & Brandeis article, beginning with Robertson v. Rochester Folding Box Co. in 1902 (Hixon, 1987, 39). Beyond this, of course, are other sects of privacy law that remain pivotal in the protection of privacy rights as it is known today.

References

Briscoe v. Reader’s Digest Association, Inc, 4 Cal. 3d 529 (CA Sup. Ct. 1971). https://law.justia.com/cases/california/supreme-court/3d/4/529.html

Constitute Project. (2021). Grenada 1973, reinstated 1991, revised 1992. https://constituteproject.org/constitution/Grenada_1992?lang=en

Constitute Project. (2021). Saint Kitts and Nevis 1983. https://constituteproject.org/constitution/St_Kitts_and_Nevis_1983?lang=en

Gadja, A. (2018). Privacy, press, and the right to be forgotten in the United States. Washington Law Review 93(1), 201-264. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3144077

Heffernan, W.C. (2016). Privacy and the American Constitution: New rights through interpretation of an old text. Palgrave Macmillan.

Hixon, R.F. (1987). Privacy in a public society: Human rights in conflict. Oxford University Press.

Library of Congress. (2021, Mar. 15). Brazil: Federal supreme court decides right to be forgotten is not supported by constitution. https://www.loc.gov/item/global-legal-monitor/2021-03-15/brazil-federal-supreme-court-decides-right-to-be-forgotten-is-not-supported-by-constitution/

U.S. Constitution. (1787). https://www.archives.gov/founding-docs/constitution-transcript

How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to? 🖉 edit

With federalism, there is often one state that leads the rest – in terms of privacy legislation, California leads the United States, and the German state Hessen led Germany and the European Union (Mills, 2008, 167; Petkova, 2016, 5, 4). Though the EU is not properly a federalist entity, federalism encouraged and promoted privacy as a fundamental right. Privacy rights began in Hessen, became federal law after German parliamentary action, and eventually became supranational as the EU passed encompassing privacy legislation in 1995 (Petkova, 2016, 4). Later iterations of the 1995 law led to the 2018 General Data Protection Regulation which has provisions that help regulate information privacy outside of EU borders, including in the United States.

In the United States, federalism clarifies and further protects the right to privacy. This is important because the federal right is still based on Supreme Court opinions rather than explicit constitutional provisions or legislation. This lack of explicit language allows states to “provide leadership in the privacy area because of the constitutional options available” and drive for change (Mills, 2008, 162; Petkova, 2017, 24). As of 2008, ten states in the US (Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina, and Washington) explicitly protect privacy in their constitutions (Mills, 2008, Appendix II). At least twenty states have passed privacy legislation (with some overlap between the ten with constitutional provisions, namely California). State privacy legislation focuses on data privacy, improving security measures for storing personal information, notifying individuals of security breaches, and enabling security alerts and/or freezes on credit reports (Mills, 2008, 167). Most states hoped their passage would signal the federal government to pass privacy legislation (Sabin, 2021) . Schwartz acknowledges that this legislation would be possible under the Commerce Clause, though the effects would depend on the text ( 2009, 922). Some scholars are wary of federal legislation as states have created a successful legal landscape based on experimentation and consequence, and federal legislation could disrupt the balance, create uncertainty, and be hard to amend (Bellia, 2009; Schwartz, 2009, 922-931).

Federalism results in the lack of consistent privacy laws and rights. For instance, in Germany, every company needs to have a data protection officer. In the EU, the GDPR only requires public companies and certain private companies to have this position, while allowing all other private companies to opt-in to having this role (Petkova, 2017, 20). These different laws can alter privacy protection outcomes based on the jurisdiction in which the incident took place, especially if the rights are challenged in courts. This was the case in Florida’s Rolling v. State. Six college students were brutally murdered in Gainesville, Florida and their families hoped to prevent the press from releasing the photos of their bodies. Mills, who was asked to consult on the case, knew this would be a complex legal question as the Florida laws technically allowed for these records to be open to ensure police accountability, but he also knew the families would suffer severe harm were these photos to appear publicly. The Florida Supreme Court decided that the laws in place allowed for a compromise: the photos could be made available to the public by the records custodian upon a reasonable request provided there were restrictions on the copying and removal of the photos. Mills acknowledges that had the situation been occurred in another jurisdiction, the result would not have been the same and the photos likely would have been published (Mills, 2008, 247-251).

References:

Bellia, P.L. ( 2009) . Federalization of Information Privacy Law. Yale Law Journal 118(5), 868-900. https://www.jstor.org/stable/40389431

Mills, J.L. ( 2008) . Privacy: The lost right. Oxford University Press.

Petkova, B. ( 2016) . The Safeguards of Privacy Federalism. Lewis & Clark Law Review 20(2). https://www.law.nyu.edu/sites/default/files/upload_documents/Petkova%20The%20Safeguards%20of%20Privacy%20Federalsim_0.pdf

Petkova, B. ( 2017) . Domesticating the “foreign” in making transatlantic data privacy law. International Journal of Constitutional Law 15(4), 1135- 1156) . https://www.law.nyu.edu/sites/default/files/upload_documents/Petkova%20Domesticating%20the%20Foreign%20in%20Making.pdf

Sabin, S. ( 2021, Apr. 27). States are moving on privacy bills. Morning Consult. https://morningconsult.com/ 2021/ 04/27/state-privacy-congress-priority-poll/

Schwartz, P.M. ( 2009) . Preemption and privacy. Yale Law Journal 118(5). https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5155&context=ylj

What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all? 🖉 edit

The right to privacy is listed in many international treaties – the Universal Declaration of Human Rights ( 1948) , the European Convention for the Protection of Human Rights and Fundamental Freedoms ( 1950) , the International Covenant on Civil and Political Rights ( 1966) , International Covenant on the Protection of All Migrant Workers and Members of their Families ( 1990) , and Convention on the Rights of the Child ( 1989) . The consistency with which it is held as a fundamental right certainly suggests it’s high status. The consistency with which it is present in many national constitutions confirms this suggestion (see “What is the oldest written source in this country that mentions this right” above).

References:

Convention on the Rights of the Child. United Nations General Assembly (UNGA). Nov. 20, 1989. https://www.ohchr.org/en/professionalinterest/pages/crc.aspx

European Convention on Human Rights. Council of Europe. Nov. 4, 1950. https://www.echr.coe.int/documents/convention_eng.pdf

International Covenant on Civil and Political Rights. UNGA. Dec. 16, 1996. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

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

Universal Declaration on Human Rights. UNGA. Dec. 10, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights

Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights? 🖉 edit

Joseph Wronka posits that the UDHR has tiers of rights, arranged by article. Article 1, human dignity, is the first and foremost right. Articles 2-21, which includes the right to privacy in Article 12, are civil and political rights, protecting people from their government. The right to speech, press, religion, and vote are also protected in these articles (Wronka, 1994; UDHR 1948) . Below these rights were the positive rights in which a government should provide “to ensure an existence worthy of human dignity” and solidarity rights (Wronka, 1994) . So, there is some recognition of a hierarchy between fundamental rights, but nothing has been written on the hierarchy among rights of the same tier.

In practice, however, privacy seems to be overshadowed by other rights. On one hand, privacy rights can overtake rights such as the freedoms of speech and press. On the other hand, these rights have stifled privacy rights in many instances. Hixon suggests that privacy rights prevail in cases of information gathering but press and speech rights prevail during and after publishing (Hixon, 1987, 178). Mills suggests this difference in protection is due to the publication medium and the perceived benefit to the public (Mills, 2008, 36, 117).

In the United States, some scholars have noted that “free-speech and free-press rights almost always trump information privacy rights,” suggesting there is a hierarchy within fundamental rights in at least one nation (Mills, 2008, 108). Hixon referred to privacy as “at best a correlative right,” and “sociological notion,” while Milles calls it a “precondition” (Hixon, 1987, 44, 45; Mills, 2008, 116). Press freedoms only require a “newsworthy” and “public interest” standard to be upheld, while privacy rights have had to be fought for continuously in courts. In this fight, the inadequacy of American privacy law has shown through, stemming from the lack of explicit protection in the Constitution (Hixon, 1987, 76). Public figures continuously have information published about them, protected under free speech, leaving them vulnerable to the news cycles (Hixon, 1987, 133).

References:

Hixon, R.F. ( 1987) . Privacy in a public society: Human rights in conflict. Oxford University Press.

Mills, J.L. ( 2008) . Privacy: The lost right. Oxford University Press. Universal Declaration on Human Rights. UNGA. Dec. 10, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights

Wronka, J. ( 1994) . Human rights and social policy in the United States: An educational agenda for the 21st Century. Journal of Moral Education 23(3). https://doi.org/10. 1080/ 0305724940230304

Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this? 🖉 edit

As Warren & Brandeis suggest in The Right to Privacy ( 1890) , the right to privacy directly conflicts with freedom of the press and speech. They wanted to protect people from writings beyond what defamation and publishing law covered. However, by proposing privacy protections that extended beyond these laws, they were inherently limiting what could be published. While this limitation was intentional, it was sure to be contentious as the First Amendment had been in place and protected for nearly 100 years and privacy rights were not prominent in any part of the world before this time. The First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (US Constitution, 1787, Amd. 1).

The United States Supreme Court Cases offer plenty of examples of press and privacy rights conflicting, as “the rights guaranteed by the First Amendment do not require total abrogation of the right to privacy” (Briscoe v. Reader’s Digest Association, Inc., 1971) . In some cases, privacy prevails, in others, the First Amendment. One of the cases was New York Times Company v. United States ( 1971) in which the New York Times published the Pentagon Papers but the Nixon administration argued that those should be kept private for national security concerns. In a 6-3 decision, the Court claimed that these were not to be considered private or secure and that the freedom of the press prevailed (NYT v. US, n.d.). Also in 1971, the Court ordered Branzburg to reveal his sources to a grand jury, despite the sources explicitly asking to not be revealed in Bransburg v. Hayes. Had secrecy been maintained, the press would have more rights than individuals during the grand jury (Branzburg v. Hayes, n.d.). Additionally, other cases such as Cox Broadcasting Corporation v. Cohn ( 1975) and Florida Star v. BJF ( 1989) held that freedom of the press overtakes privacy rights when the information is lawfully and publicly available. Cohen v. Cowles Media Company ( 1991) granted privacy to press informants if they had been promised confidentiality with promissory estoppel because the principle applies generally not just to the press (Cohen v. Cowles Media Company, n.d.). The contrast of Branzburg and Cohen shows how interpretive and circumstantial privacy rights are, while NYT v. NASA ( 1991) reveals that privacy rights are dependent on the media used to publish the information. In this instance, the US District Court for the District of Columbia allowed for transcripts of the Challenger astronauts’ last words to be published by the Times, but not the voice recordings (Mills, 2008, 36).

Privacy rights also conflict with the right to information. The government recognized this right with the Freedom of Information Act in 1966 (FOIA). This act granted anyone the ability to request access to federal agency records but not the records of private companies. The goal of having public records is to keep the government accountable, but this risks people’s privacy based on the nature of the information agencies collect (Mills, 2008, 50). However, nine exemptions and three exclusions in FOIA limit access to these records. The exclusions are narrow and related to law enforcement and ongoing intelligence investigations and are unaffected by FOIA. The exemptions authorize government agencies to withhold information from those requesting it (Freedom of Information Act, n.d). Luckily, the exceptions and exemptions and the Privacy Act of 1974 considered the right of privacy and aimed to prevent the collision of these rights (Mills, 2008, 51).

Privacy is also put aside when considering public security and health (Mills, 2008, 227). In the United States, this lack of priority became clear with the 1978 Foreign Intelligence Surveillance Act (FISA) and PATRIOT Act of 2001, which both expanded the ability of the FBI to have access to information on individuals that may or may not be a threat to the nation’s security. Many courts have upheld acts that place public security over personal privacy rights. To use an example less severe than terrorism, such is the case with the release of sex offenders (Mills, 2008, 224). While it hurts one’s reputation to have their name released in connection with this crime, it protects the greater community and their neighbors by alerting them.

References:

Branzburg v. Hayes. (n.d.). Oyez. Retrieved November 12, 2021, from https://www.oyez.org/cases/1971/70-85

Briscoe v. Reader’s Digest Association, Inc, 4 Cal. 3d 529 (CA Sup. Ct. 1971). https://law.justia.com/cases/california/supreme-court/3d/4/529.html

Cohen v. Cowles Media Company. (n.d.). Oyez. Retrieved November 12, 2021, from https://www.oyez.org/cases/1990/90-634

Cox Broadcasting Corporation v. Cohn. (n.d.). Oyez. Retrieved November 15, 2021, from https://www.oyez.org/cases/1974/73-938

Florida Star v. B. J. F. (n.d.). Oyez. Retrieved November 15, 2021, from https://www.oyez.org/cases/1988/87-329

Freedom of Information Act, The. (n.d.). Department of State. Retrieved Sept. 14, 2021, from https://foia.state.gov/learn/foia.aspx

Mills, J.L. (2008). Privacy: The lost right. Oxford University Press.

New York Times Company v. United States. (n.d.). Oyez. Retrieved November 12, 2021, from https://www.oyez.org/cases/1970/1873

U.S. Constitution. (1787). https://www.archives.gov/founding-docs/constitution-transcript

Warren, S. & Brandeis, L. (1890, Dec. 15). The right to privacy. Harvard Law Review 4(5), 193-220. http://links.jstor.org/sici?sici=0017-811X%2818901215%294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C