Right/Privacy Rights/Culture and Politics

Privacy Rights

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

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The right to privacy is expressed in many places: Article 12 of the Universal Declaration of Human Rights ( 1948) , Article 17 of the International Covenant on Civil and Political Rights ( 1996) , Article 7 of the Charter of Fundamental Rights of the European Union (CFREU) ( 2009) , and Article 8 of the European Convention on Human Rights (ECHR) ( 1950) . Nationally, this right has been cited in the 1988 Brazil Constitution and United States case law (derived from the US Constitution). In India, the Supreme Court ruled unanimously in 2017 that the right to privacy for all people falls under Article 21, which provides the “protection of life and personal liberty” (McCarthy, 2017; Mahaprata & Choudhary, 2017) . However, many exceptions to privacy are also listed alongside the right to privacy in these supreme documents, despite the belief in its inviolability.

Article 8(2) of the ECHR provides that privacy interference can only occur in instances “of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 7 of the CRFEU can be breached by a search or arrest warrant issued by any EU state (European arrest warrant, n.d.; European evidence warrant, 2006) . In Article 5 Sections X-XII, the Brazilian Constitution outlines the right to privacy in areas related to private life, the home, and correspondence. These sections also clearly outline exceptions; Section XI recognizes that officials can enter a home “in cases of flagrante delicto, disaster or rescue, or, during the day, with a court order,” and Section XII allows criminal proceedings to methodically breach this privacy. In the United States, privacy zones – derived from the First, Third, Fourth, Fifth, and Ninth Amendments in Griswold v. Connecticut ( 1965) in conjunction with the Due Process Clause in the Fourteenth Amendment – have extended privacy to Americans in various ways (Privacy, n.d.). Again, a court-issued search or arrest warrant may breach this right to privacy, especially in the home.

Data Privacy

The US has very little data privacy due to a lack of legislation and regard. Most data regulation is due to compliance with the 2018 implementation of the EU’s General Data Protection Regulation, which applies to any company collecting any data on European citizens or companies with a large number of customers based in Europe (Wolford, n.d.). On the other hand, the Brazilian Supreme Court extended these Article 5 protections to data privacy in 2020 (Bioni & Monteiro, 2020) . Additionally, New Zealand’s Information Privacy Principles (IPP) in Article 22 of the Privacy Act 2020 protect data collection, but also provides some exceptions in IPP 11 and 12.

Relationships

In 2018, the Indian Supreme Court declared part of Section 377 unconstitutional against Articles 14, 15, 19, and 21 of the Constitution (Rai, 2018) . This ruling allowed those in LGBT relationships privacy in the home, but again, this privacy was not granted in public spaces (Rai, 2018) . Similarly, the right to a private relationship went through the courts in the United States. First, it was granted to interracial couples in 1967 through Loving v. Virginia ( 1967) and then to same-sex couples through Obergefell v. Hodges in 2015. In Brazil, relationships are protected under Article 5(X), which states “personal intimacy, private life, honor and reputation are inviolable, guaranteeing the right to compensation for pecuniary or moral damages resulting from the violation thereof” (Brazil Constitution, 1988) .

Communication

Private communication is protected under Article 5(XII) of the Brazilian Constitution ( 1988) . In the United States, the right to private communication became convoluted with the 2001 USA PATRIOT ACT, which authorized the interception and disclosure of communication under certain circumstances.

References:

Bioni, B.R. & Monteiro, R.L. (2020, June 9). A landmark ruling in Brazil: Paving the way for considering data protections as an autonomous fundamental right. Future of Privacy Forum. https://fpf.org/blog/a-landmark-ruling-in-brazil-paving-the-way-for-considering-data-protection-as-an-autonomous-fundamental-right/

Brazil Constitution. (1988). https://www.constituteproject.org/constitution/Brazil_2017.pdf?lang=en

Charter of Fundamental Rights of the European Union. Dec. 1, 2009. https://fra.europa.eu/en/eu-charter Constitution of India. (1950). https://legislative.gov.in/constitution-of-india

European arrest warrant. (n.d.). European Commission. Retrieved Sept. 21, 2021, from https://ec.europa.eu/info/law/cross-border-cases/judicial-cooperation/types-judicial-cooperation/european-arrest-warrant_en

European Convention on Human Rights. Council of Europe. Nov. 4, 1950. https://www.echr.coe.int/documents/convention_eng.pdf European evidence warrant. (2006, June 1).

European Commission. Retrieved Sept. 21, 2021, from https://ec.europa.eu/commission/presscorner/detail/en/PRES_06_168

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Worldwide

A 2018 Deloitte survey has revealed that the EU’s General Data Protection Regulation (GDPR) is having a positive international impact on the perception of data collection and storage even just six months after its implementation (Deloitte, 2018, 4). The GDPR has had a worldwide effect on privacy laws as it requires all companies which collect data on EU citizens to comply with the law, regardless of the location of their headquarters (Wolford, n.d.). At the most basic level, respondents felt companies have begun to care more about data protection (Deloitte, 2018, 6). Additionally, over 3 out of 4 respondents were aware of their rights under this law and some had already used this knowledge to alter what data companies were collecting about them (Deloitte, 2018, 13, 14, 19). On the other hand, 19% of those polled felt that organizations did not care about privacy (Deloitte, 2018, 6) and only 51% felt the law had put them in control of the personal data that companies have access to (Deloitte, 2018, 18).

European Union

In a 2019 European Union (including North Macedonia) study conducted a year after the implementation of the GDPR, the European Commission concurred with Deloitte in that the GDPR had made people more aware of their rights (Vandystadt & Voin, 2019) . However, only 20% of these respondents knew which authority was responsible for protecting privacy rights (Vandystadt & Voin, 2019; Awareness of the general data protection regulation, 2019) .

United States

In 2002, a Harris Poll found that 63% of respondents found the privacy legislation in place to be inadequate (EPIC, 2021) . In 2019, 75% of those surveyed felt the government should regulate companies and their use of personal data (Auxier, 2020) . In 2020, 79% of the population wanted national privacy legislation enacted (Auxier, 2020) . It is clear that over time, Americans have become more concerned about the use of their personal data, especially in the private sector (Auxier et al., 2019; Auxier, 2020) . Despite this fact, the United States has still not enacted sweeping privacy legislation at a national level. At the state level, California was the first state to enact privacy legislation in 2018, and at least nineteen other states have followed suit with the hope that it will signal the federal government to propose some sort of national privacy legislation for ease of compliance (Sabin, 2021) . However, Americans seem to be fine with either approach, with polls showing around 70% find their state government to be responsible for this issue and the same percent find the federal government to be responsible (Sabin, 2021) .

New Zealand

In 2012, the New Zealand Privacy Commissioner published a privacy study completed by UMR Research. This study found that 90% of people wanted the government to protect their data and be told by companies how their data was being used (Privacy Commissioner, 2012, 9). Interestingly, only 66% were concerned about the presence of their personal data online (Privacy Commissioner, 2012, 12). However, 88% of respondents wanted businesses to be punished if they were using data incorrectly, and 97% wanted the Privacy Commissioner to be able to reprimand companies if they were breaching the then enforceable 1993 Privacy Act (Privacy Commissioner, 2012, 23, 10). Since this study was published, the 1993 Privacy Act has been updated. Now, if an investigation reveals a breach of duty or misconduct, Article 96 of the Privacy Act 2020 requires the Commissioner to refer the matter to authorities, reflecting some of the public’s wants revealed in the 2012 poll.

British Columbia

In 2020, Canadian non-profit, Freedom of Information and Privacy Association or FIPA, worked with Ipsos and polled British Columbians surrounding their attitudes regarding privacy law. About half of them were unsure if the current laws were protective enough or admitted they thought current privacy laws were lacking (FIPA, 2020) . When asked about the transparency of Canadian companies, 50% felt companies were not open about their data practices and 75% felt that Canadian companies may send their data to non-Canadian companies (FIPA, 2020) . However, one-third of respondents from the same study knew British Columbian privacy law and its protections and three-quarters would like a public education initiative to teach these protections (FIPA, 2020) .

References:

Auxier, B. (2020, May 4). How Americans see digital privacy issues amid the COVID-19 outbreak. Pew Research Center. https://www.pewresearch.org/fact-tank/2020/05/04/how-americans-see-digital-privacy-issues-amid-the-covid-19-outbreak/

Auxier, B., Rainie, L., Anderson, M., Perrin, A., Kumar, M., & Turner, E. (2019, Nov. 15). Americans and privacy: Concerned, confused, and feeling lack of control over their personal information. Pew Research Center. https://www.pewresearch.org/internet/2019/11/15/americans-and-privacy-concerned-confused-and-feeling-lack-of-control-over-their-personal-information/ Awareness of the general data protection regulation – one year on. (2019). European Commission. https://europa.eu/eurobarometer/surveys/detail/2222

Deloitte. (2018). A new era for privacy: GDPR six months on. https://www2.deloitte.com/content/dam/Deloitte/uk/Documents/risk/deloitte-uk-risk-gdpr-six-months-on.pdf

Electronic Privacy Information Center (EPIC). (2021). Public opinion on privacy. https://epic.org/privacy/survey/

FIPA. (2020, June 4). British Columbians want action on privacy protection: Polling results. https://fipa.bc.ca/2020-privacy-poll/

Privacy Act 2020, 2020 No. 31, (2021). https://www.legislation.govt.nz/act/public/2020/0031/latest/LMS23223.html

Privacy Commissioner. (2012, Apr.). UMR omnibus results. https://www.privacy.org.nz/assets/Files/Surveys/Privacy-Commission-UMR-Omni-Results-Apr-2012.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/

Vandystadt, N., & Voin, M. (2019, July 24). GDPR shows results, but work needs to continue. European Commission. https://europa.eu/eurobarometer/api/deliverable/download/file?deliverableId=69715

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/

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Rhoda Howard and Jack Donnelly ( 1986) describe six regime types: liberal, minimal, traditionalist, communist, corporatist (authoritarian), and developmental. When comparing regime type to the ‘valuation of privacy,’ liberal regimes are ranked highly, and minimal regimes are ranked very highly (Howard & Donnelly, 1986, 814). The other regime types, all communitarian regimes rather than individualistic, were ranked low or very low regarding privacy (Howard & Donnelly, 1986, 814). At their cores, communitarian regimes do not have privacy because it can be argued, as Howard and Donnelly ( 1986, 211) do, that the allowance of freedoms may lead to self-destruction. Thus, privacy is ignored (Howard & Donnelly, 1986, 211). Fatos Lubonja agrees with this sentiment, writing that privacy did not exist in Albania under the totalitarian regime, and cites his experience in Albanian prisons as an example (Lubonja, 2001) . He also admitted to self-censorship in the private diaries which originally got him arrested, supposing many others had censored themselves in the same way (Lubonja, 2001, 247).

Resources

Howard, R.E., & Donnelly, J. ( 1986, Sept.) Human dignity, human rights, and political regimes. The American Political Science Review 80(3), 801-817. https://doi.org/10. 2307/ 1960539

Lubonja, F. ( 2001) . Privacy in a totalitarian regime. Social Research 68(1), 237-254. https://www.jstor.org/stable/4097 1449

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The right to privacy has been interpreted in various ways. The EU has strict legislation regarding data privacy and the Council of Europe has outlined in Article 8(1) of the ECHR ( 1950) the right to privacy in the four spheres of family life, private life, communication, and the home (Wolford, n.d.). On the other hand, the United States has outlined protections from government interference in the private sphere in the Bill of Rights, has comparatively less (& less encompassing) legislation on the issue, and has relied on the courts to protect people from private entities and in the home (U.S. Constitution; 1787, Amendment 4; Privacy, n.d.). These differences result in a more consistent application of privacy rights in Europe compared to the United States.

In the home, Europeans have had a safe, private space since 1950 (ECHR, 1950, Art. 8(1)). In the United States, this right wasn’t concrete until long after the Supreme Court began ruling on the privacy cases in the mid- 1960s (Privacy, n.d.). However, it remains that Americans have a higher expectation of privacy in the home than in a public area (Electronic Surveillance, n.d.). In an extreme example of lack of privacy in the home, Albanians working for the Soviet government did not own anything in their homes – the state owned it all (Lubonja, 2001, 239).

Exceptions to privacy at home include police entering with and, in some cases, without a warrant. New Zealand also utilizes court-issued warrants to prevent officials from entering the home, but if officials are actively preventing a crime, enforcing a law, making an arrest, or aiding in an emergency, they do not need a warrant (Community Law, n.d.). Within the European Union, this warrant can come from a court within any part of the EU’s jurisdiction. The European Evidence Warrant (EEW) allows a warrant issued to gather evidence to be valid across the EU and the European Arrest Warrant (EAW) applies this principle to the arrest of criminals taking exploiting the open borders within the EU (European evidence warrant, 2006; European arrest warrant, n.d.). EEWs can also be used to get cell phone records (The European evidence warrant, 2006) . In the United States, a customer can ask for those records to be turned over to authorities or authorities can use a subpoena (FCC 2019) .

The Prüm Convention demonstrates another aspect of inter-European collaboration in crime-solving efforts, leading to interesting implications for data privacy. Belgium, Austria, the Netherlands, Germany, France, Luxembourg, and Spain all signed this treaty, to which other nations can opt-in, in an effort to increase cross-border security (Prüm Convetion, 2005) . At the roots, it allows the parties to ask each other for help solving crimes by sharing data from each nation’s crime database (Walsch, 2008, 86). By not creating an international crime database, each nation is required to ask other nations for the needed data (Walsch, 2008, 86). This method allows the shared data to be governed by each nation’s specific data privacy laws, but it lands in an unregulated grey area after the data transfer (Walsch, 2008, 85). Differences in privacy law become clear when looking at what personal data is collected from people. Some states collect DNA in all criminal cases, others only when the person has been in prison for over two years, and others do not collect DNA at all (Walsch, 2008, 86). In the context of solving international crime, these differences mean some states tend to be more helpful than others.

References:

Community Law. (n.d.). Entry powers: When the police can come into your home. Retrieved Sept. 21, 2021, from https://communitylaw.org.nz/community-law-manual/chapter-31-police-powers/entry-powers-when-the-police-can-come-into-your-home/entry-without-a-warrant-to-prevent-or-investigate-crimes/

Electronic Surveillance. (n.d.). Cornell Law School Legal Information Institute. Retrieved Sept. 20, 2021, from https://www.law.cornell.edu/wex/electronic_surveillance

European arrest warrant. (n.d.). European Commission. Retrieved Sept. 21, 2021, from https://ec.europa.eu/info/law/cross-border-cases/judicial-cooperation/types-judicial-cooperation/european-arrest-warrant_en

European Convention on Human Rights. Council of Europe. Nov. 4, 1950. https://www.echr.coe.int/documents/convention_eng.pdf European evidence warrant. (2006, June 1).

European Commission. Retrieved Sept. 21, 2021, from https://ec.europa.eu/commission/presscorner/detail/en/PRES_06_168

European evidence warrant, The: The acquisition and admissibility of foreign evidence. (n.d.). Academy of European Law. Retrieved Sept. 20, 2021, from https://www.era.int/cgi-bin/cms?_SID=d241949ae554074b1e14fd12b7f05d3f5d1e38df00162723613600&_sprache=en&_bereich=artikel&_aktion=detail&idartikel=121538

Federal Communications Commission (FCC). (2019, Dec. 30). Protecting your privacy: Phone and cable records. https://www.fcc.gov/consumers/guides/protecting-your-privacy

Lubonja, F. (2001). Privacy in a totalitarian regime. Social Research 68(1), 237-254. https://www.jstor.org/stable/40971449

Privacy. (n.d.). Cornell Law School Legal Information Institute. Retrieved Sept. 8, 2021, from https://www.law.cornell.edu/wex/privacy

Prüm Convention. AT-BE-DE-ES-FR-LU-NL. May 27, 2005. 10900/05. https://ec.europa.eu/anti-fraud/sites/default/files/docs/body/prumtr.pdf

U.S. Constitution. Amendment IV. https://www.archives.gov/founding-docs/constitution-transcript

Walsch, C. (2008, Nov. 9). Europeanization and democracy: Negotiating the Prum Treaty and the Schengen III Agreement. Politicka Misao, XVL(5), 81-90.

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/