Right/Privacy Rights/Limitations - Restrictions

Privacy Rights

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

Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question? 🖉 edit

Privacy protections are typically limited in times of emergency, but the type of emergency seems to dictate its limitations.

Natural Disasters

A Wilson Center report from 2013 outlines various times in which natural disasters have elicited temporary easing of privacy rules to aid in searching for missing persons. The first examples were from Australia after the 2002 Bali earthquake and the 2004 Boxing Day tsunami. During the Bali earthquake, many governmental agencies had to spend time creating their own missing persons reports (Reidenberg, Gellman, Debelak, Elewa, & Liu, 2013, 12). This was recognized as a waste of resources in light of the disaster and the importance of timeliness (Reidenberg et al., 2013, 12). The 2004 tsunamis renewed this sentiment (Reidenberg et al., 2013, 12). In response to these impeded disaster responses, Australia passed Part VIA to the Australian Privacy Act in 2006 (Reidenberg et al., 2013, 13). Part VIA allows for sharing of otherwise protected information through a government emergency declaration if “(1) the entity reasonably believes that the individual may be involved in the disaster; and (2) the collection, use or disclosure of personal information is for a permitted purpose related to the disaster” (Reidenberg et al., 2013, 13, 14). It also has stipulations on how long these special provisions can be in place and works for events both in and out of Australian borders while specifically preventing disclosure to media outlets (Reidenberg et al., 2013, 13-14) . Despite New Zealand’s comprehensive privacy laws, similar actions were taken in New Zealand after the 2011 Christchurch earthquake. There were stipulations in the Privacy Act to permit the sharing of information in some circumstances, it was unclear if they directly applied to natural disaster emergencies (Reidenberg et al., 2013, 15). This lack of clarity was impeding rescue efforts and the Privacy Commissioner, who is granted some discretion through the Privacy Act, took steps to allow temporary authorization of information sharing concerning the emergency at hand (Reidenberg et al., 2013, 16). Incidentally, many realized that this liberation of privacy issues reassured a variety of sectors’ information sharing in their emergency response (Reidenberg et al., 2013, 17). These reassurances caused the Privacy Commissioner to propose and pass the Civil Defence National Emergencies (Information Sharing) Code in 2013, allowing for these different privacy stipulations to be counted on during emergency planning (Reidenberg et al., 2013, 19).

The United States notoriously lacks privacy law. However, there is regulation in the medical field – Health Insurance Portability and Accountability Act of 1966 (HIPAA). HIPAA was somewhat suspended after Hurricane Katrina in light of nine of the eleven New Orleans hospitals incapacitated and people fleeing to surrounding states to receive medical attention (Reidenberg et al., 2013, 19-21). It prioritized providing treatment over payment and aided in locating missing persons by publishing facility directories (Reidenberg et al., 2013, 21). This privacy law alteration was less comprehensive than those in New Zealand and Australia after natural disasters, but it shows that the response regarding privacy exceptions is dependent on need.

All of these disasters culminated in the creation of the Missing Persons Community of Interest (MPCI), in which non-government actors collaborated to create standardized missing persons databases after disasters (Reidenberg et al., 2013, 25). At the time the report was written, there were five interlocking systems to record who was missing and try to connect these people with worried family (Reidenberg et al., 2013, 27). These systems were used multiple times from 2006 to 2012 when this report was written (Reidenberg et al., 2013, 27). The systems all have varying balances of access and privacy and, interestingly, one of these services is run by the International Committee of the Red Cross out of Geneva, Switzerland and is explicitly exempt from the Swiss Federal Act on Data Protection (Reidenberg et al., 2013, 29, 35). Additionally, in 2011, the International Conference of Data Protection and Privacy Commissioners on Data Protection and Major Natural Disasters asked countries to review their privacy laws to make sure they were flexible in the event of a major natural disaster (Reidenberg et al., 2013, 73).

Disease

Rothstein ( 2020) suggests the following be considered when creating policy exceptions and interventions to health information during disease outbreaks: (1) necessity and effectiveness, (2) proportionality and minimal infringement, (3) purpose limitations, and (4) justice ( 1374) . Policies that become altered during the outbreak should remain monitored for continued justification of the alteration and should discontinue at the end of the outbreak (Rothstein, 2020, 1375) .

During the COVID-19 pandemic, Canada realized the conflict between the creation of a public health database and data privacy law. Data privacy laws vary by province (some have legislation, others default to federal law), sector (public and private), and profession (i.e., healthcare data is strictly regulated) (Bernier and Knoppers, 2020, 454-455). Generally, data cannot be shared between provinces, though this is debated based on local and federal laws, nor used for purposes other than for which it was collected (Bernier and Knoppers, 2020, 455). However, all these limits can be loosened during public health emergencies. There are legislative carve-outs for combating health risks, and during COVID-19 the Privacy Commissioner allowed officials to forgo consent from each individual, a privilege that is repealed after the emergency (Bernier and Knoppers, 2020, 455).

War

McDonald ( 2020) describes privacy as a social good and notes there is a trade-off between privacy and national security, claiming these rights are dependent on context (380). As such, these privacy limitations can be toward individuals or society, but they usually come to light ex parte (McDonald, 2020, 385, 380). However, it is unclear who dictates when this trade-off between privacy and security begins, ends, or how invasive it is as war surveillance is largely unregulated; there is no law of war regarding privacy (McDonald, 2020, 385, 386). It seems feasible violations can be committed by both one’s own country and the opposition. By one’s own country in the sense that they don’t want traitors, resulting in actions similar to how the United States placed Japanese Americans into internment camps during WWI or passed the Sedition Act of 1798 (Share America, 2015) . Alternatively, the opposition can somewhat feasibly be expected to also survey those they are at war against, especially when attacking and trying to avoid civilian injury (McDonald, 2020, 381). Enemies may also invade privacy through espionage and intelligence which isn’t necessarily legal under international law though it is not limited to wartime (Pun, 2017, 360-361, 364; McDonald, 2020, 384).

References:

Bernier, A. & Knoppers, B.M. (2020, June 26). Pandemics, privacy, and public health research. Canadian Journal of Public Health 111(4), 454-457. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7318908/pdf/41997_2020_Article_368.pdf

McDonald, J. (2020). Information, privacy, and just war theory. Ethics & International Affairs 34(3), 379-400. https://doi.org/10.1017/S0892679420000477

Pun, D. (2017, Summer). Rethinking espionage in the Modern Era. Chicago Journal of International Law 18(1), 353-391. https://chicagounbound.uchicago.edu/cjil/vol18/iss1/10/

Quinton, A. (1988, Autumn). Plagues and morality. Social Research: An International Quarterly 55(3), 451-462. https://www.jstor.org/stable/40970516

Reidenberg, J.R., Gellman, R., Debelak, J., Elewa, A., & Liu, N. (2013). Privacy and missing persons after natural disasters. Woodrow Wilson International Center for Scholars Commons Lab. https://www.wilsoncenter.org/publication/privacy-and-missing-persons-after-natural-disasters

Rothstein, M.A. (2020, Aug. 12). Public health and privacy in the pandemic. American Journal of Public Health 110(9), 1374-1375. https://www.doi.org/10.2105/AJPH.2020.305849 Share America. (2015, Apr. 6). Civil liberties in wartime. United States Department of State. Retrieved October 18, 2021, https://share.america.gov/civil-liberties-wartime/

Under American jurisprudence, what permissible exceptions exist? 🖉 edit

The Fourth Amendment states “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” ( 1791) . While this amendment protects the right to privacy from the government, it also brings forth exceptions: reasonable search and seizure as well as infringements allowed by court-issued warrants seeking specific items or people. Other amendments used to extend privacy by the Supreme Court, namely the First, Third, Fifth, Ninth, and Fourteenth, do not have notable exceptions regarding privacy.

Limitations of Reasonability

Defining what constitutes a reasonable search has proven to be difficult. In Katz v. United States ( 1967) the Supreme Court ruled the Fourth Amendment protects “people, not places” and created the Katz test to determine where it is reasonable to expect privacy from law enforcement and a warrant is needed (Katz v. United States, 1967) . This test examines whether the information was meant to be kept private and if it had been disclosed (Hu, 2018, 129). Prior to the Katz test, the court used the trespass test, a common-law approach to the Fourth Amendment in which physical intrusion can violate the Fourth Amendment. Fifty years after Katz, the Court again relied on the trespass test in United States v. Jones (Hu, 2018, 130; United States v. Jones, 2012) . In doing so, the court claimed while the Katz test extended the right to privacy to people, it did not revoke the traditional common-law protections (United States v. Jones, 2012) . Hu, citing Justices Sotomayor and Alito, feels that the Katz test ends before cyber-surveillance begins and recognizes the need for change (Hu, 2018, 139, 141).

In analyzing Fourth Amendment Supreme Court rulings, Orin Kerr found that four general models have been used to decide privacy cases ( 2017, 524). These models vary in scale (micro or macro) and normativity (normative or descriptive) and consider one of the following: how public the information is, what information was found, the actions that were taken, or whether or not government conduct should be regulated (Kerr, 2017, 506, 524). Kerr claims the last of these considerations was the basis for the Katz ruling ( 2017, 519). Unfortunately, the Supreme Court has used all four of these models to both protect and deny privacy and has not provided clear guidance as to what is a reasonable search (Ker, 2017, 507, 508). Kerr concludes by suggesting there is no one size fits all test or model because of the importance of case facts ( 2017, 525). As such, Kerr would rather see many definitive models so that the limitations of reasonability are clear and contextualized for future court decisions at all levels ( 2017, 542).

Privacy Violations by a Non-Government Entity

The Supreme Court has rarely ruled on notable cases in which the privacy offender was not a government entity. However, in Senn v. Tile Layers Protective Union ( 1937) the Court ruled that Senn could not invoke his privacy in work against the right to publicity of the union’s picketing (Richards, 1334) . In the opinion of the Court, Justice Brandeis held that because it was a commercial dispute and affected the competition for customers, the right to privacy was not applicable (Richards, 1334) . He also protected counter-speech in this opinion (Richards, 1334) .

References

Hu, M. ( 2018) . Cybersurveillance intrusions and an evolving Katz privacy test. American Criminal Law Review 55(1), 127-152. https://www.law.georgetown.edu/american-criminal-law-review/in-print/volume-55-issue-1-winter- 2018/ cybersurveillance-intrusions-and-an-evolving-katz-privacy-test/

Katz v. United States, 389 U.S. 347 ( 1967) . https://www.law.cornell.edu/supremecourt/text/389/347

Kerr, O. ( 2007). Four models of Fourth Amendment protection. Stanford Law Review 60(2), 503-552. http://www.stanfordlawreview.org/wp-content/uploads/sites/3/ 2010/ 04/Kerr.pdf

Richards N.M. ( 2010, Oct.). The puzzle of Brandeis, privacy, and speech. Vanderbilt Law Review 63(5) 1293- 1352. https://scholarship.law.vanderbilt.edu/vlr/vol63/iss5/3/

United States Constitution. 1787. https://www.senate.gov/civics/constitution_item/constitution.htm

United States v. Jones, 565 U.S. 400 ( 2012) . https://www.law.cornell.edu/supremecourt/text/10- 1259

What are the typical exceptions or limitations placed on this right? 🖉 edit

Article 8(2) of the European Convention on Human Rights (ECHR) presents exceptions to the right to privacy. Privacy is granted “except such as is in accordance with the law and is necessary in a democratic society in the interests 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” ( 1950) . The Universal Declaration on Human Rights ( 1948) and the International Covenant on Civil and Political Rights ( 1996) allow for reasonable, non-arbitrary searches. These exceptions allow privacy to be breached with a court-issued warrant. Most exceptions stem from these documents and it should be noted that the United Nations extended the right to privacy to online spheres (Office of the United Nations High Commissioner for Human Rights, 2013, I§5). Additionally, the European Union implemented the General Data Protection Regulation (GDPR) which prevents the sharing of personal data with outside sources (Wolford, n.d.). The GDPR applies to any companies operating in or with the EU causing it to have international implications (Wolford, n.d.).

References:

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. United Nations General Assembly (UNGA). Dec. 16, 1996. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

Office of the United Nations High Commissioner for Human Rights. ( 2014, June 30). The right to privacy in the digital age. A/HRC/27/37. https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf

United States Constitution. 1787. https://www.senate.gov/civics/constitution_item/constitution.htm

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

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/

Under international human rights laws, what permissible exceptions (often called derogations) exist? 🖉 edit

Article 8(2) of the European Convention on Human Rights (ECHR) presents exceptions to the right to privacy – “except such as is in accordance with the law and is necessary in a democratic society in the interests 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” ( 1950) . The Universal Declaration on Human Rights ( 1948, Art. 12) and the International Covenant on Civil and Political Rights ( 1996, Art. 17) only prevent arbitrary and unlawful searches, allowing for reasonable searches.

References:

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. United Nations General Assembly (UNGA). Dec. 16, 1996. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

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

Have political theorists or philosophers discussed the permissibility of exceptions to this right? 🖉 edit

Hobbes

Thomas Hobbes grappled with varying different situations of privacy. In Leviathan, it was mostly concerning places in which privacy and the public overlap. Generally, the public and commonwealth rights overtake those of an individual, especially in times of war, but there are some exceptions (Hobbes, 1651/ 1965, 130). For instance, one had the right to protect themselves with their private strength without being a threat to the commonwealth (Hobbes, 1651/ 1965, 138). Additionally, men could own private property and goods without interference from the Church of England and hold their own beliefs, as long as they didn’t go against the Church (Hobbes, 1651/ 1965, 250, 345).

In De Cive (On the Citizen), Hobbes presents an interesting dilemma – once the people form a state, the people no longer exist and instead become subjects (Hobbes, 1642/ 1651, 39-40). He suggests this leaves the ruler of the state with no responsibility to the subjects, able to harm them as there is no direct contract between the ruler and subjects (Hobbes, 1642/ 1651, 40). Without obligation, there is certainly little to prevent the ruler from imposing on subjects and revoking their privacy.

Locke

In 1689, John Locke discussed privacy in his Letters on Toleration. In this essay, Locke discusses privacy in relation to the Church of England. Generally, there is no privacy from the Magistrate in matters relating to the Church, however, in some instances, privacy is afforded to private matters (Locke, 1689/ 2010, 43, 46). For instance, Locke claims that one may take care of one’s health without much interference at all and prevents people from telling others what to believe in unless they are a clergyman (Locke, 1689/ 2010, 46. 129). Additionally, if one perceives an order by a magistrate to be unlawful, they can abstain from that law, and the magistrate cannot use their private judgment to impose laws but must refer back to God’s laws (Locke, 1689/ 2010, 58-59).

Kant

Immanuel Kant talks a lot about Enlightenment and the formation of states. Inherently, in the creation of these states, some rights are taken away to “[harmonize] with the freedom on everyone else” (Kant, 1970, 47, 55, 73). However, these rights that are given up usually have specific limitations (Kant, 1970, 45). The government in these societies could prevent some actions but, much like Warren & Brandeis later, felt that free-thinking and reasoning were of utmost importance in developing new ideas, and suggested they be protected (Kant, 1970, 59). However, Kant also suggests limiting the right to reason because it can still “expand to its fullest” while it is limited (Kant, 1970, 59).

In Warren & Brandeis’s terms of “the right to be let alone,” Kant, in his Theory and Practice, instead proposes the right to coercion, meaning all who are a part of the state are held to the same standard (Warren & Brandeis, 1890, 193; Kant, 1970, 75). This coercion is imposed uniformly on all subjects, but not the ruler (Kant, 1970, 75). As long as one was conforming to the laws, there was no reason to interrupt their actions, but once conformity was broken, there was a chance to impose and alter someone’s actions (Kant, 1970, 80). Kant recognizes that Hobbes feels differently, writing directly against Hobbes’ views as put forth in De Cive, in that the ruler has no obligations to the people and may treat them how he wishes – implying no right to be let alone (Kant, 1970, 84; Hobbes, 1651, 40).

Sieyes

In his essay titled Views of the Executive Means Available to the Representatives of France in 1789, Emmanuel Sieyes claims rights are inherent to a person. However, in What is the Third Estate, Sieyes claims that states may use the rights it was granted by the constitution and positive law to preserve the nation and community (Sieyes, 1788/ 2003, 136). In terms of privacy, these statements seem to imply that privacy may sometimes be taken away from some in the interests of the public. It is important to note, though, that these impositions may not go beyond the scope of the constitution in place (Sieyes, 1788/ 2003, 137).

Mill

John Stuart Mill, an English thinker, recognizes that English laws tended to interfere with privacy (Mill, 1859/ 2011, 15). However, Mill felt that separating church and state (“spiritual and temporal authority”) prevented more interferences of law within private life, somewhat facilitating what Warren & Brandeis would later call “the right to be let alone” (Mill, 1859/ 2011, 24; Warren & Brandeis, 1890, 193).

References:

Hobbes, T. ( 1651) . De cive (T. Hobbes, Trans.). UK Public Library. (Original work published 1642) . http://www.public-library.uk/ebooks/27/57.pdf

Hobbes, T. ( 1965) . Leviathan. Liberty Fund. (Original work published 1651) . http://files.libertyfund.org/files/869/0161_Bk.pdf

Kant, I. ( 1970) . Kant: Political writings (R.S. Reiss, Ed., 2003 ed.). Cambridge University Press.

Locke, J. ( 2010) . A letter concerning toleration and other writings (M. Goldie, Ed.). Liberty Fund. (Original work published 1689) . http://files.libertyfund.org/files/ 2375/ Locke_ 1560_ EBk_v6.0.pdf

Mill, J.S. ( 2011) . On liberty. Project Gutenberg. (Original work published in 1859) . https://www.gutenberg.org/files/34901/34901-h/34901-h.htm#Page_1

Sieyes, E. ( 2003) . Political writings (M. Sonenscher, Ed.). Hackett Publishing Company. (Original work published in 1788) .

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%281890 1215% 294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C

Should this right be limited when limiting it would jeopardize democratic norms? 🖉 edit

Like many rights, privacy is not absolute (Siddiky, 2011, 224). It conflicts with and is compromised in the presence of other fundamental rights and democratic norms.

Speech

The right to privacy notably conflicts with the First Amendment’s right to free speech. In some cases, the right to privacy becomes limited and less protected, but, in others, it remains protected. This protective line between speech and privacy is thin. For instance, speech protections extend to allow employers, including the government in its capacity as an employer, to be able to restrict the speech of employees in certain matters (Volokh, 2000, 1095) . However, in Connick v. Meyers ( 1983) , the United States Supreme Court decided that, while working for the government, matters of public concern are protected and private while intraoffice grievances are not (Connick v. Meyers; Volokh, 2000, 1095) .

As Warren & Brandeis suggested in The Right to Privacy in 1890, the right to privacy conflicts with the First Amendment rights. In their writings about what is now known as ‘tort privacy’ (different from ‘constitutional privacy’), they advocate for the prevention of disclosures of private affairs to the public (Warren & Brandeis, 1890, 195). This distinction is still maintained today, allowing for the publishing of ‘newsworthy’ stories about public figures (Volokh, 2000, 1088; Richards, 2010, 1307) . However, the courts have not defined what constitutes newsworthy and have even left the definition to juries (Volokh, 2000, 1089) .

Privacy has also been limited by the Supreme Court, despite being the institution that created the protection of the right. In Senn v. Tile Layers Protective Union ( 1937) , Senn had chosen to not join the labor union and the union members began picketing around him, beginning a labor dispute and causing Senn to call for his right to privacy (Richards, 2010, 1332- 1333) . In this case, Justice Brandeis wrote in the opinion’s footnote, Senn was not able to invoke his right to privacy against the union’s right to publicity (Richards, 2010, 1334) . In essence, in the commercial sphere between competitors, the right to privacy became inapplicable in the interest of consumers (Richards, 2010, 1334) .

On the other hand, privacy has remained protected in other instances. In Cohen v. Cowles Media, the Supreme Court ruled that people can contract away their right to speech (Volokh, 2000, 1057) . Volokh ( 2000) posits this privacy extends to implied contracts, especially in professions in which privacy can be reasonably expected. Thus, the federal laws requiring confidentiality have simply allowed for repercussions to be implemented, rather than creating a new area in privacy rights ( 1058) . In publishing, the actions of private people are protected (Richards, 2010, 1307; Volokh, 2000, 1055) . Volokh ( 2000) posits this protection extends beyond actions to embarrassing photos or stories which exhibit a lack of dignity ( 1094) . Generally, this protection is expressed as the public concern test, in which privacy is granted to a party as long as the public is not affected (Volokh, 2000, 1097) . This general protection of the right to privacy is consistent with Richards’ ( 2010) conclusion from Brandeis’ writings: that privacy protections allow for new ideas to be formed through development in private conversations ( 1347) .

Right to Public Trial

The Sixth Amendment of the United States Constitution directly conflicts with the implicit right to privacy by granting the right to a public trial. It is argued that the use of this court structure allows for the expression of public concern and prevents corruption while increasing public confidence in the system (Siddiky, 2011, 229).

Despite the right to a public trial, the juvenile justice system was created to protect the identity of minors who committed crimes in the hopes that this protection will allow them to become contributing members to society without the judgment of a criminal past (Siddiky, 2011, 207, 241). Even with this intention, there are exceptions to this privacy. First and foremost, juveniles’ privacy has previously been limited in favor of granting other constitutional rights, including 14th Amendment due process (Siddiky, 2011, 213, 227). Privacy may also be removed if they are charged as an adult, which requires meeting varying statutory criteria depending on the jurisdiction (Siddiky, 2011, 214). Additionally, there has been some movement surrounding the reform of juvenile courts which may remove their anonymity because of perceived coddling and the high recidivism rates among teens, potentially suggesting the need for different consequences (Siddiky, 2011, 215, 217).

Outside of juvenile courts, privacy is compromised more often for the sake of public trials. Something, though, the right to privacy prevails as a judge allows a party in a suit to file anonymously (Rastgoufard, 2003, 1009) . These exceptions are rare and are not entrenched in the Federal Rule of Civil Procedures, but the United States Supreme Court has allowed anonymous suits to be decided (Rastgoufard, 2003, 1023) . Most notably, anonymity was granted in Roe v. Wade in which ‘Jane Roe’ was allowed to remain anonymous as pregnancy was considered to be a very private matter. Juries have also been allowed to be anonymous (Rastgoufard, 2003, 1009) .

Property Rights

The right to be left alone seems like it would go hand in hand with property rights. Your property, your privacy. However, it is easy to learn who owns a piece of real estate through public records (Roscoe & Szypszak, 2017, 355). While this has benefits mostly related to the ease of buying or selling real estate, there are few-to-no processes in place to confirm the validity of deed filings or liens, especially in the United States (Roscoe & Szypszak, 2017, 359). However, many involved in the industry have interests in limiting privacy in this area for their professional ease (Roscoe & Szypszak, 2017, 374). In Europe, the only people that can file these records are notaries, but the US does not offer similar protections (Roscoe & Szypszak, 2017, 372). These infringements on the right to privacy have become more accessible with digitized records, though this is not limited to this industry (Roscoe & Szypszak, 2017, 375). Additionally, it is probably possible to buy a house anonymously, though there is limited academic literature on how.

Political Preferences

While one has the right to cast a vote in private and not tell anyone who they voted for, that doesn’t stop people from figuring out one’s political tendencies. With party alignment shrinking, the importance of micro-targeting has grown in campaigns. As such, political parties and candidates have gathered information on voters to determine who is a supporter, who could be persuaded, and who is not likely to be a supporter (Bennett, 2015, 372). At first, parties and candidates begin by looking at state and local party registration lists (Bennett, 2015, 372). From there, they use a variety of factors, such as social media, letters to elected officials, and campaign donations, to determine issues of importance to each voter (Bennett, 372, 2015, 378). While most of this is already public information or has been willingly put out on the internet by individuals, it is not being used in the intended way, and some of the information gathered is private (Bennett, 2015, 372; 11 CFR § 102.17(c)(4)). As such, this approach is illegal in Europe, though it has become prominent in other western nations beyond the United States, such as Canada (Bennett, 2015, 373).

References

11 FCR § 102.17(c)(4). ( 2021). https://www.fec.gov/regulations/102-17/ 2021- annual-102#102-17-c-4

Bennett, C.J. ( 2015). Trends in voter surveillance in western societies: Privacy intrusions and democratic implications. Surveillance & Society 13(3/4), 370-384. https://doi.org/10.24908/ss.v13i3/4.5373

Connick v. Myers. 461 US 138 (1983). Oyez. Retrieved September 28, 2021, from https://www.oyez.org/cases/ 1982/ 81- 1251

Rastgoufard, B. ( 2003). Pay attention to that green curtain: Anonymity in the courts. Case Western Reserve Law Review 53(4), 1009- 1040. https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article= 1512& context=caselrev

Richards N.M. ( 2010, Oct.). The puzzle of Brandeis, privacy, and speech. Vanderbilt Law Review 63(5) 1293- 1352. https://scholarship.law.vanderbilt.edu/vlr/vol63/iss5/3/

Roscoe, E. & Szypszak, C. ( 2017, Summer). Privacy and public real estates records: Preserving legacy system reliability against modern threats. The Urban Lawyer 49(3), 355-391. https://www.jstor.org/stable/44648036

Siddiky, L. ( 2011) . Keeping the court room doors closed so the doors of opportunity can remain open: An argument for maintaining privacy in the juvenile justice system. Howard Law Journal 55(205), 204-246.

Volokh, E. ( 2000, May). Freedom of speech and information privacy: The troubling implications of a right to stop people from speaking about you. Stanford Law Review 52(5), 1049- 1124. https://www.jstor.org/stable/1229510

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%281890 1215% 294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C

Is this right often perceived as threatening to government authorities? 🖉 edit

The Fourth Amendment has rarely been fully realized in its long history. While the Fourth Amendment guarantees privacy in search and seizure, the states originally did not want it to apply to their procedures and noted that it had yet to be applied to the states via the Fourteenth Amendment’s Due Process Clause (Enforcing the Fourth Amendment, n.d.; US GPO, 1992, 1260) . As such, lots of cases came forward to the Supreme Court, and the Exclusionary Rule was established (Enforcing the Fourth Amendment, n.d.). The Exclusionary Rule prevents trials from using improperly collected evidence, but it does not fully apply the Fourth Amendment and prevent searches (Enforcing the Fourth Amendment, n.d.). The rule has gone through a couple of iterations based on the amendments from which it is derived by the Court. It was originally established in Boyd v. US ( 1886) , based in the Fourth and Fifth Amendments, then evolved with Weeks v. US ( 1914) , which claimed derivation from the Fifth Amendment but appeared to be based in the Fourth. Its current state results from Mapp v. Ohio ( 1961) when the Court held that the Fourth Amendment was an essential feature of privacy and decided that the standards of evidence collection should be consistent between federal and state jurisdictions (Enforcing the Fourth Amendment, n.d.; US GPO, 1992, 1262) . However, authorities can collect whatever evidence they wish and are not held to a legal standard unless they wish to have permissible evidence in the likely-upcoming judicial proceedings (Enforcing the Fourth Amendment, n.d.). Additionally, there are currently many cases that have developed in which a warrant is not needed, causing even Congress, via the Government Publishing Office, to admit there has been an expansion of power given to authorities (US GPO, 1992, 1208- 1209) . Beyond this expansion, it is known that authorities who perform acts that are not permitted by law are rarely reprimanded, especially with search and seizure and the ability to use the “good faith” defense (Enforcing the Fourth Amendment, n.d.; US GPO, 1992, 1258) . These facts prevent the right to privacy from being perceived as threatening to government authorities.

References:

Enforcing the Fourth Amendment: Exclusionary Rule. (n.d.). Cornell Law School Legal Information Institute. Retrieved Oct. 9, 2021, from https://www.law.cornell.edu/constitution-conan/amendment-4/enforcing-the-fourth-amendment-the-exclusionary-rule

US Government Publishing Office (US GPO). ( 1992, June 29). Fourth Amendment: Search and Seizure (S. Doc. 103-6). https://www.govinfo.gov/app/details/GPO-CONAN- 1992/ GPO-CONAN- 1992- 10-5/summary

Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible? 🖉 edit

While the Fourth Amendment of the United States Constitution is in place to protect people’s privacy, a fact continuously recognized by the Supreme Court, it continues to leave people vulnerable to the decisions of authorities due to a lack of clarity and accountability provided by the courts (Enforcing the Fourth Amendment, n.d.). The Fourth Amendment is explicit in that it prevents unreasonable search and seizure (Enforcing the Fourth Amendment, n.d.). However, it is hard to determine what is reasonable and the Supreme Court has claimed that the reasonableness of a search is situationally dependent (Enforcing the Fourth Amendment, n.d.; US GPO, 1992, 1202) . Various rules and exceptions to the right to privacy have been established.

Under the Exclusionary Rule, lots of searches are carried out which are later found to be unconstitutional by a court, at which point there is little that can be done to rectify the violation of privacy rights (Enforcing the Fourth Amendment, n.d.). These instances are not permissible exceptions, but rather instances in which it becomes clear after the fact that privacy was violated (Enforcing the Fourth Amendment, n.d.). Beyond the Exclusionary Rule, the Fourth Amendment has been interpreted in ways that cause the government’s regulatory interests to be placed over an individual’s interests (US GPO, 1992, 1204) . These interpretations have created exceptions, creating situationally specific instances in which privacy is not necessarily protected. For instance, during the execution of a search warrant, if it does not include a search clause for those occupying the location, they may not be searched, but they can be detained (US GPO, 1992, 1227) . For whatever reason, the courts have viewed detainment as less intrusive than a search, so it has become allowed, though it has been debated if it is a reasonable and permissible exception without a warrant (US GPO, 1992, 1227) . This debate starts with the Court’s opinions in Terry v. Ohio ( 1968) and United States v. Mendenhall( 1980) that state seizure is either restraining liberty or the belief that one is not at liberty to leave (US GPO, 1992, 1231) . The Terry decision was important in other ways as well, creating another standard for search and seizure without a warrant and probable cause - authorities may stop and frisk individuals if there is reasonable suspicion of criminal activity (US GPO, 1992, 1230) . Recently, this standard has been applied less restrictively and more often, creating some tension between the right to privacy and public safety (GPO, 1992, 1231) .

Exceptions don’t just result from court rulings. The USA PATRIOT Act of 2001 permitted information sharing between law enforcement agencies without notice, leading many to believe more privacy violations were occurring (Highlights of the USA PATRIOT Act, n.d.). However, some scholars argue while privacy is more elusive under the presence of this law, privacy is not hindered as most of us remain unconcerned about the information that may or may not be collected about us resulting in little or no behavioral change (Rubel, 2007, 148-149). At the same time, however, “lack of privacy bears upon how we act,” as does the knowledge that others may have access to our information, so the right becomes less protected under the PATRIOT Act (Rubel, 2007, 142, 153).

References:

Enforcing the Fourth Amendment: Exclusionary Rule. (n.d.). Cornell Law School Legal Information Institute. Retrieved Oct. 9, 2021, from https://www.law.cornell.edu/constitution-conan/amendment-4/enforcing-the-fourth-amendment-the-exclusionary-rule

Highlights of the USA PATRIOT Act. (n.d.) Department of Justice. Retrieved Sept. 14, 2021, from https://www.justice.gov/archive/ll/highlights.htm

Rubel, A. ( 2007, Mar.). Privacy and the USA Patriot Act: Rights, the value of rights, and autonomy. Law and Philosophy 26(2), 119-159. https://doi.org/10. 1007/ s10982-005-5970-x

US Government Publishing Office (US GPO). ( 1992, June 29). Fourth Amendment: Search and Seizure (S. Doc. 103-6). https://www.govinfo.gov/app/details/GPO-CONAN- 1992/ GPO-CONAN- 1992- 10-5/summary Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, H.R. 3162, 107th Cong. ( 2001) . https://www.congress.gov/bill/107th-congress/house-bill/3162

Is this right at times curtailed by private actors? 🖉 edit

Privacy Torts

Privacy violations under tort law was how Warren & Brandeis originally developed the right in 1890 (Citron, 2010, 1805) . These violations, usually unwanted intrusions or disclosures can result from negligent or intentional actions and result in civil lawsuits rather than questions of constitutional legality (Citron, 2010, 1806; Tort, n.d.). Violations are hard to define as they change with technology (the original call for privacy was in relation to the ‘instant photograph’), which creates more and more opportunities for violations (Citron, 2010, 1809; Warren & Brandeis, 1890, 195). However, the law changes slower than technology creating some disconnect in legal remedies for new technology (Citron, 2010, 1810) .

Constitutional Privacy

Constitutions only protect people from government actors and international covenants only affect the laws and regulations which governments put in place (Hudson, 2018; Dunn, 2009) . Even so, most allowances of government invasions of privacy in the United States have evolved because the government mimicked the actions of private actors, placing private conduct at the baseline of privacy expectations (Kamin, 2004, 101, 115).

At a basic level, once information is willingly given to someone other than oneself, the courts have continuously ruled that there is no longer the expectation for privacy. This holds true with information that is given to both private companies and individuals (Kamin, 2004, 101). The Katz decision somewhat demonstrates this curtailment of privacy by creating the plain view doctrine. If something is in plain view, even in a private space, it is not private (Kamin, 2004, 104). This decision extrapolates on the theory that as long as someone else may reasonably have that information, it is an unprotected area under the Fourth Amendment (Kamin, 2004, 104). So, by letting someone into one’s home or publishing information online, one is inherently limiting their Fourth Amendment protections. As such, authorities can ask private companies to perform searches or subpoena these actors rather than those they are investigating, depending on the company’s privacy policies (Kamin, 2004, 102, 137).

In United States v. Jacobsen ( 1984) privacy protections were tested when officials were able to open a package that FedEx had damaged and opened for insurance purposes (Kamin, 2004, 99, United States v. Jacobsen, 1984) . Upon its opening, FedEx employees suspected the package contained cocaine (Kamin, 2004, 99). Had federal officials gotten to it first, it would not have been able to be searched, even if it was damaged, but the information provided by FedEx from the private search was enough to imply the plain view doctrine thus permitting a warrantless search by the DEA (Kamin, 2004, 100; US v. Jacobsen, 1984) . The Supreme Court upheld the granting of the search and subsequent arrest warrant which was obtained because the DEA confirmed the contents were cocaine based on the ‘tip’ from private actors. The Court said that “[w]hether those invasions were accidental or deliberate, and whether they were reasonable or unreasonable, they did not violate the Fourth Amendment because of their private character” (US v. Jacobsen, 1984) . Kamin ( 2004) goes as far as to say that “[t]he fact that the private actor did something the government would not have been permitted to do simply did not covert the subsequent, otherwise reasonable, police conduct into a search that implicated the Fourth Amendment” (100-101). That is to say, after the package was opened due to the damage by a non-governmental party, privacy could no longer be expected, despite that it is reasonable to expect privacy during shipping (Kamin, 2004, 100).

References:

Citron, D.K. ( 2010, Dec. 1). Mainstreaming Privacy Torts. California Law Review 98(6). https://www.jstor.org/stable/25799956

Dunn, C. ( 2009, Apr. 28). Applying the Constitution to private actors (New York Law Journal). NYCLU ACLU of New York. https://www.nyclu.org/en/publications/column-applying-constitution-private-actors-new-york-law-journal

Hudson, D.L. ( 2018, Oct. 20). In the age of social media, expand the reach of the First Amendment. Human Rights Magazine 43(4), n.p. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/in-the-age-of-socia-media-first-amendment/

Kamin, S. ( 2004, Dec. 1). The private is public: The relevance of private actors in defining the Fourth Amendment. Boston College Law Review 46(1), 83-147. https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article= 2293& context=bclr

Tort. (n.d.). Cornell Law School Legal Information Institute. Retrieved Oct. 15, 2021, from https://www.law.cornell.edu/wex/tort

United States v. Jacobsen, 466 US 109 ( 1984) . https://www.law.cornell.edu/supremecourt/text/466/109

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%281890 1215% 294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C