Privacy Rights/Limitations - Restrictions/Democratic limit

Privacy Rights

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

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%2818901215% 294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C