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Warren and Brandeis (1890) acknowledge that, at the time, there was little-to-no legal protection of this right. They look at defamation law and determine while it alludes to privacy law, there are limitations to privacy protection from this area of law as it only considers a damaged reputation, not instances in which an individual wishes something remained secret (Warren & Brandeis, 1890, 197; Bycer, 2014). They also looked at copywriting and publishing law, which only applies to one’s own work (Warren & Brandeis, 1890, 199). They determine that the right to privacy can extend beyond these areas of law as the right should be able to wholly prevent the depiction of private life (Warren & Brandeis, 1890, 218). In the last part of this essay, they set out limitations to the right of privacy – privileged information remains under defamation law (to allow for the operation of courts), privacy ceases with consent to publish, gossip is not in the realm of privacy law, and intention and truth do not prevent a breach of such right. | Warren and Brandeis (1890) acknowledge that, at the time, there was little-to-no legal protection of this right. They look at defamation law and determine while it alludes to privacy law, there are limitations to privacy protection from this area of law as it only considers a damaged reputation, not instances in which an individual wishes something remained secret (Warren & Brandeis, 1890, 197; Bycer, 2014). They also looked at copywriting and publishing law, which only applies to one’s own work (Warren & Brandeis, 1890, 199). They determine that the right to privacy can extend beyond these areas of law as the right should be able to wholly prevent the depiction of private life (Warren & Brandeis, 1890, 218). In the last part of this essay, they set out limitations to the right of privacy – privileged information remains under defamation law (to allow for the operation of courts), privacy ceases with consent to publish, gossip is not in the realm of privacy law, and intention and truth do not prevent a breach of such right. | ||
However, Warren and Brandeis cite at least two instances that predate ''The Right to Privacy'' which discuss the right to privacy. The earliest is the citing of an 1820 statement from Lord Cottenham, who, in agreement with Lord Eldon, felt that were a king’s illnesses recorded by a doctor and published while that king was still alive, a court would not permit its publishing, as he claimed this circumstance would breach the king’s privacy (Warren & Brandeis, 1890, 205; Bycer, 2014). Additionally, they acknowledge that the right to privacy has already been regulated in France since 1868. Section 11 of the 1868 Loi Relative à la Presse (Press Law) says that all periodic writings about a private fact of life are violations punishable by a fine of 500 francs. Pursuit of the violation may only be undertaken by the affected party (Warren & Brandeis, 1890, 214, footnote 1). | However, Warren and Brandeis cite at least two instances that predate ''The Right to Privacy'' which discuss the right to privacy. The earliest is the citing of an 1820 statement from Lord Cottenham, who, in agreement with Lord Eldon, felt that were a king’s illnesses recorded by a doctor and published while that king was still alive, a court would not permit its publishing, as he claimed this circumstance would breach the king’s privacy (Warren & Brandeis, 1890, 205; Bycer, 2014). Additionally, they acknowledge that the right to privacy has already been regulated in France since 1868. Section 11 of the 1868 Loi Relative à la Presse (Press Law) says that all periodic writings about a private fact of life are violations punishable by a fine of 500 francs. Pursuit of the violation may only be undertaken by the affected party (Warren & Brandeis, 1890, 214, footnote 1). Beyond what Warren & Brandeis cited as earlier mentions, there was also the 1801 Haitian Constitution which provided the home was inviolable from government invasion in Article 63 (Theodore, 2000). | ||
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Bycer, M. (2014). Understanding the 1890 Warren and Brandeis “The Right to Privacy” Article. National Juris University. Retrieved Sept. 10, 2021, from https://nationalparalegal.edu/UnderstandingWarrenBrandeis.aspx | Bycer, M. (2014). Understanding the 1890 Warren and Brandeis “The Right to Privacy” Article. National Juris University. Retrieved Sept. 10, 2021, from https://nationalparalegal.edu/UnderstandingWarrenBrandeis.aspx | ||
Louis Brandeis. (2020, Nov. 9). Britannica. Retrieved Sept. 8, 2021, from https://www.britannica.com/biography/Louis-Brandeis | Louis Brandeis. (2020, Nov. 9). Britannica. Retrieved Sept. 8, 2021, from https://www.britannica.com/biography/Louis-Brandeis | ||
Theodore, Charmant. (2000). Haitian Constitution of 1801 (English). Louverture Project. http://thelouvertureproject.org/index.php?title=Haitian_Constitution_of_1801_(English) | |||
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 | 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 | ||
===What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE=== | ===What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE=== | ||
====Afghanistan==== | ====Afghanistan==== | ||
The 1964 Afghan Constitution protected only the right to privacy in the home in Article 28 (Constitute Project, “Afghanistan 1964 Constitution”). Today, Article 38 offers similar protections and Article 37 protects communications (Constitute Project, “Afghanistan 2004 Constitution”). | |||
https://constituteproject.org/constitution/Afghanistan_1964?lang=en | |||
https://constituteproject.org/constitution/Afghanistan_2004?lang=en | |||
====Albania==== | ====Albania==== | ||
Today, privacy is guaranteed in Articles 35 (data), 36 (correspondence), and 37 (home) of the 1998 constitution (Constitute Project, “Albania 1998 rev. 2016”). This appears to be their first protection of privacy rights. | |||
https://constituteproject.org/constitution/Albania_2016?lang=en | |||
====Algeria==== | ====Algeria==== | ||
Today, the 2020 constitution protects the inviolability of the domicile in Article 47 and, in Article 46, private life and private communication (Constitute Project, “Algeria 2020”). Previously, these rights were protected in the 1976 Constitution in Articles 39 and 40 (International Constitutional Law Project, Algeria Constitution”). | |||
https://constituteproject.org/constitution/Algeria_2020?lang=en | |||
https://www.servat.unibe.ch/icl/ag00000_.html | |||
====Andorra==== | ====Andorra==== | ||
Articles 14 and 15 of the first and only Andorran constitution protect privacy in the state. Article 14 protects privacy, honor, and reputation, while Article 15 protects the home and communications (Constitute Project, “Andorra 1993”). | |||
https://constituteproject.org/constitution/Andorra_1993?lang=en | |||
====Angola==== | ====Angola==== | ||
Today, privacy rights are protected in Articles 32 (personal and family life), 33 (home), and 34 (correspondence and communication) of the 2010 constitution. | |||
https://constituteproject.org/constitution/Angola_2010?lang=en | |||
====Antigua and Barbuda==== | ====Antigua and Barbuda==== | ||
In the constitution, Article 3, Section C protects the right to privacy in personal and family life, as well as the home (Constitute Project, “Antigua and Barbuda 1981”). | |||
https://constituteproject.org/constitution/Antigua_and_Barbuda_1981?lang=en | |||
====Argentina==== | ====Argentina==== | ||
Articles 18 & 19 of the 1853 constitution protect privacy. Article 18(2) reads, “The residence is inviolable, as are letters and private papers; and a law shall determine in what cases and for what reasons their search and seizure shall be allowed,” while Article 19 reads, “The private actions of men that in no way offend public order or morality, nor injure a third party, are reserved only to God, and are exempt from the authority of the magistrates” (Constitute Project, “Argentina 1832, reinst. 1983, rev. 1994”). | Articles 18 & 19 of the 1853 constitution protect privacy. Article 18(2) reads, “The residence is inviolable, as are letters and private papers; and a law shall determine in what cases and for what reasons their search and seizure shall be allowed,” while Article 19 reads, “The private actions of men that in no way offend public order or morality, nor injure a third party, are reserved only to God, and are exempt from the authority of the magistrates” (Constitute Project, “Argentina 1832, reinst. 1983, rev. 1994”). | ||
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====Armenia==== | ====Armenia==== | ||
The 1995 Armenian constitution protects | The 1995 Armenian constitution protects three main privacy rights in Articles 31-33: personal life, home, and communication (Constitute Project, “Armenia 1995 rev. 2015”). | ||
https://constituteproject.org/constitution/Armenia_2015?lang=en | https://constituteproject.org/constitution/Armenia_2015?lang=en | ||
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====Azerbaijan==== | ====Azerbaijan==== | ||
Today, Article 32 of the 1995 constitution protects privacy. It is quite detailed but protects personal privacy, family life, personal information, and correspondence. Article 33 extends privacy rights to the residence (Constitute Project, “Azerbaijan 1995 rev. 2016”). Previously, privacy rights had been protected by the 1977 Soviet Constitution. | Today, Article 32 of the 1995 constitution protects privacy. It is quite detailed but protects personal privacy, family life, personal information, and correspondence. Article 33 extends privacy rights to the residence (Constitute Project, “Azerbaijan 1995 rev. 2016”). Previously, privacy rights had been protected by the 1977 Soviet Constitution (see below). | ||
https://constituteproject.org/constitution/Azerbaijan_2016?lang=en | https://constituteproject.org/constitution/Azerbaijan_2016?lang=en | ||
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====Botswana==== | ====Botswana==== | ||
The 1966 constitution of Botswana includes privacy protections of the home in Article 3(c) and Article 9 | The 1966 constitution of Botswana includes privacy protections of the home in Article 3(c) and Article 9. Article 12, in protecting freedom of expression, also protects correspondence (Constitute Project, “Botswana 1966 rev. 2016”). | ||
https://constituteproject.org/constitution/Botswana_2016?lang=en | https://constituteproject.org/constitution/Botswana_2016?lang=en | ||
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====Brunei==== | ====Brunei==== | ||
Brunei lacks any legislation or constitutional provisions for privacy rights. The 1996 United States Department of State Report on Brunei Human Rights even says that law actively allows for intrusions of privacy. | |||
https://1997-2001.state.gov/global/human_rights/1996_hrp_report/brunei.html | |||
====Bulgaria==== | ====Bulgaria==== | ||
The right to privacy, including family life, private life, honor, dignity, and reputation, is protected in Article 32 of the 1991 constitution (Constitute Project, “Bulgaria 1991 rev. 2015”). | The right to privacy, including family life, private life, honor, dignity, and reputation, is protected in Article 32 of the 1991 constitution (Constitute Project, “Bulgaria 1991 rev. 2015”). | ||
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====Cape Verde==== | ====Cape Verde==== | ||
Article 33 makes violations of privacy inadmissible in court, while Article 38 grants the right to “personal identity, to civil rights, to a name, honor, and reputation, and to personal and family privacy” | Article 33 makes violations of privacy inadmissible in court, while Article 38 grants the right to “personal identity, to civil rights, to a name, honor, and reputation, and to personal and family privacy”. Article 41 extends privacy rights to correspondence, and Article 42 extends it to electronic data privacy (Constitute Project, “Cape Verde 1980 rev. 1992”). | ||
https://constituteproject.org/constitution/Cape_Verde_1992?lang=en | https://constituteproject.org/constitution/Cape_Verde_1992?lang=en | ||
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====Czech Republic==== | ====Czech Republic==== | ||
Article 7(1) of the 1993 constitution guarantees the inviolability of persons and private life | Article 7(1) of the 1993 constitution guarantees the inviolability of persons and private life. Article 10 protects life from intrusion by others, and it also protects data privacy (Constitute Project, “Czech Republic 1993 rev. 2013”). | ||
https://constituteproject.org/constitution/Czech_Republic_2013?lang=en | https://constituteproject.org/constitution/Czech_Republic_2013?lang=en | ||
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====Dominica==== | ====Dominica==== | ||
Article 1(c) of the only constitution Dominica has had, written in 1978, protects the right to privacy in the home. Article 7(1) protects privacy during a search. | Article 1(c) of the only constitution Dominica has had, written in 1978, protects the right to privacy in the home. Article 7(1) protects privacy during a search (Constitute Project, "Dominica 1978 rev. 2014"). | ||
https://constituteproject.org/constitution/Dominica_2014?lang=en | https://constituteproject.org/constitution/Dominica_2014?lang=en | ||
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====Ecuador==== | ====Ecuador==== | ||
Article 11(3) enforces and protects the rights put forth by the constitution and international treaties: “The rights and guarantees set forth in the Constitution and in international human rights instruments shall be directly and immediately enforced by and before any civil, administrative or judicial servant, either by virtue of their office or at the request of the party” | Article 11(3) enforces and protects the rights put forth by the constitution and international treaties: “The rights and guarantees set forth in the Constitution and in international human rights instruments shall be directly and immediately enforced by and before any civil, administrative or judicial servant, either by virtue of their office or at the request of the party”. In Chapter 6, Rights to Freedom, Article 66, Sections 11 and 19-22 set out more specific privacy regulations in terms of convictions, correspondence, the home, personal data, and privacy rights (Constitute Project, “Ecuador 2008 rev. 2021). There are 22 previous Ecuadorian constitutions, but English translations could not be found to investigate the presence of privacy rights. | ||
https://constituteproject.org/constitution/Ecuador_2021?lang=en | https://constituteproject.org/constitution/Ecuador_2021?lang=en | ||
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====El Salvador==== | ====El Salvador==== | ||
Article 2 of the 1983 constitution explicitly protects the “right to honor, personal and family intimacy, and one’s own | Article 2 of the 1983 constitution explicitly protects the “right to honor, personal and family intimacy, and one’s own image.” Article 6 allows for free communication as long as it does not violate the private lives of others. Article 24 protects correspondence (Constitute Project, “El Salvador 1983 rev. 2014”). | ||
https://constituteproject.org/constitution/El_Salvador_2014?lang=en | https://constituteproject.org/constitution/El_Salvador_2014?lang=en | ||
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====France==== | ====France==== | ||
The right to privacy in France is implied in Article IV of the Declaration of the Rights of Man and the Citizen of 26 August 1789. Article IV reads, “Liberty consists of being able to do everything that does not harm anybody else: thus the exercise of the natural rights of every man has no boundaries except those that ensure to other Members of the Society the enjoyment of those same rights” (Hardt, Kiiver, Kristofertisch). The Declaration of the Rights of Man is still in | The right to privacy in France is implied in Article IV of the Declaration of the Rights of Man and the Citizen of 26 August 1789. Article IV reads, “Liberty consists of being able to do everything that does not harm anybody else: thus the exercise of the natural rights of every man has no boundaries except those that ensure to other Members of the Society the enjoyment of those same rights” (Hardt, Kiiver, Kristofertisch). The Declaration of the Rights of Man is still in force today due to the Preamble of the 1958 French Constitution. | ||
Sascha Hardt, Phillip Kiiver & Gisela Kristofertisch. (2019). Comparative Constitutional Law Documents. “Declaration of the Rights of Man and the Citizen [Declaration des Driots de L’Homme et du Citoyen] of 26 August 1789” and “Constitution of the V. Republic of 4 October 1958.” | Sascha Hardt, Phillip Kiiver & Gisela Kristofertisch. (2019). Comparative Constitutional Law Documents. “Declaration of the Rights of Man and the Citizen [Declaration des Driots de L’Homme et du Citoyen] of 26 August 1789” and “Constitution of the V. Republic of 4 October 1958.” | ||
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====Georgia==== | ====Georgia==== | ||
Today, Article 15 in the 1995 constitution of Georgia protects the right to personal privacy, personal space, and privacy of communication | Today, Article 15 in the 1995 constitution of Georgia protects the right to personal privacy, personal space, and privacy of communication. Additionally, Article 9 claims the inviolability of human dignity (Constitute Project, “Georgia 1995 rev. 2018”). | ||
https://constituteproject.org/constitution/Georgia_2018?lang=en | https://constituteproject.org/constitution/Georgia_2018?lang=en | ||
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====Grenada==== | ====Grenada==== | ||
The 1973 constitution of Grenada, the country’s first, protected the right to privacy in Article 1(c) (Commonwealth Parliamentary Association, “The Grenada Constitution Order 1973”). Specifically, it protected the home and other property. Today, the 1973 constitution takes on similar language in Article 1(c) (Constitute Project, | The 1973 constitution of Grenada, the country’s first, protected the right to privacy in Article 1(c) (Commonwealth Parliamentary Association, “The Grenada Constitution Order 1973”). Specifically, it protected the home and other property. Today, the 1973 constitution takes on similar language in Article 1(c) (Constitute Project, “Grenada 1973, reinst. 1991, rev. 1992”). | ||
https://constituteproject.org/constitution/Grenada_1992?lang=en | https://constituteproject.org/constitution/Grenada_1992?lang=en | ||
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====Honduras==== | ====Honduras==== | ||
The 1982 constitution provides for privacy protections in Article 76. In this text, one is granted “The right to honor, to personal privacy, to family, and to one's dignity” (Constitute Project, “Hungary 1982 rev. 2013). | The 1982 constitution provides for privacy protections in Article 76. In this text, one is granted “The right to honor, to personal privacy, to family, and to one's dignity” (Constitute Project, “Hungary 1982 rev. 2013"). | ||
https://constituteproject.org/constitution/Honduras_2013?lang=en | https://constituteproject.org/constitution/Honduras_2013?lang=en | ||
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====Israel==== | ====Israel==== | ||
Privacy rights in Israel derive from the Basic Law Human Liberty and Dignity of 1992 | Privacy rights in Israel derive from the Basic Law Human Liberty and Dignity of 1992. In this law, Article 7 protects privacy, intimacy, private premises, and confidential communications (Constitute Project, “Israel 1953 rev. 2013”). | ||
https://constituteproject.org/constitution/Israel_2013?lang=en | https://constituteproject.org/constitution/Israel_2013?lang=en | ||
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====Ivory Coast==== | ====Ivory Coast==== | ||
The only specific privacy right mentioned in the constitution is that | The only specific privacy right mentioned in the constitution is that in Article 8, which inviolably protects the home (Constitute Project, “Côte d'Ivoire 2016”). | ||
https://constituteproject.org/countries/Africa/Cote_d_Ivoire?lang=en | https://constituteproject.org/countries/Africa/Cote_d_Ivoire?lang=en | ||
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====Japan==== | ====Japan==== | ||
Historically, the 1889 constitution of Japan protected the home and correspondence in Articles 25 and 26 (Constitute Project, “Japan’s Constitution of 1889 Historical”). Today, Article 35 protects the home. | Historically, the 1889 constitution of Japan protected the home and correspondence in Articles 25 and 26 (Constitute Project, “Japan’s Constitution of 1889 Historical”). Today, Article 35 protects the home (Constitute Project, "Japan 1946"). | ||
https://www.constituteproject.org/constitution/Japan_1889.pdf?lang=en | https://www.constituteproject.org/constitution/Japan_1889.pdf?lang=en | ||
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====Jordan==== | ====Jordan==== | ||
Article 7 of the 1952 constitution says, “1. Personal freedom shall be guaranteed. 2. Every infringement on rights and public freedoms or the inviolability of the private life of Jordanians is a crime punishable by | Article 7 of the 1952 constitution says, “1. Personal freedom shall be guaranteed. 2. Every infringement on rights and public freedoms or the inviolability of the private life of Jordanians is a crime punishable by law.” Article 18 protects communications and Article 10 protects the home (Constitute Project, “Jordan 1952 rev. 2016”). | ||
https://constituteproject.org/constitution/Jordan_2016?lang=en | https://constituteproject.org/constitution/Jordan_2016?lang=en | ||
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====Latvia==== | ====Latvia==== | ||
Article 96 of the 1922 constitution states “Everyone has the right to inviolability of his or her private life, home and correspondence” (Constitute Project, “Latvia | Article 96 of the 1922 constitution states “Everyone has the right to inviolability of his or her private life, home and correspondence” (Constitute Project, “Latvia 1922, reinst. 1991, rev. 2016”). | ||
https://constituteproject.org/constitution/Latvia_2016?lang=en | https://constituteproject.org/constitution/Latvia_2016?lang=en | ||
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====Malaysia==== | ====Malaysia==== | ||
The first privacy related writing was the Personal Data Protection Act of 2010. This law came into force in 2013 and is more about data privacy than privacy rights | The constitution is lacking privacy rights protections. The first privacy related writing was the Personal Data Protection Act of 2010. This law came into force in 2013 and is more about data privacy than privacy rights generally. | ||
https://thelawreviews.co.uk/title/the-privacy-data-protection-and-cybersecurity-law-review/malaysia | https://thelawreviews.co.uk/title/the-privacy-data-protection-and-cybersecurity-law-review/malaysia | ||
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====Malta==== | ====Malta==== | ||
Article 32 of the Maltese Constitution protects the right to private and family life (Constitute Project, “Malta 1964 rev. 2016”) | Article 32 of the Maltese Constitution protects the right to private and family life. Article 38 protects the home (Constitute Project, “Malta 1964 rev. 2016”). | ||
https://www.constituteproject.org/constitution/Malta_2016?lang=en | https://www.constituteproject.org/constitution/Malta_2016?lang=en | ||
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====Mauritania==== | ====Mauritania==== | ||
Article 13(4) protects the right to privacy in Mauritania: “The honor and the private life of the citizen, the inviolability of the human person, of his domicile and of his correspondence are guaranteed by the State” | Article 13(4) protects the right to privacy in Mauritania: “The honor and the private life of the citizen, the inviolability of the human person, of his domicile and of his correspondence are guaranteed by the State” (Constitute Project, "Mauritania 1991 rev. 2012"). | ||
https://www.constituteproject.org/constitution/Mauritania_2012?lang=en | https://www.constituteproject.org/constitution/Mauritania_2012?lang=en | ||
====Mauritius==== | ====Mauritius==== | ||
The sole constitution of Mauritius from 1968 is limited in what it says about privacy rights. It only protects a person and their property from a search in Article 9. | The sole constitution of Mauritius from 1968 is limited in what it says about privacy rights. It only protects a person and their property from a search in Article 9 (Constitute Project, "Mauritius 1968 rev. 2016"). | ||
https://www.constituteproject.org/constitution/Mauritius_2016?lang=en | https://www.constituteproject.org/constitution/Mauritius_2016?lang=en | ||
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====Mongolia==== | ====Mongolia==== | ||
Article 16(13) of the 1992 constitution protects the right to personal liberty and safety. It says, “The privacy of citizens, their families, confidentiality of correspondence and communication, and the inviolability of home residence shall be protected by law” (Constitute Project, “Mongolia 1992 rev. 2001). | Article 16(13) of the 1992 constitution protects the right to personal liberty and safety. It says, “The privacy of citizens, their families, confidentiality of correspondence and communication, and the inviolability of home residence shall be protected by law” (Constitute Project, “Mongolia 1992 rev. 2001). | ||
https://www.constituteproject.org/constitution/Mongolia_2001?lang=en | https://www.constituteproject.org/constitution/Mongolia_2001?lang=en | ||
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====Nepal==== | ====Nepal==== | ||
The 1990 constitution was the first to protect privacy as a fundamental right. In Article 22: “Except as provided by law, the privacy of the person, house, property, document, correspondence or information of anyone is inviolable” (Constitution Net, “The Constitution of Nepal 1990”). In the 2015 constitution, the same language is used in Article 28 (Constitute Project, “Nepal 2015 rev. 2016). | The 1990 constitution was the first to protect privacy as a fundamental right. In Article 22: “Except as provided by law, the privacy of the person, house, property, document, correspondence or information of anyone is inviolable” (Constitution Net, “The Constitution of Nepal 1990”). In the 2015 constitution, the same language is used in Article 28 (Constitute Project, “Nepal 2015 rev. 2016"). | ||
https://www.constituteproject.org/constitution/Nepal_2016?lang=en | https://www.constituteproject.org/constitution/Nepal_2016?lang=en | ||
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====Kingdom of the Netherlands==== | ====Kingdom of the Netherlands==== | ||
Article 10 of the 1814 Constitution grants privacy rights to persons in the Kingdom of the Netherlands. 10(1) states “Everyone has, save for limitations to be provided by or pursuant to statute, the right to respect for his private | Article 10 of the 1814 Constitution grants privacy rights to persons in the Kingdom of the Netherlands. 10(1) states “Everyone has, save for limitations to be provided by or pursuant to statute, the right to respect for his private life.” Article 13 protects private correspondence and Article 12 protects the home (Hardt & Kiiver, 2019, 141). | ||
Sascha Hardt & Phillip Kiiver. Comparative Constitutional Law Documents. “Constitution for the Kingdom of the Netherlands of 24 August 1815.” | Sascha Hardt & Phillip Kiiver. Comparative Constitutional Law Documents. “Constitution for the Kingdom of the Netherlands of 24 August 1815.” | ||
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====Oman==== | ====Oman==== | ||
The Oman constitution, written in 1996, only constitutional protects the privacy of homes in Article 27 (Constitute Project, Oman 1996 rev. 2011). | The Oman constitution, written in 1996, only constitutional protects the privacy of homes in Article 27 (Constitute Project, "Oman 1996 rev. 2011"). | ||
https://constituteproject.org/constitution/Oman_2011?lang=en | https://constituteproject.org/constitution/Oman_2011?lang=en | ||
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====Palau==== | ====Palau==== | ||
Article IV(4) of the 1981 constitution ensures “Every person has the right to be secure in his person, house, papers and effects against entry, search and seizure” (Constitute Project, “Palau 1981 rev. 1992). | Article IV(4) of the 1981 constitution ensures “Every person has the right to be secure in his person, house, papers and effects against entry, search and seizure” (Constitute Project, “Palau 1981 rev. 1992"). | ||
https://constituteproject.org/constitution/Palau_1992?lang=en | https://constituteproject.org/constitution/Palau_1992?lang=en | ||
====Panama==== | ====Panama==== | ||
Article 28 of the 1904 constitution keeps documents private (University of Michigan, “Constitution of the Republic of Panama”). The 1972 constitution reflects the same tone toward the privacy of documents in Article 29 | Article 28 of the 1904 constitution keeps documents private (University of Michigan, “Constitution of the Republic of Panama”). The 1972 constitution reflects the same tone toward the privacy of documents in Article 29. Article 26 grants the home inviolable, though there is no blanket protection of privacy rights in the 1972 constitution (Constitute Project, “Panama 1972 rev. 2004”). | ||
https://babel.hathitrust.org/cgi/pt?id=mdp.35112104577715&view=1up&seq=12 | https://babel.hathitrust.org/cgi/pt?id=mdp.35112104577715&view=1up&seq=12 | ||
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====Paraguay==== | ====Paraguay==== | ||
In the 1967 constitution, Article 68 makes the home inviolable, and Article 69 makes communications inviolable, barring investigation (International Foundation for Electoral Systems, “Constitution of the Republic of Paraguay 1967”. | In the 1967 constitution, Article 68 makes the home inviolable, and Article 69 makes communications inviolable, barring investigation (International Foundation for Electoral Systems, “Constitution of the Republic of Paraguay 1967”. Today, according to Article 33 of the Paraguay Constitution, “Personal and family intimacy, as well as the respect of private life, is inviolable. The behavior of persons, that does not affect the public order established by the law or the rights of third parties[,] is exempted from the public authority.” Article 34 inviolably protects the home (Constitute Project, “Paraguay 1992 rev. 2011”). | ||
Today, | |||
https://constituteproject.org/constitution/Paraguay_2011?lang=en | https://constituteproject.org/constitution/Paraguay_2011?lang=en | ||
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====Poland==== | ====Poland==== | ||
The 1921 Polish Constitution grants privacy in the home and communication in articles 100 and 106, respectively (Sejm Parliamentary Library, “Constitution of the Republic of Poland, March 17, 1921”). Today, Article 47 of the 1997 constitution protects the general right to privacy in Poland: “Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal | The 1921 Polish Constitution grants privacy in the home and communication in articles 100 and 106, respectively (Sejm Parliamentary Library, “Constitution of the Republic of Poland, March 17, 1921”). Today, Article 47 of the 1997 constitution protects the general right to privacy in Poland: “Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.” Articles 49 and 50 extend these protections to communications and the home (Constitute Project, “Poland 1997 rev. 2009”). | ||
http://libr.sejm.gov.pl/tek01/txt/kpol/e1921.html | http://libr.sejm.gov.pl/tek01/txt/kpol/e1921.html | ||
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====Portugal==== | ====Portugal==== | ||
Portugal’s first protection of privacy was in the 1976 constitution. Article 26(1) says “Everyone shall possess the right to a personal identity, to the development of their personality, to civil capacity, to citizenship, to a good name and reputation, to their likeness, to speak out, to protect the privacy of their personal and family life, and to legal protection against any form of | Portugal’s first protection of privacy was in the 1976 constitution. Article 26(1) says “Everyone shall possess the right to a personal identity, to the development of their personality, to civil capacity, to citizenship, to a good name and reputation, to their likeness, to speak out, to protect the privacy of their personal and family life, and to legal protection against any form of discrimination.” Article 65 grants privacy in the home (Constitute Project, “Portugal 1976 rev. 2005). | ||
https://constituteproject.org/constitution/Portugal_2005?lang=en | https://constituteproject.org/constitution/Portugal_2005?lang=en | ||
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====Romania==== | ====Romania==== | ||
Today, Article 26 of the 1991 Romanian Constitution protects personal and family privacy: “(1) The public authorities shall respect and protect the intimate, family and private life” (Constitute Project, “Romania 1991 rev. 2003”). Privacy may have been protected in earlier iterations of the constitution (i.e., 1952, 1965, etc.) but English translations could not be found. | Today, Article 26 of the 1991 Romanian Constitution protects personal and family privacy: “(1) The public authorities shall respect and protect the intimate, family and private life” (Constitute Project, “Romania 1991 rev. 2003”). Privacy may have been protected in earlier iterations of the constitution (i.e., 1952, 1965, etc.), but English translations could not be found. | ||
https://constituteproject.org/constitution/Romania_2003?lang=en | https://constituteproject.org/constitution/Romania_2003?lang=en | ||
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====Rwanda==== | ====Rwanda==== | ||
The right to privacy in Rwanda is protected by Articles 23 and 34. Article 23 states “The privacy of a person, his or her family, home or correspondence shall not be subjected to interference in a manner inconsistent with the law; the person's honour and dignity shall be respected. A person's home is inviolable. No search or entry into a home shall be carried out without the consent of the owner, except in circumstances and in accordance with procedures determined by the | The right to privacy in Rwanda is protected by Articles 23 and 34. Article 23 states “The privacy of a person, his or her family, home or correspondence shall not be subjected to interference in a manner inconsistent with the law; the person's honour and dignity shall be respected. A person's home is inviolable. No search or entry into a home shall be carried out without the consent of the owner, except in circumstances and in accordance with procedures determined by the law.” Article 34 states “Private property, whether owned individually or collectively, is inviolable” (Constitute Project, "Rwanda 2003 rev. 2015"). | ||
https://constituteproject.org/constitution/Rwanda_2015?lang=en | https://constituteproject.org/constitution/Rwanda_2015?lang=en | ||
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====Somalia==== | ====Somalia==== | ||
Article 28 of the 1960 Constitution of Somalia grants “respect for the private home” in which | Article 28 of the 1960 Constitution of Somalia grants “respect for the private home” in which "no home or private property of any one (sic) may be entered into or violated, save in the cases mentioned in Paragraphs 2, 3 and 5 of Article 25” (World Intellectual Property Organization, “The Constitution”). | ||
https://www.wipo.int/edocs/lexdocs/laws/en/so/so002en.pdf | https://www.wipo.int/edocs/lexdocs/laws/en/so/so002en.pdf | ||
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====South Korea==== | ====South Korea==== | ||
Under the first constitution of the Republic of Korea in 1948, Articles 17 and 18 grant the right to privacy (Constitute Project, “Korea (Republic of) 1948 rev. 1987”) | Under the first constitution of the Republic of Korea in 1948, Articles 17 and 18 grant the right to privacy. Neither the privacy of a citizen nor communication may be infringed (Constitute Project, “Korea (Republic of) 1948 rev. 1987”). | ||
https://constituteproject.org/constitution/Republic_of_Korea_1987?lang=en | https://constituteproject.org/constitution/Republic_of_Korea_1987?lang=en | ||
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====Sri Lanka==== | ====Sri Lanka==== | ||
Sri Lanka’s constitution does not protect the right to privacy, though privacy is mentioned briefly in Article 14A(2) (Constitute Project, “Sri Lanka 1978 rev. 2015”). Sri Lanka is also lacking privacy legislation, instead opting to write in provisions when regulating other industries (Data Guidance, “Sri Lanka – Data Protection Overview”). | Sri Lanka’s constitution does not protect the right to privacy, though privacy is mentioned briefly in Article 14A(2) (Constitute Project, “Sri Lanka 1978 rev. 2015”). Sri Lanka is also lacking comprehensive privacy legislation, instead opting to write in provisions when regulating other industries (Data Guidance, “Sri Lanka – Data Protection Overview”). | ||
https://constituteproject.org/constitution/Sri_Lanka_2015?lang=en | https://constituteproject.org/constitution/Sri_Lanka_2015?lang=en | ||
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====Sudan==== | ====Sudan==== | ||
Privacy rights first appear in the 1973 Sudanese Constitution. Article 42 states “the private life of citizens is inviolable. The state shall guarantee the freedom and secrecy of postal, telegraphic, and telephonic communications in accordance with the law.” Article 43 protects dwellings in the same manner (The Democratic Republic of Sudan Gazette, “The Permanent Constitution of Sudan”). Today, these protections are combined into Article 55 of the 2019 Constitution, in which “No one’s privacy may be violated. It is not permissible to interfere in the private or family life of any person in his home or correspondence, except in accordance with the law” (Constitute Project, Sudan 2019). | Privacy rights first appear in the 1973 Sudanese Constitution. Article 42 states “the private life of citizens is inviolable. The state shall guarantee the freedom and secrecy of postal, telegraphic, and telephonic communications in accordance with the law.” Article 43 protects dwellings in the same manner (The Democratic Republic of Sudan Gazette, “The Permanent Constitution of Sudan”). Today, these protections are combined into Article 55 of the 2019 Constitution, in which “No one’s privacy may be violated. It is not permissible to interfere in the private or family life of any person in his home or correspondence, except in accordance with the law” (Constitute Project, "Sudan 2019"). | ||
https://www.righttononviolence.org/mecf/wp-content/uploads/2012/01/Constitution-Sudan-1973-+-amendment-1975.pdf | https://www.righttononviolence.org/mecf/wp-content/uploads/2012/01/Constitution-Sudan-1973-+-amendment-1975.pdf | ||
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====Trinidad and Tobago==== | ====Trinidad and Tobago==== | ||
The 1976 constitution does not explicitly protect the right to privacy. However, Article 4 protects fundamental human rights, such as “the right of the individual to respect for his private and family life” and protection of the law (Constitute Project, “Trinidad and Tobago 1976 rev. 2007). | The 1976 constitution does not explicitly protect the right to privacy. However, Article 4 protects fundamental human rights, such as “the right of the individual to respect for his private and family life” and protection of the law (Constitute Project, “Trinidad and Tobago 1976 rev. 2007"). | ||
https://www.constituteproject.org/constitution/Trinidad_and_Tobago_2007?lang=en | https://www.constituteproject.org/constitution/Trinidad_and_Tobago_2007?lang=en | ||
====Tunisia==== | ====Tunisia==== | ||
In 1959, the constitution granted the right to privacy in Article 9. At some point between then and 2008, this article was amended to protect personal data, reflecting the changes in privacy rights with new technologies (Constitute Project, “Tunisia 1959 rev. 2008). | In 1959, the constitution granted the right to privacy in Article 9. At some point between then and 2008, this article was amended to protect personal data, reflecting the changes in privacy rights with new technologies (Constitute Project, “Tunisia 1959 rev. 2008"). | ||
https://www.constituteproject.org/constitution/Tunisia_2008?lang=en | https://www.constituteproject.org/constitution/Tunisia_2008?lang=en | ||
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====Uganda==== | ====Uganda==== | ||
Article 17(c) of the 1962 constitution provides privacy rights protections in Uganda (World Statesmen, “Uganda Constitutional Instruments”). It protects “the privacy of his home and other property and from deprivation of property without compensation” as a fundamental right. Today, the 1995 Constitution grants these protections in Article 27 (Constitute Project, “Uganda’s Constitution of 1995 with Amendments through 2017). | Article 17(c) of the 1962 constitution provides privacy rights protections in Uganda (World Statesmen, “Uganda Constitutional Instruments”). It protects “the privacy of his home and other property and from deprivation of property without compensation” as a fundamental right. Today, the 1995 Constitution grants these protections in Article 27 (Constitute Project, “Uganda’s Constitution of 1995 with Amendments through 2017"). | ||
https://www.worldstatesmen.org/Uganda-const-1962.pdf | https://www.worldstatesmen.org/Uganda-const-1962.pdf | ||
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====United Arab Emirates==== | ====United Arab Emirates==== | ||
The 1971 constitution protects privacy in communications in Articles 31 and Article 36 protects one’s home (Constitute Project, “United Arab Emirates 1971, rev. 2009). | The 1971 constitution protects privacy in communications in Articles 31 and Article 36 protects one’s home (Constitute Project, “United Arab Emirates 1971, rev. 2009"). | ||
https://www.constituteproject.org/constitution/United_Arab_Emirates_2009?lang=en | https://www.constituteproject.org/constitution/United_Arab_Emirates_2009?lang=en | ||
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====Uruguay==== | ====Uruguay==== | ||
The 1966 constitution was the first translated into English to mention privacy rights. It is protected in Articles 10, 11, and 28. Article 10 grants individuals’ privacy, Article 11 makes the home private, and Article 28 protects communications. | The 1966 constitution was the first translated into English to mention privacy rights. It is protected in Articles 10, 11, and 28. Article 10 grants individuals’ privacy, Article 11 makes the home private, and Article 28 protects communications (Constitute Project, "Uruguay 1966, reinst. 1985, rev. 2004"). | ||
https://constituteproject.org/constitution/Uruguay_2004?lang=en | https://constituteproject.org/constitution/Uruguay_2004?lang=en | ||
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====Venezuela==== | ====Venezuela==== | ||
Privacy is first alluded to in the Venezuelan Declaration of Independence and Constitution of 1812 in Art. 177, which grants privacy in the home from soldiers (Rice University, "Venezuelan Declaration of Independence and Constitution"). | Privacy is first alluded to in the Venezuelan Declaration of Independence and Constitution of 1812 in Art. 177, which grants privacy in the home from soldiers (Rice University, "Venezuelan Declaration of Independence and Constitution"). | ||
Today, privacy is strictly protected in Venezuela, going beyond the call of the ICCPR’s call in Article 17 under constitutional Articles 48 and 60 (Privacy International, “The Right to Privacy in Venezuela (Bolivarian Republic of): Stakeholder Report, Universal Periodic Review, | Today, privacy is strictly protected in Venezuela, going beyond the call of the ICCPR’s call in Article 17 under constitutional Articles 48 and 60 (Privacy International, “The Right to Privacy in Venezuela (Bolivarian Republic of): Stakeholder Report, Universal Periodic Review,” 4). | ||
https://hrp.law.harvard.edu/wp-content/uploads/2016/04/venezuela_upr2016.pdf | https://hrp.law.harvard.edu/wp-content/uploads/2016/04/venezuela_upr2016.pdf | ||
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====Yemen==== | ====Yemen==== | ||
There are no explicit protections of privacy in Yemen, though Article 20 does not allow for private confiscation without legal judgment (Constitute Project, “Yemen | There are no explicit protections of privacy in Yemen, though Article 20 does not allow for private confiscation without legal judgment (Constitute Project, “Yemen 1991: Rev. 2015”). | ||
https://www.constituteproject.org/constitution/Yemen_2015?lang=en | https://www.constituteproject.org/constitution/Yemen_2015?lang=en | ||
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The right to privacy was first enshrined at a supranational level before it was established in individual states (Krishnamurthy, 2020, 26). The right’s first appearance in legal documentation was in the United Nation’s (UN) 1948 Universal Declaration on Human Rights (UDHR). Article 12 of the UDHR (1948) states “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” The UHDR is not a treaty, so the right was not yet entrenched and more of a suggestion for states to incorporate into their laws and practices. | The right to privacy was first enshrined at a supranational level before it was established in individual states (Krishnamurthy, 2020, 26). The right’s first appearance in legal documentation was in the United Nation’s (UN) 1948 Universal Declaration on Human Rights (UDHR). Article 12 of the UDHR (1948) states “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” The UHDR is not a treaty, so the right was not yet entrenched and more of a suggestion for states to incorporate into their laws and practices. | ||
Two years later, the Council of Europe passed the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) which has similar tones in Article 8, though with an exception for national security in Article 8 (2) but is legally binding (1950) | Two years later, the Council of Europe passed the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) which has similar tones in Article 8, though with an exception for national security in Article 8 (2) but is legally binding (1950). Article 8 of the ECHR specifically protects one’s family life, personal life, correspondence, and home (Roagna, 2021, 9). Worldwide, the right to privacy became codified in 1966 with the passage of the UN’s International Covenant on Civil and Political Rights (ICCPR), in which Article 17 has almost identical language to the UDHR’s Article 12. In subsequent UN treaties, this right to privacy was explicitly granted to children and migrants as well (Convention on the Rights of the Child, 1989, Art. 16; International Covenant on the Protection of All Migrant Workers and Members of Their Families, 1990, Art. 14). | ||
'''Complying with the ICCPR''': In the United States, the right to privacy was not originally codified but established through a variety of Supreme Court cases beginning in the 1960s (Privacy, n.d.). In 1965, the Court ruled on Griswold v. Connecticut. The majority opinion written by Justice Douglas claims that the express personal freedoms named in the First, Third, Fourth, Fifth, and Ninth Amendments create an implied “zone of privacy” (Privacy, n.d.). Justice Harlan’s concurring opinion, referenced in later Supreme Court privacy cases, claims privacy zones derive from the Fourteenth Amendment (Privacy, n.d.). Later, legislation was passed regulating specific sectors, beginning in 1974 with the Family Educations Rights and Privacy Act (FERPA), which protects student data, and the Privacy Act which regulates the use of data by federal agencies (History of privacy timeline, 2021). | '''Complying with the ICCPR''': In the United States, the right to privacy was not originally codified but established through a variety of Supreme Court cases beginning in the 1960s (Privacy, n.d.). In 1965, the Court ruled on Griswold v. Connecticut. The majority opinion written by Justice Douglas claims that the express personal freedoms named in the First, Third, Fourth, Fifth, and Ninth Amendments create an implied “zone of privacy” (Privacy, n.d.). Justice Harlan’s concurring opinion, referenced in later Supreme Court privacy cases, claims privacy zones derive from the Fourteenth Amendment (Privacy, n.d.). Later, legislation was passed regulating specific sectors, beginning in 1974 with the Family Educations Rights and Privacy Act (FERPA), which protects student data, and the Privacy Act which regulates the use of data by federal agencies (History of privacy timeline, 2021). | ||
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Resources | Resources | ||
Fact sheet: Implementation of the USA Freedom Act of 2015. (2015, Nov. 27). Central Intelligence Agency. https://www.intelligence.gov/index.php/ic-on-the-record-database/results/787-fact-sheet-implementation-of-the-usa-freedom-act-of-2015 | Fact sheet: Implementation of the USA Freedom Act of 2015. (2015, Nov. 27). Central Intelligence Agency. https://www.intelligence.gov/index.php/ic-on-the-record-database/results/787-fact-sheet-implementation-of-the-usa-freedom-act-of-2015 | ||
Federal Deposit Insurance Corporation (FDIC). (2021, April). FDIC Consumer Compliance Examination Manual: VIII-1.1 Gramm-Leach-Bliley Act. Author. https://www.fdic.gov/resources/supervision-and-examinations/consumer-compliance-examination-manual/index.html | Federal Deposit Insurance Corporation (FDIC). (2021, April). FDIC Consumer Compliance Examination Manual: VIII-1.1 Gramm-Leach-Bliley Act. Author. https://www.fdic.gov/resources/supervision-and-examinations/consumer-compliance-examination-manual/index.html | ||
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===Is this right enshrined in international and regional human rights treaties?=== | ===Is this right enshrined in international and regional human rights treaties?=== | ||
==Philosophical Origins== | Although there are various regional and international human rights treaties protecting the right to privacy, the International Covenant on Civil and Political Rights (ICCPR), as well as the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR) are often regarded as the most fundamental and widely respected. Article 17 of the ICCPR states that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence” and Article 19 continues: | ||
===What have religious and philosophical traditions contributed to our understanding of this right?=== | |||
====Buddhism==== | (1) Everyone shall have the right to hold opinions without interference. | ||
====Platonism==== | |||
====Aristotelian thought==== | (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. | ||
(3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others, and (b) For the protection of national security or of public order, or of public health or morals. | |||
In his paper “The Privacy Principle,” Frederic Gilles Sourgens claims that ““these two provisions make up the backbone of the human right to privacy” (351), where protection applies to any intrusion of personal information, including thoughts opinions, religious beliefs, health, relationships, and sexual encounters (Sourgens, “Privacy Principle,” 351). The ICCPR supports that the state must inform persons of reason of intrusion in non public spaces, as well as the nature of the information collected, but may intrude “to the extent proportionate with specific threats” (Sourgens, “Privacy Principle,”353). The ICCPR “explicitly distinguishes between the obligations to respect and to ensure human rights, while the ECHR speaks…only of the obligation to secure in the actual text” (Milanovic “Privacy in the Digital Age,” 102). Additionally, Article 2(1) of the ICCPR claims that states are responsible for “all individuals within its territory and subject to its jurisdiction” (Milanovic “Privacy in the Digital Age,” 101). | |||
Although there are frameworks within the treaties that support the protection of privacy, there are many limitations to the legislation itself. The primary flaw is that the interpretation of ‘jurisdiction’ and ‘territory’ are contested by states (Milanovic “Privacy in the Digital Age,”101). The common conception is that human rights instruments are purely territorial, however, intelligence programs often operate outside the territory of signatory states (Sourgens, “Privacy Principle,” 353). The International Court of Justice (ICJ) has ruled that “States parties to the Covenant should be bound to comply with its provisions”, (Sourgens, “Privacy Principle,”353) with regional treaties such as the ECHR and American Convention on Human Rights (ACHR) respecting this claim (354). However, many states reject this extraterritorial application of privacy protection, arguing that treaty rights only apply within the sovereign territory of signatory states (Sourgens, “Privacy Principle,” 356). Historically, the US and other states had not expressed a clear view on the territorial scope of ICCPR (Milanovic “Privacy in the Digital Age,” 103), with the US eventually stating that there is a default presumption against extraterritorial application of the treaties in 1995 (Milanovic “Privacy in the Digital Age,”105). Additionally, countries such as China are not a party to the ICCPR or other treaties with privacy protections, and do not have domestic laws to restrict government surveillance powers (Sourgens, “Privacy Principle,” 358). Russia has also attempted to counteract rulings of the European Court using domestic legislation, and France similarly minimized its basic privacy protections after the 2015 mass shootings in Paris (Sourgens, “Privacy Principle,” 358). | |||
The COVID-19 pandemic has also placed national surveillance at the forefront, as governments and research institutions use location data to keep track of cases (Zwitter and Gstrein, “Big Data,” 2). Location data is collected through phone network, wifi connections, and satellite based radio navigation (GPS) (Zwitter and Gstrein, “Big Data,” 2). Article 15 of the ECHR was updated in December 2019 to allow states to derogate in situations of: | |||
(1) war or other public emergency threatening the life of the nation, | |||
(2) taking measures which are strictly required by the exigencies of the situation, and | |||
(3) provided that measures are not inconsistent with other obligations under international law (Zwitter and Gstrein, “Big Data,” 3). | |||
Data protection and privacy are included in those rights that are subject to derogation during times of crises (Zwitter and Gstrein, “Big Data,”3). Data ownership, such as location tracking, is a matter of contract law and is often included in the terms of use, leaving the legality of the practice to individual consent (Zwitter and Gstrein, “Big Data,” 3). The conclusion that Zwitter and Gstrein come to is that there is a “lack of dedicated legal frameworks to address the use of data in times of political crisis” (Zwitter and Gstrein, “Big Data,”4), therefore allowing for the infringement of privacy rights despite the existence of international and regional treaties. | |||
Sourgens, Frederic Gilles. “The Privacy Principle.” Yale Journal of International Law, 42(2), 345-408, 2017. | |||
Milanovic, Marko. “Human rights treaties and foreign surveillance: privacy in the digital age.” Harvard International Law Journal, 56(1), 81-146, 2015. | |||
Zwitter, Andrej and Gstrein, Oskar J. “Big data, privacy and COVID-19 – learning from humanitarian expertise in data protection.” Int J Humanitarian Action 5, (4), 2020. | |||
==Philosophical Origins== | |||
===What have religious and philosophical traditions contributed to our understanding of this right?=== | |||
====Buddhism==== | |||
====Platonism==== | |||
====Aristotelian thought==== | |||
====Ancient Chinese Philosophy==== | ====Ancient Chinese Philosophy==== | ||
====Stoicism==== | ====Stoicism==== | ||
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====Reformation Christianity==== | ====Reformation Christianity==== | ||
====Hobbesian Thought==== | ====Hobbesian Thought==== | ||
The right to privacy is a right that not many think of when they think of their natural rights. Specifically, most forget about this right and what it entitles when it comes to their basic political involvement and contribution to society. Although it is not always explicitly stated, multiple philosophers have had their fair share of commentary on the right to privacy and what this right should look like within their form of government and civil society. Thomas Hobbes, author of The Leviathan, writes about the absolute power the monarch should have over the citizenry, offering commentary on the specific right to privacy within his version of society. Even though, Hobbes outlines some sort of privacy within the state of nature, Hobbes claims that there is no right to privacy on the premise that entering the social contract forfeits certain aspects of privacy in order to contribute to the public conscience and the laws made by the government. | |||
Hobbes makes the argument that within the state of nature there is this sense of privacy that allows the people to make judgements and decisions for themselves in the name of self-preservation. Hobbes specifically noted that, “That every private man is Judge of Good and Evill actions.” This is true in the condition of meer Nature, where there are no Civill Lawes; and also under Civill Government, in such cases as are not determined by the Law” (Hobbes 1651, 277). Hobbes makes the point that without a government system there is a form of privacy that allows individuals the ability to pass judgement as they please because they are within a state of war where individuals must fight for their own self-preservation. Hobbes then claims that as soon as one enters the social contract in which the people consent to being governed that the privacy is altered because the government is responsible for the preservation of the people. Hobbes hopes that with the emphasis on religion within the conscience, people outside the government can make just decisions for the better of the commonwealth. To Hobbes, once entering the social contract every citizen is responsible for the common good which is only molded when the government can see into the lives of the people and make their decisions for the betterment of society. The state of nature for Hobbes is one of war in which people must be private in order to protect themselves from others and defend their own interests, but since the government will be involved to help protect such people, there is no need for privacy anymore and therefore the government needs to be involved in the people’s lives. Furthermore, Hobbes added to this argument claiming that, “The RIGHT OF NATURE, which Writers commonly call Jus Naturale, is the Liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing anything, which in his own Judgement, and Reason, hee shall conceive to be the aptest means thereunto” (Hobbes 1651, 106). Hobbes’ depiction of the state of nature justifies the reasons why one must be private as it relates to the protection of his life and his pursuits that will in turn ensure his right to life and liberty. As his arguments progress, he will make the argument that the state should be involved in the lives of the people because the government is the greatest representation of the people and their desire for self-preservation. He depicts this point to show that within the state of nature, there are some aspects of life that are necessary for the survival of the individual and then why consenting to the social contract means giving up some of these liberties to the government in exchange for the preservation that people naturally seek in life. To Hobbes, the state of nature is a place individuals need privacy in order to protect themselves from the dangers of those around them, hence why once people enter the social contract, they sacrifice their rights to such privacy as there is no longer a need for it since the government is protecting individual interests. | |||
Despite his version of the state of nature calling for some sort of privacy based on self-preservation, once the citizenry has consented to being governed, the sphere of privacy is absent to a certain extent to put the needs of the public first. For example, Hobbes noted that, “For a mans Conscience, and his Judgement is the same thing; and as the Judgement, so also the Conscience may be erroneous. Therefore, though he that is subject to no Civill Law, sinneth in all he does against his Conscience, because he has no other rule to follow but his own reason; yet it is not so with him that lives in a Common-wealth; because the Law is the publique Conscience, by which he hath already undertaken to be guided. Otherwise in such diversity, as there is of private Consciences, which are but private opinions, the Common-wealth must needs be distracted, and no man dare to obey the Soveraign Power, farther than it shall seem good in his own eyes” (Hobbes 1651, 278). As Hobbes progresses in his argument, he makes the point that the government is to reflect the private sentiments of the people and therefore whatever conscience and thoughts they have, it must already be public since the government is to represent those thoughts and sentiments. However, Hobbes also makes the case that if there are other private sentiments within the public that are not made known, a toxic environment is formed around the privacy of thoughts because the government is unaware of the judgements being made and is therefore not a part of the absolute power over the people. It is for that reason that Hobbes believes that within the social contract there is no aspect of privacy because he believes that the government is the greatest absolute in society and needs to be absolute in order to preserve the people. Hobbes also notes that once entering into the social contract, all people have left is their conscience and judgements because all other private goods are given to the government to control and to protect. Hobbes would also make the point that if the people fail to follow the public conscience which Hobbes calls the law, then there would be a sort of anarchy in which power is no longer consolidated within the government as people rule their lives as they please ignoring the laws in place and possibly violating the rights of the people around them. In addition, Hobbes wrote that, “A private man has alwaies the liberty, (because thought is free,) to beleeve, or not beleeve in his heart, those acts that have been given out for Miracles, according as he shall see, what benefit can accrew by mens belief, to those that pretend, or countenance them, and thereby conjecture, whether they be Miracles, or Lies. But when it comes to confession of that faith, the Private Reason must submit to the Publique; that is to say, to Gods Lieutenant. But who is this Lieutenant of God, and Head of the Church, shall be considered in its proper place thereafter” (Hobbes 1651, 387). Even on matters such as religion, there is no sphere of privacy according to Hobbes because it is the responsibility of the government to care for the people and cater to the liberties of the people. Any time Hobbes discussed the state of religion, the government had some stake in allowing the employment of teachers and ministers according to the standard of the government and what they should and should not allow. The matter of religion to Hobbes was a private matter until entering the social contract in which the government owns the interests of the people including their interests on religion and the matter of salvation. Hobbes further depicts a society in which the government has access to the lives of the people and their interests as a means of protecting such assets and values. Hobbes sees the lack of privacy within the government and the people as a means of preserving the people and their values as they go through society making their own decisions. It is this private conscience that the people have access to, but that Hobbes claims is the least important compared to the public, government conscience. | |||
Hobbes does create some sort of private sphere within the silence of the laws and within the home life that the father rules over the family and the servants that does create a minuscule space for privacy. Specifically, Hobbes notes that, “Private Bodies Regular, and Lawfull, are those that are constituted without Letters, or other written Authority, saving the Lawes common to all other Subjects. And because they be united in one Person Representative, they are held for Regular; such as are all Families, in which the Father, or Master ordereth the whole Family. For he obligeth his Children, and Servants, as farre as the Law permitteth, though not further, because none of them are bound to obedience in those actions, which the Law hath forbidden to be done. In all other actions, during the time they are under domestique government, they are subject to their Fathers, and Masters, as to their immediate Soveraigns. For the Father, and Master being before the Institution of Common-wealth, absolute Soveraigns in their own Families, they lose afterward no more of their Authority, than the Law of the Common-wealth taketh from them. Private Bodies Regular, but Unlawfull, are those that unite themselves into one person Representative, without any publique Authority at all; such as are the Corporations of Beggars, Theeves and Gipsies, the better to order their trade of begging, and stealing; and the Corporations of men, that by Authority from any forraign Person, unite themselves in anothers Dominion, for easier propagation of Doctrines, and for making a party, against the Power of the Common-wealth" (Hobbes 1651, 199). Hobbes then goes on with his argument to explain how the sphere of privacy that may exist within society is within the home and within the family. However, this does not mean that individuals within the home are not subject to the laws that are considered the public conscience. Above all, it is this sphere of the public conscience which the government develops the laws that should not and cannot be ignored by the public even within the private sphere. What should be mentioned as well is Hobbes’ sense of freedom within the silence of the laws which may allow the individual to interpret the laws as they see fit and act based on their own judgement of the laws. Alongside this sentiment however is still the lingering opinion that the absolute government has the utmost and complete control over the people and the people must therefore follow this opinion. Hobbes even notes above that the father might be the head of the household and the reigning authority, but in the end, even the father must follow the wishes of the commonwealth and adhere to the laws put in place by the magistrate and the government. Carrying on the same sentiments, Hobbes wrote that, “...though he be carefull in his politique Person to procure the common interest; yet he is more, or no lesse carefull to procure the private good of himselfe, his family, kindred and friends; and for the most part, if the publique interest chance to crosse the private, he preferrs the private: for the Passions of men, are commonly more potent than their Reason. From whence it follows, that where the publique and private interest are most closely united, there is the publique most advanced. Now in Monarchy, the private interest is the same with the publique. The riches, power, and honour of a Monarch arise onely from the riches, strength and reputation of his Subjects. For no King can be rich, nor glorious, nor secure; whose Subjects are either poore, or contemptible, or too weak through want, or dissention, to maintain a war against their enemies: Whereas in a Democracy, or Aristocracy, the publique prosperity conferres not so much to the private fortune of one that is corrupt, or ambitious, as doth many times a perfidious advice, a treacherous action, or a Civill warre” (Hobbes 1651, 157). Hobbes describes the fact that people enjoy the private sphere more than the public and therefore, one would think that the existence of a private sphere is incredibly important. However, Hobbes further explains that within the privacy of thought there is a sense of selfishness that prevents people from making decisions in the best interest of the commonwealth and therefore, there should be no sphere that would allow people to adhere to their selfish policies. Hobbes further describes what would happen if the government were to take this selfish stance in which they would no longer do their job of preserving the population despite that being their only true duty. Furthermore, Hobbes connects the quality of the government to the quality of the public since according to him, the state of the government reflects the level of preservation that the citizenry endures. He uses this point to further the case of using a monarchy rather than a democracy or oligarchy because of the inability of a large body to make quick decisions on behalf of the public interest. | |||
Thomas Hobbes was an absolutist to the fullest extent. When it came to writing about government, he believed that the more consolidated the power was in the hands of the leviathan, the better off the population was going to be for making the best decisions for the people they ruled over. This meant, however, sacrificing certain rights to the government to preserve the citizenry to the best of their ability. Specifically, the right to privacy to Hobbes should not exist on the basis that the government needs to be involved in the lives of the people in order to figure out the public conscience and to make their decisions accordingly. By consenting to the government, the government has absolute power and control over the people and the decisions they decide to make and therefore, the government has direct access to the wishes and the lives of the people. The right to privacy to Hobbes is an interesting debate since his views on rights in the first place seem irregular due to the absolute power, he believes that the government has over the people and the way that there is no explicit right to rebel against abusive governments. The right to privacy is a topic to which there is no one answer, yet Hobbes tries to remedy with the solution that proposes the abolition of such a right in order to cater to the needs of the public. | |||
Bibliography | |||
Hobbes, Thomas. The Leviathan. New York: E.P. Dutton and Company, INC. London: J.M. Dent and Sons Limited, 1950. | |||
====Lockean Thought/English Empiricism==== | ====Lockean Thought/English Empiricism==== | ||
====Physiocrats==== | The issue of the right to privacy within the United States is a relatively new phenomenon following the 1965 case of Griswold v. Connecticut in which the right to privacy was clearly established by the Supreme Court. However, it might be suggested that its origins and foundations can be traced back to the late 1600s when John Locke introduced the private sphere when it came to the conversation of religious tolerance. John Locke wrote “Letter Concerning Toleration” in 1689 that describes the way in which the right to privacy originates from the idea that the people can and should be separate from the government in certain aspects. Locke introduces the idea of a private sphere or the right to privacy when he discusses issues like religion since its discussion creates more problems preventing society from working efficiently. | ||
====Scottish Enlightenment==== | |||
Locke recognizes that there are very divisive issues that prevent people from working together effectively within society. Specifically referring to spreading religious beliefs, he wrote that “If by these means the offenders will not be reclaimed, and the erroneous convinced, there remains nothing further to be done but that such stubborn and obstinate persons, who give no ground to hope for their reformation, should be cast out and separated from the society” (Locke 1689, 30). Locke claims that the divisions within the public sphere over religion can be remedied by the complete separation of such matters from the state since religion is its own society. Religion dividing society is evident throughout history as nations and their people fought wars over their competing religious values and beliefs. For Locke the separation between the two and separating the state from religion was a way to avoid conflict within a nation and come to the general agreement that not everyone is going to agree on the matter of religion. However, Locke challenges his own idea of religious tolerance by saying that all religions except Atheists, Unitarians, and Catholics deserve tolerance because these groups prioritize religious law rather than political law. Locke recognizes the fact that a lot of the political issues revolve around religion and to focus on the commonwealth, matters of religion need to be subjected to the individual rather than being a concern of the state. Furthermore, upon the creation of the private sphere “...it will be urged still that civil assemblies are open and free for anyone to enter into, whereas religious conventicles are more private and thereby give opportunity to clandestine machinations” (Locke 1689, 51). Locke develops the idea that all religions must be tolerated within the government in the best interest of the commonwealth, leaving the political conversation open for political conversation as to how the government should be run. If the state sphere should interfere with the individual sphere, Locke claims that greater problems would arise as the government wields a seemingly tyrannical power. Locke proposes this idea of the private sphere in order to avoid problems within the political sphere, but alongside this proposal, he builds the foundation for a right to privacy that is valued so much today. The rest of his arguments include the point that there is a realm of privacy in which the individual makes decisions that they believe will best benefit them. | |||
It was from Locke’s separation between the state and the individual that the right to privacy came to life off the premise that there is a place within society where the government should not be involved in the matters of the people. Locke continues for the advocation of a private sphere by claiming that, “In private domestic affairs, in the management of estates, in the conservation of bodily health, every man may consider what suits his own convenience and follow what course he likes best” (Locke 1689, 34). Throughout his letter of toleration, and through the rest of his theory, he is critical of government intervention in the affairs of the people and emphasizes this private sphere as a place to escape government intervention. This sort of foundation and sentiment expressed by Locke gave the people the perspective that the state is going to act within their own self-interest which might mean being involved in the actions of the people. Locke again remedies this problem with the private sphere as a space where the government cannot get involved in the choices of the individual when it comes to their lives. Specifically, Locke subtly turns the conversation slightly away from religion and into the idea of affairs, property, and health in general as a part of the private sphere that the government should not be a part of. To the rest of society, the government has always been involved in the lives of the people, so to have this idea proposed that people can and should be independent of government intervention changed the way the people saw the government and the power they had over the lives of the people. In addition, Locke then claims that when the magistrate makes laws, “...a private person is to abstain from the action that he judges unlawful, and he is to undergo the punishment which it is not unlawful for him to bear” (Locke 1689, 48). Locke paints a picture that the people can make decisions about the laws within this private realm that adds another dimension to the idea that the people have more power within their private space than they thought. Historically, the governments were involved in all affairs of the people, leaving them little room for voluntary actions that they wanted to pursue for themselves, and Locke’s sentiments provides them the space to become free thinkers outside of the government. Although his writings are in specific reference to religion being in the private sphere, the later sentiments expand to other areas of life that would be affected had religion been placed within the private sphere. This allows the people to believe that other aspects of their life that have been controlled by the government can enter the private sphere where the government will not have any control over the efforts of the people themselves. This created a life where the people had private lives, where the government was not involved in the lives of the people and where the people made decisions for themselves. As people saw the potential for the private sphere, the right to privacy became more prevalent as a boundary between the state and the people developed, despite the boundary between the public and the private being unclear sometimes. Although this line is imprecise, Locke’s notion of the private sphere when it comes to politics introduces the idea of the line in the first place and introduces a new level of understanding about the relationship between the people and the government. | |||
Locke created the idea of the private sphere based on the premise that doing so might help prevent a lot of the conflict that had been around during the time that created the bad relationship between the state and the people. However, by proposing this idea he shines light on the paradox on the relationship between rights in general and the government. It is the duty of the government to act within the interest of the people by providing them access to their rights regardless of what they are, but at the same time the government also wants to act within their self-interest to maintain law and order within society and therefore might see rights as an obstacle to their end goal. Furthermore, Locke writes about this topic in a time period where the legal framework looks incredibly different from what is present today and therefore writes from the perspective that religion causes these huge wars within nations and between major parties. All these factors contribute to the idea that the right to privacy has existed throughout history and throughout theory as criticism of government is an ongoing conversation that has many different perspectives and points of view. Locke’s writings about creating a private sphere for religion only reflect the sentiments known today as the right to privacy that has changed the way that people have viewed the relationship between the people and the government. | |||
Bibliography | |||
Locke, John. 1983. “A Letter Concerning Toleration”, edited by James H. Tully. Hackett Publishing Company Inc. | |||
====Physiocrats==== | |||
====Scottish Enlightenment==== | |||
====Modern Capitalism==== | ====Modern Capitalism==== | ||
====Rousseau's Thought==== | ====Rousseau's Thought==== | ||
In Rousseau's works, there exist three states of society in which there are different and evolving stages of a right to privacy. First, there is the natural right to privacy in the state of nature. Next, there is society following the commencement of association and community. Finally, there is a society under the Social Contract. Rousseau believed that in the progression of different societies, privacy is slowly lost, first to other individuals, then to the government. | |||
In Rousseau's state of nature, humans act as individuals and do not intermingle with each other. Their projects never required "the joint labor of several hands," and they "lived free, healthy, honest, and happy lives" (Rousseau 1973, 92). These lives were completely independent of other humans. Humans roamed, hunted, and gathered alone; no one else had any power over him. Man was free to pursue "the only goods [he] recognized in the universe… food, a female, and sleep" (Rousseau 1973, 61). Life was simple, and humans had the right to do as they pleased, when they pleased, without anyone questioning why they were doing it. There was no overarching government or general will to encroach on the privacy of humans in nature. Humans "had no question… as to private likes or dislikes [as] all are alike" (Rousseau 2004). However, this simplicity of nature did not last forever. Eventually, humans came together to form societies due to the "two arts… which first civilized men and ruined society," metallurgy and agriculture (Rousseau 1973, 92). As society shifted from nature to civilization, humans signed a social contract to give away parts of their sovereignty to a new sovereign, the general will, a prince, a legislator, or a chief, for example. This society removed the natural freedom under which humans acted as they pleased without encroachment. However, they still held a right to privacy within a civilized society; however, it was much less than before. | |||
The second stage is where people can live in a state of the early community. This community lacks the oversight of a chief or government; however, unlike the state of nature, humans begin to associate with each other to sustain the new arts of metallurgy and agriculture. Since land is required to grow crops slowly, these early humans decided that "to secure each man his own, it had to be possible for each to have something" (Rousseau 1973, 94). This is the beginning of property, born from the manual labor of the farm, slowly allowing people to have their place where they can do whatever they want, also known as acting in their private interests. Metallurgy, on the other hand, "working metals and multiplying their uses," leads to the concept of value. People used these tools to better land plots and increase food production, among other things. Therefore, to acquire these irons and tools, people "required commodities in exchange" (Rousseau 1973, 94). These advancements gave value and worth to the ownership of items and land. As disparities began to develop between the people within these early communities, so too did the idea of jealousy and inequality (Rousseau 1973, 96). In a society with inequality and no authority to keep it in check, there then come individuals who will encroach on the privacy of other individuals. This threat to others is what slowly necessitates the tyranny of the government to establish peace and security in exchange for other losses of privacy. | |||
Once the social contract between humans and magistrates is established, people's liberties are immediately restricted compared to the state of nature and early societies. The average person signs away their liberties to their chief, establishing tyranny through the people's consent. The ordinary people sign "a contract binding on only one of the parties, where all the risk is on one side, and none on the other" (Rousseau 1973, 104). The magistrates take no risk in this exchange as they are not subject to their privacy being encroached upon, among other rights and liberties. However, just because the people sign away their freedoms to the legislature and chiefs does not mean they are entirely at the government's will. Rousseau does not believe that the government has complete control over the private actions and possessions of the common people. When discussing the right to ownership and sovereignty, Rousseau explains that the government limits how much power it has over people. Due to Rousseau's restricted discussion on privacy, we will have to look at the allusions made to it through the right to privacy. Taking the Lockean view that "'every man has a property in his person," we can assume that property "provides the foundation for the right to privacy" (DaCosta 2021, 2). If the government expects the people to respect their side of the social contract, it must uphold its end. In the case of property and privacy, Rousseau says that the government "has no right to touch the property of one or many; but he may lawfully take possession of the property of all" (Rousseau 2004). In other words, "the general and sovereign will is the master of all the others," showing that the will of the government must respect the people's privacy rights or else risk its demise (Rousseau 2004). This distinction between total and partial encroachment on rights shows Rousseau's exciting view on privacy and rights as a whole. Rousseau believed that the individual holds political rights; however, the government may take away the rights of every one in particular situations for the state's health. | |||
This general will also influence people's privacy; however, even this will is only "considered collectively and as a body, but each individual, as a subject, has his private and independent existence" (Rousseau 2004). Therefore, in a civilization, neither the general will nor the government can fully encroach on the citizens' privacy without the whole society falling apart. On the other hand, this freedom is nowhere near what it is in the state of nature, where people are entirely free to do as they please without the threat of government or general will even be considered a threat to that freedom of privacy. | |||
Rousseau, Jean-Jaques. 1973. The Social Contract and Discourses. Translated by G. D. H. Cole. David Campbell Publishers | |||
Rousseau, Jean-Jaques. 2004. Emile. The Project Gutenberg EBook of Emile. https://www.gutenberg.org/files/5427/5427-h/5427-h.htm#link2H_4_0002 | |||
====Kantianism==== | ====Kantianism==== | ||
Even though Kant does describe privacy in very vague descriptions, Kant’s idea of the right to privacy is severely limited by the importance of the public sphere and the goals and laws set in place by the government and the public | |||
Kant’s idea of the private sphere stems from his emphasis on the moral relationships within the public that create a sense of wellbeing for society and the people there to allow everyone to pursue their own interests. In his essay titled “Perpetual Peace” Kant wrote that, “For in their external relations, they have already approached what the idea of right prescribes, although the reason for this is certainly not their internal moral attitudes. In the same way, we cannot expect their moral attitudes to produce a good political constitution; on the contrary, it is only through the latter that the people can be expected to attain a good level of moral culture. Thus, that mechanism of nature by which selfish inclinations are naturally opposed to one another in their external relations can be used by reason to facilitate the attainment of its own end, the reign of established right. Internal and external peace are thereby furthered and assured, so far as it lies within the power of the state itself to do so. We may therefore say that nature irresistibly wishes that right should eventually gain the upper hand” (Kant 1795, 113). Kant’s emphasis is on the peace of the community and the ways in which community control their own personal morality to maintain the community and avoid the problems that are likely to arise. Due to this, it might be reasonable to assume that Kant would say that the individuals' morals are private since they must sacrifice their ideals for the public standard set by the community, leaving the private realm the only space in which individuals can subscribe to their own ideas of the good life. Specifically, Kant would say that whatever passions people have should be subjected to the private sphere to maintain a certain level of peace and stability within society. Kant even adds that maintaining a private or “internal” sphere for selfish interests helps benefit both the public and the private sphere so that there is balance in both spheres and the people maintain the peace. For Kant, the relationship between the public and the private is dependent on the morals people hold to maintain a standard within the community and prolong a state of establishment, which requires creating some sort of separation between the two spheres. However, it should be noted that Kant places an emphasis on the public to suggest that its importance prevails above the importance of matters within the private sphere. Furthermore, Kant said that “ we cannot simply conclude by a reverse process that all maxims which can be made public are therefore also just, because the person who has decisive supremacy has no need to conceal his maxims. The condition which must be fulfilled before any kind of international right is possible is that a lawful state must already be in existence. For without this, there can be no public right, and any right which can be conceived of outside it, i.e., in a state of nature, will be merely a private right. Now we have already seen above that a federative association of states whose sole intention is to eliminate war is the only lawfol arrangement which can be reconciled with their freedom” (Kant 1795, 129). The idea of the “internal” is continued in his analysis of the state of nature in which there is only matters of the private sphere. However, when theorists reference the state of nature, they usually provide some remedy because they believe that the state of nature is imperfect and needs to be fixed for the betterment of society. Therefore, it might be reasonable to assume that Kant believes that this state of privacy needed to be fixed by creating a society in which people needed to create more public relations and establish a state that revolves around the public sphere and the interests for the public. This is not to say that he wants to get rid of the idea of privacy altogether, but it further shows his preference for the public sphere rather than the private sphere. When it comes to the government and the private sphere, Kant emphasizes the use of government as public actors acting for the public rather than public actors acting within their own private interests. He believed that the officials of the government are merely public figures that adhere to the morals established by society and because of this again, like most of society, they leave their private reasonings within the public sphere especially when making decisions for the people. | |||
Kant does paint some pictures of privacy within the realm of private property, but his idea of private property does not come without exceptions and limits when it comes to the boundaries between the private, the public, and the government. In The Metaphysics of Morals, Kant said that “this supreme ownership is only an idea of the civil union, designed to represent through concepts of right the need to unite the private property of all members of the people under a universal public owner; for this makes it possible to define particular ownership by means of the necessary formal principle of distribution (division of the land), rather than by principles of aggregation (which proceeds empirically from the parts to the whole). The principles of right require that the supreme proprietor should not possess any land as private property (otherwise he would become a private person), for all land belongs exclusively to the people it also has a well-authenticated objective reality which can easily be demonstrated from particular instances as they arise” (Kant 1797, 147). The reiteration of a private sphere for Kant is reimagined in the form of private property. For Kant, private property is the space in which individuals can live out their personal, private morals they had to leave behind to maintain public moral standards and public peace. The realm of private property is the space in which the government cannot interfere with the people and for Kant something the government cannot and should not acquire for themselves. If the government were to obtain their own private property, the government would become private individuals no longer invested in the public morals or the public peace they are to represent and enforce. It should be noted that Kant’s version of government is a federation of civil societies, reemphasizing the lack of power the government should have. Therefore, it is logical for Kant to believe that the government should not even own property since their role is minimized within the civil society in which the people and the public control most of the affairs. Kant’s decentralized government reinstates the idea that the higher ups within society should not be allowed to interfere with the lives of the people, leaving matters of civil society to the people based upon public morals rather than private interests. This creates a third power within society, namely the civil society that reigns over the government and the private individual as that is where all matters take place and are negotiated among the individuals of society rather than another power. In addition, Kant noted “A third kind of right is necessary for the preservation of the state-the right of inspection (ius inspectionis). This requires that no association which could influence the public welfare of society (publicum), such as an association of political or religious illuminati, may be kept secret; at the request of the police, it must not refuse to disclose its constitution. But only in cases of emergency may the police search anyone's private residence, and in each case, they must be authorised to do so by a higher authority” (Kant 1797, 149). Although the government is not as important as civil society as discussed before, it does not mean that Kant believes that it should not have any duties to protect the public peace and the public morals. For this reason, Kant grants the government some powers to protect such interests like the right to inspect or enter private realms. Although this seems contradictory of his ideas discussed earlier, it must be noted that Kant believed that individuals must not interfere with one another and have the liberty to act within their own selfish interests. To maintain this standard, Kant tasked the government with creating laws that would create a sense of freedom in which the individual has the right to do as they please until their actions interfere with others' right to freedom. This therefore is the reasoning behind allowing the government to intrude in the private homes of the individual when there is a reasonable assumption that doing so would benefit the community and its aim for peace. Again, this establishes a boundary between the public and the private realms, implying that the people have this implicit limited right to privacy, but the concept of privacy is subject to the strives towards public peace and individual liberty. Kant’s main emphasis is the peace of society and is willing to put the needs of society above the interests of the private individual to achieve his main objectives of peace and liberty. | |||
The lines between the private, the public, and the government are further blurred in his discussion of rights and the public and government punishment for going against the morals set forward by civil society. Again, in The Metaphysics of Morals, Kant said that “The real definition would run thus: “Right in a thing is a right to the private use of a thing, of which I am in possession — original or derivative — in common with all others.” For this is the one condition under which it is alone possible that I can exclude every others possessor from the private use of the thing (jus contra quemlibet hujus rei possessorem). For, except by presupposing such a common collective possession, it cannot be conceived how, when I am not in actual possession of a thing, I could be injured or wronged by others who are in possession of it and use it” (Kant 1797, 49). Kant’s main emphasis is the liberty one must do as they please without limiting the liberty those around him have as well. For that reason, Kant defines “right” or liberty above as a private matter because it is his to do whatever he wants with it. It is his and no one else to determine what an individual does or thinks so long as it does not interfere with the liberty of the people around him. This is a broad interpretation of privacy especially since Kant emphasizes the needs and the wishes of the public above the individual which contradicts the very idea of the individual having the right to do as he pleases. Other than private property, every human has the private possession of this right without interference from anyone else around him. However, Kant makes it known that there are limitations to these rights in the form of adhering to the public standards of morality and upholding the peace of civil society. It is in these instances that the idea of privacy is questioned and limited because it directly contradicts the actions and the intentions of the public and the government. Besides this private right Kant describes, he wrote that, “The right of administering punishment is the right of the sovereign as the supreme power to inflict pain upon a subject on account of a crime committed by him. The head of the state cannot therefore be punished; but his supremacy may be withdrawn from him. Any transgression of the public law which makes him who commits it incapable of being a citizen, constitutes a crime, either simply as a private crime (crimen), or also as a public crime (crimen publicum). Private crimes are dealt with by a civil court; public crimes by a criminal court. Embezzlement or speculation of money or goods entrusted in trade, fraud in purchase or sale, if done before the eyes of the party who suffers, are private crimes. On the other hand, coining false money or forging bills of exchange, theft, robbery, etc., are public crimes, because the commonwealth, and not merely some particular individual, is endangered thereby. Such crimes may be divided into those of a base character (indolis abjectae) and those of a violent character (indolis violentiae). Judicial or juridical punishment (poena forensis) is to be distinguished from natural punishment (poena naturalis), in which crime as vice punishes itself, and does not as such come within the cognizance of the legislator” (Kant 1797, 104-105). Within the discussion of the right to privacy in relation to civil society, Kant discusses the ways in which the government are allowed and permitted to interact with the community. He thus concludes that when it comes to the concept of punishment, when the crime is committed in which there are no victims, the civil society will decide a punishment and in the cases in which more than one individual is involved, the state will decide a punishment. This again subjects the individual to another power, namely civil society, in which the individual not only sacrifices his own morals to, but also determines the standards for society and punishments as they see fit. This distinction between the public and the government creates another relationship between what is considered public to society and what is considered public to the government. Kant’s ideas suggest that the individual may be private from the government, but the individual cannot be private from the public in which they report to. Individuals can keep their morals private from the public, but in the end, the interests and the actions of the individual are public and subject to judgement from civil society. Compared to the relationship between the government and the people, the relationship between civil society and the private individual shows that the public is more important since it is invested in the life of the individual and since the individual is expected to subject itself to the morals established by the public. | |||
Kant’s emphasis on the public sphere and the clear difference between the public, the government, and the private sector reinstate the point that although the right to privacy is stated and valued to keep the government out of personal affairs, there are exceptions to this rule crucial for restoring justice within society. | |||
Bibliography | |||
Kant, Immanuel. The Metaphysics of Morals. Edited by Mary Gregor. Cambridge University Press. 1996. | |||
Kant, Immanuel. Kant Political Writings. Edited by Hans Reiss. Cambridge University Press. 1970. | |||
====German Idealism==== | ====German Idealism==== | ||
====Benthamite Utilitarianism==== | ====Benthamite Utilitarianism==== | ||
====Millian Utilitarianism==== | ====Millian Utilitarianism==== | ||
====Current Utilitarianism==== | When it comes to the rights and liberties bestowed upon an individual, there are some that seem inherent according to society’s standards like the freedom of speech and religion, especially since some of these values are rooted in texts that have helped found the country. However, as time has progressed, there are new issues that expand the public’s definition of rights and liberties and gives them a new vision as to what they may or may not have a right to. One of these rights is the right to privacy, a right in which there are various opinions, all of which are relatively new, yet there is a hindrance of commentary on these issues. John Stuart Mill has written various pieces including but not limited to On Liberty and The Subjection of Women in which he writes about the rights people inherently have and the values that people should have within society. Although it could be assumed that Mill creates a private realm in which individuals pursue their higher faculties away from society, Mill’s view of privacy is extremely limited and whatever private realm there might be is subjected to teaching morals and values. | ||
Based off an initial reading of Mill, it might be assumed that a private sphere might exist in order to develop higher faculties away from the public. For example, Mill notes that, “A person whose desires and impulses are his own—are the expression of his own nature, as it has been developed and modified by his own culture—is said to have a character...Their thinking is done for them by men much like themselves, addressing them or speaking in their name, on the spur of the moment, through the newspapers” (Mill 1859, 67). From here the reader reasonably infers that Mill would advocate for individuals to remove themselves from the public in order to reach their higher faculties since if one is not in the public sphere, the conclusion is that they are in the private sphere. However, as Mill goes on to describe his argument, he uses various examples to explain his philosophy and how the issue of the private and public spheres should be addressed. In the end, he turns to uses his own harm principle to argue that the state and the government should intervene in instances where the decisions one makes affect the prospects and the lives of the people around them. Due to this belief, he argues that the private sphere is severely limited by the government’s interest to protect the people from other’s personal desires. Furthermore, Mill notes that “That, this being supposed, they cannot be acting wrongly in endeavoring to exclude the influence of solicitations which are not disinterested, of instigators who cannot possibly be impartial—who have a direct personal interest on one side, and that side the one which the State believes to be wrong, and who confessedly promote it for personal objects only” (Mill 1859, 110). Alongside this argument, Mill describes several examples where government intervention is allowed when the decisions of the individual interfere with the lives and the decisions of other people. With that being said, there can be no existence of a private sphere for the government needs to protect individuals from the impulses they have that in Mill’s philosophy warrant punishment by the government. The problem with the discussion of Mill and the private sphere is that he does not make any explicit claim about the right to privacy because of the necessity of government intervention from his point of view. | |||
Mill further describes this limited aspect of privacy in which the government is allowed to intervene so long as there is reason to intervene for the good of the rest of the population. For example, Mill writes that “The State, while it respects the liberty of each in what specially regards himself, is bound to maintain a vigilant control over his exercise of any power which it allows him to possess over others” (Mill 1859, 116). This statement alone, despite not referring to the topic at hand, states clearly where he would stand on the issue of the right to privacy. One might claim that there could still be a private sphere especially since Mill does not dismiss the idea all together, but what is important to mention is that the state cannot intervene in matters of right and wrong without letting the individual be somewhat public. He names another example in which he claims “If the government would make up its mind to require for every child a good education, it might save itself the trouble of providing one. It might leave to parents to obtain the education where and how they pleased, and content itself with helping to pay the school fees of the poorer class of children, and defraying the entire school expenses of those who have no one else to pay for them” (Mill 1859, 116-117). In these matters, Mill claims that the government can control and regulate the way that children pursue their higher faculties through education since it is their liberty and goal to reach these faculties for the betterment of their character and overall well-being. Mill maintains this point of view that every individual has the right to live their best life, which he believes is attainable so long as people make decisions for themselves only and the state makes decisions to make sure that others cannot infringe on the lives of others. He recognized the ways that people’s individual private actions could injure one another, despite operating within this realm of personal liberty. He saw the way that life needed regulation based on the harm principle which allowed the government to intervene on private matters and push for a stronger public sphere to share ideas. Mill by no means wanted the government to control every aspect of the life of the individual, he wanted to merely hold the individual accountable for the way their decisions affected those around them. | |||
Mill continues within his other works to paint a picture as to what he wants society to look like and describes the ways in which having a private or domestic sphere can create a form of the right to privacy. Within The Subjection of Women Mill notes that, “As regards the relations of private life it may be said generally, that their influence is, on the whole, encouraging to the softer virtues, discouraging to the sterner: though the statement must be taken with all the modifications dependent on individual character”(Mill 1861, 565-566). Mill’s main emphasis is on the morally correct and doing the necessary things in order to achieve this moral good, especially since he believes that the society around him is declining due to the lack of morality and tendency for people to avoid pursuing their higher faculties. Since women are subjected to the household and are not given a role within the public sphere, it could be argued that women then are responsible for what would have been the private sphere since the home is their responsibility to maintain. It could be asserted that there is a private sphere in which the women or those at home are responsible for the moral development of the children and those living within the home. Within his writing about the home, the government plays no role in dictating how the morals are taught, therefore alluding to this right to privacy based on the premise that the home is a private space in which the government cannot intervene. In addition, Mill adds that “There is no country of Europe in which the ablest men have not frequently experienced, and keenly appreciated, the value of the advice and help of clever and experienced women of the world, in the attainment both of private and of public objects; and there are important matters of public administration to which few men are equally competent with such women; among others, the detailed control of expenditure” (Mill 1861, 580). Here, Mill describes the full capacity of women within the public sphere and particularly within the government but understands that the standards that society have during his time leave no space for women publicly. He uses this line to reference the power and influence that women already have over the private sphere despite society’s perception of women. However, it should be noted that acting within their realm of liberty, they had this explicit right to privacy that allowed them to hold themselves accountable, therefore keeping the government out of their private lives. Therefore, Mill could take on the belief that if a private sphere should exist to develop and teach morals to children who then enter the public sphere and hopefully act within their best interests to pursue their higher faculties without intervening in the lives of others. | |||
What might be something to keep in mind about Mill and his idea of the right to privacy is the sense of Victorian morality that he writes about and his overall response to rights of any kind. He writes both works from the Victorian moral point of view which in turn is reflected in the way that he believes that society should be run and would agree about the way that life would be instructed upon these morals. It is this sense of morality that would go against most things that one might believe is not the concern of the public and Mill would want to spread his single version of morality because everyone should be morally upright according to the same standard. Despite this observation, Mill would also claim that holding oneself accountable is necessary to maintain this moral standard because individuals do not and should not depend on one another. Other than the right to privacy, his perspective on rights aligns with those of earlier philosophers so long as they fall within the utilitarian model and therefore benefit most of the people. However, this creates somewhat of a dilemma since any action or inaction could be seen to benefit the majority. The government could infringe on the inherent rights one has and claim that it be for the betterment of society that they control religion, speech, and property despite these being protected by many other philosophers. In that sense, it is hard to define from the Mill point of view what people do and do not have the right to within their system of government. The right to privacy from Mill’s perspective is one that is hard to define and comes with various limitations that allow the government to intrude on the lives of the people. | |||
Bibliography | |||
Mill, John Stuart. “On Liberty.” In John Stuart Mill On Liberty and Other Essays, edited by John Gray. Oxford World’s Classics, 1991. | |||
Mill, John Stuart. “The Subjection of Women.” In John Stuart Mill On Liberty and Other Essays, edited by John Gray. Oxford World’s Classics, 1991. | |||
====Current Utilitarianism==== | |||
====Transcendentalism==== | ====Transcendentalism==== | ||
====Marxism==== | ====Marxism==== | ||
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====Behaviorism==== | ====Behaviorism==== | ||
====Feminist Thought==== | ====Feminist Thought==== | ||
Various feminist theorists have often been forgotten because of their role as women and the fact that society sees their input as invalid because of the long history of their treatment. However, despite the oppression and the push to exclude them from political conversations, women have entered the conversation claiming that the true problem in life is patriarchy. Their commentary surrounds the involvement of men within the government and how the male-dominated government suppresses women. They can generally agree on most political discussions like the right to privacy, but that is not to say that it does not come without variation as all political theory usually does. The consensus among the feminists is that the private realm maintains the oppression of women and propose the elimination of the private realm to remedy the problem at hand, despite some thoughts on the return to the private realm once the problem has been solved socially first. | |||
Most feminist political commentary and theory is centered around the critique of the relationship between the private and the public spheres that inherently treats women as less than compared to their male counterpart. In her political commentary Sexual Personae, Camille Paglia noted that “He has no personal life. He completely identifies private with public interest. Hence, he is unstoppable. Such men can be political geniuses or monsters” (Paglia 1990, 214). In fact, Bell Hooks would go as far to claim that men are told to dominate the private sphere despite giving women the belief that the home and the private realm will be theirs to dominate and to rule over (Hooks 1984, 120). Paglia and Hooks both demonstrate the point that the feminists paint a picture where the power of the public outweigh the power of the private and since women are taught that the private will be their realm, they are inherently less important compared to their male counterparts. Paglia also details something important in the fact that the men of society can either help or hurt women because of the power they possess in the public and the private, yet most feminists would argue that they choose to abuse women within their spheres because of the way that Hooks says that they are encouraged to dominate women any way that they can. These sentiments reflect the critiques of the relationship between the private and public spheres that dominates the arguments made by feminists on the matter of the right to privacy and hence why some are skeptical about maintain that right. Susan Moller Okin’s work Justice, Gender, and Family noted that, “If there were a clear sphere from which the state refrained from intruding, that sphere would have to be defined, and its definition would be a political issue. But in fact, the state has not just "kept out of family life. In innumerable ways, the state determines and enforces the terms of marriage” (Okin 1989, 129). To Okin, the dichotomy between the private and the public realms is central to her argument for the elimination of the private sphere because of the lack of justice maintained within this sphere. Okin uses this to further the point that there is no separation because of the state’s involvement in issues like women’s bodies and marriage that make the separation unrealistic since within the minds of men, the two are automatically linked without any clear distinctions. The feminists use examples of abortion and marriage to further prove that the lines between the state and the home are blurred and often nonexistent because the state makes decisions without consulting women or even acknowledging the boundary that should be there. Okin even claims that the boundary is artificial and only created based off the different principles that the men have on these matters. However, she highlights the lack of justice for women due to the difference in principles in men that allow them to abuse their women and belittle them from reaching their full potential within society. | |||
Some theorists see the role of the traditional woman with her duties and her obligations to the family as invasive and a problem when it comes to the right to privacy for a woman. Written in 1903, Charlotte Perkins Gilman makes the claim that, “The mother—poor invaded soul—finds even the bathroom door no bar to hammering little hands. From parlour to kitchen, from cellar to garret, she is at the mercy of children, servants, tradesmen, and callers. So chased and trodden is she that the very idea of privacy is lost to her mind; she never had any, she doesn't know what it is, and she cannot understand why her husband should wish to have any "reserves," any place or time, any thought or feeling, with which she may not make free” (Gilman 1903, 36). Gilman makes the assertion that the role women have taken on within the home means that there is no such privacy for the woman whatsoever. It is because she has other obligations as a mother, as a wife, as a caregiver that something is always expected from her and that her needs are irrelevant because she “rules” the home. She claims that there is also no possibility for individual privacy because there is no specific space for just the individual unless they are living alone. However, within the family, the individual is crowded by those around, and as stated before the role of the woman is to serve everyone and everything according to the standards set by the man. She adds that if the individual was truly private, there would be no scrutiny or judgement because the individual is truly private about their thoughts and their feelings, but this concept of privacy is only applicable to the man who rules the home and is always free to express themselves within the home. It is the woman who is continuously repressed in and out of the home and is in constant contact with the other women and servants of the neighborhood with whom they share and continuously violate the idea of privacy. In Women and Human Development: The Capabilities Approach by Martha Nussbaum, Nussbaum noted that, “It goes without saying that in poor families where five or six people share a single room, there is no such thing as the privacy of the individual in the middle-class American sense – although poor people will frequently seek solitude for the purpose of defecation, walking considerable distances from their dwellings” (Nussbaum 2000, 259). Nussbaum and Gilman both illustrate the life of the woman in which she is subjected to the needs of the family and expected to run the household without being given the respect that should come with the role. She continues the argument by claiming that individuals have the right to privacy within their decisional liberties, but for women and in general the home limits the space where the individual can carry out their liberties simply because the lack of space. Nussbaum decides to remedy this by claiming that the state should be allowed to intervene so long as they do so to protect only the privacy the individual has in the form of decisional liberties the individual holds. Even though she speaks in broader terms about the individual, she emphasizes the fact, as Gilman points out, that the role of the women is far more extensive than that of the man within the home and therefore, her privacy is severely more limited than that of the man within the home. In the process of the state protecting the liberties of the individual, Nussbaum would claim that the needs of the woman need to be acknowledged and enforced in order to maintain her decisional liberties. | |||
Alongside the critique of the public and private spheres mentioned above, theorists propose a reconstruction of the public and private life that would eventually liberate women from the abuse and violence they face. In her book, A Vindication of the Rights of Women with Strictures on Political and Moral Subjects by Mary Wollstonecraft, she noted that “To render women truly useful members of society, I argue that they should be led, by having their understandings cultivated on a large scale, to acquire a rational affection for their country, founded on knowledge, because it is obvious that we are little interested about what we do not understand. And to render this general knowledge of due importance, I have endeavoured to shew that private duties are never properly fulfilled unless the understanding enlarges the heart; and that public virtue is only an aggregate of private” (Wollstonecraft 1792, 291). Part of the larger and general feminist argument for privacy is the reconstruction of the private and public realms so that there could possibly be the existence of the private sphere once the problems are addressed. For Wollstonecraft, part of the progression of women is to form the new public sphere around the education of the women in order to maintain the public happiness. Wollstonecraft claims that the means of some private virtue is the same as the public happiness since whatever happens within the private is brought out into the public. For that reason, Wollstonecraft argues that the public and the private are utterly the same since the state already tries to solve the problems that take place within the private space of the home. However, within the home, she notes that the role of the woman is to please the man and because of this she is denied her public and civil duties which again can be rectified by educating women and men about the opinions and the manner which society enforces. The Feminine Mystique by Betty Friedan noted that, “Their determination betrays women’s underestimated human strength and their urgent need to use it. But only the strongest, after nearly twenty years of the feminine mystique, can move on by themselves. For this is not just the private problem of each individual woman. There are implications of the feminine mystique that must be faced on a national scale” (Friedan 1963, 350-351). Friedan wanted to remedy the inequalities that she saw within the private life, by demolishing the line between the public and the private by exposing the inequalities that the women faced within the private life. In order to reform and reconstruct life to benefit women, her solution was to promote education and find something beyond the self to identify with. Her idea that was if women were able to reimagine themselves, they would be able to overcome the problems and show society the way that women should be treated. Freidan’s concept of the private however was aligned with Gilman and Nussbaum in that the duties of the woman prevent actual privacy, so she proposed another separate space away from the family in which the woman can achieve a sense of privacy. In order to reimagine themselves within the public, Friedan proposed private and public education like Wollstonecraft proposed, and suggested challenging the images of women proposed by the media. When it came to the media specifically, she wanted women to reimagine themselves using their own private image to facilitate what their version of what a woman looked like. Feminists in general proposed their own version of reconstructing the public to change the way women were viewed which usually involved exposing their problems to the public, completely ignoring the idea of the private individual. | |||
Despite the constant call for the barrier between the public and the private to be broken, there are some claims to a right to privacy made by the feminists. Catherine MacKinnon noted this in her work Toward a Feminist Theory of the State when she claimed that “The law of privacy treats the private sphere as a sphere of personal freedom. For men, it is. For women, the private is the distinctive sphere of intimate violation and abuse, neither free nor particularly personal. Men's realm of private freedom is women's realm of collective subordination.” (MacKinnon 1989, 168). Most feminist theorists agree to some sort of concept of the private and what that might look like. Most feminists were skeptical of the private because of all the abuse that took place within this sphere, hence why they wanted the government to intervene in the matters of the private. However, as MacKinnon pointed out, the private provided personal freedom that the public could not provide, hence why it was important to revisit the private sphere once the woman was reimagined and re-envisioned for the better. MacKinnon acknowledged the fact that there were legal protections about privacy for women since there were these protections for men but based on examples surrounding abortion and marriage concluded that even though it was legally available for women, it was not enforced. Specifically, the government rulings on issues like Roe v. Wade gave women the private right to choose, but she recognized that the fact that the government had a say on this matter, was an invasion of the privacy of the women to choose. Even the discussion of whether the government would fund abortions became a matter of government involvement on a woman’s decision to choose. After her discussion of this matter, she established that the right to privacy was necessary and continuously violated by the government in order to maintain control over women. Carole Pateman extends this argument within her work The Sexual Contract when she notes that, “Shultz states that there is a strong argument that private contract should not override the criminal law but, she writes, 'the idea of enforceable private agreements concerning violent sexual conduct is less offensive than a state declaration that violent sexual conduct is automatically acceptable in marriage.' Such a response begs the question about limitations to and alternatives to contract” (Pateman 1988, 185). Pateman specifically notes that the relationship between the government and the people on matters of private and public is something that is important for the safety of women and for the natural liberties for the individual. She notes that what calls the sexual contract is something women are subjected to where their abuse accumulates at home and sometimes within the public. She called for government intervention on matters of legally maintaining women’s liberties and for intervention when men within the private life continuously abused women. Pateman noted that the line between the public and the private was indefinite and used the system of marriage as an example of how the government was involved. She claimed that because the government had to keep records of marriage contracts between private individuals, marriage could be considered public, despite the specific agreements within the marriage contract is a private matter talked and agreed upon by the different parties. She still notes in the end that the government had some obligation within the private lives to reform the treatment of women and the inequalities that women face within the home, an attitude shared by most of the feminist theorists. | |||
The consensus among the feminists is that the private sphere is where women are subjects of abuse and inequalities that need to be exposed out in the public in order to help women overcome the view that men have of them. To these theorists' women face the same treatment within the public sphere as the patriarchy and the government make decisions on their behalf and subject them to the private life where they are expected to take care of the family. The primary role of the woman centers around the idea of the family and the way that the woman is supposed to take care of the family depriving her of her own privacy. Jean Bethke Elshtain adds an interesting perspective to this notion and considers that as women are liberated by their actions, the structure of the family will fall apart. She adds that the family dynamic is also changing as there are more single parent households or same-sex households that change the way the family has been thought of (Elshtain 1981, 323). This is an interesting notion as the thought of the private sphere changes for these women and the way that women are taking more charge within the world continuously challenging the private abuse at the hands of the man. The notion of the right to privacy is something constantly changing as situations change but should be broken down to expose the flaws within the system that negatively affect women. | |||
Bibliography | |||
Elshtain, Jean Bethke. Public Man, Private Woman: Women in Social and Political Thought - Second Edition. NED-New edition, 2. Princeton University Press, 1981. https://doi.org/10.2307/j.ctv131bvkg. | |||
Friedan, Betty. The Feminine Mystique. Dell Publishing Company INC. 1973 | |||
Gilman, Charlotte Perkins. The Home. New York Charlton Company. 1910 | |||
Hooks, Bell. 1984. Feminist Theory: From Margin to Center. South End Press | |||
Mackinnon, Catherine A. 1989. Toward a Feminist Theory of the State. Harvard University Press | |||
Nussbaum, Martha C. 2000. Women and Human Development: The Capabilities Approach. Cambridge University Press | |||
Okin, Susan Moller. 1989. Justice, Gender, and the Family. Basic Books Inc. | |||
Paglia, Camille. “Shakespeare and Dionysus: As You Like It and Antony and Cleopatra.” In Sexual Personae, 194–229. Yale University Press, 1990. http://www.jstor.org/stable/j.ctt1bh4bwb.12. | |||
Pateman, Carole. The Sexual Contract. Stanford University Press, 1988. | |||
Wollstonecraft, Mary. 1792. A Vindication of the Rights of Women with Strictures on Political and Moral Subjects. Cambridge University Press | |||
====Postmodernism==== | |||
Postmodernists believe that society’s expectations and norms of society are merely products of the capitalistic marketplace and the aesthetics that are formed around them rather than looking at the historical foundations of popular culture. These theorists typically are very skeptical of these norms because of the problems they have caused within society and believe that a simple solution can fix all problems, as most modernists propose. Therefore, postmodernists simply describe the standard for privacy that society currently holds and do not propose any true remedies to the problems they might have with the notion of privacy. Specifically, Jean-Francios Lyotard, Frederic Jameson, and Michael J. Shapiro all describe the aesthetics of privacy that society currently accepts and identifies how unrealistic privacy is within the capitalistic marketplace. They remain skeptical about how private individuals can be private in the modern world by creating marketplaces that are designed to invade the private sphere to pursue their capitalistic interests. Postmodernists like Lyotard, Jameson, and Shapiro claim that the idea of privacy does not truly exist due to the monopolization of personal information by corporations and used to maintain power; therefore, the existence of a private realm is unnecessary. | |||
''' | Postmodernists take the position that privacy within society might not exist due to the monopolization of information by corporations to pursue their interests. For example, in the book Inhuman by Jean-Francios Lyotard, the author notes that “Through innovation, the will affirms its hegemony over time. It thus conforms to the metaphysics of capital, which is a technology of time. The innovation 'works'. The question mark of the Is it happening?' stops. With the occurrence, the will is defeated. The avant-gardist task remains that of undoing the presumption of the mind with respect to time. The sublime feeling is the name of this privation” (Lyotard 1988, 107). Lyotard’s observation proves that with the existence of information, whether it be private or public, corporations have been able to monopolize such information and use it to their advantage. Privatizing all information solidifies the power dynamic between those in power and those who feed into their power since such information is used to pursue their interests. Lyotard would also argue that there might not be such an idea of private information in general since general information is already public, and anyone or company can have access to this information to again use it for themselves. Due to this, he challenges the idea of the private realm even existing because of the way that information is easily accessible. However, Lyotard might also point out that the only privacy that exists within society is the privacy of the corporations that take all public entities and claim them and privatize them. He points out that culturally significant objects are also privatized by corporations, who then profit off of the nation’s sp. Lyotard would conclude that privacy only exists for the corporations who use the personal information around them to turn profits for themselves and their interests. Furthering this sentiment, Frederic Jameson wrote | ||
“The definitive answer will come, of course, with the conception of a "logic of naturalism" that informs the other half of his title. For the moment there remains the nagging feeling that all this does come down to the "self" after all, and that the desperate or passional fantasies of productionism, romance, slavery, masochism, the gold standard, and hoarding or spending are all somehow attempts to square the circle and come to terms with the antinomy of the self as private property. This is nowhere affirmed as such, yet the theoretical or interpretive void in the endless chain of homologies somehow draws the reading mind toward what we may call the existential (if not the psychoanalytic) solution: the ontological priority of explanations in terms of the self over all the other levels. This is, in general, the fate of philosophies without "content" (in the Hegelian sense of the word), and in particular of philosophies that seek to exclude content as such: a kind of Lacanian "foreclusion" in which content is reintroduced back from the outside in the form of some compensatory and generally psychoanalytic bottom line (as in Tel Quel and some places in Derrida), the materials of the "self" proving more serviceable in the completion of a formalist system than the materials of history or the social” (Jameson 1997, 198-199). | |||
Like Lyotard, Jameson is skeptical of the private condition of the individual and whether it is a true institution within society or there for the aesthetic that society has created behind it. Unlike Lyotard, Jameson would say that the idea of the private is created for the formation of the “self”, prioritized and valued because of society’s significance. Jameson claims that the concept of the “self” is not as important as people have made it out to be, and so it feeds back into the aesthetic of society rather than having any real significance. Jameson also claims that this sense of privacy stems from the media that pushes it forward to accommodate corporations pursuing their own interests. This sense of self is further broken down by society in which people are categorized and assigned labels that again have no meaning and disregard any sense of privacy and self that society values so deeply. Jameson would also claim that the increase in media technology makes any sense of privacy difficult to achieve and maintain because people can share their information across multiple platforms and therefore share that information with the corporations around them. | |||
Postmodernists, like all theorists, tend to describe what is in society and by, doing so, challenge the view of the world that most people hold without questioning the norms and possible solutions to the problem described. When applying postmodernity to political theory, Michael Shapiro noted that | |||
“One can, in short, render boundaries innocuous by speaking unproblematically about "public" and "private" spheres, the "work place," "recreational space," and so on. What is left of the political process in this model is primarily a policing function that consists in the prevention of intrusions from one institutional setting to another. Clearly, there is a significant operation of power and authority in the production of those domains whose inviolability Walzer seeks to preserve. His version of the liberal discourse depoliticizes modernity's contemporary ground plan and serves as a legitimation rhetoric. It distributes discursive assets to those who control the flow of goods, commitments, and, in general, all valued outcomes” (Shapiro 1992, 94). | |||
Part of addressing the issue of privacy again realizes the state of society, which Shapiro argues is this state of maintaining whatever power an individual may have or be able to own. To add to this notion, Shapiro would say that society already blurs the private and public boundaries to pursue their social actions and agenda. He concludes that there cannot just be two distinct realms that people can adhere to, especially because he claims that there is no end to history in which this is possible. He continues this argument with the claim that even if there were space for this sort of dichotomy, it would not matter because of the ability society should have to extract the political tendencies from each realm rather than regulating them. Shapiro adds to the sentiments of Lyotard and Jameson in that all three recognize the power dynamic that any aspect of privacy adds to society. Shapiro adds that this privacy aspect solidifies the power dynamics that again allow the rich to get richer and others to remain in their place. This causes postmodernists to try and reimagine the private sphere in order to dismantle and restore the power relations between the people and the corporations that have monopolies on privatized information. In addition, Jameson wrote that “We have touched briefly on property relations in the postmodern in a previous chapter; suffice it to say now that in itself, private property remains that dusty and drearily old-fashioned thing whose truth one used to glimpse when traveling in the older nation states and observing, with Mr. Bloom's "grey horror" that sears the flesh, the hoariest antique forms of British commerce or French family firms (Dickens remaining the most precious imperishable afterimage of the juridical exfoliation of these entities, unimaginable crystalline growths like some cancerous Antarctica)” (Jameson 1997, 320-321). Essentially, Jameson proposes that society does away with the notion of private property because it reinstates the aesthetics and the history that have created the present problems. However, Jameson’s answer to privacy is quite complicated because in other works, he explains that the government needs to protect the individual’s privacy from monopolies. It must be noted that postmodernists do not usually favor a solution in general because they believe that society is more complicated than any solution can fix the problems at hand. Therefore, Jameson and the others reflect on the realities of privacy and the state of society without any solid remedy to the problems they propose. However, there seems to be some consensus that the notion of privacy should be abandoned or dismissed until society can remedy the problems already present in society. For Jameson, it seems to be the case that the private life is something he believes is worth preserving, but he understands that the condition of the private life is diminishing and might not be realistic to maintain. For example, Jameson holds that the media is the reason for an individual’s lack of privacy since the media advertises products using private personal information corporations know will appeal to the consumer. Jameson’s assertion that there can be no sphere of privacy comes from the sentiment that society is based on the capitalistic marketplace in which corporations try to make as much money as possible and obtain as much information about the population as possible. | |||
The key to understanding the postmodernist perspective is the realization that this skeptical view prevents any theorist from developing a solution to the problems they describe. They have read and concluded that modernists believe they can solve all the world’s problems with their theories without looking at the implications or analyzing the world on a different level that questions the popular culture norms that dictate all decisions individuals make. For that reason, they propose no definitive solutions because they do not see the point in making decisions when the aesthetics and the norms of society have already been so deeply rooted in society. Therefore, making definitive decisions about things such as privacy is only there to describe the current state in which they exist, if they even exist. In the matter of the private realm, postmodernists would conclude that the existence of a private sphere does not exist based on the premise that the capitalistic society will monopolize private information for its benefit. | |||
Bibliography | |||
Jameson, Frederic. Postmodernism, or, The Cultural Logic of Late Capitalism. Duke University Press Durham. 1997. | |||
Lyotard, Jean-Francios. The Inhuman Reflections of Time. Stanford University Press. 1991. | |||
Shapiro, Michael J. Reading the Postmodern Polity: Political Theory as Textual Practice. NED-New edition. University of Minnesota Press, 1992. http://www.jstor.org/stable/10.5749/j.ctttsg7v. | |||
===Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?=== | |||
===What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?=== | |||
'''Positive Law''' | |||
''' | Positive law theory asks if the actions the government actor took would have been unlawful for a nongovernment actor to do in that jurisdiction (Baude & Stern, 2016, 1830, 1831). In other words, what does the written law allow? For instance, the model holds something to be a search if the government uses special legal powers to gain access to information (Baude & Stern, 2016, 1832). This model constrains the ability possessed by police to gain information from private parties while creating a predictable conception of privacy (Baude & Stern, 2016, 1856). Its use in the United States aims to add clarity to privacy expectations that is not had in the ''Katz'' test (Baude & Stern, 2016, 1869). Positive law theory was used in ''California v. Ciraolo'' and ''Florida v. Riley'' (Baude & Stern, 2016, 1867). | ||
'''Natural Law''' | |||
'' | Locke is one of the primary natural law theorists. In his ''Two Treatises on Government: Concerning the True Original Extent and End of Civil Government'' (Essay Two) he discusses some of these rights which implicitly concern privacy in the State of Nature. In Chapter II: Of the State of Nature, he recognizes in section 6 that the laws of nature prevent “harm[ing] another in his life, health, liberty or possessions” (Locke, 1832, 107). All of these categories can be linked to laws today which protect privacy: mainly constitutional law in various countries, but also, for instance, the United States Health Insurance Portability and Accountability Act (1996). | ||
'''Critical Legal Studies''' | |||
Critical Legal Theorists believe law becomes intertwined with social issues causing each judge to have a somewhat different judgement in each case (Dworkin, 1977, 117). These differing torts and constitutional interpretations create varying implications in jurisdictions based on the weight precedents are given (Dworkin, 1977, 118). Dworkin recognizes that with this connection to social facts, the judiciary plays a bigger role in society (Waldron. 1999, 211). For instance, some judges may find a connection between the directly provided for protection of the right to liberty and implied right to privacy, while others may not (Dworkin, 1977, 117). Roberto Unger supports this example, writing in his essay ‘’Critical Legal Studies Movement’’ that some rights give individuals “a zone of unchecked discretionary action that others … may not invade,” reminiscent of Warren & Brandeis’s original claim to the right to privacy (Unger, 1983, 599). | |||
'''Legal Positivism''' | |||
Legal Positivism claims law depends on social facts, but the existence of law is not dependent on its merits or morals (Sevel & Leiter, 2010). H. L. A. Hart, a famed positivist, claimed that “law should be bound by limits and respect citizen’s privacy” (van der Sloot, 1). Moreover, the state could not and should not regulate private conduct unless there was harm (van der Sloot, 1). Robert Burt claims Hart essentially follows Louis Brandeis’s “right to be let alone” (Burt, 2004, 14). | |||
'''Legal Realism''' | |||
Legal Realism is reading laws “in the light of the purpose and policy of the rule or principle in question” (Macauley, 2005, 371). As such, legal realism expects the law to be constantly changing based on social conditions (Hall, 2005, 452). Calo claims privacy law exemplifies legal realism because of all of the exceptions, shifts with technology, and meanings dependent on other values and rights (Calo, 2019, 34). Despite privacy law’s beginnings being rooted in legal realism, he recognizes that privacy scholars have not expressly used this legal theory (Calo, 2019, 34, 40, 48). | |||
'''United States Constitutional Theorists''' | |||
One would think defining the appearance of privacy rights in the United States Constitution to be easy, especially given the language of ‘penumbras’ used in ''Griswold v. Connecticut'' rather than citing one specific clause constitutional (''Griswold v. CT'', 1965, pars. 14-15). However, Scott Gerber demonstrated in his work ''Privacy and Constitutional Theory'' that all six of the constitutional theories of interpretation he presented can be used to find privacy rights in the Constitution (Gerber, 2000; Baker, 2004). | |||
Originalists: In his writing, Gerber (2000) posits that if an originalist interpreter wants to find privacy rights in the constitution, they can (167). Generally, those who do find privacy rights in the Constitution cite the Ninth Amendment (Gerber, 2000, 171). This is what Justice Arthur Goldberg cited in his ''Griswold'' concurrence and has been cited as such since James Madison wrote the amendment (Gerber, 2000, 171, 172). | |||
Living Constitutionalists (US): Living constitutionalists allow for precedents to be called upon. It can be argued this is what was done in ''Griswold v. CT'' and other substantive due process decisions on privacy, such as ''Boyd v. US'' in 1886 (Gerber, 2000, 178). In the ''Griswold'' majority opinion, Justice William Douglas argued that the Supreme Court had previously ruled on cases in which rights were not explicit in the Bill of Rights, but the rights were justifiable to the Court through the First and Fourteenth Amendments (Griswold v. Connecticut, 1965, par. 11). | |||
Resources | Resources | ||
Baker, T.E. (2004). Constitutional theory in a nutshell. William & Mary Bill of Rights Journal 13(1), 57-123. https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1245&context=wmborj | |||
Baude, W. & Stern, J.Y. (2016, May). The positive law model of the Fourth Amendment. Harvard Law Review 129(7), 1821-1889. https://www.jstor.org/stable/44072348 | |||
Burt, R. (2004). Moral offenses and same sex relations: Revisiting the Hart-Devlin Debate. Yale Law School Faculty Scholarship Series. https://digitalcommons.law.yale.edu/fss_papers/711/ | |||
United States | Calo, R. (2019). Privacy Law’s Indeterminacy. Theoretical Inquiries in Law 20(1), 33-52. https://doi.org/10.1515/til-2019-0001 | ||
Dworkin, R. (1977). Taking rights seriously. Harvard University Press. | |||
Gerber, S. (2000). Privacy and constitutional theory. Social Philosophy and Policy 17(2), 165-185. https://doi.org/10.1017/S0265052500002156 | |||
Griswold v. Connecticut, 381 U.S. 479 (1965). https://www.law.cornell.edu/supremecourt/text/381/479 | |||
Hall, E.L. (Ed.). (2005). The Oxford Companion to the Supreme Court of the United States (2nd ed.). Oxford University Press. | |||
Locke, J. (2008). Concerning the true original extent and end of civil government. In R. Hay (Ed.), The Works of John Locke: In 10 volumes (Vol. V). Cosimo Classics. | |||
Macaulay, S. (2005). The new versus od legal realism: “Things ain’t what they used to be.” Wisconsin Law Review 2005(2), 365-403. From https://media.law.wisc.edu/s/c_8/tg2md/new_versus.pdf | |||
Sevel, M. & Leiter, B. (2010). Legal Positivism. Oxford Bibliographies. https://doi.org/10.1093/OBO/9780195396577-0065 | |||
van der Sloot, B. (2017). Privacy as secondary rule, or the intrinsic limits of legal orders in the age of Big Data. In M. Dehmer and F. Emmert-Streib (Eds.), Frontiers in Data Science. CRC Press. https://bartvandersloot.com/onewebmedia/Privacy%20as%20secondary%20rule.pdf | |||
Unger, R.M. (1983, Jan.). The Critical Legal Studies Movement. Harvard Law Review 96(3), 561-675. https://www.jstor.org/stable/1341032 | |||
Waldron, J. (1999) Law and Disagreement. Oxford University Press. | |||
==Culture and Politics== | |||
===Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively=== | |||
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. | |||
Resources | Resources | ||
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/ | |||
=== | ===Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?=== | ||
Rhoda Howard and Jack Donnelly (1986) put forth 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 | 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/40971449 | |||
=== | ===Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?=== | ||
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. | |||
Resources | |||
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 | |||
===Does public polling reveal insights about the right as experienced in different countries?=== | |||
'''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). | |||
Resources | |||
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/ | |||
==Conflicts with other Rights== | |||
===Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?=== | |||
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. | |||
Resources | |||
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 | |||
===Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?=== | |||
“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. | |||
Resources | |||
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). Grenda 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 | |||
===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?=== | |||
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). | |||
Resources | |||
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 | |||
===What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?=== | |||
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). | |||
Resources | |||
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 | |||
===How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?=== | |||
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). | |||
Resources | |||
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 | |||
==Limitations / Restrictions== | |||
===What are the typical exceptions or limitations placed on this right?=== | |||
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.). | |||
Resources | |||
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 American jurisprudence, what permissible exceptions exist?=== | |||
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). | |||
Resources | |||
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 | |||
===Under international human rights laws, what permissible exceptions (often called derogations) exist?=== | |||
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. | |||
Resources | |||
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?=== | |||
'''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). | |||
Resources | |||
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%2818901215%294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C | |||
===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, n.d.; 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). | |||
Resources | |||
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. (n.d.). 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 | |||
===Is this right often perceived as threatening to government authorities?=== | |||
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. | |||
Resources | |||
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?=== | |||
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). | |||
Resources | |||
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?=== | |||
'''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; United States v. Jacobsen, n.d.). 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; United States v. Jacobsen, n.d.; ''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 (United States v. Jacobsen, n.d.). 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). | |||
Resources | |||
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. (n.d.). Oyez. Retrieved October 13, 2021, from https://www.oyez.org/cases/1983/82-1167 | |||
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%2818901215%294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C | |||
===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?=== | |||
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). | |||
Resources | Resources | ||
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/ | |||
==Utilitarian / Fairness Assessments== | ==Utilitarian / Fairness Assessments== | ||
===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?=== | ===Is there a cost attached to protecting and enforcing this right? What kinds of costs are implicated?=== | ||
Latest revision as of 13:47, 4 January 2023
History
What is the oldest source in any country that mentions this right?
Most sources say that the first mention of this right is The Right to Privacy written by Samuel Warren and Louis Brandeis and published in the Harvard Law Review in 1890. Both were Boston attorneys and Brandeis would go on to serve as a United States Supreme Court Justice for 23 years (Louis Brandeis, n.d.). In this essay, they note that the legal scope of rights broadens over time and posit that the right to life has expanded to “the right to be let alone,” which had become an increasingly difficult feat with new technologies (Warren & Brandeis, 1890, 193, 195).
Warren and Brandeis (1890) acknowledge that, at the time, there was little-to-no legal protection of this right. They look at defamation law and determine while it alludes to privacy law, there are limitations to privacy protection from this area of law as it only considers a damaged reputation, not instances in which an individual wishes something remained secret (Warren & Brandeis, 1890, 197; Bycer, 2014). They also looked at copywriting and publishing law, which only applies to one’s own work (Warren & Brandeis, 1890, 199). They determine that the right to privacy can extend beyond these areas of law as the right should be able to wholly prevent the depiction of private life (Warren & Brandeis, 1890, 218). In the last part of this essay, they set out limitations to the right of privacy – privileged information remains under defamation law (to allow for the operation of courts), privacy ceases with consent to publish, gossip is not in the realm of privacy law, and intention and truth do not prevent a breach of such right.
However, Warren and Brandeis cite at least two instances that predate The Right to Privacy which discuss the right to privacy. The earliest is the citing of an 1820 statement from Lord Cottenham, who, in agreement with Lord Eldon, felt that were a king’s illnesses recorded by a doctor and published while that king was still alive, a court would not permit its publishing, as he claimed this circumstance would breach the king’s privacy (Warren & Brandeis, 1890, 205; Bycer, 2014). Additionally, they acknowledge that the right to privacy has already been regulated in France since 1868. Section 11 of the 1868 Loi Relative à la Presse (Press Law) says that all periodic writings about a private fact of life are violations punishable by a fine of 500 francs. Pursuit of the violation may only be undertaken by the affected party (Warren & Brandeis, 1890, 214, footnote 1). Beyond what Warren & Brandeis cited as earlier mentions, there was also the 1801 Haitian Constitution which provided the home was inviolable from government invasion in Article 63 (Theodore, 2000).
Resources
Bycer, M. (2014). Understanding the 1890 Warren and Brandeis “The Right to Privacy” Article. National Juris University. Retrieved Sept. 10, 2021, from https://nationalparalegal.edu/UnderstandingWarrenBrandeis.aspx Louis Brandeis. (2020, Nov. 9). Britannica. Retrieved Sept. 8, 2021, from https://www.britannica.com/biography/Louis-Brandeis Theodore, Charmant. (2000). Haitian Constitution of 1801 (English). Louverture Project. http://thelouvertureproject.org/index.php?title=Haitian_Constitution_of_1801_(English) 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
What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE
Afghanistan
The 1964 Afghan Constitution protected only the right to privacy in the home in Article 28 (Constitute Project, “Afghanistan 1964 Constitution”). Today, Article 38 offers similar protections and Article 37 protects communications (Constitute Project, “Afghanistan 2004 Constitution”).
https://constituteproject.org/constitution/Afghanistan_1964?lang=en https://constituteproject.org/constitution/Afghanistan_2004?lang=en
Albania
Today, privacy is guaranteed in Articles 35 (data), 36 (correspondence), and 37 (home) of the 1998 constitution (Constitute Project, “Albania 1998 rev. 2016”). This appears to be their first protection of privacy rights.
https://constituteproject.org/constitution/Albania_2016?lang=en
Algeria
Today, the 2020 constitution protects the inviolability of the domicile in Article 47 and, in Article 46, private life and private communication (Constitute Project, “Algeria 2020”). Previously, these rights were protected in the 1976 Constitution in Articles 39 and 40 (International Constitutional Law Project, Algeria Constitution”).
https://constituteproject.org/constitution/Algeria_2020?lang=en https://www.servat.unibe.ch/icl/ag00000_.html
Andorra
Articles 14 and 15 of the first and only Andorran constitution protect privacy in the state. Article 14 protects privacy, honor, and reputation, while Article 15 protects the home and communications (Constitute Project, “Andorra 1993”).
https://constituteproject.org/constitution/Andorra_1993?lang=en
Angola
Today, privacy rights are protected in Articles 32 (personal and family life), 33 (home), and 34 (correspondence and communication) of the 2010 constitution.
https://constituteproject.org/constitution/Angola_2010?lang=en
Antigua and Barbuda
In the constitution, Article 3, Section C protects the right to privacy in personal and family life, as well as the home (Constitute Project, “Antigua and Barbuda 1981”).
https://constituteproject.org/constitution/Antigua_and_Barbuda_1981?lang=en
Argentina
Articles 18 & 19 of the 1853 constitution protect privacy. Article 18(2) reads, “The residence is inviolable, as are letters and private papers; and a law shall determine in what cases and for what reasons their search and seizure shall be allowed,” while Article 19 reads, “The private actions of men that in no way offend public order or morality, nor injure a third party, are reserved only to God, and are exempt from the authority of the magistrates” (Constitute Project, “Argentina 1832, reinst. 1983, rev. 1994”).
https://constituteproject.org/constitution/Argentina_1994?lang=en
Armenia
The 1995 Armenian constitution protects three main privacy rights in Articles 31-33: personal life, home, and communication (Constitute Project, “Armenia 1995 rev. 2015”).
https://constituteproject.org/constitution/Armenia_2015?lang=en
Australia
Privacy rights are not prescribed in the Constitution of Australia (Australian Human Rights Commission, “How are human rights protected in Australia?”). Beyond the international covenants, such as the ICCPR, privacy was first protected in the Human Rights Act 2004 (ACT Human Rights Commission, “Human Rights”).
https://humanrights.gov.au/our-work/rights-and-freedoms/how-are-human-rights-protected-australian-law https://hrc.act.gov.au/humanrights/
Austria
According to the Austrian Embassy in Washington, D.C., the ratification of the ECHR by Austria in 1958 gave the treaty constitutional law standing in the state. The ECHR is what protects the right to privacy in Austria.
https://www.austria.org/human-rights-and-the-council-of-europe
Azerbaijan
Today, Article 32 of the 1995 constitution protects privacy. It is quite detailed but protects personal privacy, family life, personal information, and correspondence. Article 33 extends privacy rights to the residence (Constitute Project, “Azerbaijan 1995 rev. 2016”). Previously, privacy rights had been protected by the 1977 Soviet Constitution (see below).
https://constituteproject.org/constitution/Azerbaijan_2016?lang=en
The Bahamas
Article 15(c) protects the right to privacy in one’s home. Article 21 extends this right to exist during searches (Constitute Project, “Bahamas (The) 1973”).
https://constituteproject.org/constitution/Bahamas_1973?lang=en
Bahrain
Articles 25 & 26 of the 2002 constitution protect privacy in the home and all types of communication (Constitute Project, “Bahrain 2002 rev. 2017”). This constitution was the first establishment of privacy rights in Bahrain.
https://constituteproject.org/constitution/Bahrain_2017?lang=en
Bangladesh
Article 43 of the constitution grants the right to privacy in the home and correspondence (Constitute Project, “Bangladesh 1972, reinst. 1986, rev. 2014”).
https://constituteproject.org/constitution/Bangladesh_2014?lang=en
Barbados
Article 11(b) of the constitution grants every person in Barbados privacy of their home. Article 20(1) prevents interference in correspondence (Constitute Project, “Barbados 1966 rev. 2007”).
https://constituteproject.org/constitution/Barbados_2007?lang=en
Belarus
Article 28 of the constitution protects private life in Belarus (Constitute Project, “Belarus 1994 rev. 2004”).
https://constituteproject.org/constitution/Belarus_2004?lang=en
Belgium
Since 1831, Belgium has had one constitution, only amended 33 times. Article 15 protects one’s privacy in the home. Article 22 protects private life. Article 29 protects private letters (Constitute Project, “Belgium 1831 rev. 2014”).
https://constituteproject.org/constitution/Belgium_2014?lang=en
Belize
In its only constitution since its independence, Belize protects privacy rights in Article 3(c). It protects family life, personal privacy, one’s home, and their dignity (Constitute Project, “Belize 1981 rev. 2011”).
https://constituteproject.org/constitution/Belize_2011?lang=en
Benin
Today, the 1990 constitution protects privacy in the home and of correspondence in Articles 20 and 21, respectively (Constitute Project, “Benin 1990”).
https://constituteproject.org/constitution/Benin_1990?lang=en
Bhutan
In 2008, a new constitution was passed, which protected privacy rights in Article 19. Article 19 reads: A person shall not be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence nor to unlawful attacks on the person’s honour and reputation” (Bhutan’s National Council, “The Constitution of the Kingdom of Bhutan”).
https://www.nationalcouncil.bt/assets/uploads/docs/acts/2017/Constitution_of_Bhutan_2008.pdf
Bolivia
Today, privacy rights are protected in Article 21(3). These protections are general, while Article 25 protects more specific privacy rights in the home and correspondence (Constitute Project, “Bolivia (Plurinational State of) 2009”). This document is the 17th constitution since 1826, but other versions in English could not be found, so privacy rights may have a longer history in Bolivia.
https://constituteproject.org/constitution/Bolivia_2009?lang=en
Bosnia and Herzegovina
Privacy rights have been protected in Bosnia and Herzegovina since 1995 with their independence from Yugoslavia. The 1995 constitution protects these rights in Article 3(f). These protections include private and family life, home, and correspondence (Constitute Project, “Bosnia and Herzegovina 1995 rev. 2009”).
https://constituteproject.org/constitution/Bosnia_Herzegovina_2009?lang=en
Botswana
The 1966 constitution of Botswana includes privacy protections of the home in Article 3(c) and Article 9. Article 12, in protecting freedom of expression, also protects correspondence (Constitute Project, “Botswana 1966 rev. 2016”).
https://constituteproject.org/constitution/Botswana_2016?lang=en
Brazil
In its first constitution, Brazil only claimed the inviolability of private letters in Article 179(XXVII) (WikiSource, “Constitution of the Empire of Brazil”). Since then, privacy rights have expanded, and today personal privacy, the home, and correspondence are protected in Article 5(X-XII) (Constitute Project, “Brazil 1988 rev. 2017”).
https://constituteproject.org/constitution/Brazil_2017?lang=en https://en.wikisource.org/wiki/Constitution_of_the_Empire_of_Brazil
Brunei
Brunei lacks any legislation or constitutional provisions for privacy rights. The 1996 United States Department of State Report on Brunei Human Rights even says that law actively allows for intrusions of privacy.
https://1997-2001.state.gov/global/human_rights/1996_hrp_report/brunei.html
Bulgaria
The right to privacy, including family life, private life, honor, dignity, and reputation, is protected in Article 32 of the 1991 constitution (Constitute Project, “Bulgaria 1991 rev. 2015”).
https://constituteproject.org/constitution/Bulgaria_2015?lang=en
Burkina Faso
The 1991 Burkina Faso Constitution protects privacy rights in Article 6. It reads, “The residence, the domicile, private and family life, [and] the secrecy of correspondence of every person, are inviolable. It can only be infringed according to the forms and in the cases specified by the law” (Constitute Project, “Burkina Faso 1991 rev. 2015”).
https://constituteproject.org/constitution/Burkina_Faso_2015?lang=en
Burundi
The earliest mention of privacy rights in the Burundi Constitution is from the 1998 interim constitution. In this writing, privacy rights are contained in Article 23 and protect privacy, family, home, and correspondence (Constitution Net, “Constitution of Burundi”). Today, they are contained in Article 28 of the 2018 constitution (Constitute Project, “Burundi 2018”).
http://constitutionnet.org/sites/default/files/transitional_national_constitution_and_transitional_constitution_act_1998-2001_0.pdf https://constituteproject.org/constitution/Burundi_2018?lang=en
Cambodia
The 1993 constitution contains privacy rights in Article 40: “The rights to privacy of residence, and to the confidentiality of correspondence by mail, telegram, fax, telex and telephone, shall be guaranteed” (Office of the Council of the Ministers of Cambodia, “Constitution of the Kingdom of Cambodia”).
https://pressocm.gov.kh/en/archives/9539
Cameroon
In the Preamble of the 1972 constitution, privacy is granted to the home and correspondence in points 5 and 6 (Constitute Project, “Cameroon 1972 rev. 2008”).
https://constituteproject.org/constitution/Cameroon_2008?lang=en
Canada
The Canadian Constitution has been in force since 1867 and is comprised of a couple of Acts. For privacy purposes, the most important is the Constitution Act of 1982, which contains the Canadian Charter of Rights and Freedoms. In this section, Article 7 provides the most privacy protection that is seen in the constitution, protecting the right to life, liberty, and security of a person (Constitute Project, “Canada 1867 rev. 2011”).
https://constituteproject.org/constitution/Canada_2011?lang=en
Cape Verde
Article 33 makes violations of privacy inadmissible in court, while Article 38 grants the right to “personal identity, to civil rights, to a name, honor, and reputation, and to personal and family privacy”. Article 41 extends privacy rights to correspondence, and Article 42 extends it to electronic data privacy (Constitute Project, “Cape Verde 1980 rev. 1992”).
https://constituteproject.org/constitution/Cape_Verde_1992?lang=en
Central African Republic
In 1994, a new constitution was passed in the Central African Republic. Article 13 granted private communications inviolable and Article 14 did the same for the private home (African Child Forum, “Constitution of the Central African Republic”). Today, private communication is seen in Article 16 and the home is inviolable in Article 19 (Constitute Project, “Central African Republic 2016”).
http://www.africanchildforum.org/clr/Legislation%20Per%20Country/CAR/car_constitution_1995_en.pdf https://constituteproject.org/constitution/Central_African_Republic_2016?lang=en
Chad
Both the 1996 and 2018 Chad Constitutions protect the right to privacy in Article 17 and the right to privacy in communications in Article 45 and 47, respectively (Constitute Project, “Chad").
https://constituteproject.org/constitution/Chad_2015?lang=en https://constituteproject.org/constitution/Chad_2018?lang=en
Chile
The 1925 Chilean Constitution protected the inviolability of the home and correspondence in Article 10 Sections 12 & 13 (Constitute Project, “Chile 1925”). Today, the home is protected in Article 19 Section 5 (Constitute Project, “Chile 1980 rev. 2021”).
https://constituteproject.org/constitution/Chile_2021?lang=en https://constituteproject.org/constitution/Chile_1925?lang=en
China
In 1975, the Chinese Constitution protected the right to privacy to the person and the home in Chapter III, Article 28 (Constitution of the People’s Republic of China, 1975, 39). Today, Articles 38-40 protect privacy in China. Article 38 is for personal dignity, 39 for the home, and 40 for correspondence (Constitute Project, “China (People’s Republic of) 1982 rev. 2018”).
https://constituteproject.org/constitution/China_2018?lang=en https://china.usc.edu/sites/default/files/article/attachments/peoples-republic-of-china-constitution-1975.pdf
Colombia
The 1991 Colombian constitution is very explicit in its privacy protections in Article 15. Section 1 grants privacy to people and family life, section 2 is for data privacy, section 3 is for correspondence (Constitute Project, “Colombia 1991 rev. 2015”).
https://constituteproject.org/constitution/Colombia_2015?lang=en
Comoros
Today, privacy provisions are in Article 26 and Article 27, which grant privacy in the home and correspondence (Constitute Project, “Comoros 2018”). Before this constitution, similar clauses were in the 1996 constitutional preamble, drawn from the United Nations Universal Declaration of the Rights of Man (Constitution Net, “CONSTITUTION of the FEDERAL ISLAMIC REPUBLIC OF THE COMOROS”).
https://constituteproject.org/constitution/Comoros_2018?lang=en http://constitutionnet.org/sites/default/files/Comoros%20Constitution.pdf
Democratic Republic of the Congo
The personal right to privacy is granted in Article 31 of the 2005 Constitution, while the home is protected under Article 29 (Constitute Project, “Congo (Democratic Republic of the) 2005 rev. 2011”). Before this, the right to privacy in home and correspondence were granted in the Zaire 1990 constitution (amended from a previous version, though unclear which previous version) in Articles 22 & 23 (World Statesmen, “Complete Text of the Zairian Constitution After the Enactment of Law No. 90-002 of July 5, 1990 Concerning the Modification of Certain Provisions of the Constitution”).
https://constituteproject.org/constitution/Democratic_Republic_of_the_Congo_2011?lang=en https://www.worldstatesmen.org/Zaire1990.pdf
Republic of the Congo
The only mention of privacy rights today is that of the home in Article 20 of the 2015 Constitution (Constitute Project, “Congo (Republic of the) 2015”). The same right appeared in the 2001 Constitution in Article 14 (Constitute Project, “Congo (Republic of the) 2001”).
https://constituteproject.org/constitution/Congo_2015?lang=en https://constituteproject.org/constitution/Congo_2001?lang=en
Costa Rica
Today, privacy rights are protected in Articles 23 (the home) and 24 (communications and intimacy) (Constitute Project, “Costa Rica 1949 rev. 2020”).
https://constituteproject.org/constitution/Costa_Rica_2020?lang=en
Croatia
Article 34 of the 1991 constitution protects the home. Article 35 protects personal and familial life, as well as dignity. Article 36 protects correspondence (Constitute Project, “Croatia 1991 rev. 2013”).
https://constituteproject.org/constitution/Croatia_2013?lang=en
Cuba
The 2019 constitution protects personal and familial privacy in Article 48, the home in Article 49, and correspondence in Article 50 (Constitute Project, “Cuba 2019”). Privacy was not in the previous Cuban constitution of 1976 (Constitute Project, “Cuba 1976 rev. 2002”).
https://constituteproject.org/constitution/Cuba_2019?lang=en https://constituteproject.org/constitution/Cuba_2002?lang=en
Cyprus
Article 15 of the 1960 constitution reads: “Every person has the right to respect for his private and family life.” Article 16 expands these protections to the home, as Article 17 expands them to correspondence and communication (Constitute Project, “Cyprus 1960 rev. 2013”).
https://constituteproject.org/constitution/Cyprus_2013?lang=en
Czech Republic
Article 7(1) of the 1993 constitution guarantees the inviolability of persons and private life. Article 10 protects life from intrusion by others, and it also protects data privacy (Constitute Project, “Czech Republic 1993 rev. 2013”).
https://constituteproject.org/constitution/Czech_Republic_2013?lang=en
Denmark
Today, Article 72 protects the right to privacy in the home, while also preventing the search of private communications (Constitute Project, “Demark 1953”). The general form of the constitution derives from the 1849 Danish Constitution (Danish Parliament, “The Constitutional Act of Denmark”).
https://constituteproject.org/constitution/Denmark_1953?lang=en https://www.thedanishparliament.dk/en/democracy/the-constitutional-act-of-denmark
Djibouti
Today, the right to privacy in the home and communications are protected in the 1992 constitution Articles 12 & 13. Personal life is not protected (Constitute Project, “Djibouti 1992 rev. 2010”).
https://constituteproject.org/constitution/Dominica_2014?lang=en
Dominica
Article 1(c) of the only constitution Dominica has had, written in 1978, protects the right to privacy in the home. Article 7(1) protects privacy during a search (Constitute Project, "Dominica 1978 rev. 2014").
https://constituteproject.org/constitution/Dominica_2014?lang=en
Dominican Republic
Today, Article 44 protects the right to privacy and personal honor. It reads, “All people have the right to privacy. The respect and non-interference into private and family life, the home, and private correspondence are guaranteed. The right to honor, good name, and one’s own image are recognized. All authorities or individuals who violate them are obligated to compensate or repair them in accordance with the law” (Constitute Project, “Dominican Republic 2015”). The subsections expand on these rights. In previous versions, this was the right to intimacy and personal honor (Constitute Project, “Dominican Republic 2010”). Previous constitutions could not be found in English.
https://constituteproject.org/constitution/Dominican_Republic_2015?lang=en https://constituteproject.org/constitution/Dominican_Republic_2010?lang=en
East Timor
East Timor, or Timor-Leste, protects the right to private life, home, and communication during evidence collection in Article 34, privacy in general in Article 36, and privacy in the home and communication in Article 37 (Constitute Project, “Timor-Leste 2002”).
https://constituteproject.org/constitution/East_Timor_2002?lang=en
Ecuador
Article 11(3) enforces and protects the rights put forth by the constitution and international treaties: “The rights and guarantees set forth in the Constitution and in international human rights instruments shall be directly and immediately enforced by and before any civil, administrative or judicial servant, either by virtue of their office or at the request of the party”. In Chapter 6, Rights to Freedom, Article 66, Sections 11 and 19-22 set out more specific privacy regulations in terms of convictions, correspondence, the home, personal data, and privacy rights (Constitute Project, “Ecuador 2008 rev. 2021). There are 22 previous Ecuadorian constitutions, but English translations could not be found to investigate the presence of privacy rights.
https://constituteproject.org/constitution/Ecuador_2021?lang=en
Egypt
The 1923 constitution of Egypt protects personal freedom in Article 4, privacy in the home in Article 8, and correspondence in Article 11 (Constitution Net, “Royal Decree No. 42 of 1923 On Building a Constitutional System for the Egyptian State”). Today, these rights are protected in Articles 57 & 58 (Constitute Project, “Egypt 2014 rev. 2019”).
https://constituteproject.org/constitution/Egypt_2019?lang=en http://constitutionnet.org/sites/default/files/1923_-_egyptian_constitution_english_1.pdf
El Salvador
Article 2 of the 1983 constitution explicitly protects the “right to honor, personal and family intimacy, and one’s own image.” Article 6 allows for free communication as long as it does not violate the private lives of others. Article 24 protects correspondence (Constitute Project, “El Salvador 1983 rev. 2014”).
https://constituteproject.org/constitution/El_Salvador_2014?lang=en
Equatorial Guinea
Today, Article 13 of the 1991 constitution protects rights and freedoms. In section 1(g), the right to privacy in communications and the home is protected (Constitute Project, “Equatorial Guinea 1991 rev. 2012”). Translations of the 1968, 1973, and 1982 constitutions could not be found.
https://constituteproject.org/constitution/Equatorial_Guinea_2012?lang=en
Eritrea
In its history, Eritrea has only had one constitution and it protects the right to privacy in Article 18. Specific privacies are not mentioned but it is an overarching declaration of the protection of the right: “Every person shall have the right to privacy” (Constitute Project, “Eritrea 1997”).
https://constituteproject.org/constitution/Eritrea_1997?lang=en
Estonia
The 1920 constitution of Estonia protected personal privacy in Paragraph 8. Paragraph 10 protected the homestead and Paragraph 14 protected communications (Wikisource, “Constitution of the Esthonian Republic (1920)”). Today, privacy rights are guaranteed in Section 26 (Riigi Teataja, “The Constitution of the Republic of Estonia”).
https://www.riigiteataja.ee/en/eli/521052015001/consolide https://en.wikisource.org/wiki/Constitution_of_the_Esthonian_Republic_(1920)
Eswatini
Article 14(1) names and protects fundamental rights, and subsection C reads “protection of the privacy of the home and other property rights of the individual” (Constitute Project, “Eswatini 2005”). Previous iterations of the constitutions from 1967 and 1968 could not be found.
https://constituteproject.org/constitution/Swaziland_2005?lang=en
Ethiopia
The 1931 constitution protects correspondence privacy in Article 26 (Ethiopian Legal Brief, “Ethiopian Constitution of 1931”). In Article 25, the home is claimed as private. Today, privacy rights are protected in Article 26 (Constitute Project, “Ethiopia 1994”).
https://chilot.files.wordpress.com/2011/04/ethiopian-constitution-of-1931.pdf https://constituteproject.org/constitution/Ethiopia_1994?lang=en
Fiji
The 1970 Fiji constitution, its first after independence from Britain, protected the right to privacy in the home in Article 3(c) (Constitution Net, “Fiji Independence Order 1970 and Constitution of Fiji”). Today, the 2013 constitution expands the right to privacy from the home to include the right to private and family life, privacy in correspondence, and data privacy in Article 24 (Constitute Project, “Fiji 2013”).
http://constitutionnet.org/sites/default/files/1970_constitution.pdf https://constituteproject.org/constitution/Fiji_2013?lang=en
Finland
Originally, the 1919 Finnish Constitution protected privacy in Section 8 (RefWorld, “Constitution Act of Finland”). Today, Section 10 of the Finnish Constitution protects the right to privacy with similar language. It says, “Everyone's private life, honour and the sanctity of the home are guaranteed. More detailed provisions on the protection of personal data are laid down by an Act. The secrecy of correspondence, telephony and other confidential communications is inviolable” (Constitute Project, “Finland 1999 rev. 2011”).
https://constituteproject.org/constitution/Finland_2011?lang=en https://www.refworld.org/docid/3ae6b53418.html
France
The right to privacy in France is implied in Article IV of the Declaration of the Rights of Man and the Citizen of 26 August 1789. Article IV reads, “Liberty consists of being able to do everything that does not harm anybody else: thus the exercise of the natural rights of every man has no boundaries except those that ensure to other Members of the Society the enjoyment of those same rights” (Hardt, Kiiver, Kristofertisch). The Declaration of the Rights of Man is still in force today due to the Preamble of the 1958 French Constitution.
Sascha Hardt, Phillip Kiiver & Gisela Kristofertisch. (2019). Comparative Constitutional Law Documents. “Declaration of the Rights of Man and the Citizen [Declaration des Driots de L’Homme et du Citoyen] of 26 August 1789” and “Constitution of the V. Republic of 4 October 1958.”
Gabon
Article 1 of the constitution lays out fundamental rights granted within the state (Constitute Project, “Gabon 1991 rev. 2011”). Section 5 of Article 1 protects the privacy of correspondence. Section 12 claims the inviolability of the domicile. The current constitution is based on the 1961 constitution, though it was rewritten in 1991.
https://constituteproject.org/constitution/Gabon_2011?lang=en
The Gambia
Article 23 of the 1996 constitution says, “No person shall be subject to interference with the privacy of his or her home, correspondence or communications save as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety of the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights and freedoms of others” (Constitute Project, “Gambia (The) 1996 rev. 2018”).
https://constituteproject.org/constitution/Gambia_2018?lang=en
Georgia
Today, Article 15 in the 1995 constitution of Georgia protects the right to personal privacy, personal space, and privacy of communication. Additionally, Article 9 claims the inviolability of human dignity (Constitute Project, “Georgia 1995 rev. 2018”).
https://constituteproject.org/constitution/Georgia_2018?lang=en
Germany
German Basic Law, passed in 1949, provides for privacy in a couple of places. Article 1(1) protects an individual’s dignity, and Article 10 protects privacy in correspondence and telecommunications (Hardt, Kiiver, Rotering, & Kristofertisch). Article 13 protects the home.
Sascha Hardt, Phillip Kiiver, Gereon Rotering, & Gisela Kristofertisch. (2019). Comparative Constitutional Law Documents. “Basic Law for the Federal Republic of Germany of 23 May 1949.”
Ghana
In the 1992 constitution, still in force today, the right to privacy in the home and correspondence is found in Article 18(2) (Constitute Project, “Ghana 1992 rev. 1996”).
https://constituteproject.org/constitution/Ghana_1996?lang=en
Greece
In the 1975 constitution, the Greeks protect the right to privacy in Article 9. This article protects the home, private, and family life. Article 9A provides constitutional data privacy protections (Constitute Project, “Greece 1975 rev. 2008”).
https://constituteproject.org/constitution/Greece_2008?lang=en
Grenada
The 1973 constitution of Grenada, the country’s first, protected the right to privacy in Article 1(c) (Commonwealth Parliamentary Association, “The Grenada Constitution Order 1973”). Specifically, it protected the home and other property. Today, the 1973 constitution takes on similar language in Article 1(c) (Constitute Project, “Grenada 1973, reinst. 1991, rev. 1992”).
https://constituteproject.org/constitution/Grenada_1992?lang=en https://www.cpahq.org/media/gq5dtcj5/gre_constitution.pdf
Guatemala
There are two provisions for privacy protection in the 1985 Guatemalan Constitution. Article 23 grants privacy in the home (vivienda) and Article 24 protects correspondence and other documents (Constitute Project, “Guatemala 1985 rev. 1993”).
https://constituteproject.org/constitution/Guatemala_1993?lang=en
Guinea
The 2010 constitution of Guinea protects private life, correspondence, and the home in Article 12: “The domicile is inviolable. It may be infringed only in the case of grave and imminent peril, to evade [parer] a common danger or to protect the life of the persons. All other infringement, all search may only be ordered by the judge or by the authority that the law designates and in the forms prescribed by it. The secrecy of correspondence and of communication is inviolable. Each one has the right to the protection of their private life” (Constitute Project, “Guinea’s Constitution of 2010”).
https://www.constituteproject.org/constitution/Guinea_2010.pdf
Guinea-Bissau
Article 44 of the 1984 constitution grants the right to protection of personal and private life. Article 48 grants privacy in the home and correspondence (Constitute Project, “Guinea-Bissau 1984 rev. 1996”).
https://constituteproject.org/constitution/Guinea_Bissau_1996?lang=en
Guyana
In 1966, Guyana gained independence from Britain and, in the same order, passed its constitution. The 1966 constitution provided for protection in the home from others in Article 3(c) (Guyana Parliament, “The Guyana Independence Order 1966”).
Haiti
In 1801, the first constitution of Haiti protected the privacy of the home in Article 63 (Louverture Project, “Constitution of 1801”). Today, Article 49 of the 1987 constitution protect protects communications (Constitute Project, “Haiti 1987 rev. 2012”).
https://constituteproject.org/constitution/Haiti_2012?lang=en http://thelouvertureproject.org/index.php?title=Haitian_Constitution_of_1801_(English)
Honduras
The 1982 constitution provides for privacy protections in Article 76. In this text, one is granted “The right to honor, to personal privacy, to family, and to one's dignity” (Constitute Project, “Hungary 1982 rev. 2013").
https://constituteproject.org/constitution/Honduras_2013?lang=en
Hungary
The 1949 constitution was the first to include privacy rights. In Article 57, personal privacy, as well as privacy in the home and correspondence are protected: “he Hungarian People's Republic guarantees the personal freedom and privileges of the citizens, and respects the secrecy of correspondence and the inviolability of the home” (Princeton University, “CONSTITUTION of the People's Republic of Hungary - Budapest, 20th August 1949”). In the most recent constitution from 2011, these rights are protected in Article VI (Constitute Project, “Hungary 2011 rev. 2016”).
https://constituteproject.org/constitution/Hungary_2016?lang=en https://lapa.princeton.edu/hosteddocs/hungary/1949%20Hungarian%20constitution.pdf
Iceland
Article 71 says, “Everyone shall enjoy freedom from interference with privacy, home, and family life” (Constitute Project, “Iceland 1944 rev. 2013”). This article is in the 1944 constitution, which is largely based on the 1874 constitutional text that preceded it (Icelandic Human Rights Center, “Icelandic Law”).
https://www.humanrights.is/en/laws-conventions/icelandic-law https://constituteproject.org/constitution/Iceland_2013?lang=en
India
While not explicitly mentioned in the Indian constitution, the right to privacy has been recognized by the Indian Supreme Court. In 2017, they ruled unanimously that the right to privacy for all people falls under Article 21, which provides the “protection of life and personal liberty” (McCarthy; Mahapatra & Choudhary).
McCarthy, J. (2017, Aug. 24). Indian Supreme Court declares privacy a fundamental right. NPR. https://www.npr.org/sections/thetwo-way/2017/08/24/545963181/indian-supreme-court-declares-privacy-a-fundamental-right Mahapatra, D. & Choudhary, A.A. (2017, Aug. 24). Right to privacy is a fundamental right, it is intrinsic to the right to life: Supreme Court. Times of India. https://timesofindia.indiatimes.com/india/right-to-privacy-is-a-fundamental-right-supreme-court/articleshow/60203394.cms
Indonesia
Article 28G grants the right to privacy. It reads, “Every person shall have the right to protection of his/herself, family, honour, dignity, and property, and shall have the right to feel secure against and receive protection from the threat of fear to do or not do something that is a human right” (Constitute Project, Indonesia 1954 reinst. 1959, rev. 2002”).
https://constituteproject.org/constitution/Indonesia_2002?lang=en
Iran
While the constitution of Iran does not protect privacy, it does guarantee protection of the law which conforms with Islamic Law in Article 20 (Constitute Project, “Iran (Islamic Republic of) 1979 rev. 1989”). Islam provides such protections within the Quran (Hayat, M.H., “Privacy and Islam: From the Quran to data protection in Pakistan”).
https://constituteproject.org/constitution/Iran_1989?lang=en https://www.tandfonline.com/doi/abs/10.1080/13600830701532043?journalCode=cict20#:~:text=Islam%20not%20only%20prohibits%20entering,enter%20in%20one's%20own%20house.&text=We%20now%20come%20to%20rules,family%20circle%20in%20Islamic%20society.
Iraq
The 2004 constitution protects the right to personal privacy in Article 17(1) and the right to privacy in the home in Article 17(2) (Constitute Project, “Iraq 2005). Previously, only the home had been protected in the 1925 constitution (United Nations Archives, “Constitution of ‘Iraq (Organic Law)”).
https://constituteproject.org/constitution/Iraq_2005?lang=en https://biblio-archive.unog.ch/Dateien/CouncilDocs/C-49-1929-VI_EN.pdf
Republic of Ireland
Article 40(5) protects the inviolability of the dwelling (Constitute Project, “Ireland 1937 rev. 2017”). This same protection was afforded in Article 7 of the Constitution of the Irish Free State from 1922 (electronic Irish Statute Book, “Constitution of the Irish Free State (Saorstát Eireann) Act, 1922”).
https://constituteproject.org/constitution/Ireland_2019?lang=en https://www.irishstatutebook.ie/eli/1922/act/1/enacted/en/print
Israel
Privacy rights in Israel derive from the Basic Law Human Liberty and Dignity of 1992. In this law, Article 7 protects privacy, intimacy, private premises, and confidential communications (Constitute Project, “Israel 1953 rev. 2013”).
https://constituteproject.org/constitution/Israel_2013?lang=en
Italy
Articles 13-15 grant privacy to people, homes, and correspondence in the Italian Constitution from 1947 (Constitute Project, “Italy 1947 rev. 2020”). Previous constitutions are from 1848 and 1861, but translations were not found.
https://constituteproject.org/constitution/Italy_2020?lang=en
Ivory Coast
The only specific privacy right mentioned in the constitution is that in Article 8, which inviolably protects the home (Constitute Project, “Côte d'Ivoire 2016”).
https://constituteproject.org/countries/Africa/Cote_d_Ivoire?lang=en
Jamaica
Chapter III of the 1962 constitution protects the fundamental rights and freedoms of Jamaicans. In Section 3(j) of Article 13, privacy protections are granted to persons, property, private and family life, and communication (Constitute Project, “Jamaica 1962 rev. 2015”).
https://constituteproject.org/constitution/Jamaica_2015?lang=en
Japan
Historically, the 1889 constitution of Japan protected the home and correspondence in Articles 25 and 26 (Constitute Project, “Japan’s Constitution of 1889 Historical”). Today, Article 35 protects the home (Constitute Project, "Japan 1946").
https://www.constituteproject.org/constitution/Japan_1889.pdf?lang=en https://constituteproject.org/constitution/Japan_1946?lang=en
Jordan
Article 7 of the 1952 constitution says, “1. Personal freedom shall be guaranteed. 2. Every infringement on rights and public freedoms or the inviolability of the private life of Jordanians is a crime punishable by law.” Article 18 protects communications and Article 10 protects the home (Constitute Project, “Jordan 1952 rev. 2016”).
https://constituteproject.org/constitution/Jordan_2016?lang=en
Kazakhstan
In their first formal constitution, Kazakhstan protected the right to privacy in Article 18. It says, “1. Everyone shall have the right to inviolability of private life, personal or family secrets, protection of honor and dignity. 2. Everyone shall have the right to confidentiality of personal deposits and savings, correspondence, telephone conversations, postal, telegraph, and other messages. Limitation of this right shall be permitted only in the cases and according to the procedure directly established by law. 3. State bodies, public associations, officials, and the mass media must provide every citizen with the possibility to obtain access to documents, decisions and other sources of information concerning his rights and interests” (Constitute Project, “Kazakhstan 1995 rev. 2017”).
https://constituteproject.org/constitution/Kazakhstan_2017?lang=en
Kenya
In 1963, the Kenyan Constitution protected privacy in Article 14(c) (Kenya Law, “1963 Constitution”). Today, Article 31 of the 2010 Kenyan Constitution gives every person the right to privacy in their person, home, possessions, family life, and correspondence (Constitute Project, “Kenya 2010 Constitution”).
http://kenyalaw.org/kl/fileadmin/pdfdownloads/1963_Constitution.pdf https://constituteproject.org/constitution/Kenya_2010?lang=en
Kiribati
Article 3 of the 1979 constitution calls for the protection of privacy in the home and Article 9 protects a person from searches (Constitute Project, “Kiribati 1979 rev. 2013”).
https://constituteproject.org/countries/Oceania/Kiribati?lang=en
Kuwait
Kuwait’s 1962 constitution has been reinstated twice, but it does not mention privacy rights generally. It does, however, protect the inviolability of the home in Article 38 (Constitute Project, “Kuwait 1962 reinst. 1992”).
https://constituteproject.org/constitution/Kuwait_1992?lang=en
Kyrgyzstan
The 2007 constitution, the first to be adopted after independence from the Soviet Union, protected privacy rights in Article 14 (Electoral Knowledge Network, “Constitution of the Kyrgyz Republic”). Today, Article 29 protects the rights to privacy in private life, dignity, and correspondence in the 2010 constitution (Constitute Project, “Kyrgyzstan 2010 rev. 2016”).
https://constituteproject.org/constitution/Kyrgyz_Republic_2016?lang=en https://aceproject.org/ero-en/regions/asia/KG/kyrgyzstan-constitution-1993-2007/view?searchterm=russian
Laos
Privacy rights are scarcely protected in Laos. The revised 2015 constitution protects violations of life, body, integrity, and property in Article 42, which has been amended since the implementation of the constitution in 1991 (Constitute Project, “Lao People’s Democratic Republic 1991 rev. 2015”).
https://media.bloomsburyprofessional.com/rep/files/laos-constitution-1947-1949-englishx.pdf https://constituteproject.org/constitution/Laos_2015?lang=en
Latvia
Article 96 of the 1922 constitution states “Everyone has the right to inviolability of his or her private life, home and correspondence” (Constitute Project, “Latvia 1922, reinst. 1991, rev. 2016”).
https://constituteproject.org/constitution/Latvia_2016?lang=en
Lebanon
The constitution provides no protections for general privacy rights. However, Article 14 does protect the inviolability of the home (Constitute Project, “Lebanon 1926 rev. 2004”).
https://constituteproject.org/constitution/Lebanon_2004?lang=en
Lesotho
The 1993 constitution of Lesotho sets forth fundamental rights which are granted to each person in Lesotho in Article 4. In Section 1(g) of Article 4, the right to respect for family and private life is protected. In Article 11, this right is expanded upon and clarified (Constitute Project, “Lesotho 1993 rev. 2018”).
https://constituteproject.org/constitution/Lesotho_2018?lang=en
Liberia
The 1825 and 1847 constitutions of Liberia did not included mention of privacy rights. The first protection of privacy rights was in the 1986 constitution, Article 16. Article 16 states “No person shall be subjected to interference with his privacy of person, family, home or correspondence except by order of a court of competent jurisdiction” (Constitute Project, “Liberia 1986”).
http://crc.gov.lr/doc/CONSTITUTION%20OF%201847%20final.pdf https://constituteproject.org/constitution/Liberia_1986?lang=en
Libya
The interim constitution of 2011 is the first to grant privacy rights. It does so in Articles 11-13. These articles protect homes, private life, and correspondence (Constitute Project, “Libya 2011 rev. 2012”).
https://www.constituteproject.org/constitution/Libya_2012?lang=en
Liechtenstein
The 1862 constitution alludes to privacy rights in the home in Article 12 (Wright, “Constitution of 26 September 1862.”). Today, privacy rights go further under the 1921 constitution, with Article 32 guaranteeing “Personal liberty, the immunity of the home and the inviolability of letters and written matter” (Constitute Project, “Liechtenstein 1921 rev. 2011”).
https://books.google.com/books?id=kXBDAAAAIAAJ&pg=PA375&lpg=PA375&dq=1862+Constitution+of+Liechtenstein+full+text&source=bl&ots=6dAZ5MiCdX&sig=YurO0ujdxMdcKsMLT_DfGdxPCm0&hl=en&sa=X&ei=axZlU-b1KorroATU9oG4Cg#v=onepage&q=priva&f=false https://www.constituteproject.org/constitution/Liechtenstein_2011?lang=en
Lithuania
Articles 22 and 24 grant privacy rights in Lithuania. Article 22 declares the inviolability of the private life, including correspondence and data, and Article 24 protects the home (Constitute Project, “Lithuania 1992 rev. 2019”).
https://www.constituteproject.org/constitution/Lithuania_2019?lang=en
Luxembourg
The 1868 constitution, since amended, protects private life in Article 3. In Article 15, it protects the home and in Article 28, correspondence (Constitute Project, “Luxembourg 1868 rev. 2009”).
https://www.constituteproject.org/constitution/Luxembourg_2009?lang=en
Madagascar
Article 13(1) governs privacy rights in Madagascar. It assures each individual “the inviolability of their person, their domicile and of the secrecy of their correspondence” (Constitute Project, “Madagascar 2010”).
https://www.constituteproject.org/constitution/Madagascar_2010?lang=en
Malawi
The 1994 Malawi Constitution protects personal privacy in Article 21. As defined in the article, personal privacy protects possessions, home, and property (Constitute Project, “Malawi 1994 rev. 2017”).
https://www.constituteproject.org/constitution/Malawi_2017?lang=en
Malaysia
The constitution is lacking privacy rights protections. The first privacy related writing was the Personal Data Protection Act of 2010. This law came into force in 2013 and is more about data privacy than privacy rights generally.
https://thelawreviews.co.uk/title/the-privacy-data-protection-and-cybersecurity-law-review/malaysia https://www.constituteproject.org/constitution/Malaysia_2007?lang=en
Maldives
Article 24 grants the right to privacy in the Maldives. It says: “Everyone has the right to respect for his private and family life, his home and his private communications. Every person must respect these rights with respect to others” (Constitute Project, “Maldives 2008”).
https://www.constituteproject.org/constitution/Maldives_2008?lang=en
Mali
Article 6 of the 1992 constitution protected the three main privacy rights: the home, correspondence, and the individual (Constitute Project, “Mali 1992”).
https://www.constituteproject.org/constitution/Mali_1992?lang=en
Malta
Article 32 of the Maltese Constitution protects the right to private and family life. Article 38 protects the home (Constitute Project, “Malta 1964 rev. 2016”).
https://www.constituteproject.org/constitution/Malta_2016?lang=en
Marshall Islands
Section 13 of the Marshall Islands’ constitution protects personal autonomy. It says: “All persons shall be free from unreasonable interference in personal choices that do not injure others and from unreasonable intrusions into their privacy” (Constitute Project, “Marshall Islands 1979 rev. 1995”).
https://www.constituteproject.org/constitution/Marshall_Islands_1995?lang=en
Mauritania
Article 13(4) protects the right to privacy in Mauritania: “The honor and the private life of the citizen, the inviolability of the human person, of his domicile and of his correspondence are guaranteed by the State” (Constitute Project, "Mauritania 1991 rev. 2012").
https://www.constituteproject.org/constitution/Mauritania_2012?lang=en
Mauritius
The sole constitution of Mauritius from 1968 is limited in what it says about privacy rights. It only protects a person and their property from a search in Article 9 (Constitute Project, "Mauritius 1968 rev. 2016").
https://www.constituteproject.org/constitution/Mauritius_2016?lang=en
Mexico
Article 7 of the 1857 constitution prevents writers from writing about people’s private lives (World History Commons, “Federal Constitution of the United Mexican States of 1857”). Today, Article 16 of the 1917 constitution protects the privacy rights and data privacy in Mexico: “No person shall be disturbed in his private affairs, his/her family, papers, properties or be invaded at home without a written order from a competent authority, duly explaining the legal cause of the proceeding. All people have the right to enjoy protection on his personal data, and to access, correct and cancel such data. All people have the right to oppose the disclosure of his data, according to the law. The law shall establish exceptions to the criteria that rule the handling of data, due to national security reasons, law and order, public security, public health, or protection of third party’s rights” (Constitute Project, “Mexico 1917 rev. 2015”).
https://www.constituteproject.org/constitution/Mexico_2015?lang=en https://worldhistorycommons.org/federal-constitution-united-mexican-states-1857
Federated States of Micronesia
Article IV Section 5 of the constitution of 1978 says “The right of the people to be secure in their persons, houses, papers, and other possessions against unreasonable search, seizure, or invasion of privacy may not be violated. A warrant may not issue except on probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized” (Constitute Project, “Micronesia (Federated States of) 1978 rev. 1990”).
https://www.constituteproject.org/constitution/Micronesia_1990?lang=en
Moldova
Today, Articles 28-30 of the 1994 constitution protect privacy rights in Moldova. Article 28 grants privacy in private and family life, Article 29 in the home, and Article 30 in correspondence (Constitute Project, “Moldova 1994 rev. 2016”).
https://www.constituteproject.org/constitution/Moldova_2016?lang=en
Monaco
The 1962 constitution, still in force today, protects the home in Article 21 and the general right to privacy in Article 22. Article 22 calls out private and family life as well as correspondence (Constitute Project, “Monaco 1962 rev 2002”).
https://www.constituteproject.org/constitution/Monaco_2002?lang=en
Mongolia
Article 16(13) of the 1992 constitution protects the right to personal liberty and safety. It says, “The privacy of citizens, their families, confidentiality of correspondence and communication, and the inviolability of home residence shall be protected by law” (Constitute Project, “Mongolia 1992 rev. 2001).
https://www.constituteproject.org/constitution/Mongolia_2001?lang=en
Montenegro
Article 20 of the 1992 constitution says, “physical and psychological integrity of man, his privacy and personal rights are inviolable” (Venice Commission, “Constitution of the Republic of Montenegro”). Today, Article 28 says “The inviolability of the physical and mental integrity of a man, and privacy and individual rights thereof shall be guaranteed” (Constitute Project, “Montenegro 2007 rev. 2013”).
https://www.venice.coe.int/webforms/documents/?pdf=CDL(2005)096-e https://www.constituteproject.org/constitution/Montenegro_2013?lang=en
Morocco
The 2011 Moroccan constitution was the first to have fundamental rights based on international treaties (Moroccan Government, “Constitution”). This made it the first to guarantee the right to privacy, which was achieved in Article 24 (Moroccan Government, “Constitution”; Constitute Project, “Morocco 2011”). Article 24 protects private life, the home, and correspondence (Constitute Project, “Morocco 2011”).
https://www.maroc.ma/en/content/constitution https://www.constituteproject.org/constitution/Morocco_2011?lang=en
Mozambique
The 1975 constitution of Mozambique granted “All citizens … the right to their honor, good name and reputation, as well as the right to privacy and to defend their public image” (RefWorld, “Constitution of the Republic of Mozambique”). This is echoed in Article 41 of the 2004 constitution (Constitute Project, “Mozambique 2004 rev. 2007”).
https://www.refworld.org/docid/3ae6b4f40.html https://www.constituteproject.org/constitution/Mozambique_2007?lang=en
Myanmar
Article 160 in the 1974 Burmese Constitution grants privacy for home, property, correspondence, and communications (Burma Library, “THE CONSTITUTION OF THE UNION OF BURMA (1974)”). Today, these same protections are afforded in Article 357 (Constitute Project, “Myanmar 2008 rev. 2015”).
https://www.burmalibrary.org/docs07/1974Constitution.pdf?__cf_chl_jschl_tk__=pmd_uXw1EkLnkyq9T6FqkzA_NO9lvJaIhzdgyzAJ1J1s5Ko-1635431051-0-gqNtZGzNAiWjcnBszQjR https://www.constituteproject.org/constitution/Myanmar_2015?lang=en
Namibia
The 1990 constitution protects the right to privacy in the home and for correspondence in Article 13 (Constitute Project, “Namibia 1990 rev. 2014”).
https://www.constituteproject.org/constitution/Namibia_2014?lang=en
Nauru
The preamble to Part II Fundamental Rights and Freedoms in the 1968 constitution grants everyone the “respect for his private and family life” (Constitute Project, “Nauru 1968 rev. 2015”).
https://www.constituteproject.org/constitution/Nauru_2015?lang=en
Nepal
The 1990 constitution was the first to protect privacy as a fundamental right. In Article 22: “Except as provided by law, the privacy of the person, house, property, document, correspondence or information of anyone is inviolable” (Constitution Net, “The Constitution of Nepal 1990”). In the 2015 constitution, the same language is used in Article 28 (Constitute Project, “Nepal 2015 rev. 2016").
https://www.constituteproject.org/constitution/Nepal_2016?lang=en https://constitutionnet.org/sites/default/files/1990_constitution_english.pdf
Kingdom of the Netherlands
Article 10 of the 1814 Constitution grants privacy rights to persons in the Kingdom of the Netherlands. 10(1) states “Everyone has, save for limitations to be provided by or pursuant to statute, the right to respect for his private life.” Article 13 protects private correspondence and Article 12 protects the home (Hardt & Kiiver, 2019, 141).
Sascha Hardt & Phillip Kiiver. Comparative Constitutional Law Documents. “Constitution for the Kingdom of the Netherlands of 24 August 1815.”
New Zealand
New Zealand governs privacy rights with the 1993 Privacy Act, which has since been replaced with the 2020 Privacy Act.
https://www.legislation.govt.nz/act/public/1993/0028/latest/DLM296639.html
Nicaragua
The 1974 constitution “guarantees the inviolability of the home, the dwelling, and of any other private premises of persons” in Article 58 (General Secretariat Organization of American States, Washington D.C., “Constitution of the Republic of Nicaragua”). Article 80 protected correspondence. The 1987 constitution broadened privacy rights in Article 26 stating: “Everyone has the right to: 1. Privacy in his/her life and that of his/her family; 2. Respect of his/her honor and reputation; 3. Know about any information which private or public entities may have on record about him/her as well as the right to know why and for what purpose they hold such information; 4. Inviolability of his/her domicile, correspondence and communication of any kind.” (Constitute Project, “Nicaragua 1987 rev. 2014”).
https://books.google.com/books?printsec=frontcover&vid=LCCN77374018#v=snippet&q=inviolable&f=false https://www.constituteproject.org/constitution/Nicaragua_2014?lang=en
Niger
The 2010 constitution only protects the domicile of people in terms of privacy rights. This is done in Article 27 (Constitute Project, “Niger 2010 rev. 2017”).
https://www.constituteproject.org/constitution/Niger_2017?lang=en
Nigeria
In 1960, the country’s first constitution protected the private life, home, and correspondence of each person in Article 22 (World Statesmen, “The Constitution of the Federation of Niger”). Today, the same language is seen in Article 37 of the 1999 constitution (Constitute Project, “Nigeria Constitution 1999 rev. 2011”).
https://www.worldstatesmen.org/nigeria_const1960.pdf https://constituteproject.org/constitution/Nigeria_2011?lang=en
North Korea
Article 79 of the Democratic People’s Republic of Korea 1972 constitution grants that citizens and homes are inviolable and that communications are private (Constitute Project, “Korea (Democratic People’s Republic of) 1972 rev. 2016”).
https://constituteproject.org/constitution/Peoples_Republic_of_Korea_2016?lang=en
North Macedonia
Article 25 of the 1991 constitution states “Each citizen is guaranteed the respect and protection of the privacy of his/her personal and family life and of his/her dignity and repute.” Amendment XIX, altering Article 17, protects communications more heavily (Constitute Project, “North Macedonia 1991 rev. 2011”).
https://constituteproject.org/constitution/Macedonia_2011?lang=en
Norway
Norway has had one constitution since 1814, though it has been amended many times. Article 102 gives everyone “the right to respect for his private and family life, his home and his correspondence” (Constitute Project, “Norway 1814 rev. 2016”). However, it appears this was amended sometime after 2004, as the version with amendments through 2004 does not have this language in Article 102 (Constitute Project, “Norway 1814 rev. 2004”).
https://constituteproject.org/constitution/Norway_2016?lang=en https://www.constituteproject.org/constitution/Norway_2004.pdf
Oman
The Oman constitution, written in 1996, only constitutional protects the privacy of homes in Article 27 (Constitute Project, "Oman 1996 rev. 2011").
https://constituteproject.org/constitution/Oman_2011?lang=en
Pakistan
The 1973 constitution, reinstated in 2002, in Article 14 cites the inviolability of man’s dignity and privacy in the home as fundamental (Constitute Project, “Pakistan Constitution reinst. 2002, rev. 2018”).
https://constituteproject.org/constitution/Pakistan_2018?lang=en
Palau
Article IV(4) of the 1981 constitution ensures “Every person has the right to be secure in his person, house, papers and effects against entry, search and seizure” (Constitute Project, “Palau 1981 rev. 1992").
https://constituteproject.org/constitution/Palau_1992?lang=en
Panama
Article 28 of the 1904 constitution keeps documents private (University of Michigan, “Constitution of the Republic of Panama”). The 1972 constitution reflects the same tone toward the privacy of documents in Article 29. Article 26 grants the home inviolable, though there is no blanket protection of privacy rights in the 1972 constitution (Constitute Project, “Panama 1972 rev. 2004”).
https://babel.hathitrust.org/cgi/pt?id=mdp.35112104577715&view=1up&seq=12 https://constituteproject.org/constitution/Panama_2004?lang=en
Papua New Guinea
Under the basic rights prescribed under Section 5(f), all citizens have the “protection for the privacy of their homes and other property” (Constitute Project, Papua New Guinea 1975 rev. 2016). Additionally, Article 49(1) gives “Every person has a right to reasonable privacy in respect of his private and family life, his communications with other persons and his personal papers and effects, except to the extent that the exercise of that right is regulated or restricted by law that complies with Section 38 (general qualifications on qualified rights).”
https://constituteproject.org/constitution/Papua_New_Guinea_2016?lang=en
Paraguay
In the 1967 constitution, Article 68 makes the home inviolable, and Article 69 makes communications inviolable, barring investigation (International Foundation for Electoral Systems, “Constitution of the Republic of Paraguay 1967”. Today, according to Article 33 of the Paraguay Constitution, “Personal and family intimacy, as well as the respect of private life, is inviolable. The behavior of persons, that does not affect the public order established by the law or the rights of third parties[,] is exempted from the public authority.” Article 34 inviolably protects the home (Constitute Project, “Paraguay 1992 rev. 2011”).
https://constituteproject.org/constitution/Paraguay_2011?lang=en https://www.ifes.org/sites/default/files/con00138.pdf
Peru
Today, Article 2(7) protects privacy rights in Peru for one’s honor, reputation, personal and family life, voice, and image (Constitute Project, “Peru 1993 rev. 2021”). Similar rights appear to have been listed in Article 2 of the 1979 constitution, but an English translation could not be found.
http://hrlibrary.umn.edu/research/Peru-Constitucion%201979.pdf https://constituteproject.org/constitution/Peru_2021?lang=en
Philippines
The 1935 Constitution grants “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated” in Article III, Section 1(3) (Official Gazette, “The 1935 Constitution”). Today, similar language is used in Article II, Section 1(2) (Official Gazette, “The 1935 Constitution”).
https://www.officialgazette.gov.ph/constitutions/the-1935-constitution/ https://www.officialgazette.gov.ph/constitutions/1987-constitution/
Poland
The 1921 Polish Constitution grants privacy in the home and communication in articles 100 and 106, respectively (Sejm Parliamentary Library, “Constitution of the Republic of Poland, March 17, 1921”). Today, Article 47 of the 1997 constitution protects the general right to privacy in Poland: “Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.” Articles 49 and 50 extend these protections to communications and the home (Constitute Project, “Poland 1997 rev. 2009”).
http://libr.sejm.gov.pl/tek01/txt/kpol/e1921.html https://constituteproject.org/constitution/Poland_2009?lang=en
Portugal
Portugal’s first protection of privacy was in the 1976 constitution. Article 26(1) says “Everyone shall possess the right to a personal identity, to the development of their personality, to civil capacity, to citizenship, to a good name and reputation, to their likeness, to speak out, to protect the privacy of their personal and family life, and to legal protection against any form of discrimination.” Article 65 grants privacy in the home (Constitute Project, “Portugal 1976 rev. 2005).
https://constituteproject.org/constitution/Portugal_2005?lang=en
Qatar
From 1972-2003, Qatar was ruled by a temporary constitution. In this document Article 12 granted the sanctity of dwellings (Al Meezan, “The Amended Provisional Constitution of 1972”). Today, Article 37 of the Constitution claims “The sanctity of human privacy shall be inviolable, and therefore interference into privacy of a person, family affairs, home of residence, correspondence, or any other act of interference that may demean or defame a person may not be allowed save as limited by the provisions of the law stipulated therein” (Qatar Government Communications Office, “The Constitution”).
https://www.gco.gov.qa/en/about-qatar/the-constitution/ https://www.almeezan.qa/LawView.aspx?opt&LawID=4360&language=en#Section_14176
Romania
Today, Article 26 of the 1991 Romanian Constitution protects personal and family privacy: “(1) The public authorities shall respect and protect the intimate, family and private life” (Constitute Project, “Romania 1991 rev. 2003”). Privacy may have been protected in earlier iterations of the constitution (i.e., 1952, 1965, etc.), but English translations could not be found.
https://constituteproject.org/constitution/Romania_2003?lang=en
Russia
In 1906, the Fundamental Laws of the Russian Empire were the first to grant Russians “sanctity of the home and property.” This was the first time Russians were granted civil liberties (Boris Yeltsin Presidential Library, “‘Fundamental Laws of the Russian Empire’ Approved”).
https://www.prlib.ru/en/history/619222
Rwanda
The right to privacy in Rwanda is protected by Articles 23 and 34. Article 23 states “The privacy of a person, his or her family, home or correspondence shall not be subjected to interference in a manner inconsistent with the law; the person's honour and dignity shall be respected. A person's home is inviolable. No search or entry into a home shall be carried out without the consent of the owner, except in circumstances and in accordance with procedures determined by the law.” Article 34 states “Private property, whether owned individually or collectively, is inviolable” (Constitute Project, "Rwanda 2003 rev. 2015").
https://constituteproject.org/constitution/Rwanda_2015?lang=en
Saint Kitts and Nevis
Chapter II, Protection of Fundamental Rights and Freedoms, of the 1983 constitution entitles everyone to fundamental rights, including “protection for his personal privacy, the privacy of his home and other property and from deprivation of property without compensation” (Constitute Project, “Saint Kitts and Nevis 1983”).
https://constituteproject.org/constitution/St_Kitts_and_Nevis_1983?lang=en
Saint Lucia
Chapter I, Protection of Fundamental Rights and Freedoms, of the 1978 constitution immediately grants every person in St. Lucia “protection for his family life, his personal privacy, the privacy of his home and other property and from deprivation of property without compensation” (Constitute Project, “Saint Lucia 1978”).
https://constituteproject.org/constitution/St_Lucia_1978?lang=en
Saint Vincent and the Grenadines
In the preamble of their only constitution to date, Vincentians are promised safeguards to “the rights of privacy of family life, of property, and the fostering of the pursuit of just economic rewards for labor.” This is reaffirmed in Article 1 with the granting of fundamental rights and freedoms (Constitute Project, “Saint Vincent and the Grenadines 1979”).
https://constituteproject.org/constitution/St_Vincent_and_the_Grenadines_1979?lang=en
Samoa
There is no mention of privacy rights in the constitution, which has been updated as recently as 2017 (Constitute Project, “Samoa 1962 rev. 2017”). Section 50(2) of the Telecommunications Act 2005 protects the privacy of telecommunications customers (Samoa). This was the earliest found reference to privacy rights in Samoa.
https://www.constituteproject.org/constitution/Samoa_2017?lang=en https://www.regulator.gov.ws/images/Act/TELECOMMUNICATIONS_ACT_2005_-_Eng.pdf
San Marino
The 1974 Declaration of Citizens' Rights and of the fundamental principles of the San Marinese legal order is the first time privacy rights are alluded to in San Marino. Art. 6 grants civil and political liberties. It does not grant privacy except in communications.
https://www.legislationline.org/documents/section/constitutions/country/6/San%20Marino/show
São Tomé and Príncipe
Article 24 of the 1975 Constitution, still in effect today, states “Personal identity and the confidentiality of the intimacy of private and family life are inviolable” (Constitute Project, Sao Tome and Principe 1975 rev. 2003). Additionally, Article 25 grants that communications and one’s home are also private (Constitute Project, Sao Tome and Principe 1975 rev. 2003).
https://constituteproject.org/constitution/Sao_Tome_and_Principe_2003?lang=en
Saudi Arabia
The 1992 Saudi Constitution does not explicitly protect privacy but claims privacy in communications and homes in Articles 37 and 40 (Constitute Project, “Saudi Arabia’s Constitution of 1992 with Amendments through 2005”).
https://constituteproject.org/constitution/Saudi_Arabia_2013?lang=en
Senegal
Senegal does not explicitly protect the right to privacy in its constitution. Article 7 of the 2001 constitution makes the claim to protect human rights but does not call out privacy. Article 13 provides for private correspondence and Article 16 makes the domicile inviolable (Constitute Project, “Senegal 2001 rev. 2016”).
https://constituteproject.org/constitution/Senegal_2016?lang=en
Serbia
The 2006 Serbian Constitution does not protect the right to privacy outright but allows for privacy in communication and data collection/sharing in Articles 41 and 42 (Constitute Project, “Serbia 2006”).
https://constituteproject.org/constitution/Serbia_2006?lang=en
Seychelles
The 1976 Independence Constitution of Seychelles, under Chapter 3, Article 12(c) gives individuals privacy of their home and other property (Citizenship Rights in Africa Initiative, “Constitution of Seychelles, 1976”).
https://citizenshiprightsafrica.org/constitution-of-seychelles-1976/
Sierra Leone
The 1978 constitution protected the privacy of the home and property under Article 12 (The Laws of Sierra Leone on the Sierra Leone Web, “The Constitution of Sierra Leone, 1978”).
http://www.sierra-leone.org/Laws/1978-12s.pdf
Singapore
No part of the constitution mentions a right to privacy (Privacy International, “The Right to Privacy in Singapore”). There are also no specific laws governing privacy within the state.
https://privacyinternational.org/sites/default/files/2017-12/Singapore_UPR_PI_submission_FINAL.pdf
Slovakia
Article 16(1) of the 1992 constitution states “The inviolability of the person and its privacy is guaranteed. It may be limited only in cases laid down by law” (Constitute Project, “Slovakia 1992 rev. 2017). Sections 2 and 3 of Article 19 protect private life and data collection and publication (Constitute Project, “Slovakia 1992 rev. 2017). Article 21 claims the home is inviolable, while Article 22 protects communications (Constitute Project, “Slovakia 1992 rev. 2017).
https://constituteproject.org/constitution/Slovakia_2017?lang=en
Slovenia
Articles 35 and 36 of the constitution speak to the right to privacy in Slovenia. Article 35 says “The inviolability of the physical and mental integrity of every person, his privacy and personality rights shall be guaranteed” (Constitute Project, “Slovenia 1991 rev. 2016”). Article 36 says “Dwellings are inviolable. No one may, without a court order, enter the dwelling or other premises of another person, nor may he search the same, against the will of the resident. Any person whose dwelling or other premises are searched has the right to be present or to have a representative present. Such a search may only be conducted in the presence of two witnesses. Subject to conditions provided by law, an official may enter the dwelling or other premises of another person without a court order, and may in exceptional circumstances conduct a search in the absence of witnesses, where this is absolutely necessary for the direct apprehension of a person who has committed a criminal offence or to protect people or property” (Constitute Project, “Slovenia 1991 rev. 2016”).
https://constituteproject.org/constitution/Slovenia_2016?lang=en
Solomon Islands
Article 9 of the Solomon Islands Constitution protects the privacy of the home and other property: “Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.” (Constitute Project, “Solomon Islands 1978 rev. 2018”).
https://constituteproject.org/constitution/Solomon_Islands_2018?lang=en
Somalia
Article 28 of the 1960 Constitution of Somalia grants “respect for the private home” in which "no home or private property of any one (sic) may be entered into or violated, save in the cases mentioned in Paragraphs 2, 3 and 5 of Article 25” (World Intellectual Property Organization, “The Constitution”).
https://www.wipo.int/edocs/lexdocs/laws/en/so/so002en.pdf
South Africa
The 1993 Interim Constitution of South Africa was the first to grant privacy rights. The right to privacy includes “the right not to be subject to searches of his or her person, home or property, the seizure of private possessions or the violation of private communications” (South African Government, “Constitution of the Republic of South Africa Act 200 of 1993”). Today, the 1996 Constitution offers similar protections in Article 14 (Constitute Project, “South Africa 1996 rev. 2012).
https://www.gov.za/documents/constitution/constitution-republic-south-africa-act-200-1993#13%20Privacy https://constituteproject.org/constitution/South_Africa_2012?lang=en
South Korea
Under the first constitution of the Republic of Korea in 1948, Articles 17 and 18 grant the right to privacy. Neither the privacy of a citizen nor communication may be infringed (Constitute Project, “Korea (Republic of) 1948 rev. 1987”).
https://constituteproject.org/constitution/Republic_of_Korea_1987?lang=en
South Sudan
Article 22 of the 2011 South Sudan constitution protects the right to privacy: “The privacy of all persons shall be inviolable; no person shall be subjected to interference with his or her private life, family, home or correspondence, save in accordance with the law” (Constitute Project, “South Sudan 2011 rev. 2013”).
https://constituteproject.org/constitution/South_Sudan_2013?lang=en
Spain
The 1978 Spanish Constitution was the first to present privacy rights in Spain. Section 19(1) protects “the right to honour, to personal and family privacy and to the own image,” while 19(2) protects the home, and 19(4) explicitly grants data privacy (Constitute Project, “Spain 1978 rev. 2011”).
https://constituteproject.org/constitution/Spain_2011?lang=en
Sri Lanka
Sri Lanka’s constitution does not protect the right to privacy, though privacy is mentioned briefly in Article 14A(2) (Constitute Project, “Sri Lanka 1978 rev. 2015”). Sri Lanka is also lacking comprehensive privacy legislation, instead opting to write in provisions when regulating other industries (Data Guidance, “Sri Lanka – Data Protection Overview”).
https://constituteproject.org/constitution/Sri_Lanka_2015?lang=en https://www.dataguidance.com/notes/sri-lanka-data-protection-overview
Sudan
Privacy rights first appear in the 1973 Sudanese Constitution. Article 42 states “the private life of citizens is inviolable. The state shall guarantee the freedom and secrecy of postal, telegraphic, and telephonic communications in accordance with the law.” Article 43 protects dwellings in the same manner (The Democratic Republic of Sudan Gazette, “The Permanent Constitution of Sudan”). Today, these protections are combined into Article 55 of the 2019 Constitution, in which “No one’s privacy may be violated. It is not permissible to interfere in the private or family life of any person in his home or correspondence, except in accordance with the law” (Constitute Project, "Sudan 2019").
https://www.righttononviolence.org/mecf/wp-content/uploads/2012/01/Constitution-Sudan-1973-+-amendment-1975.pdf https://constituteproject.org/constitution/Sudan_2019?lang=en
Suriname
The 1975 Suriname Constitution protected the home and private life in Article 14 (Inter-American Commission on Human Rights, 1983, “Report on the Human Rights Situation in Suriname”). Today, these rights are protected under Article 17 of the 1987 Constitution (Constitute Project, “Suriname 1987 rev 1992”).
https://constituteproject.org/constitution/Surinam_1992?lang=en http://www.cidh.org/countryrep/Suriname83eng/chap.1.htm
Sweden
Constitutionally, privacy rights were introduced with the 1974 Swedish Constitution. Articles 2 and 6 present the right to privacy, while Article 20 allows the provisions in Article 6 to have some limitations (Constitute Project, “Sweden’s Constitution of 1974 with Amendments through 2012”). Sweden was also the first to introduce data privacy rights with the Data Act in 1973 (GDPRHub, “Data Protection in Sweden”).
https://www.constituteproject.org/constitution/Sweden_2012.pdf?lang=en https://gdprhub.eu/Data_Protection_in_Sweden
Switzerland
The 1992 Federal Act on Data Protection was the first formal protection of privacy in Switzerland (DLA Piper, “Data protection laws of the world: Switzerland”). This law has since been revised, but since then, the right to privacy was added to the 1999 Swiss Constitution in Article 13 (Constitute Project, “Switzerland 1999 rev. 2014”).
https://www.dlapiperdataprotection.com/index.html?t=law&c=CH https://constituteproject.org/constitution/Switzerland_2014?lang=en
Syria
The right to privacy was limited in the 1973 constitution, preventing only the private seizure of private property without judicial ruling (Carnegie Middle East Center, “The Syrian Constitution – 1973-2012”). Today, Articles 36 and 37 of the 2012 Constitution protect privacy rights. Article 36 protects private life and Article 37 protects communications (Constitute Project, “Syrian Arab Republic 2012”).
https://constituteproject.org/constitution/Syria_2012?lang=en https://carnegie-mec.org/diwan/50255?lang=en
Tajikistan
Articles 22 and 23 of the 1994 Tajikistan constitution protect the right to privacy. Article 22 makes the home inviolable, and Article 23 forbids “The collection, storage, use, and dissemination of information about private life of a person without his consent” (Constitute Project, “Tajikistan 1994 rev. 2016”).
https://constituteproject.org/constitution/Tajikistan_2016?lang=en
Tanzania
The 1965 constitution of Tanzania did not explicitly provide for privacy but defaulted “to safeguard the inherent dignity of the individual in accordance with the Universal Declaration of Human Rights” during the preamble (World Statesmen, “The Interim Constitution of Tanzania”). Today, the 1997 constitution (as amended in 2005) privacy and personal security in Article 16 (Constitute Project, “Tanzania’s Constitution of 1977 with Amendments through 2005”).
http://www.worldstatesmen.org/Tanzania-Constitution-1965.pdf https://constituteproject.org/constitution/Tanzania_2005?lang=en
Thailand
The earliest mention of privacy is the 1997 constitution of Thailand. While they have had many constitutions since 1932, the earliest translation found was that of the 1997 text. Section 34 protects “A person’s family rights, dignity, reputation or the right of privacy” unless it is beneficial to the public (Ref World, “Constitution of the Kingdom of Thailand”).
https://www.refworld.org/pdfid/3ae6b5b2b.pdf
Togo
Articles 27, 28, and 29 in the 1992 Togolese Constitution protect private property, the home, private life, and image, and correspondence. Article 28 is explicit to the right to privacy, while Articles 27 and 29 fit into the privacy penumbras subscribed by the United States (Constitute Project, “Togo’s Constitution of 1992 with Amendments through 2007”).
https://constituteproject.org/constitution/Togo_2007?lang=en
Tonga
The Tonga constitution was written in 1875. Under Article 16, privacy is granted during searches, except for lawfully granted searches through a warrant (Constitute Project, “Tonga’s Constitution of 1875 with Amendments through 2013”).
https://constituteproject.org/constitution/Tonga_2013.pdf?lang=en
Trinidad and Tobago
The 1976 constitution does not explicitly protect the right to privacy. However, Article 4 protects fundamental human rights, such as “the right of the individual to respect for his private and family life” and protection of the law (Constitute Project, “Trinidad and Tobago 1976 rev. 2007").
https://www.constituteproject.org/constitution/Trinidad_and_Tobago_2007?lang=en
Tunisia
In 1959, the constitution granted the right to privacy in Article 9. At some point between then and 2008, this article was amended to protect personal data, reflecting the changes in privacy rights with new technologies (Constitute Project, “Tunisia 1959 rev. 2008").
https://www.constituteproject.org/constitution/Tunisia_2008?lang=en
Turkey
The 1924 Turkish Constitution protects personal liberty except for the provision of law under Article 72 (World Statesmen, “The New Constitution of Turkey”). Article 71 protects the inviolability of the home, life, property, and honor. Article 81 allows for private communications.
https://www.worldstatesmen.org/Turkeyconstitution1924.pdf
Turkmenistan
The 1992 Constitution protects against arbitrary interference of privacy in Article 25 (International Committee on the Red Cross, “Constitution 1992, as of 2008”).
Today, Article 37 of the 2008 constitution grants “the right to private liberty, personal and family secrets and their protection from arbitrary interference in their privacy” while Article 38 prevents the “Collection, storage and dissemination of information about private life of an individual” without consent (Constitute Project, “Turkmenistan's Constitution of 2008 with Amendments through 2016”).
https://ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/0/D9E58AFB0C841166C1256FFD0034016C https://constituteproject.org/constitution/Turkmenistan_2016.pdf?lang=en
Tuvalu
The 1996 constitution protects privacy rights under Articles 11(h) and 21 (Constitute Project, “Tuvalu Constitution of 1996”). Article 11(h) reads “Every person is entitled…to the following fundamental freedoms: […] (h) protection for the privacy of his home and other property” (Constitute Project, “Tuvalu Constitution of 1996”).
https://www.constituteproject.org/constitution/Tuvalu_1986.pdf?lang=en
Uganda
Article 17(c) of the 1962 constitution provides privacy rights protections in Uganda (World Statesmen, “Uganda Constitutional Instruments”). It protects “the privacy of his home and other property and from deprivation of property without compensation” as a fundamental right. Today, the 1995 Constitution grants these protections in Article 27 (Constitute Project, “Uganda’s Constitution of 1995 with Amendments through 2017").
https://www.worldstatesmen.org/Uganda-const-1962.pdf https://www.constituteproject.org/constitution/Uganda_2017.pdf?lang=en
Ukraine
Articles 30, 31, and 32 of the 1996 Constitution grant the right to privacy (Constitute Project, “Ukraine’s Constitution of 1996 with Amendments through 2016”). Article 30 gives privacy in the home, Article 31 allows privacy protections to communications, and Article 32 prevents interference into personal and family life (Constitute Project, “Ukraine’s Constitution of 1996 with Amendments through 2016”).
https://www.constituteproject.org/constitution/Ukraine_2016.pdf?lang=en
United Arab Emirates
The 1971 constitution protects privacy in communications in Articles 31 and Article 36 protects one’s home (Constitute Project, “United Arab Emirates 1971, rev. 2009").
https://www.constituteproject.org/constitution/United_Arab_Emirates_2009?lang=en
United Kingdom
The United Kingdom 1988 Human Rights Act entrenched the ECHR into United Kingdom law (Liberty, “The Human Rights Act”). It protects one’s privacy from unnecessary intrusion, among other rights. Additionally, in ‘’The Right to Privacy’’ Warren and Brandeis cite Lord Cottenham in 1820 who, in agreement with Lord Eldon, felt that were a king’s illnesses recorded by a doctor and published while that king was still alive, a court would not permit its publishing, as he claimed this circumstance would breach the king’s privacy (Warren & Brandeis, 1890, 205; Bycer, 2014).
https://www.libertyhumanrights.org.uk/your-rights/the-human-rights-act/ Bycer, M. (2014). Understanding the 1890 Warren and Brandeis “The Right to Privacy” Article. National Juris University. Retrieved Sept. 10, 2021, from https://nationalparalegal.edu/UnderstandingWarrenBrandeis.aspx 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
United States
The first mention of this right is ‘’The Right to Privacy’’ written by Samuel Warren and Louis Brandeis and published in the Harvard Law Review in 1890. Constitutionally, it was first found in the 1965 Supreme Court case ‘’Griswold v. Connecticut’’ (Privacy, n.d.).
Privacy. (n.d.). Cornell Law School Legal Information Institute. Retrieved Sept. 8, 2021, from https://www.law.cornell.edu/wex/privacy 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
Uruguay
The 1966 constitution was the first translated into English to mention privacy rights. It is protected in Articles 10, 11, and 28. Article 10 grants individuals’ privacy, Article 11 makes the home private, and Article 28 protects communications (Constitute Project, "Uruguay 1966, reinst. 1985, rev. 2004").
https://constituteproject.org/constitution/Uruguay_2004?lang=en
Uzbekistan
Article 27 of the 1992 Constitution protects privacy and the inviolability of the home, requiring a prescription by law to allow a search of the home (Constitute Project, “Uzbekistan's Constitution of 1992 with Amendments through 2011”).
https://www.constituteproject.org/constitution/Uzbekistan_2011.pdf?lang=en
Vanuatu
Article 5(1)(j) in the 1980 Vanuatu Constitution protects privacy in the home and property (Constitute Project, “Vanuatu’s Constitution of 1980 with Amendments through 2013”).
https://www.constituteproject.org/constitution/Vanuatu_2013.pdf?lang=en
Venezuela
Privacy is first alluded to in the Venezuelan Declaration of Independence and Constitution of 1812 in Art. 177, which grants privacy in the home from soldiers (Rice University, "Venezuelan Declaration of Independence and Constitution"). Today, privacy is strictly protected in Venezuela, going beyond the call of the ICCPR’s call in Article 17 under constitutional Articles 48 and 60 (Privacy International, “The Right to Privacy in Venezuela (Bolivarian Republic of): Stakeholder Report, Universal Periodic Review,” 4).
https://hrp.law.harvard.edu/wp-content/uploads/2016/04/venezuela_upr2016.pdf https://scholarship.rice.edu/jsp/xml/1911/9253/1/aa00032.tei.html
Vietnam
The 1992 Vietnam Constitution was the first since its independence that recognized the “inviolability of personal privacy” in Article 21 (Constitute Project, “Viet Nam’s Constitution of 1992 with Amendments through 2013”).
https://www.constituteproject.org/constitution/Socialist_Republic_of_Vietnam_2013.pdf?lang=en https://constitutionnet.org/country/constitutional-history-vietnam
Yemen
There are no explicit protections of privacy in Yemen, though Article 20 does not allow for private confiscation without legal judgment (Constitute Project, “Yemen 1991: Rev. 2015”).
https://www.constituteproject.org/constitution/Yemen_2015?lang=en https://giswatch.org/en/country-report/communications-surveillance/yemen
Zambia
Privacy was protected in the first constitution of Zambia in 1964 in Chapter 3, Articles 13(c) and 19 (World Statesmen, “Laws of Zambia: The Constitution”). Today, Article 11(d) and 17 of the 1991 Zambian Constitution protect the right to privacy (Constitute Project, “Zambia’s Constitution of 1991 with Amendments Through 2016”).
https://www.worldstatesmen.org/Constitution-Zambia1964.pdf https://constituteproject.org/constitution/Zambia_2016.pdf?lang=en
Zimbabwe
The 2013 Zimbabwe Constitution grants “[e]very person has the right to privacy, which includes the right not to have: (a) their home, premises or property entered without their permission; (b) their person, home, premises or property searched; (c) their possessions seized; (d) the privacy of their communications infringed; or (e) their health condition disclosed” in Section 57 (Privacy International, “The Right to Privacy in Zimbabwe: Stakeholder Report, Universal Periodic Review,” 4). Before this, the 2007 Interception of Communications Act allowed for public information to be intercepted by authorities, something that has not been rectified since the implementation of the new constitution.
https://hrp.law.harvard.edu/wp-content/uploads/2016/04/zimbabwe_upr2016.pdf
Is there another noteworthy written source from the past that mentions this right?
The right to privacy has diverged in many ways since its most notable first mention in The Right to Privacy by Samuel Warren and Louis Brandeis. What started in 1890 as the idea of protection against gossip about oneself and the ability to enjoy life uninterrupted has evolved into various international and national conventions and laws.
The right to privacy was first enshrined at a supranational level before it was established in individual states (Krishnamurthy, 2020, 26). The right’s first appearance in legal documentation was in the United Nation’s (UN) 1948 Universal Declaration on Human Rights (UDHR). Article 12 of the UDHR (1948) states “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” The UHDR is not a treaty, so the right was not yet entrenched and more of a suggestion for states to incorporate into their laws and practices.
Two years later, the Council of Europe passed the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) which has similar tones in Article 8, though with an exception for national security in Article 8 (2) but is legally binding (1950). Article 8 of the ECHR specifically protects one’s family life, personal life, correspondence, and home (Roagna, 2021, 9). Worldwide, the right to privacy became codified in 1966 with the passage of the UN’s International Covenant on Civil and Political Rights (ICCPR), in which Article 17 has almost identical language to the UDHR’s Article 12. In subsequent UN treaties, this right to privacy was explicitly granted to children and migrants as well (Convention on the Rights of the Child, 1989, Art. 16; International Covenant on the Protection of All Migrant Workers and Members of Their Families, 1990, Art. 14).
Complying with the ICCPR: In the United States, the right to privacy was not originally codified but established through a variety of Supreme Court cases beginning in the 1960s (Privacy, n.d.). In 1965, the Court ruled on Griswold v. Connecticut. The majority opinion written by Justice Douglas claims that the express personal freedoms named in the First, Third, Fourth, Fifth, and Ninth Amendments create an implied “zone of privacy” (Privacy, n.d.). Justice Harlan’s concurring opinion, referenced in later Supreme Court privacy cases, claims privacy zones derive from the Fourteenth Amendment (Privacy, n.d.). Later, legislation was passed regulating specific sectors, beginning in 1974 with the Family Educations Rights and Privacy Act (FERPA), which protects student data, and the Privacy Act which regulates the use of data by federal agencies (History of privacy timeline, 2021).
The European Court of Human Rights has refined the implementation of ECHR Article 8 through case law (Roagna, 2021, 7). In deciding these cases, the Court must decide if the complaint is related to Article 8 and, if so, if the right has been interfered with outside of the exceptions laid out in Article 8 (2) (Roagna, 2021, 11). For this reason, there is no clear-cut definition as to which national laws may conflict with Article 8 (Roagna, 2021, 12). The Court has provided protections for ‘quasi-familial’ relationships, relationships that may develop later (i.e., one has the right to adopt), the development of personality, photographs, and data collection, ruling these areas are part of private and/or family life (Roagna, 2021, 10-19). The Court has also provided lengthy protections to family life with a broad definition of family which evolves with European customs (Roagna, 2021, 27). The protection of a home has also been interpreted broadly, requiring continuous ties to a location, mostly due to the French translation of “home” to “domicile” (Roagna, 2021, 30-31). The Court rules for high protection of means of communication as it can be easily breached (Roagna, 2021, 32). This protection includes information gathered from monitored internet use and remains in places no matter the content of the message (Roagna, 2021, 32).
The Digital Era: Since these international conventions have become effective and enforceable, there has been a lot of technological change and little change in these agreements (Human right to privacy, n.d.). The UN Human Rights Committee (UNHRC) noted in General Comment 16, adopted regarding ICCPR’s Article 17 in 1988, that the legislation in many states was not enough to ensure the “protection against both unlawful and arbitrary interference,” and that data collection “must be regulated by law” (Krishnamurthy, 2020, 27; UN Human Rights Committee, 1994, para. 2 & 10). In essence, this comment was requesting states enact more protective privacy law legislation, and, specifically, data regulation law, as the right to privacy evolved to be dominated by electronic data (Krishnamurthy, 2020, 27).
There have been two approaches to this call for better data privacy regulation: general regulation and regulation by sector. The European Union has taken the general regulation approach with the passage of the 1995 European Data Protection Directive and the 2016 General Data Protection Regulation (GDPR). The GDPR affects people and companies worldwide, requiring that data collected is truly needed, accurate, processed safely, and that all of this is done in a clear, legal, and transparent way (Krishnamurthy, 2020; Wolford, n.d.). The United States has chosen to regulate privacy data by sector, beginning with FERPA in 1974 (Krishnamurthy, 2020, 29; History of privacy timeline, 2021). This approach has led to some strict laws preventing unauthorized access to personal information in some areas regulated by specific legislation (Krishnamurthy, 2020, 29). In areas without specific legislation, however, Americans take great liberties while collecting data (Krishnamurthy, 2020, 29). Put in combination with the lacking legislation preventing interference or data attacks, some question how compliant the United States is with Article 17 of the ICCPR (Krishnamurthy, 2020, 29). However, as of 2020, 29% of states are still drafting or have yet to draft such legislation (UN Committee on Trade and Development).
Privacy in Former Sovereign States
It is worth noting that some states have always had some privacy rights since they gained independence because their previous constitution and laws contained such provisions. This is the case with states that were formerly in the Soviet Union. The 1977 Constitution (Fundamental Law) of the Union of Soviet Socialist Republics, which was then implemented in nearly identical form in the various republics as their own constitution, protected “the privacy of citizens, and of their correspondence, telephone conversations, and telegraphic communications” in Article 56 (USSR, 1982, 35). Additionally, Czechoslovakia protected privacy rights of the person, home, and correspondence in Article 30 & 31 in the 1960 constitution (Czechoslovakia, 1964, 233).
Resources
Convention for the Protection of Human Rights and Fundamental Freedoms. The Council of Europe. Nov. 4, 1950. https://rm.coe.int/1680a2353d Convention on the Rights of the Child. United Nations (UN) General Assembly (UNGA). Nov. 20, 1989. https://www.ohchr.org/en/professionalinterest/pages/crc.aspx Czechoslovakia. (1964). Constitution of Czechoslovakia July 11, 1960. Orbis: Prague. From https://www.worldstatesmen.org/Czechoslovakia-Const1960.pdf History of privacy timeline. (2021). The University of Michigan. Retrieved Sept. 9, 2021, from https://safecomputing.umich.edu/privacy/history-of-privacy-timeline Human right to privacy in the digital age, The. (n.d.). American Civil Liberties Union. Retrieved Sept. 8, 2021, from https://www.aclu.org/other/human-right-privacy-digital-age International Covenant on the Protection of All Migrant Workers and Members of Their Families. UNGA. Dec. 18, 1990. https://www.ohchr.org/Documents/ProfessionalInterest/cmw.pdf International Covenant on Civil and Political Rights. UNGA. Dec. 16, 1996. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx Krishnamurthy, V. (2020, Jan. 6). A tale of two privacy laws: The GDPR and the International Right to Privacy. AJIL Unbound 114, 26-30. doi:10.1017/aju.2019.79 Privacy. (n.d.). Cornell Law School Legal Information Institute. Retrieved Sept. 8, 2021, from https://www.law.cornell.edu/wex/privacy Roagna, I. (2012). Council of Europe human rights handbook: Protecting the right to respect for private and family life under the European Convention on Human Rights. Council of Europe. https://www.echr.coe.int/LibraryDocs/Roagna2012_EN.pdf UN Committee on Trade and Development. (2020). Data Protection and Privacy Legislation Worldwide. Retrieved Sept. 9, 2021, from https://unctad.org/page/data-protection-and-privacy-legislation-worldwide UN Human Rights Committee. (1994). General Comment 16. Thirty-third session. HRI/GEN/1/Rev. 1 Retrieved Sept. 9, 2021, from https://undocs.org/HRI/GEN/1/Rev.1 Universal Declaration on Human Rights. UNGA. Dec. 10, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights USSR. (1982). Constitution (Fundamental Law) of the Union of Soviet Socialist States: Adopted at the Seventh (Special) Session of the Supreme Soviet of the USSR, Ninth Convocation, on October 7, 1977. Novosti Press Publishing House: Moscow. From https://www.marxists.org/history/ussr/government/constitution/1977/constitution-ussr-1977.pdf Wolford, B. (n.d.). What is GDPR, the EU’s new data protection law? GDPR EU. Retrieved Sept. 9, 2021, from https://gdpr.eu/what-is-gdpr/
Is the identification of this right associated with a particular era in history, political regime, or political leader?
What specific events or ideas contributed to its identification as a fundamental right?
When was it generally accepted as a fundamental, legally-protectable right?
What historical forces or events, if any, contributed to a widespread belief in its importance?
Legal Codification
Is this right protected in the Constitutions of most countries today?
Is it contained in the US Constitution?
The right to privacy is not explicitly contained in the United States Constitution.
References
Privacy. (n.d.). Cornell Law School Legal Information Institute. Retrieved Sept. 8, 2021, from https://www.law.cornell.edu/wex/privacy
Has it been interpreted as being implicit in the US Constitution?
In the United States, the right to privacy was not originally codified but established through Supreme Court cases around the 1960s (Privacy, n.d.). Prior to this time, the Court recognized in Snyder v. Massachusetts (1934) that some concepts of fairness are fundamental, but not expressed. In 1965, the Court heard and decided Griswold v. Connecticut. In the majority opinion, Justice William Douglas argues that the Court had previously ruled on cases in which rights were not explicit in the Bill of Rights, but the rights were justifiable to the Court through the First and Fourteenth Amendments (Griswold v. Connecticut, 1965, par. 11). Later in the opinion of the court, he states that in other cases, such as Boyd v. United States (1886), Mapp v. Ohio (1961), and Poe v. Ullman (1961), the court used the ‘penumbras’ of the First, Third, Fourth, Fifth, and Ninth Amendments to make decisions on implicit liberties (Griswold v. CT, 1965, pars. 14-15). Combined, these penumbras create what the Griswold v. Connecticut majority opinion calls “zones of privacy” (Privacy, n.d.). In a concurring Griswold opinion, Justice Arthur Goldberg argues that while liberties extend beyond the Bill of Rights, he, Chief Justice Earl Warren, and Justice William Brennan feel that the Due Process Clause of the Fourteenth Amendment does not include “all of the first eight amendments” (Griswold v. CT, 1965, par. 21). However, in a different concurring opinion, Justice John Marshall Harlan found “[t]he Due Process Clause of the Fourteenth Amendment stands […] on its own bottom” (Griswold v. CT, 1965, par. 53; Privacy, n.d.). Justice Harlan’s concurring opinion became the predominant argument used in later privacy cases (Privacy, n.d.).
In 1967, the Supreme Court decided the case of Katz v. United States (Katz v. US, n.d.). Katz, located in Los Angeles, had been using a public phone booth to inform bettors in Boston and Miami, and in an effort to convict him, federal agents tapped the phone booth (Katz v. US, n.d.). A lower court allowed this evidence to be admitted, but Katz claimed it was a violation of the Fourth Amendment (Katz v. US, n.d.). The Supreme Court sided 7-1 with Katz and establishes that “the Fourth Amendment protects people, not places” (Katz v. United States, 1967). In a concurring opinion, Justice Harlan established the Expectation for Privacy Test (Katz v. US, n.d.; Expectation of Privacy, n.d.). This test is two-fold – the individual must have an expectation for privacy which is rooted in law and society finds that expectation for privacy to be reasonable – and has been used as a basis for privacy since (Expectation of Privacy, n.d.).
After these two cases, the Supreme Court has continued to extend the right to privacy, notably so in three landmark cases: Eisenstadt v. Baird (1971), Roe v. Wade (1972), and Lawrence v. Texas (2003) through the use of the Fourteenth Amendment and Justice Harlan’s concurring Griswold opinion (Privacy, n.d.). Eisenstadt extended the use of contraceptives beyond married couples to individuals (Privacy, n.d.). Roe extended the right to privacy to the women’s right to have an abortion (Privacy, n.d.). Lawrence v. Texas' overturned Bowers v. Hardwick (1986) and extended privacy to private conduct (Privacy, n.d.).
References
Expectation of Privacy. (n.d.). Cornell Law School Legal Information Institute. Retrieved Sept. 13, 2021, from https://www.law.cornell.edu/wex/expectation_of_privacy Griswold v. Connecticut, 381 U.S. 479 (1965). https://www.law.cornell.edu/supremecourt/text/381/479 Katz v. United States. (n.d.). Oyez. Retrieved September 13, 2021, from https://www.oyez.org/cases/1967/35 Katz v. United States, 389 U.S. 347 (1967). https://www.law.cornell.edu/supremecourt/text/389/347 Privacy. (n.d.). Cornell Law School Legal Information Institute. Retrieved Sept. 8, 2021, from https://www.law.cornell.edu/wex/privacy Snyder v. Massachusetts, 291 U.S. 97 (1934). https://www.law.cornell.edu/supremecourt/text/291/97
Are there any exceptions in American law to this right?
Most recent US legislation regarding the right to privacy concerns the collection, retention, and transfer of personal data. Under the Department of Justice, the Office of Privacy and Civil Liberties (OPCL) enforces privacy laws, recommends privacy policies (including exceptions), and responds to data breaches (Office of Privacy and Civil Liberties, n.d.).
Freedom of Information Act 1966 (as amended 2016)
In 1966, Congress passed the Freedom of Information Act (FOIA). This act granted anyone the ability to request access to federal agency records but not the records of private companies. However, nine exemptions and three exclusions may prevent access to these records (Freedom of Information Act, n.d.). The exclusions are narrow and related to law enforcement and ongoing intelligence investigations and are unaffected by FOIA (Freedom of Information Act, n.d.). The exemptions authorize government agencies to withhold information from those requesting it (Freedom of Information Act, n.d.). The nine exemptions prevent the sharing of information if it is classified for national security, part of internal rules or practices, prohibited through other laws (such as the Privacy Act, see below), a trade secret, legally protected, a medical file, law enforcement records, regarding bank supervision, or locational information (Freedom of Information Act, n.d.). FOIA was most recently updated with the FOIA Improvement Act of 2016, which increased transparency and altered procedures (OIP Summary of the FOIA Improvement Act of 2016, 2016).
Privacy Act 1974
The Privacy Act of 1974 was an effort to balance the “governments’ need to maintain information” and the “rights of individuals to be protected against unwarranted invasions of their privacy” (Walls, n.d.; Privacy Act of 1974, 5 U.S.C. § 552a, n.d.). It prevents agencies from disclosing records to any person or agency unless it falls into one of the twelve approved guidelines (Walls, n.d.; Privacy Act of 1974, 5 U.S.C. § 552a, n.d.). The most used reasons which allow for disclosure are subsections 1, 2, and 3 of 5 US Code § 552a(b) (Overview of the Privacy Act: 2020 Edition, 2021). Subsection One allows for the disclosure of information between agencies on a need-to-know basis. Subsection Two allows the FOIA to overrule the Privacy Act with regards to when to disclose information. Subsection Three allows for disclosure to another party if their use is similar to the use for which the data was originally collected. This third exception is quite broad, which causes controversy (Overview of the Privacy Act: 2020 Edition, 2021). Other exceptions include use for public record (used for the Census or National Archive data), or requests by law enforcement or the court system. In addition to putting forth information disclosure guidelines, this act requires agencies to keep accurate records of how, where, and why they sent information if they had sent information (Privacy Act of 1974, 5 U.S.C. § 552a, n.d.).
Gramm-Leach-Bliley Act 1999
The Gramm-Leach-Bliley Act (GLBA) was passed to regulate the transfer of consumers’ “nonpublic personal information” by financial institutions (FDIC, 2021). At its core, the law says financial institutions cannot pass along personal data to third parties unless the customer is put on notice, given the opportunity to opt out, and they do not opt out (FDIC, 2021). Exceptions to this rule appear in Sections 13-15 (FDIC, 2021, VIII-1.3). Section 13 permits the transfer of some personal data to a third party if they are performing services on behalf of the financial institution, but they must be contractually bound to not do anything else with the data (FDIC, 2021, VIII-1.3). Section 14 allows the bank to disclose information as needed to perform banking functions initiated by the customer, while Section 15 extends that disclosure to normal financial institution acts, such as fraud detection (FDIC, 2021, VIII-1.3). Of these exceptions, only Section 13 requires the customer to be notified that their information is being shared (FDIC, 2021).
USA PATRIOT Act 2001 & USA Freedom Act 2015
Enacted less than two months after the 9/11 attacks, the PATRIOT Act was passed with the intention of increasing homeland security by allowing surveillance techniques used in local crime to be used to fight terrorism (Highlights of the USA PATRIOT Act, n.d.; USA PATRIOT Act, n.d.). Most importantly, this law allowed for the sharing of information between law enforcement agencies at various levels without notice (Highlights of the USA PATRIOT Act, n.d.). This law wasn’t the most protective of civil rights and liberties and to rectify that President Obama signed the USA Freedom Act in 2015, ending government collection of metadata (Patriot Act, n.d.; Fact sheet, 2015).
Resources
Fact sheet: Implementation of the USA Freedom Act of 2015. (2015, Nov. 27). Central Intelligence Agency. https://www.intelligence.gov/index.php/ic-on-the-record-database/results/787-fact-sheet-implementation-of-the-usa-freedom-act-of-2015 Federal Deposit Insurance Corporation (FDIC). (2021, April). FDIC Consumer Compliance Examination Manual: VIII-1.1 Gramm-Leach-Bliley Act. Author. https://www.fdic.gov/resources/supervision-and-examinations/consumer-compliance-examination-manual/index.html Freedom of Information Act, 5 U.S.C. § 552. (1966). Freedom of Information Act, The. (n.d.). Department of State. Retrieved Sept. 14, 2021, from https://foia.state.gov/learn/foia.aspx Highlights of the USA PATRIOT Act. (n.d.) Department of Justice. Retrieved Sept. 14, 2021, from https://www.justice.gov/archive/ll/highlights.htm Office of Privacy and Civil Liberties. (n.d.). Department of Justice. Retrieved Sept. 14, 2021, from https://www.justice.gov/opcl OIP Summary of the FOIA Improvement Act of 2016. (2016, Aug. 17). Department of Justice. https://www.justice.gov/oip/oip-summary-foia-improvement-act-2016 Overview of the Privacy Act: 2020 Edition. (2021, Feb. 16). Department of Justice. https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition/disclosures-third-parties Patriot Act. (n.d.) History.com. Retrieved Sept. 14, 2021, from https://www.history.com/topics/21st-century/patriot-act Privacy Act of 1974. 5 U.S.C. § 552a. (n.d.). Department of Justice. Retrieved Sept. 14, 2021, from https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1279#vf4tzl Privacy Act, 5 U.S.C. § 552a(b). (1974). USA PATRIOT Act. (n.d.). Department of Justice. Retrieved Sept. 14, 2021, from https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1281 Walls, T. (n.d.). FOIA v. Privacy Act: A comparison chart. IAPP. https://iapp.org/resources/article/foia-v-privacy-act-a-comparison-chart/
Is this right enshrined in international and regional human rights treaties?
Although there are various regional and international human rights treaties protecting the right to privacy, the International Covenant on Civil and Political Rights (ICCPR), as well as the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR) are often regarded as the most fundamental and widely respected. Article 17 of the ICCPR states that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence” and Article 19 continues:
(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
(3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others, and (b) For the protection of national security or of public order, or of public health or morals.
In his paper “The Privacy Principle,” Frederic Gilles Sourgens claims that ““these two provisions make up the backbone of the human right to privacy” (351), where protection applies to any intrusion of personal information, including thoughts opinions, religious beliefs, health, relationships, and sexual encounters (Sourgens, “Privacy Principle,” 351). The ICCPR supports that the state must inform persons of reason of intrusion in non public spaces, as well as the nature of the information collected, but may intrude “to the extent proportionate with specific threats” (Sourgens, “Privacy Principle,”353). The ICCPR “explicitly distinguishes between the obligations to respect and to ensure human rights, while the ECHR speaks…only of the obligation to secure in the actual text” (Milanovic “Privacy in the Digital Age,” 102). Additionally, Article 2(1) of the ICCPR claims that states are responsible for “all individuals within its territory and subject to its jurisdiction” (Milanovic “Privacy in the Digital Age,” 101).
Although there are frameworks within the treaties that support the protection of privacy, there are many limitations to the legislation itself. The primary flaw is that the interpretation of ‘jurisdiction’ and ‘territory’ are contested by states (Milanovic “Privacy in the Digital Age,”101). The common conception is that human rights instruments are purely territorial, however, intelligence programs often operate outside the territory of signatory states (Sourgens, “Privacy Principle,” 353). The International Court of Justice (ICJ) has ruled that “States parties to the Covenant should be bound to comply with its provisions”, (Sourgens, “Privacy Principle,”353) with regional treaties such as the ECHR and American Convention on Human Rights (ACHR) respecting this claim (354). However, many states reject this extraterritorial application of privacy protection, arguing that treaty rights only apply within the sovereign territory of signatory states (Sourgens, “Privacy Principle,” 356). Historically, the US and other states had not expressed a clear view on the territorial scope of ICCPR (Milanovic “Privacy in the Digital Age,” 103), with the US eventually stating that there is a default presumption against extraterritorial application of the treaties in 1995 (Milanovic “Privacy in the Digital Age,”105). Additionally, countries such as China are not a party to the ICCPR or other treaties with privacy protections, and do not have domestic laws to restrict government surveillance powers (Sourgens, “Privacy Principle,” 358). Russia has also attempted to counteract rulings of the European Court using domestic legislation, and France similarly minimized its basic privacy protections after the 2015 mass shootings in Paris (Sourgens, “Privacy Principle,” 358).
The COVID-19 pandemic has also placed national surveillance at the forefront, as governments and research institutions use location data to keep track of cases (Zwitter and Gstrein, “Big Data,” 2). Location data is collected through phone network, wifi connections, and satellite based radio navigation (GPS) (Zwitter and Gstrein, “Big Data,” 2). Article 15 of the ECHR was updated in December 2019 to allow states to derogate in situations of:
(1) war or other public emergency threatening the life of the nation,
(2) taking measures which are strictly required by the exigencies of the situation, and
(3) provided that measures are not inconsistent with other obligations under international law (Zwitter and Gstrein, “Big Data,” 3).
Data protection and privacy are included in those rights that are subject to derogation during times of crises (Zwitter and Gstrein, “Big Data,”3). Data ownership, such as location tracking, is a matter of contract law and is often included in the terms of use, leaving the legality of the practice to individual consent (Zwitter and Gstrein, “Big Data,” 3). The conclusion that Zwitter and Gstrein come to is that there is a “lack of dedicated legal frameworks to address the use of data in times of political crisis” (Zwitter and Gstrein, “Big Data,”4), therefore allowing for the infringement of privacy rights despite the existence of international and regional treaties.
Sourgens, Frederic Gilles. “The Privacy Principle.” Yale Journal of International Law, 42(2), 345-408, 2017.
Milanovic, Marko. “Human rights treaties and foreign surveillance: privacy in the digital age.” Harvard International Law Journal, 56(1), 81-146, 2015.
Zwitter, Andrej and Gstrein, Oskar J. “Big data, privacy and COVID-19 – learning from humanitarian expertise in data protection.” Int J Humanitarian Action 5, (4), 2020.
Philosophical Origins
What have religious and philosophical traditions contributed to our understanding of this right?
Buddhism
Platonism
Aristotelian thought
Ancient Chinese Philosophy
Stoicism
Early Indian Philosophy
Miscellaneous Hellenistic Schools (epicureans, academics, skeptics, etc.)
Roman Legal and Political Thought
Early Christianity
Thomism and medieval Christianity
Medieval Islamic Thought
Medieval Judaism
Early Modern Rationalism
Absolute Idealism
Reformation Christianity
Hobbesian Thought
The right to privacy is a right that not many think of when they think of their natural rights. Specifically, most forget about this right and what it entitles when it comes to their basic political involvement and contribution to society. Although it is not always explicitly stated, multiple philosophers have had their fair share of commentary on the right to privacy and what this right should look like within their form of government and civil society. Thomas Hobbes, author of The Leviathan, writes about the absolute power the monarch should have over the citizenry, offering commentary on the specific right to privacy within his version of society. Even though, Hobbes outlines some sort of privacy within the state of nature, Hobbes claims that there is no right to privacy on the premise that entering the social contract forfeits certain aspects of privacy in order to contribute to the public conscience and the laws made by the government.
Hobbes makes the argument that within the state of nature there is this sense of privacy that allows the people to make judgements and decisions for themselves in the name of self-preservation. Hobbes specifically noted that, “That every private man is Judge of Good and Evill actions.” This is true in the condition of meer Nature, where there are no Civill Lawes; and also under Civill Government, in such cases as are not determined by the Law” (Hobbes 1651, 277). Hobbes makes the point that without a government system there is a form of privacy that allows individuals the ability to pass judgement as they please because they are within a state of war where individuals must fight for their own self-preservation. Hobbes then claims that as soon as one enters the social contract in which the people consent to being governed that the privacy is altered because the government is responsible for the preservation of the people. Hobbes hopes that with the emphasis on religion within the conscience, people outside the government can make just decisions for the better of the commonwealth. To Hobbes, once entering the social contract every citizen is responsible for the common good which is only molded when the government can see into the lives of the people and make their decisions for the betterment of society. The state of nature for Hobbes is one of war in which people must be private in order to protect themselves from others and defend their own interests, but since the government will be involved to help protect such people, there is no need for privacy anymore and therefore the government needs to be involved in the people’s lives. Furthermore, Hobbes added to this argument claiming that, “The RIGHT OF NATURE, which Writers commonly call Jus Naturale, is the Liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing anything, which in his own Judgement, and Reason, hee shall conceive to be the aptest means thereunto” (Hobbes 1651, 106). Hobbes’ depiction of the state of nature justifies the reasons why one must be private as it relates to the protection of his life and his pursuits that will in turn ensure his right to life and liberty. As his arguments progress, he will make the argument that the state should be involved in the lives of the people because the government is the greatest representation of the people and their desire for self-preservation. He depicts this point to show that within the state of nature, there are some aspects of life that are necessary for the survival of the individual and then why consenting to the social contract means giving up some of these liberties to the government in exchange for the preservation that people naturally seek in life. To Hobbes, the state of nature is a place individuals need privacy in order to protect themselves from the dangers of those around them, hence why once people enter the social contract, they sacrifice their rights to such privacy as there is no longer a need for it since the government is protecting individual interests.
Despite his version of the state of nature calling for some sort of privacy based on self-preservation, once the citizenry has consented to being governed, the sphere of privacy is absent to a certain extent to put the needs of the public first. For example, Hobbes noted that, “For a mans Conscience, and his Judgement is the same thing; and as the Judgement, so also the Conscience may be erroneous. Therefore, though he that is subject to no Civill Law, sinneth in all he does against his Conscience, because he has no other rule to follow but his own reason; yet it is not so with him that lives in a Common-wealth; because the Law is the publique Conscience, by which he hath already undertaken to be guided. Otherwise in such diversity, as there is of private Consciences, which are but private opinions, the Common-wealth must needs be distracted, and no man dare to obey the Soveraign Power, farther than it shall seem good in his own eyes” (Hobbes 1651, 278). As Hobbes progresses in his argument, he makes the point that the government is to reflect the private sentiments of the people and therefore whatever conscience and thoughts they have, it must already be public since the government is to represent those thoughts and sentiments. However, Hobbes also makes the case that if there are other private sentiments within the public that are not made known, a toxic environment is formed around the privacy of thoughts because the government is unaware of the judgements being made and is therefore not a part of the absolute power over the people. It is for that reason that Hobbes believes that within the social contract there is no aspect of privacy because he believes that the government is the greatest absolute in society and needs to be absolute in order to preserve the people. Hobbes also notes that once entering into the social contract, all people have left is their conscience and judgements because all other private goods are given to the government to control and to protect. Hobbes would also make the point that if the people fail to follow the public conscience which Hobbes calls the law, then there would be a sort of anarchy in which power is no longer consolidated within the government as people rule their lives as they please ignoring the laws in place and possibly violating the rights of the people around them. In addition, Hobbes wrote that, “A private man has alwaies the liberty, (because thought is free,) to beleeve, or not beleeve in his heart, those acts that have been given out for Miracles, according as he shall see, what benefit can accrew by mens belief, to those that pretend, or countenance them, and thereby conjecture, whether they be Miracles, or Lies. But when it comes to confession of that faith, the Private Reason must submit to the Publique; that is to say, to Gods Lieutenant. But who is this Lieutenant of God, and Head of the Church, shall be considered in its proper place thereafter” (Hobbes 1651, 387). Even on matters such as religion, there is no sphere of privacy according to Hobbes because it is the responsibility of the government to care for the people and cater to the liberties of the people. Any time Hobbes discussed the state of religion, the government had some stake in allowing the employment of teachers and ministers according to the standard of the government and what they should and should not allow. The matter of religion to Hobbes was a private matter until entering the social contract in which the government owns the interests of the people including their interests on religion and the matter of salvation. Hobbes further depicts a society in which the government has access to the lives of the people and their interests as a means of protecting such assets and values. Hobbes sees the lack of privacy within the government and the people as a means of preserving the people and their values as they go through society making their own decisions. It is this private conscience that the people have access to, but that Hobbes claims is the least important compared to the public, government conscience.
Hobbes does create some sort of private sphere within the silence of the laws and within the home life that the father rules over the family and the servants that does create a minuscule space for privacy. Specifically, Hobbes notes that, “Private Bodies Regular, and Lawfull, are those that are constituted without Letters, or other written Authority, saving the Lawes common to all other Subjects. And because they be united in one Person Representative, they are held for Regular; such as are all Families, in which the Father, or Master ordereth the whole Family. For he obligeth his Children, and Servants, as farre as the Law permitteth, though not further, because none of them are bound to obedience in those actions, which the Law hath forbidden to be done. In all other actions, during the time they are under domestique government, they are subject to their Fathers, and Masters, as to their immediate Soveraigns. For the Father, and Master being before the Institution of Common-wealth, absolute Soveraigns in their own Families, they lose afterward no more of their Authority, than the Law of the Common-wealth taketh from them. Private Bodies Regular, but Unlawfull, are those that unite themselves into one person Representative, without any publique Authority at all; such as are the Corporations of Beggars, Theeves and Gipsies, the better to order their trade of begging, and stealing; and the Corporations of men, that by Authority from any forraign Person, unite themselves in anothers Dominion, for easier propagation of Doctrines, and for making a party, against the Power of the Common-wealth" (Hobbes 1651, 199). Hobbes then goes on with his argument to explain how the sphere of privacy that may exist within society is within the home and within the family. However, this does not mean that individuals within the home are not subject to the laws that are considered the public conscience. Above all, it is this sphere of the public conscience which the government develops the laws that should not and cannot be ignored by the public even within the private sphere. What should be mentioned as well is Hobbes’ sense of freedom within the silence of the laws which may allow the individual to interpret the laws as they see fit and act based on their own judgement of the laws. Alongside this sentiment however is still the lingering opinion that the absolute government has the utmost and complete control over the people and the people must therefore follow this opinion. Hobbes even notes above that the father might be the head of the household and the reigning authority, but in the end, even the father must follow the wishes of the commonwealth and adhere to the laws put in place by the magistrate and the government. Carrying on the same sentiments, Hobbes wrote that, “...though he be carefull in his politique Person to procure the common interest; yet he is more, or no lesse carefull to procure the private good of himselfe, his family, kindred and friends; and for the most part, if the publique interest chance to crosse the private, he preferrs the private: for the Passions of men, are commonly more potent than their Reason. From whence it follows, that where the publique and private interest are most closely united, there is the publique most advanced. Now in Monarchy, the private interest is the same with the publique. The riches, power, and honour of a Monarch arise onely from the riches, strength and reputation of his Subjects. For no King can be rich, nor glorious, nor secure; whose Subjects are either poore, or contemptible, or too weak through want, or dissention, to maintain a war against their enemies: Whereas in a Democracy, or Aristocracy, the publique prosperity conferres not so much to the private fortune of one that is corrupt, or ambitious, as doth many times a perfidious advice, a treacherous action, or a Civill warre” (Hobbes 1651, 157). Hobbes describes the fact that people enjoy the private sphere more than the public and therefore, one would think that the existence of a private sphere is incredibly important. However, Hobbes further explains that within the privacy of thought there is a sense of selfishness that prevents people from making decisions in the best interest of the commonwealth and therefore, there should be no sphere that would allow people to adhere to their selfish policies. Hobbes further describes what would happen if the government were to take this selfish stance in which they would no longer do their job of preserving the population despite that being their only true duty. Furthermore, Hobbes connects the quality of the government to the quality of the public since according to him, the state of the government reflects the level of preservation that the citizenry endures. He uses this point to further the case of using a monarchy rather than a democracy or oligarchy because of the inability of a large body to make quick decisions on behalf of the public interest.
Thomas Hobbes was an absolutist to the fullest extent. When it came to writing about government, he believed that the more consolidated the power was in the hands of the leviathan, the better off the population was going to be for making the best decisions for the people they ruled over. This meant, however, sacrificing certain rights to the government to preserve the citizenry to the best of their ability. Specifically, the right to privacy to Hobbes should not exist on the basis that the government needs to be involved in the lives of the people in order to figure out the public conscience and to make their decisions accordingly. By consenting to the government, the government has absolute power and control over the people and the decisions they decide to make and therefore, the government has direct access to the wishes and the lives of the people. The right to privacy to Hobbes is an interesting debate since his views on rights in the first place seem irregular due to the absolute power, he believes that the government has over the people and the way that there is no explicit right to rebel against abusive governments. The right to privacy is a topic to which there is no one answer, yet Hobbes tries to remedy with the solution that proposes the abolition of such a right in order to cater to the needs of the public.
Bibliography
Hobbes, Thomas. The Leviathan. New York: E.P. Dutton and Company, INC. London: J.M. Dent and Sons Limited, 1950.
Lockean Thought/English Empiricism
The issue of the right to privacy within the United States is a relatively new phenomenon following the 1965 case of Griswold v. Connecticut in which the right to privacy was clearly established by the Supreme Court. However, it might be suggested that its origins and foundations can be traced back to the late 1600s when John Locke introduced the private sphere when it came to the conversation of religious tolerance. John Locke wrote “Letter Concerning Toleration” in 1689 that describes the way in which the right to privacy originates from the idea that the people can and should be separate from the government in certain aspects. Locke introduces the idea of a private sphere or the right to privacy when he discusses issues like religion since its discussion creates more problems preventing society from working efficiently.
Locke recognizes that there are very divisive issues that prevent people from working together effectively within society. Specifically referring to spreading religious beliefs, he wrote that “If by these means the offenders will not be reclaimed, and the erroneous convinced, there remains nothing further to be done but that such stubborn and obstinate persons, who give no ground to hope for their reformation, should be cast out and separated from the society” (Locke 1689, 30). Locke claims that the divisions within the public sphere over religion can be remedied by the complete separation of such matters from the state since religion is its own society. Religion dividing society is evident throughout history as nations and their people fought wars over their competing religious values and beliefs. For Locke the separation between the two and separating the state from religion was a way to avoid conflict within a nation and come to the general agreement that not everyone is going to agree on the matter of religion. However, Locke challenges his own idea of religious tolerance by saying that all religions except Atheists, Unitarians, and Catholics deserve tolerance because these groups prioritize religious law rather than political law. Locke recognizes the fact that a lot of the political issues revolve around religion and to focus on the commonwealth, matters of religion need to be subjected to the individual rather than being a concern of the state. Furthermore, upon the creation of the private sphere “...it will be urged still that civil assemblies are open and free for anyone to enter into, whereas religious conventicles are more private and thereby give opportunity to clandestine machinations” (Locke 1689, 51). Locke develops the idea that all religions must be tolerated within the government in the best interest of the commonwealth, leaving the political conversation open for political conversation as to how the government should be run. If the state sphere should interfere with the individual sphere, Locke claims that greater problems would arise as the government wields a seemingly tyrannical power. Locke proposes this idea of the private sphere in order to avoid problems within the political sphere, but alongside this proposal, he builds the foundation for a right to privacy that is valued so much today. The rest of his arguments include the point that there is a realm of privacy in which the individual makes decisions that they believe will best benefit them.
It was from Locke’s separation between the state and the individual that the right to privacy came to life off the premise that there is a place within society where the government should not be involved in the matters of the people. Locke continues for the advocation of a private sphere by claiming that, “In private domestic affairs, in the management of estates, in the conservation of bodily health, every man may consider what suits his own convenience and follow what course he likes best” (Locke 1689, 34). Throughout his letter of toleration, and through the rest of his theory, he is critical of government intervention in the affairs of the people and emphasizes this private sphere as a place to escape government intervention. This sort of foundation and sentiment expressed by Locke gave the people the perspective that the state is going to act within their own self-interest which might mean being involved in the actions of the people. Locke again remedies this problem with the private sphere as a space where the government cannot get involved in the choices of the individual when it comes to their lives. Specifically, Locke subtly turns the conversation slightly away from religion and into the idea of affairs, property, and health in general as a part of the private sphere that the government should not be a part of. To the rest of society, the government has always been involved in the lives of the people, so to have this idea proposed that people can and should be independent of government intervention changed the way the people saw the government and the power they had over the lives of the people. In addition, Locke then claims that when the magistrate makes laws, “...a private person is to abstain from the action that he judges unlawful, and he is to undergo the punishment which it is not unlawful for him to bear” (Locke 1689, 48). Locke paints a picture that the people can make decisions about the laws within this private realm that adds another dimension to the idea that the people have more power within their private space than they thought. Historically, the governments were involved in all affairs of the people, leaving them little room for voluntary actions that they wanted to pursue for themselves, and Locke’s sentiments provides them the space to become free thinkers outside of the government. Although his writings are in specific reference to religion being in the private sphere, the later sentiments expand to other areas of life that would be affected had religion been placed within the private sphere. This allows the people to believe that other aspects of their life that have been controlled by the government can enter the private sphere where the government will not have any control over the efforts of the people themselves. This created a life where the people had private lives, where the government was not involved in the lives of the people and where the people made decisions for themselves. As people saw the potential for the private sphere, the right to privacy became more prevalent as a boundary between the state and the people developed, despite the boundary between the public and the private being unclear sometimes. Although this line is imprecise, Locke’s notion of the private sphere when it comes to politics introduces the idea of the line in the first place and introduces a new level of understanding about the relationship between the people and the government.
Locke created the idea of the private sphere based on the premise that doing so might help prevent a lot of the conflict that had been around during the time that created the bad relationship between the state and the people. However, by proposing this idea he shines light on the paradox on the relationship between rights in general and the government. It is the duty of the government to act within the interest of the people by providing them access to their rights regardless of what they are, but at the same time the government also wants to act within their self-interest to maintain law and order within society and therefore might see rights as an obstacle to their end goal. Furthermore, Locke writes about this topic in a time period where the legal framework looks incredibly different from what is present today and therefore writes from the perspective that religion causes these huge wars within nations and between major parties. All these factors contribute to the idea that the right to privacy has existed throughout history and throughout theory as criticism of government is an ongoing conversation that has many different perspectives and points of view. Locke’s writings about creating a private sphere for religion only reflect the sentiments known today as the right to privacy that has changed the way that people have viewed the relationship between the people and the government.
Bibliography
Locke, John. 1983. “A Letter Concerning Toleration”, edited by James H. Tully. Hackett Publishing Company Inc.
Physiocrats
Scottish Enlightenment
Modern Capitalism
Rousseau's Thought
In Rousseau's works, there exist three states of society in which there are different and evolving stages of a right to privacy. First, there is the natural right to privacy in the state of nature. Next, there is society following the commencement of association and community. Finally, there is a society under the Social Contract. Rousseau believed that in the progression of different societies, privacy is slowly lost, first to other individuals, then to the government.
In Rousseau's state of nature, humans act as individuals and do not intermingle with each other. Their projects never required "the joint labor of several hands," and they "lived free, healthy, honest, and happy lives" (Rousseau 1973, 92). These lives were completely independent of other humans. Humans roamed, hunted, and gathered alone; no one else had any power over him. Man was free to pursue "the only goods [he] recognized in the universe… food, a female, and sleep" (Rousseau 1973, 61). Life was simple, and humans had the right to do as they pleased, when they pleased, without anyone questioning why they were doing it. There was no overarching government or general will to encroach on the privacy of humans in nature. Humans "had no question… as to private likes or dislikes [as] all are alike" (Rousseau 2004). However, this simplicity of nature did not last forever. Eventually, humans came together to form societies due to the "two arts… which first civilized men and ruined society," metallurgy and agriculture (Rousseau 1973, 92). As society shifted from nature to civilization, humans signed a social contract to give away parts of their sovereignty to a new sovereign, the general will, a prince, a legislator, or a chief, for example. This society removed the natural freedom under which humans acted as they pleased without encroachment. However, they still held a right to privacy within a civilized society; however, it was much less than before.
The second stage is where people can live in a state of the early community. This community lacks the oversight of a chief or government; however, unlike the state of nature, humans begin to associate with each other to sustain the new arts of metallurgy and agriculture. Since land is required to grow crops slowly, these early humans decided that "to secure each man his own, it had to be possible for each to have something" (Rousseau 1973, 94). This is the beginning of property, born from the manual labor of the farm, slowly allowing people to have their place where they can do whatever they want, also known as acting in their private interests. Metallurgy, on the other hand, "working metals and multiplying their uses," leads to the concept of value. People used these tools to better land plots and increase food production, among other things. Therefore, to acquire these irons and tools, people "required commodities in exchange" (Rousseau 1973, 94). These advancements gave value and worth to the ownership of items and land. As disparities began to develop between the people within these early communities, so too did the idea of jealousy and inequality (Rousseau 1973, 96). In a society with inequality and no authority to keep it in check, there then come individuals who will encroach on the privacy of other individuals. This threat to others is what slowly necessitates the tyranny of the government to establish peace and security in exchange for other losses of privacy.
Once the social contract between humans and magistrates is established, people's liberties are immediately restricted compared to the state of nature and early societies. The average person signs away their liberties to their chief, establishing tyranny through the people's consent. The ordinary people sign "a contract binding on only one of the parties, where all the risk is on one side, and none on the other" (Rousseau 1973, 104). The magistrates take no risk in this exchange as they are not subject to their privacy being encroached upon, among other rights and liberties. However, just because the people sign away their freedoms to the legislature and chiefs does not mean they are entirely at the government's will. Rousseau does not believe that the government has complete control over the private actions and possessions of the common people. When discussing the right to ownership and sovereignty, Rousseau explains that the government limits how much power it has over people. Due to Rousseau's restricted discussion on privacy, we will have to look at the allusions made to it through the right to privacy. Taking the Lockean view that "'every man has a property in his person," we can assume that property "provides the foundation for the right to privacy" (DaCosta 2021, 2). If the government expects the people to respect their side of the social contract, it must uphold its end. In the case of property and privacy, Rousseau says that the government "has no right to touch the property of one or many; but he may lawfully take possession of the property of all" (Rousseau 2004). In other words, "the general and sovereign will is the master of all the others," showing that the will of the government must respect the people's privacy rights or else risk its demise (Rousseau 2004). This distinction between total and partial encroachment on rights shows Rousseau's exciting view on privacy and rights as a whole. Rousseau believed that the individual holds political rights; however, the government may take away the rights of every one in particular situations for the state's health.
This general will also influence people's privacy; however, even this will is only "considered collectively and as a body, but each individual, as a subject, has his private and independent existence" (Rousseau 2004). Therefore, in a civilization, neither the general will nor the government can fully encroach on the citizens' privacy without the whole society falling apart. On the other hand, this freedom is nowhere near what it is in the state of nature, where people are entirely free to do as they please without the threat of government or general will even be considered a threat to that freedom of privacy.
Rousseau, Jean-Jaques. 1973. The Social Contract and Discourses. Translated by G. D. H. Cole. David Campbell Publishers
Rousseau, Jean-Jaques. 2004. Emile. The Project Gutenberg EBook of Emile. https://www.gutenberg.org/files/5427/5427-h/5427-h.htm#link2H_4_0002
Kantianism
Even though Kant does describe privacy in very vague descriptions, Kant’s idea of the right to privacy is severely limited by the importance of the public sphere and the goals and laws set in place by the government and the public
Kant’s idea of the private sphere stems from his emphasis on the moral relationships within the public that create a sense of wellbeing for society and the people there to allow everyone to pursue their own interests. In his essay titled “Perpetual Peace” Kant wrote that, “For in their external relations, they have already approached what the idea of right prescribes, although the reason for this is certainly not their internal moral attitudes. In the same way, we cannot expect their moral attitudes to produce a good political constitution; on the contrary, it is only through the latter that the people can be expected to attain a good level of moral culture. Thus, that mechanism of nature by which selfish inclinations are naturally opposed to one another in their external relations can be used by reason to facilitate the attainment of its own end, the reign of established right. Internal and external peace are thereby furthered and assured, so far as it lies within the power of the state itself to do so. We may therefore say that nature irresistibly wishes that right should eventually gain the upper hand” (Kant 1795, 113). Kant’s emphasis is on the peace of the community and the ways in which community control their own personal morality to maintain the community and avoid the problems that are likely to arise. Due to this, it might be reasonable to assume that Kant would say that the individuals' morals are private since they must sacrifice their ideals for the public standard set by the community, leaving the private realm the only space in which individuals can subscribe to their own ideas of the good life. Specifically, Kant would say that whatever passions people have should be subjected to the private sphere to maintain a certain level of peace and stability within society. Kant even adds that maintaining a private or “internal” sphere for selfish interests helps benefit both the public and the private sphere so that there is balance in both spheres and the people maintain the peace. For Kant, the relationship between the public and the private is dependent on the morals people hold to maintain a standard within the community and prolong a state of establishment, which requires creating some sort of separation between the two spheres. However, it should be noted that Kant places an emphasis on the public to suggest that its importance prevails above the importance of matters within the private sphere. Furthermore, Kant said that “ we cannot simply conclude by a reverse process that all maxims which can be made public are therefore also just, because the person who has decisive supremacy has no need to conceal his maxims. The condition which must be fulfilled before any kind of international right is possible is that a lawful state must already be in existence. For without this, there can be no public right, and any right which can be conceived of outside it, i.e., in a state of nature, will be merely a private right. Now we have already seen above that a federative association of states whose sole intention is to eliminate war is the only lawfol arrangement which can be reconciled with their freedom” (Kant 1795, 129). The idea of the “internal” is continued in his analysis of the state of nature in which there is only matters of the private sphere. However, when theorists reference the state of nature, they usually provide some remedy because they believe that the state of nature is imperfect and needs to be fixed for the betterment of society. Therefore, it might be reasonable to assume that Kant believes that this state of privacy needed to be fixed by creating a society in which people needed to create more public relations and establish a state that revolves around the public sphere and the interests for the public. This is not to say that he wants to get rid of the idea of privacy altogether, but it further shows his preference for the public sphere rather than the private sphere. When it comes to the government and the private sphere, Kant emphasizes the use of government as public actors acting for the public rather than public actors acting within their own private interests. He believed that the officials of the government are merely public figures that adhere to the morals established by society and because of this again, like most of society, they leave their private reasonings within the public sphere especially when making decisions for the people.
Kant does paint some pictures of privacy within the realm of private property, but his idea of private property does not come without exceptions and limits when it comes to the boundaries between the private, the public, and the government. In The Metaphysics of Morals, Kant said that “this supreme ownership is only an idea of the civil union, designed to represent through concepts of right the need to unite the private property of all members of the people under a universal public owner; for this makes it possible to define particular ownership by means of the necessary formal principle of distribution (division of the land), rather than by principles of aggregation (which proceeds empirically from the parts to the whole). The principles of right require that the supreme proprietor should not possess any land as private property (otherwise he would become a private person), for all land belongs exclusively to the people it also has a well-authenticated objective reality which can easily be demonstrated from particular instances as they arise” (Kant 1797, 147). The reiteration of a private sphere for Kant is reimagined in the form of private property. For Kant, private property is the space in which individuals can live out their personal, private morals they had to leave behind to maintain public moral standards and public peace. The realm of private property is the space in which the government cannot interfere with the people and for Kant something the government cannot and should not acquire for themselves. If the government were to obtain their own private property, the government would become private individuals no longer invested in the public morals or the public peace they are to represent and enforce. It should be noted that Kant’s version of government is a federation of civil societies, reemphasizing the lack of power the government should have. Therefore, it is logical for Kant to believe that the government should not even own property since their role is minimized within the civil society in which the people and the public control most of the affairs. Kant’s decentralized government reinstates the idea that the higher ups within society should not be allowed to interfere with the lives of the people, leaving matters of civil society to the people based upon public morals rather than private interests. This creates a third power within society, namely the civil society that reigns over the government and the private individual as that is where all matters take place and are negotiated among the individuals of society rather than another power. In addition, Kant noted “A third kind of right is necessary for the preservation of the state-the right of inspection (ius inspectionis). This requires that no association which could influence the public welfare of society (publicum), such as an association of political or religious illuminati, may be kept secret; at the request of the police, it must not refuse to disclose its constitution. But only in cases of emergency may the police search anyone's private residence, and in each case, they must be authorised to do so by a higher authority” (Kant 1797, 149). Although the government is not as important as civil society as discussed before, it does not mean that Kant believes that it should not have any duties to protect the public peace and the public morals. For this reason, Kant grants the government some powers to protect such interests like the right to inspect or enter private realms. Although this seems contradictory of his ideas discussed earlier, it must be noted that Kant believed that individuals must not interfere with one another and have the liberty to act within their own selfish interests. To maintain this standard, Kant tasked the government with creating laws that would create a sense of freedom in which the individual has the right to do as they please until their actions interfere with others' right to freedom. This therefore is the reasoning behind allowing the government to intrude in the private homes of the individual when there is a reasonable assumption that doing so would benefit the community and its aim for peace. Again, this establishes a boundary between the public and the private realms, implying that the people have this implicit limited right to privacy, but the concept of privacy is subject to the strives towards public peace and individual liberty. Kant’s main emphasis is the peace of society and is willing to put the needs of society above the interests of the private individual to achieve his main objectives of peace and liberty.
The lines between the private, the public, and the government are further blurred in his discussion of rights and the public and government punishment for going against the morals set forward by civil society. Again, in The Metaphysics of Morals, Kant said that “The real definition would run thus: “Right in a thing is a right to the private use of a thing, of which I am in possession — original or derivative — in common with all others.” For this is the one condition under which it is alone possible that I can exclude every others possessor from the private use of the thing (jus contra quemlibet hujus rei possessorem). For, except by presupposing such a common collective possession, it cannot be conceived how, when I am not in actual possession of a thing, I could be injured or wronged by others who are in possession of it and use it” (Kant 1797, 49). Kant’s main emphasis is the liberty one must do as they please without limiting the liberty those around him have as well. For that reason, Kant defines “right” or liberty above as a private matter because it is his to do whatever he wants with it. It is his and no one else to determine what an individual does or thinks so long as it does not interfere with the liberty of the people around him. This is a broad interpretation of privacy especially since Kant emphasizes the needs and the wishes of the public above the individual which contradicts the very idea of the individual having the right to do as he pleases. Other than private property, every human has the private possession of this right without interference from anyone else around him. However, Kant makes it known that there are limitations to these rights in the form of adhering to the public standards of morality and upholding the peace of civil society. It is in these instances that the idea of privacy is questioned and limited because it directly contradicts the actions and the intentions of the public and the government. Besides this private right Kant describes, he wrote that, “The right of administering punishment is the right of the sovereign as the supreme power to inflict pain upon a subject on account of a crime committed by him. The head of the state cannot therefore be punished; but his supremacy may be withdrawn from him. Any transgression of the public law which makes him who commits it incapable of being a citizen, constitutes a crime, either simply as a private crime (crimen), or also as a public crime (crimen publicum). Private crimes are dealt with by a civil court; public crimes by a criminal court. Embezzlement or speculation of money or goods entrusted in trade, fraud in purchase or sale, if done before the eyes of the party who suffers, are private crimes. On the other hand, coining false money or forging bills of exchange, theft, robbery, etc., are public crimes, because the commonwealth, and not merely some particular individual, is endangered thereby. Such crimes may be divided into those of a base character (indolis abjectae) and those of a violent character (indolis violentiae). Judicial or juridical punishment (poena forensis) is to be distinguished from natural punishment (poena naturalis), in which crime as vice punishes itself, and does not as such come within the cognizance of the legislator” (Kant 1797, 104-105). Within the discussion of the right to privacy in relation to civil society, Kant discusses the ways in which the government are allowed and permitted to interact with the community. He thus concludes that when it comes to the concept of punishment, when the crime is committed in which there are no victims, the civil society will decide a punishment and in the cases in which more than one individual is involved, the state will decide a punishment. This again subjects the individual to another power, namely civil society, in which the individual not only sacrifices his own morals to, but also determines the standards for society and punishments as they see fit. This distinction between the public and the government creates another relationship between what is considered public to society and what is considered public to the government. Kant’s ideas suggest that the individual may be private from the government, but the individual cannot be private from the public in which they report to. Individuals can keep their morals private from the public, but in the end, the interests and the actions of the individual are public and subject to judgement from civil society. Compared to the relationship between the government and the people, the relationship between civil society and the private individual shows that the public is more important since it is invested in the life of the individual and since the individual is expected to subject itself to the morals established by the public.
Kant’s emphasis on the public sphere and the clear difference between the public, the government, and the private sector reinstate the point that although the right to privacy is stated and valued to keep the government out of personal affairs, there are exceptions to this rule crucial for restoring justice within society.
Bibliography
Kant, Immanuel. The Metaphysics of Morals. Edited by Mary Gregor. Cambridge University Press. 1996.
Kant, Immanuel. Kant Political Writings. Edited by Hans Reiss. Cambridge University Press. 1970.
German Idealism
Benthamite Utilitarianism
Millian Utilitarianism
When it comes to the rights and liberties bestowed upon an individual, there are some that seem inherent according to society’s standards like the freedom of speech and religion, especially since some of these values are rooted in texts that have helped found the country. However, as time has progressed, there are new issues that expand the public’s definition of rights and liberties and gives them a new vision as to what they may or may not have a right to. One of these rights is the right to privacy, a right in which there are various opinions, all of which are relatively new, yet there is a hindrance of commentary on these issues. John Stuart Mill has written various pieces including but not limited to On Liberty and The Subjection of Women in which he writes about the rights people inherently have and the values that people should have within society. Although it could be assumed that Mill creates a private realm in which individuals pursue their higher faculties away from society, Mill’s view of privacy is extremely limited and whatever private realm there might be is subjected to teaching morals and values.
Based off an initial reading of Mill, it might be assumed that a private sphere might exist in order to develop higher faculties away from the public. For example, Mill notes that, “A person whose desires and impulses are his own—are the expression of his own nature, as it has been developed and modified by his own culture—is said to have a character...Their thinking is done for them by men much like themselves, addressing them or speaking in their name, on the spur of the moment, through the newspapers” (Mill 1859, 67). From here the reader reasonably infers that Mill would advocate for individuals to remove themselves from the public in order to reach their higher faculties since if one is not in the public sphere, the conclusion is that they are in the private sphere. However, as Mill goes on to describe his argument, he uses various examples to explain his philosophy and how the issue of the private and public spheres should be addressed. In the end, he turns to uses his own harm principle to argue that the state and the government should intervene in instances where the decisions one makes affect the prospects and the lives of the people around them. Due to this belief, he argues that the private sphere is severely limited by the government’s interest to protect the people from other’s personal desires. Furthermore, Mill notes that “That, this being supposed, they cannot be acting wrongly in endeavoring to exclude the influence of solicitations which are not disinterested, of instigators who cannot possibly be impartial—who have a direct personal interest on one side, and that side the one which the State believes to be wrong, and who confessedly promote it for personal objects only” (Mill 1859, 110). Alongside this argument, Mill describes several examples where government intervention is allowed when the decisions of the individual interfere with the lives and the decisions of other people. With that being said, there can be no existence of a private sphere for the government needs to protect individuals from the impulses they have that in Mill’s philosophy warrant punishment by the government. The problem with the discussion of Mill and the private sphere is that he does not make any explicit claim about the right to privacy because of the necessity of government intervention from his point of view.
Mill further describes this limited aspect of privacy in which the government is allowed to intervene so long as there is reason to intervene for the good of the rest of the population. For example, Mill writes that “The State, while it respects the liberty of each in what specially regards himself, is bound to maintain a vigilant control over his exercise of any power which it allows him to possess over others” (Mill 1859, 116). This statement alone, despite not referring to the topic at hand, states clearly where he would stand on the issue of the right to privacy. One might claim that there could still be a private sphere especially since Mill does not dismiss the idea all together, but what is important to mention is that the state cannot intervene in matters of right and wrong without letting the individual be somewhat public. He names another example in which he claims “If the government would make up its mind to require for every child a good education, it might save itself the trouble of providing one. It might leave to parents to obtain the education where and how they pleased, and content itself with helping to pay the school fees of the poorer class of children, and defraying the entire school expenses of those who have no one else to pay for them” (Mill 1859, 116-117). In these matters, Mill claims that the government can control and regulate the way that children pursue their higher faculties through education since it is their liberty and goal to reach these faculties for the betterment of their character and overall well-being. Mill maintains this point of view that every individual has the right to live their best life, which he believes is attainable so long as people make decisions for themselves only and the state makes decisions to make sure that others cannot infringe on the lives of others. He recognized the ways that people’s individual private actions could injure one another, despite operating within this realm of personal liberty. He saw the way that life needed regulation based on the harm principle which allowed the government to intervene on private matters and push for a stronger public sphere to share ideas. Mill by no means wanted the government to control every aspect of the life of the individual, he wanted to merely hold the individual accountable for the way their decisions affected those around them.
Mill continues within his other works to paint a picture as to what he wants society to look like and describes the ways in which having a private or domestic sphere can create a form of the right to privacy. Within The Subjection of Women Mill notes that, “As regards the relations of private life it may be said generally, that their influence is, on the whole, encouraging to the softer virtues, discouraging to the sterner: though the statement must be taken with all the modifications dependent on individual character”(Mill 1861, 565-566). Mill’s main emphasis is on the morally correct and doing the necessary things in order to achieve this moral good, especially since he believes that the society around him is declining due to the lack of morality and tendency for people to avoid pursuing their higher faculties. Since women are subjected to the household and are not given a role within the public sphere, it could be argued that women then are responsible for what would have been the private sphere since the home is their responsibility to maintain. It could be asserted that there is a private sphere in which the women or those at home are responsible for the moral development of the children and those living within the home. Within his writing about the home, the government plays no role in dictating how the morals are taught, therefore alluding to this right to privacy based on the premise that the home is a private space in which the government cannot intervene. In addition, Mill adds that “There is no country of Europe in which the ablest men have not frequently experienced, and keenly appreciated, the value of the advice and help of clever and experienced women of the world, in the attainment both of private and of public objects; and there are important matters of public administration to which few men are equally competent with such women; among others, the detailed control of expenditure” (Mill 1861, 580). Here, Mill describes the full capacity of women within the public sphere and particularly within the government but understands that the standards that society have during his time leave no space for women publicly. He uses this line to reference the power and influence that women already have over the private sphere despite society’s perception of women. However, it should be noted that acting within their realm of liberty, they had this explicit right to privacy that allowed them to hold themselves accountable, therefore keeping the government out of their private lives. Therefore, Mill could take on the belief that if a private sphere should exist to develop and teach morals to children who then enter the public sphere and hopefully act within their best interests to pursue their higher faculties without intervening in the lives of others.
What might be something to keep in mind about Mill and his idea of the right to privacy is the sense of Victorian morality that he writes about and his overall response to rights of any kind. He writes both works from the Victorian moral point of view which in turn is reflected in the way that he believes that society should be run and would agree about the way that life would be instructed upon these morals. It is this sense of morality that would go against most things that one might believe is not the concern of the public and Mill would want to spread his single version of morality because everyone should be morally upright according to the same standard. Despite this observation, Mill would also claim that holding oneself accountable is necessary to maintain this moral standard because individuals do not and should not depend on one another. Other than the right to privacy, his perspective on rights aligns with those of earlier philosophers so long as they fall within the utilitarian model and therefore benefit most of the people. However, this creates somewhat of a dilemma since any action or inaction could be seen to benefit the majority. The government could infringe on the inherent rights one has and claim that it be for the betterment of society that they control religion, speech, and property despite these being protected by many other philosophers. In that sense, it is hard to define from the Mill point of view what people do and do not have the right to within their system of government. The right to privacy from Mill’s perspective is one that is hard to define and comes with various limitations that allow the government to intrude on the lives of the people.
Bibliography
Mill, John Stuart. “On Liberty.” In John Stuart Mill On Liberty and Other Essays, edited by John Gray. Oxford World’s Classics, 1991.
Mill, John Stuart. “The Subjection of Women.” In John Stuart Mill On Liberty and Other Essays, edited by John Gray. Oxford World’s Classics, 1991.
Current Utilitarianism
Transcendentalism
Marxism
Early Sociology
Pragmatism
Weberian Thought
Process Philosophy
Social Darwinism
British Idealism (19th cen.)
Continental Philosophy/Frankfurt School
Behaviorism
Feminist Thought
Various feminist theorists have often been forgotten because of their role as women and the fact that society sees their input as invalid because of the long history of their treatment. However, despite the oppression and the push to exclude them from political conversations, women have entered the conversation claiming that the true problem in life is patriarchy. Their commentary surrounds the involvement of men within the government and how the male-dominated government suppresses women. They can generally agree on most political discussions like the right to privacy, but that is not to say that it does not come without variation as all political theory usually does. The consensus among the feminists is that the private realm maintains the oppression of women and propose the elimination of the private realm to remedy the problem at hand, despite some thoughts on the return to the private realm once the problem has been solved socially first.
Most feminist political commentary and theory is centered around the critique of the relationship between the private and the public spheres that inherently treats women as less than compared to their male counterpart. In her political commentary Sexual Personae, Camille Paglia noted that “He has no personal life. He completely identifies private with public interest. Hence, he is unstoppable. Such men can be political geniuses or monsters” (Paglia 1990, 214). In fact, Bell Hooks would go as far to claim that men are told to dominate the private sphere despite giving women the belief that the home and the private realm will be theirs to dominate and to rule over (Hooks 1984, 120). Paglia and Hooks both demonstrate the point that the feminists paint a picture where the power of the public outweigh the power of the private and since women are taught that the private will be their realm, they are inherently less important compared to their male counterparts. Paglia also details something important in the fact that the men of society can either help or hurt women because of the power they possess in the public and the private, yet most feminists would argue that they choose to abuse women within their spheres because of the way that Hooks says that they are encouraged to dominate women any way that they can. These sentiments reflect the critiques of the relationship between the private and public spheres that dominates the arguments made by feminists on the matter of the right to privacy and hence why some are skeptical about maintain that right. Susan Moller Okin’s work Justice, Gender, and Family noted that, “If there were a clear sphere from which the state refrained from intruding, that sphere would have to be defined, and its definition would be a political issue. But in fact, the state has not just "kept out of family life. In innumerable ways, the state determines and enforces the terms of marriage” (Okin 1989, 129). To Okin, the dichotomy between the private and the public realms is central to her argument for the elimination of the private sphere because of the lack of justice maintained within this sphere. Okin uses this to further the point that there is no separation because of the state’s involvement in issues like women’s bodies and marriage that make the separation unrealistic since within the minds of men, the two are automatically linked without any clear distinctions. The feminists use examples of abortion and marriage to further prove that the lines between the state and the home are blurred and often nonexistent because the state makes decisions without consulting women or even acknowledging the boundary that should be there. Okin even claims that the boundary is artificial and only created based off the different principles that the men have on these matters. However, she highlights the lack of justice for women due to the difference in principles in men that allow them to abuse their women and belittle them from reaching their full potential within society.
Some theorists see the role of the traditional woman with her duties and her obligations to the family as invasive and a problem when it comes to the right to privacy for a woman. Written in 1903, Charlotte Perkins Gilman makes the claim that, “The mother—poor invaded soul—finds even the bathroom door no bar to hammering little hands. From parlour to kitchen, from cellar to garret, she is at the mercy of children, servants, tradesmen, and callers. So chased and trodden is she that the very idea of privacy is lost to her mind; she never had any, she doesn't know what it is, and she cannot understand why her husband should wish to have any "reserves," any place or time, any thought or feeling, with which she may not make free” (Gilman 1903, 36). Gilman makes the assertion that the role women have taken on within the home means that there is no such privacy for the woman whatsoever. It is because she has other obligations as a mother, as a wife, as a caregiver that something is always expected from her and that her needs are irrelevant because she “rules” the home. She claims that there is also no possibility for individual privacy because there is no specific space for just the individual unless they are living alone. However, within the family, the individual is crowded by those around, and as stated before the role of the woman is to serve everyone and everything according to the standards set by the man. She adds that if the individual was truly private, there would be no scrutiny or judgement because the individual is truly private about their thoughts and their feelings, but this concept of privacy is only applicable to the man who rules the home and is always free to express themselves within the home. It is the woman who is continuously repressed in and out of the home and is in constant contact with the other women and servants of the neighborhood with whom they share and continuously violate the idea of privacy. In Women and Human Development: The Capabilities Approach by Martha Nussbaum, Nussbaum noted that, “It goes without saying that in poor families where five or six people share a single room, there is no such thing as the privacy of the individual in the middle-class American sense – although poor people will frequently seek solitude for the purpose of defecation, walking considerable distances from their dwellings” (Nussbaum 2000, 259). Nussbaum and Gilman both illustrate the life of the woman in which she is subjected to the needs of the family and expected to run the household without being given the respect that should come with the role. She continues the argument by claiming that individuals have the right to privacy within their decisional liberties, but for women and in general the home limits the space where the individual can carry out their liberties simply because the lack of space. Nussbaum decides to remedy this by claiming that the state should be allowed to intervene so long as they do so to protect only the privacy the individual has in the form of decisional liberties the individual holds. Even though she speaks in broader terms about the individual, she emphasizes the fact, as Gilman points out, that the role of the women is far more extensive than that of the man within the home and therefore, her privacy is severely more limited than that of the man within the home. In the process of the state protecting the liberties of the individual, Nussbaum would claim that the needs of the woman need to be acknowledged and enforced in order to maintain her decisional liberties.
Alongside the critique of the public and private spheres mentioned above, theorists propose a reconstruction of the public and private life that would eventually liberate women from the abuse and violence they face. In her book, A Vindication of the Rights of Women with Strictures on Political and Moral Subjects by Mary Wollstonecraft, she noted that “To render women truly useful members of society, I argue that they should be led, by having their understandings cultivated on a large scale, to acquire a rational affection for their country, founded on knowledge, because it is obvious that we are little interested about what we do not understand. And to render this general knowledge of due importance, I have endeavoured to shew that private duties are never properly fulfilled unless the understanding enlarges the heart; and that public virtue is only an aggregate of private” (Wollstonecraft 1792, 291). Part of the larger and general feminist argument for privacy is the reconstruction of the private and public realms so that there could possibly be the existence of the private sphere once the problems are addressed. For Wollstonecraft, part of the progression of women is to form the new public sphere around the education of the women in order to maintain the public happiness. Wollstonecraft claims that the means of some private virtue is the same as the public happiness since whatever happens within the private is brought out into the public. For that reason, Wollstonecraft argues that the public and the private are utterly the same since the state already tries to solve the problems that take place within the private space of the home. However, within the home, she notes that the role of the woman is to please the man and because of this she is denied her public and civil duties which again can be rectified by educating women and men about the opinions and the manner which society enforces. The Feminine Mystique by Betty Friedan noted that, “Their determination betrays women’s underestimated human strength and their urgent need to use it. But only the strongest, after nearly twenty years of the feminine mystique, can move on by themselves. For this is not just the private problem of each individual woman. There are implications of the feminine mystique that must be faced on a national scale” (Friedan 1963, 350-351). Friedan wanted to remedy the inequalities that she saw within the private life, by demolishing the line between the public and the private by exposing the inequalities that the women faced within the private life. In order to reform and reconstruct life to benefit women, her solution was to promote education and find something beyond the self to identify with. Her idea that was if women were able to reimagine themselves, they would be able to overcome the problems and show society the way that women should be treated. Freidan’s concept of the private however was aligned with Gilman and Nussbaum in that the duties of the woman prevent actual privacy, so she proposed another separate space away from the family in which the woman can achieve a sense of privacy. In order to reimagine themselves within the public, Friedan proposed private and public education like Wollstonecraft proposed, and suggested challenging the images of women proposed by the media. When it came to the media specifically, she wanted women to reimagine themselves using their own private image to facilitate what their version of what a woman looked like. Feminists in general proposed their own version of reconstructing the public to change the way women were viewed which usually involved exposing their problems to the public, completely ignoring the idea of the private individual.
Despite the constant call for the barrier between the public and the private to be broken, there are some claims to a right to privacy made by the feminists. Catherine MacKinnon noted this in her work Toward a Feminist Theory of the State when she claimed that “The law of privacy treats the private sphere as a sphere of personal freedom. For men, it is. For women, the private is the distinctive sphere of intimate violation and abuse, neither free nor particularly personal. Men's realm of private freedom is women's realm of collective subordination.” (MacKinnon 1989, 168). Most feminist theorists agree to some sort of concept of the private and what that might look like. Most feminists were skeptical of the private because of all the abuse that took place within this sphere, hence why they wanted the government to intervene in the matters of the private. However, as MacKinnon pointed out, the private provided personal freedom that the public could not provide, hence why it was important to revisit the private sphere once the woman was reimagined and re-envisioned for the better. MacKinnon acknowledged the fact that there were legal protections about privacy for women since there were these protections for men but based on examples surrounding abortion and marriage concluded that even though it was legally available for women, it was not enforced. Specifically, the government rulings on issues like Roe v. Wade gave women the private right to choose, but she recognized that the fact that the government had a say on this matter, was an invasion of the privacy of the women to choose. Even the discussion of whether the government would fund abortions became a matter of government involvement on a woman’s decision to choose. After her discussion of this matter, she established that the right to privacy was necessary and continuously violated by the government in order to maintain control over women. Carole Pateman extends this argument within her work The Sexual Contract when she notes that, “Shultz states that there is a strong argument that private contract should not override the criminal law but, she writes, 'the idea of enforceable private agreements concerning violent sexual conduct is less offensive than a state declaration that violent sexual conduct is automatically acceptable in marriage.' Such a response begs the question about limitations to and alternatives to contract” (Pateman 1988, 185). Pateman specifically notes that the relationship between the government and the people on matters of private and public is something that is important for the safety of women and for the natural liberties for the individual. She notes that what calls the sexual contract is something women are subjected to where their abuse accumulates at home and sometimes within the public. She called for government intervention on matters of legally maintaining women’s liberties and for intervention when men within the private life continuously abused women. Pateman noted that the line between the public and the private was indefinite and used the system of marriage as an example of how the government was involved. She claimed that because the government had to keep records of marriage contracts between private individuals, marriage could be considered public, despite the specific agreements within the marriage contract is a private matter talked and agreed upon by the different parties. She still notes in the end that the government had some obligation within the private lives to reform the treatment of women and the inequalities that women face within the home, an attitude shared by most of the feminist theorists.
The consensus among the feminists is that the private sphere is where women are subjects of abuse and inequalities that need to be exposed out in the public in order to help women overcome the view that men have of them. To these theorists' women face the same treatment within the public sphere as the patriarchy and the government make decisions on their behalf and subject them to the private life where they are expected to take care of the family. The primary role of the woman centers around the idea of the family and the way that the woman is supposed to take care of the family depriving her of her own privacy. Jean Bethke Elshtain adds an interesting perspective to this notion and considers that as women are liberated by their actions, the structure of the family will fall apart. She adds that the family dynamic is also changing as there are more single parent households or same-sex households that change the way the family has been thought of (Elshtain 1981, 323). This is an interesting notion as the thought of the private sphere changes for these women and the way that women are taking more charge within the world continuously challenging the private abuse at the hands of the man. The notion of the right to privacy is something constantly changing as situations change but should be broken down to expose the flaws within the system that negatively affect women.
Bibliography
Elshtain, Jean Bethke. Public Man, Private Woman: Women in Social and Political Thought - Second Edition. NED-New edition, 2. Princeton University Press, 1981. https://doi.org/10.2307/j.ctv131bvkg.
Friedan, Betty. The Feminine Mystique. Dell Publishing Company INC. 1973
Gilman, Charlotte Perkins. The Home. New York Charlton Company. 1910
Hooks, Bell. 1984. Feminist Theory: From Margin to Center. South End Press
Mackinnon, Catherine A. 1989. Toward a Feminist Theory of the State. Harvard University Press
Nussbaum, Martha C. 2000. Women and Human Development: The Capabilities Approach. Cambridge University Press
Okin, Susan Moller. 1989. Justice, Gender, and the Family. Basic Books Inc.
Paglia, Camille. “Shakespeare and Dionysus: As You Like It and Antony and Cleopatra.” In Sexual Personae, 194–229. Yale University Press, 1990. http://www.jstor.org/stable/j.ctt1bh4bwb.12.
Pateman, Carole. The Sexual Contract. Stanford University Press, 1988.
Wollstonecraft, Mary. 1792. A Vindication of the Rights of Women with Strictures on Political and Moral Subjects. Cambridge University Press
Postmodernism
Postmodernists believe that society’s expectations and norms of society are merely products of the capitalistic marketplace and the aesthetics that are formed around them rather than looking at the historical foundations of popular culture. These theorists typically are very skeptical of these norms because of the problems they have caused within society and believe that a simple solution can fix all problems, as most modernists propose. Therefore, postmodernists simply describe the standard for privacy that society currently holds and do not propose any true remedies to the problems they might have with the notion of privacy. Specifically, Jean-Francios Lyotard, Frederic Jameson, and Michael J. Shapiro all describe the aesthetics of privacy that society currently accepts and identifies how unrealistic privacy is within the capitalistic marketplace. They remain skeptical about how private individuals can be private in the modern world by creating marketplaces that are designed to invade the private sphere to pursue their capitalistic interests. Postmodernists like Lyotard, Jameson, and Shapiro claim that the idea of privacy does not truly exist due to the monopolization of personal information by corporations and used to maintain power; therefore, the existence of a private realm is unnecessary.
Postmodernists take the position that privacy within society might not exist due to the monopolization of information by corporations to pursue their interests. For example, in the book Inhuman by Jean-Francios Lyotard, the author notes that “Through innovation, the will affirms its hegemony over time. It thus conforms to the metaphysics of capital, which is a technology of time. The innovation 'works'. The question mark of the Is it happening?' stops. With the occurrence, the will is defeated. The avant-gardist task remains that of undoing the presumption of the mind with respect to time. The sublime feeling is the name of this privation” (Lyotard 1988, 107). Lyotard’s observation proves that with the existence of information, whether it be private or public, corporations have been able to monopolize such information and use it to their advantage. Privatizing all information solidifies the power dynamic between those in power and those who feed into their power since such information is used to pursue their interests. Lyotard would also argue that there might not be such an idea of private information in general since general information is already public, and anyone or company can have access to this information to again use it for themselves. Due to this, he challenges the idea of the private realm even existing because of the way that information is easily accessible. However, Lyotard might also point out that the only privacy that exists within society is the privacy of the corporations that take all public entities and claim them and privatize them. He points out that culturally significant objects are also privatized by corporations, who then profit off of the nation’s sp. Lyotard would conclude that privacy only exists for the corporations who use the personal information around them to turn profits for themselves and their interests. Furthering this sentiment, Frederic Jameson wrote
“The definitive answer will come, of course, with the conception of a "logic of naturalism" that informs the other half of his title. For the moment there remains the nagging feeling that all this does come down to the "self" after all, and that the desperate or passional fantasies of productionism, romance, slavery, masochism, the gold standard, and hoarding or spending are all somehow attempts to square the circle and come to terms with the antinomy of the self as private property. This is nowhere affirmed as such, yet the theoretical or interpretive void in the endless chain of homologies somehow draws the reading mind toward what we may call the existential (if not the psychoanalytic) solution: the ontological priority of explanations in terms of the self over all the other levels. This is, in general, the fate of philosophies without "content" (in the Hegelian sense of the word), and in particular of philosophies that seek to exclude content as such: a kind of Lacanian "foreclusion" in which content is reintroduced back from the outside in the form of some compensatory and generally psychoanalytic bottom line (as in Tel Quel and some places in Derrida), the materials of the "self" proving more serviceable in the completion of a formalist system than the materials of history or the social” (Jameson 1997, 198-199).
Like Lyotard, Jameson is skeptical of the private condition of the individual and whether it is a true institution within society or there for the aesthetic that society has created behind it. Unlike Lyotard, Jameson would say that the idea of the private is created for the formation of the “self”, prioritized and valued because of society’s significance. Jameson claims that the concept of the “self” is not as important as people have made it out to be, and so it feeds back into the aesthetic of society rather than having any real significance. Jameson also claims that this sense of privacy stems from the media that pushes it forward to accommodate corporations pursuing their own interests. This sense of self is further broken down by society in which people are categorized and assigned labels that again have no meaning and disregard any sense of privacy and self that society values so deeply. Jameson would also claim that the increase in media technology makes any sense of privacy difficult to achieve and maintain because people can share their information across multiple platforms and therefore share that information with the corporations around them.
Postmodernists, like all theorists, tend to describe what is in society and by, doing so, challenge the view of the world that most people hold without questioning the norms and possible solutions to the problem described. When applying postmodernity to political theory, Michael Shapiro noted that
“One can, in short, render boundaries innocuous by speaking unproblematically about "public" and "private" spheres, the "work place," "recreational space," and so on. What is left of the political process in this model is primarily a policing function that consists in the prevention of intrusions from one institutional setting to another. Clearly, there is a significant operation of power and authority in the production of those domains whose inviolability Walzer seeks to preserve. His version of the liberal discourse depoliticizes modernity's contemporary ground plan and serves as a legitimation rhetoric. It distributes discursive assets to those who control the flow of goods, commitments, and, in general, all valued outcomes” (Shapiro 1992, 94).
Part of addressing the issue of privacy again realizes the state of society, which Shapiro argues is this state of maintaining whatever power an individual may have or be able to own. To add to this notion, Shapiro would say that society already blurs the private and public boundaries to pursue their social actions and agenda. He concludes that there cannot just be two distinct realms that people can adhere to, especially because he claims that there is no end to history in which this is possible. He continues this argument with the claim that even if there were space for this sort of dichotomy, it would not matter because of the ability society should have to extract the political tendencies from each realm rather than regulating them. Shapiro adds to the sentiments of Lyotard and Jameson in that all three recognize the power dynamic that any aspect of privacy adds to society. Shapiro adds that this privacy aspect solidifies the power dynamics that again allow the rich to get richer and others to remain in their place. This causes postmodernists to try and reimagine the private sphere in order to dismantle and restore the power relations between the people and the corporations that have monopolies on privatized information. In addition, Jameson wrote that “We have touched briefly on property relations in the postmodern in a previous chapter; suffice it to say now that in itself, private property remains that dusty and drearily old-fashioned thing whose truth one used to glimpse when traveling in the older nation states and observing, with Mr. Bloom's "grey horror" that sears the flesh, the hoariest antique forms of British commerce or French family firms (Dickens remaining the most precious imperishable afterimage of the juridical exfoliation of these entities, unimaginable crystalline growths like some cancerous Antarctica)” (Jameson 1997, 320-321). Essentially, Jameson proposes that society does away with the notion of private property because it reinstates the aesthetics and the history that have created the present problems. However, Jameson’s answer to privacy is quite complicated because in other works, he explains that the government needs to protect the individual’s privacy from monopolies. It must be noted that postmodernists do not usually favor a solution in general because they believe that society is more complicated than any solution can fix the problems at hand. Therefore, Jameson and the others reflect on the realities of privacy and the state of society without any solid remedy to the problems they propose. However, there seems to be some consensus that the notion of privacy should be abandoned or dismissed until society can remedy the problems already present in society. For Jameson, it seems to be the case that the private life is something he believes is worth preserving, but he understands that the condition of the private life is diminishing and might not be realistic to maintain. For example, Jameson holds that the media is the reason for an individual’s lack of privacy since the media advertises products using private personal information corporations know will appeal to the consumer. Jameson’s assertion that there can be no sphere of privacy comes from the sentiment that society is based on the capitalistic marketplace in which corporations try to make as much money as possible and obtain as much information about the population as possible.
The key to understanding the postmodernist perspective is the realization that this skeptical view prevents any theorist from developing a solution to the problems they describe. They have read and concluded that modernists believe they can solve all the world’s problems with their theories without looking at the implications or analyzing the world on a different level that questions the popular culture norms that dictate all decisions individuals make. For that reason, they propose no definitive solutions because they do not see the point in making decisions when the aesthetics and the norms of society have already been so deeply rooted in society. Therefore, making definitive decisions about things such as privacy is only there to describe the current state in which they exist, if they even exist. In the matter of the private realm, postmodernists would conclude that the existence of a private sphere does not exist based on the premise that the capitalistic society will monopolize private information for its benefit.
Bibliography
Jameson, Frederic. Postmodernism, or, The Cultural Logic of Late Capitalism. Duke University Press Durham. 1997.
Lyotard, Jean-Francios. The Inhuman Reflections of Time. Stanford University Press. 1991.
Shapiro, Michael J. Reading the Postmodern Polity: Political Theory as Textual Practice. NED-New edition. University of Minnesota Press, 1992. http://www.jstor.org/stable/10.5749/j.ctttsg7v.
Are there any philosophical or moral traditions that dispute the classification of this right as a fundamental right?
What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?
Positive Law
Positive law theory asks if the actions the government actor took would have been unlawful for a nongovernment actor to do in that jurisdiction (Baude & Stern, 2016, 1830, 1831). In other words, what does the written law allow? For instance, the model holds something to be a search if the government uses special legal powers to gain access to information (Baude & Stern, 2016, 1832). This model constrains the ability possessed by police to gain information from private parties while creating a predictable conception of privacy (Baude & Stern, 2016, 1856). Its use in the United States aims to add clarity to privacy expectations that is not had in the Katz test (Baude & Stern, 2016, 1869). Positive law theory was used in California v. Ciraolo and Florida v. Riley (Baude & Stern, 2016, 1867).
Natural Law
Locke is one of the primary natural law theorists. In his Two Treatises on Government: Concerning the True Original Extent and End of Civil Government (Essay Two) he discusses some of these rights which implicitly concern privacy in the State of Nature. In Chapter II: Of the State of Nature, he recognizes in section 6 that the laws of nature prevent “harm[ing] another in his life, health, liberty or possessions” (Locke, 1832, 107). All of these categories can be linked to laws today which protect privacy: mainly constitutional law in various countries, but also, for instance, the United States Health Insurance Portability and Accountability Act (1996).
Critical Legal Studies
Critical Legal Theorists believe law becomes intertwined with social issues causing each judge to have a somewhat different judgement in each case (Dworkin, 1977, 117). These differing torts and constitutional interpretations create varying implications in jurisdictions based on the weight precedents are given (Dworkin, 1977, 118). Dworkin recognizes that with this connection to social facts, the judiciary plays a bigger role in society (Waldron. 1999, 211). For instance, some judges may find a connection between the directly provided for protection of the right to liberty and implied right to privacy, while others may not (Dworkin, 1977, 117). Roberto Unger supports this example, writing in his essay ‘’Critical Legal Studies Movement’’ that some rights give individuals “a zone of unchecked discretionary action that others … may not invade,” reminiscent of Warren & Brandeis’s original claim to the right to privacy (Unger, 1983, 599).
Legal Positivism
Legal Positivism claims law depends on social facts, but the existence of law is not dependent on its merits or morals (Sevel & Leiter, 2010). H. L. A. Hart, a famed positivist, claimed that “law should be bound by limits and respect citizen’s privacy” (van der Sloot, 1). Moreover, the state could not and should not regulate private conduct unless there was harm (van der Sloot, 1). Robert Burt claims Hart essentially follows Louis Brandeis’s “right to be let alone” (Burt, 2004, 14).
Legal Realism
Legal Realism is reading laws “in the light of the purpose and policy of the rule or principle in question” (Macauley, 2005, 371). As such, legal realism expects the law to be constantly changing based on social conditions (Hall, 2005, 452). Calo claims privacy law exemplifies legal realism because of all of the exceptions, shifts with technology, and meanings dependent on other values and rights (Calo, 2019, 34). Despite privacy law’s beginnings being rooted in legal realism, he recognizes that privacy scholars have not expressly used this legal theory (Calo, 2019, 34, 40, 48).
United States Constitutional Theorists
One would think defining the appearance of privacy rights in the United States Constitution to be easy, especially given the language of ‘penumbras’ used in Griswold v. Connecticut rather than citing one specific clause constitutional (Griswold v. CT, 1965, pars. 14-15). However, Scott Gerber demonstrated in his work Privacy and Constitutional Theory that all six of the constitutional theories of interpretation he presented can be used to find privacy rights in the Constitution (Gerber, 2000; Baker, 2004).
Originalists: In his writing, Gerber (2000) posits that if an originalist interpreter wants to find privacy rights in the constitution, they can (167). Generally, those who do find privacy rights in the Constitution cite the Ninth Amendment (Gerber, 2000, 171). This is what Justice Arthur Goldberg cited in his Griswold concurrence and has been cited as such since James Madison wrote the amendment (Gerber, 2000, 171, 172).
Living Constitutionalists (US): Living constitutionalists allow for precedents to be called upon. It can be argued this is what was done in Griswold v. CT and other substantive due process decisions on privacy, such as Boyd v. US in 1886 (Gerber, 2000, 178). In the Griswold majority opinion, Justice William Douglas argued that the Supreme Court had previously ruled on cases in which rights were not explicit in the Bill of Rights, but the rights were justifiable to the Court through the First and Fourteenth Amendments (Griswold v. Connecticut, 1965, par. 11).
Resources
Baker, T.E. (2004). Constitutional theory in a nutshell. William & Mary Bill of Rights Journal 13(1), 57-123. https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1245&context=wmborj Baude, W. & Stern, J.Y. (2016, May). The positive law model of the Fourth Amendment. Harvard Law Review 129(7), 1821-1889. https://www.jstor.org/stable/44072348 Burt, R. (2004). Moral offenses and same sex relations: Revisiting the Hart-Devlin Debate. Yale Law School Faculty Scholarship Series. https://digitalcommons.law.yale.edu/fss_papers/711/ Calo, R. (2019). Privacy Law’s Indeterminacy. Theoretical Inquiries in Law 20(1), 33-52. https://doi.org/10.1515/til-2019-0001 Dworkin, R. (1977). Taking rights seriously. Harvard University Press. Gerber, S. (2000). Privacy and constitutional theory. Social Philosophy and Policy 17(2), 165-185. https://doi.org/10.1017/S0265052500002156 Griswold v. Connecticut, 381 U.S. 479 (1965). https://www.law.cornell.edu/supremecourt/text/381/479 Hall, E.L. (Ed.). (2005). The Oxford Companion to the Supreme Court of the United States (2nd ed.). Oxford University Press. Locke, J. (2008). Concerning the true original extent and end of civil government. In R. Hay (Ed.), The Works of John Locke: In 10 volumes (Vol. V). Cosimo Classics. Macaulay, S. (2005). The new versus od legal realism: “Things ain’t what they used to be.” Wisconsin Law Review 2005(2), 365-403. From https://media.law.wisc.edu/s/c_8/tg2md/new_versus.pdf Sevel, M. & Leiter, B. (2010). Legal Positivism. Oxford Bibliographies. https://doi.org/10.1093/OBO/9780195396577-0065 van der Sloot, B. (2017). Privacy as secondary rule, or the intrinsic limits of legal orders in the age of Big Data. In M. Dehmer and F. Emmert-Streib (Eds.), Frontiers in Data Science. CRC Press. https://bartvandersloot.com/onewebmedia/Privacy%20as%20secondary%20rule.pdf Unger, R.M. (1983, Jan.). The Critical Legal Studies Movement. Harvard Law Review 96(3), 561-675. https://www.jstor.org/stable/1341032 Waldron, J. (1999) Law and Disagreement. Oxford University Press.
Culture and Politics
Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively
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.
Resources
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/
Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)?
Rhoda Howard and Jack Donnelly (1986) put forth 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/40971449
Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)?
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.
Resources
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
Does public polling reveal insights about the right as experienced in different countries?
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).
Resources
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/
Conflicts with other Rights
Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?
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.
Resources
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
Are there other specific rights that are critical to the exercise of this right? Can you identify specific examples of this?
“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.
Resources
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). Grenda 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
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?
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).
Resources
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
What specific examples of hierarchies, manifestos, constitutions, or prioritized descriptions of rights cite this right’s high status? Low status? No status at all?
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).
Resources
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
How does federalism change, if at all, the exercise or application of this right? What examples of this can one point to?
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).
Resources
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
Limitations / Restrictions
What are the typical exceptions or limitations placed on this right?
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.).
Resources
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 American jurisprudence, what permissible exceptions exist?
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).
Resources
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
Under international human rights laws, what permissible exceptions (often called derogations) exist?
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.
Resources
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?
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).
Resources
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%2818901215%294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C
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, n.d.; 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).
Resources
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. (n.d.). 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
Is this right often perceived as threatening to government authorities?
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.
Resources
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?
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).
Resources
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?
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; United States v. Jacobsen, n.d.). 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; United States v. Jacobsen, n.d.; 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 (United States v. Jacobsen, n.d.). 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).
Resources
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. (n.d.). Oyez. Retrieved October 13, 2021, from https://www.oyez.org/cases/1983/82-1167 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%2818901215%294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C
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?
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).
Resources
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/