Source/Privacy Rights

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).

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 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

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 (Constitute Project, “Israel 1953 rev. 2013”). In this law, Article 7 protects privacy, intimacy, private premises, and confidential communications.

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 of 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.

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” (Constitute Project, “Jordan 1952 rev. 2016”). Article 18 protects communications and Article 10 protects the home.

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 1992, 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 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 in general. The constitution is lacking privacy rights protections.

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 (Constitute Project, “Malta 1964 rev. 2016”). Article 38 protects the home.

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”

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.

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” (Hardt & Kiiver). Article 13 protects private correspondence and

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 (Constitute Project, “Panama 1972 rev.2004”). Article 26 grants the home inviolable, though there is no blanket protection of privacy rights in the 1972 constitution.

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” (Constitute Project, “Paraguay 1992 rev. 2011”). Article 34 inviolably protects the home.

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” (Constitute Project, “Poland 1997 rev. 2009”). Article 49 and 50 extend these protections to communications and the home.

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” (Constitute Project, “Portugal 1976 rev. 2005). Article 65 grants privacy in the home.

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” (Constitute Project, Rwanda 2003 rev. 2015). 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 o 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 (Constitute Project, “Korea (Republic of) 1948 rev. 1987”). Neither the privacy of a citizen or communication may be infringed.

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 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.

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 199: 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). The ECHR was the first agreement at any level to express the right to privacy. 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/

Legal Codification

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/

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). 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/

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 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