Right/Privacy Rights/History

Privacy Rights

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

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Most sources say that the first mention of this right is "The Right to Privacy" written by Samuel Warren and Louis Brandeis and published in the Harvard Law Review in 1890. Both were Boston attorneys and Brandeis would go on to serve as a United States Supreme Court Justice for 23 years (Louis Brandeis, n.d.). In this essay, they note that the legal scope of rights broadens over time and posit that the right to life has expanded to “the right to be let alone,” which had become an increasingly difficult feat with new technologies (Warren & Brandeis, 1890, 193, 195). Warren and Brandeis (1890) acknowledge that, at the time, there was little-to-no legal protection of this right. They look at defamation law and determine while it alludes to privacy law, there are limitations to privacy protection from this area of law as it only considers a damaged reputation, not instances in which an individual wishes something remained secret (Warren & Brandeis, 1890, 197; Bycer, 2014). They also looked at copywriting and publishing law, which only applies to one’s own work (Warren & Brandeis, 1890, 199). They determine that the right to privacy can extend beyond these areas of law as the right should be able to wholly prevent the depiction of private life (Warren & Brandeis, 1890, 218). In the last part of this essay, they set out limitations to the right of privacy – privileged information remains under defamation law (to allow for the operation of courts), privacy ceases with consent to publish, gossip is not in the realm of privacy law, and intention and truth do not prevent a breach of such right. However, Warren and Brandeis cite at least two instances that predate The Right to Privacy which discuss the right to privacy. The earliest is the citing of an 1820 statement from Lord Cottenham, who, in agreement with Lord Eldon, felt that were a king’s illnesses recorded by a doctor and published while that king was still alive, a court would not permit its publishing, as he claimed this circumstance would breach the king’s privacy (Warren & Brandeis, 1890, 205; Bycer, 2014). Additionally, they acknowledge that the right to privacy has already been regulated in France since 1868. Section 11 of the 1868 Loi Relative à la Presse (Press Law) says that all periodic writings about a private fact of life are violations punishable by a fine of 500 francs. Pursuit of the violation may only be undertaken by the affected party (Warren & Brandeis, 1890, 214, footnote 1). Beyond what Warren & Brandeis cited as earlier mentions, there was also the 1801 Haitian Constitution which provided the home was inviolable from government invasion in Article 63 (Theodore, 2000).

REFERENCES:

Bycer, M. (2014). Understanding the 1890 Warren and Brandeis “The Right to Privacy” Article. National Juris University. Retrieved Sept. 10, 2021, from https://nationalparalegal.edu/UnderstandingWarrenBrandeis.aspx

Louis Brandeis. (2020, Nov. 9). Britannica. Retrieved Sept. 8, 2021, from https://www.britannica.com/biography/Louis-Brandeis

Theodore, Charmant. (2000). Haitian Constitution of 1801 (English). Louverture Project. http://thelouvertureproject.org/index.php?title=Haitian_Constitution_of_1801_(English)

Warren, S. & Brandeis, L. (1890, Dec. 15). "The right to privacy." Harvard Law Review 4(5), 193-220. http://links.jstor.org/sici?sici=0017-811X%2818901215%294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C

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The right to privacy accentuates the belief that a citizen’s private information should be fundamentally protected from public scrutiny. With the rapid evolution of technology brings the consequence of third party control on personal information, inspiring pivotal debate on a right that is not explicitly mentioned in the constitution: privacy. In 2012 it became evident that due process and regulations on the collection and use of private information have also evolved (Jones, 2009, 1).

Expectations on privacy rights fluctuate depending on situational factors and the circumstance of state and federal governments. Historically, both state and federal laws have the power to ultimately limit individual privacy rights with a justification of creating a “safer public (Jones, 2009, 2). Although not specifically spelled out in the constitution, privacy is oftentimes implied, as it is embedded in the first, third, fourth, fifth, ninth and fourteenth amendments. For example, the first amendment clearly outlines that citizens should have the freedom to hold any type of religious belief and keep those beliefs private. The third amendment then protects the right to privacy of a citizen’s home (Brandeis, 1890). The fourth further expands on privacy in regards to the protection of the home from unreasonable searches and seizures by the government. The fifth legitimizes the right against self-incrimination, justifying the right to private information.

Furthermore, the ninth amendment which states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” has been established by the Supreme Court as a right to privacy in cases such as Griswold v Connecticut (1965) (Garrow, 2001, 57). Lastly, the fourteenth amendment, one of the nation’s most cherished amendments, protects citizens from state laws that may infringe upon personal autonomy. In addition, its due process clause is reflective of the fifth amendment in terms of fundamental rights and procedural protections of life liberty and property (Chapman, 2022). From these amendments, the “right to privacy” is inferred or enumerated similarly to other rights like the First Amendment’s right to assembly or the third amendment's right to be free from quartering soldiers.

Interestingly enough, a legal definition of privacy does not exist and the world itself is perceived differently across international borders. In the United Kingdom Calcutt Committee on privacy suggests its own definition for privacy in Britain being “The right of the individual to be protected against intrusion into his personal life or affairs, or those of his family by direct physical means, or by publication of information” (Jones, 2009, 1). Through another lens, Samuel Warren and Louis Brandeis, in their 1890 The Right to Privacy article, characterized tangible and intangible aspects of privacy. They concluded that the fundamental purpose of their law review was to highlight that “the individual shall have full protection in person and in property,” acknowledging the fluidity of social, economic and political changes (Garrow, 2001, 64). Most specifically the justices discussed “the right to be let alone,” while examining cases of defamation, property and patents. Brandeis characterizes threats to protection of privacy as invasions of the “sacred precincts of private and domestic life” (Brandeis-Warren, 197, 1890). However, both Warren and Brandeis summarized a vague set of limitations of the newly coined right to privacy, emphasizing the importance of general or public interest. For example, the right to privacy cannot prohibit any publication of information that would be advantageous to the public such as a leader's fitness for federal office (Brandeis-Warren, 196, 1890). Some of the most noteworthy and high profile cases acknowledging the need for protection of privacy other than previously mentioned Griswold v Connecticut are Roe v. Wade (1973), and Lawrence v. Texas (2003).

Another major decision further considering a citizen’s right to privacy was held in a 6-3 ruling (Lawrence v Texas) that citizens are protected by the constitution to have sexual privacy, consensual, adult sexual intimacy in the home without government intrusion. Being so, the Texas "homosexual conduct" law was declared uncconsitutional and thereafter same-sex sexual activity became legal in every U.S. state and territory (Jones, 2009, 17). However, prior to 9/11 governmental interference regarding privacy was not as much of a widespread concern. According to Pew Research Center currently, approximately 63% of Americans believe that the government collects data on their daily lives and that they have little control over how these entities use their personal information.

The public continues to express worries regarding their digital privacy. These concerns first stemmed from legislation during the “War on Terror”, that impacted all sectors of life. The New York City Police Department along with Departments in other majorly populated cities vouched to install surveillance cameras on the streets to halt both terrorism and street crimes (Jones, 2009, 18). The NYCPD alone installed approximately 500 surveillance cameras in the Brooklyn Borough. Terrorism became an issue of national security fully executed by the federal government. Therefore, now rather than state governments and local leaders’ influence of privacy rights, Washington launched strict prevention programs and legislation like the Total Information Awareness project (TIA), The Patriot Act and the Terrorist Information and Prevention Systems (TIPS) (Pozen, 2016, 236). The collection of average citizens data like phone numbers, credit card transactions, online activity financial records and medical records would be categorized analytically to measure linkage that individual could have with terrorism. In addition the TIA was also given the ability by law to gather information on its own including consumer data. However in 2003 over concerns about civil rights, this initiative was stopped until proven that it is needed. However, the most controversial legislation, championed in 2002 by Attorney General John Ashcrof, was the Patriot act. Its notable provisions being: enhanced sentences for terrorist related crimes, elimination of the statute of limitation for certain terrorist crimes, ability of law enforcement to obtain a warrant anywhere a terror related incident occurs (Pozen, 2016, 237). Many critics such as Belgian sociologist Jean-Claude Paye (2006) claim that the patriot act has infiltrated emergency initiatives permanently into the U.S federal law, giving the executive branch an overwhelming amount of power over private rights (Jones, 2009, 19). For example, under the Patriot Act's article 215 and 216 the government has the ability to conduct mass surveillance of Americans' telephone records while also allowing federal judges to issue warrants in order to acquire any exchange of electronic connection data. Is there a way to prevent terrorism but protect civil liberty and privacy rights at the same time? If citizens were more informed of their privacy rights, a solution to this highly debated discrepancy would be more attainable. There is an obvious lack of understanding when it comes to privacy laws among the average American citizen, as 78% of them stated they understand very little or nothing at all about the regulations surrounding their data privacy (Auxier, 2019). Overall, as we as citizens become more engulfed by a data driven environment, “the right to privacy” will continue evolving as a core issue of debate in Washington. George Orwell, in his “cautionary commentary” 1984, carefully warns his readers of their dwindling rights: “ They could spy upon you night and day, but if you kept your head, you could still outwit them. With all their cleverness, they had never mastered the secret of finding out what another human being was thinking.”

Sources:

Chapman, Nathan, S, Yoshino, Kenji, “The Fourteenth Amendment Due Process Clause.” Interpretation: The Fourteenth Amendment Due Process Clause - The National Constitution Center (2022) Accessed June 13, 2022. https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/701.

GARROW, DAVID J. “Privacy and the American Constitution.” Social Research 68, no. 1 (2001): 55–82. http://www.jstor.org/stable/40971438.

Head, Tom. “Does the Government Guarantee a Right to Privacy?” ThoughtCo. ThoughtCo, October 28, 2019. Last modified October 28, 2019. Accessed June 13, 2022. https://www.thoughtco.com/right-to-privacy-history-721174.

Jones, Jesse. “The Birth of Big Brother: Privacy Rights in a Post-9/11 World.” West Texas A&M University, 2009. Last modified 2009. Accessed June 13, 2022. https://www.wtamu.edu/webres/File/Academics/College%20of%20Education%20and%20Social%20Scie nces/Department%20of%20Political%20Science%20and%20Criminal%20Justice/PBJ/2009/1n1/1n1_03J ones.pdf.

Pozen, David E. “Privacy-Privacy Tradeoffs.” The University of Chicago Law Review 83, no. 1 (2016): 221–47. http://www.jstor.org/stable/43741598. Samuel Warren and Louis Brandeis, “The Right to Privacy”, 1890

What is the oldest written source in this country that mentions this right?

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Afghanistan 🖉 edit

The 1964 Afghan Constitution protected only the right to privacy in the home in Article 28 (“Afghanistan 1964 Constitution”). Today, Article 38 offers similar protections and Article 37 protects communications (Constitute Project, “Afghanistan 2004 Constitution”).

References:

1964 Afghanistan Constitution: https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1005&context=afghanenglish

2004 Afghanistan Constitution: https://www.constituteproject.org/constitution/Afghanistan_2004?%20lang=en

Albania 🖉 edit

In the 1928 Fundamental Statute of the Kingdom of Albania, Article 196 guaranteed the privacy of the home, and Article 201 addressed privacy of correspondence: "The secrecy of correspondence, telegraph and telephone messages is inviolable, except in case of war mobilisation, revolution and the investigation of serious crimes." The 1976 Constitution offered guarantees using similar language, in Articles 57 and 58.

Today, privacy is guaranteed in Articles 35 (data), 36 (correspondence), and 37 (home) of the 1998 constitution (Constitute Project, “Albania 1998 rev. 2016”).

References:

1928 Fundamental Statute of the Kingdom of Albania: https://www.hoelseth.com/royalty/albania/albconst19281201.html

1976: Albania Constitution: https://data.globalcit.eu/NationalDB/docs/ALB%20The%20Constitution%20of%20the%20Peoples%20Socialist%20Republic%20of%20Albania%201976.pdf

1998: Albania Constitution: https://www.constituteproject.org/constitution/Albania_2016?lang=en.

Algeria 🖉 edit

Today, the 2020 constitution protects the inviolability of the domicile in Article 47 and, in Article 46, private life and private communication (Constitute Project, “Algeria 2020” ). Previously, these rights were protected in the 1976 Constitution in Articles 39 and 40 (International Constitutional Law Project, Algeria Constitution”).

References:

2020 Algeria Constitution: https://constituteproject.org/constitution/Algeria_2020

1976 Algeria Constitution: https://www.servat.unibe.ch/icl/ag00000_.html

Andorra 🖉 edit

Articles 14 and 15 of the first and only Andorran constitution protect privacy in the state. Article 14 protects privacy, honor, and reputation, while Article 15 protects the home and communications (Constitute Project, “Andorra 1993” ).

https://constituteproject.org/constitution/Andorra_ 1993? lang=en

Angola 🖉 edit

Article 24 of the 1975 Constitution stated: "The People's Republic of Angola guarantees individual freedoms, namely the inviolability of the home and the privacy of correspondence, subject to the limits expressly provided for by law." Today, privacy rights are protected in Articles 32 (personal and family life), 33 (home), and 34 (correspondence and communication) of the 2010 constitution.

References:

1975 Angola Constitution: “The Constitution of the People’s Republic of Angola.” World Constitutions Illustrated, Heinonline. https://heinonline.org/HOL/P?h=hein.journals/rsl2&i=197

2010 Angola Constitution: https://www.constituteproject.org/constitution/Angola_2010

Antigua and Barbuda 🖉 edit

In the constitution, Article 3, Section C protects the right to privacy in personal and family life, as well as the home.

References:

“Republic of Antigua and Barbuda / República Del Antigua y Barbuda Constitution of 1981 Constituciones De 1981.” Antigua and Barbuda: Constitution, 1981: https://pdba.georgetown.edu/Constitutions/Antigua/antigua-barbuda.html.

Argentina 🖉 edit

Articles 18 & 19 of the 1853 constitution protect privacy. Article 18(2) reads, “The residence is inviolable, as are letters and private papers; and a law shall determine in what cases and for what reasons their search and seizure shall be allowed,” while Article 19 reads, “The private actions of men that in no way offend public order or morality, nor injure a third party, are reserved only to God, and are exempt from the authority of the magistrates” (Constitute Project, “Argentina 1853, reinst. 1983, rev. 1994” ).

References:

https://www.constituteproject.org/constitution/Argentina_1994

Armenia 🖉 edit

The 1995 Armenian constitution protects several elements of the right to privacy in Articles 20-21. Article 20 states: "Everyone is entitled to defend his or her private and family life from unlawful interference and defend his or her honor and reputation from attack. The gathering, maintenance, use and dissemination of illegally obtained information about a person's private and family life are prohibited. Everyone has the right to confidentiality in his or her correspondence, telephone conversations, mail, telegraph and other communications, which may only be restricted by court order." Article 21 concerned privacy in the home: "Everyone is entitled to privacy in his or her own dwelling. It is prohibited to enter a person's dwelling against his or her own will except under cases prescribed by law. A dwelling may be searched only by court order and in accordance with legal procedures." The 2005 amendments to the Constitution of Armenia added language more explicitly focused on state-collected data and information: "Everyone shall have the right to become acquainted with the data concerning him/her available in the state and local self-government bodies. Everyone shall have the right to correction of any non-verified information and elimination of the illegally obtained information about him/her."

Articles 31-34 of the Constitution of Armenia as amended in 2015 offered further details about these rights. Article 34 created more firmly articulated data rights: "1. Everyone shall have the right to protection of data concerning him or her. 2. The processing of personal data shall be carried out in good faith, for the purpose prescribed by law, with the consent of the person concerned or without such consent in case there exists another legitimate ground prescribed by law. 3. Everyone shall have the right to get familiar with the data concerning him or her collected at state and local self-government bodies and the right to request correction of any inaccurate data concerning him or her, as well as elimination of data obtained illegally or no longer having legal grounds. 4. The right to get familiar with personal data may be restricted only by law, for the purpose of state security, economic welfare of the country, preventing or disclosing crimes, protecting public order, health and morals or the basic rights and freedoms of others. 5. Details related to the protection of personal data shall be prescribed by law." Finally, in 2015 the Constitution specified the conditions under which these rights might be restricted by the law, asserting that they "may be restricted only by law, for the purpose of state security, economic welfare of the country, preventing or disclosing crimes, protecting public order, health and morals or the basic rights and freedoms of others."

References:

"Constitution of the Republic of Armenia" (1995): http://www.parliament.am/legislation.php?sel=show&ID=2425&lang=eng

"Constitution of the Republic of Armenia (with the Amendments of 27 November 2005)": http://www.parliament.am/legislation.php?sel=show&ID=1&lang=eng

"Amendments to the Constitution of the Republic of Armenia" (2015): http://www.parliament.am/legislation.php?sel=show&ID=5805&lang=eng

Australia 🖉 edit

Australia ratified the ICCPR in 1980, a treaty that includes privacy rights. According to the Australian Human Rights Commission: "The right to privacy under the ICCPR includes a right to private life (including intimate behaviour between consenting adults), as confirmed for example by the UN Human Rights Committee in Toonen v Australia." Though there is no federal right to privacy, some regions of Australia have extended regional protections, such as the ACT Human Rights Act of 2004.

References:

Australian Human Rights Commission: https://humanrights.gov.au/our-work/rights-and-freedoms/how-are-human-rights-protected-australian-law

ACT Human Rights Commission: https://www.hrc.act.gov.au/humanrights/rights-protected-in-the-act/right-to-privacy-and-reputation

Austria 🖉 edit

According to the Austrian Embassy in Washington, D.C., the ratification of the ECHR by Austria in 1958 gave the treaty constitutional law standing in the state. The ECHR is what protects the right to privacy in Austria.

References:

https://www.austria.org/human-rights-and-the-council-of-europe

Azerbaijan 🖉 edit

Today, Article 32 of the 1995 constitution protects privacy. It is quite detailed but protects personal privacy, family life, personal information, and correspondence. Article 33 extends privacy rights to the residence (Constitute Project, “Azerbaijan 1995 rev. 2016” ).

References:

“Azerbaijan 1995 (rev. 2016).” Constitute. https://www.constituteproject.org/constitution/Azerbaijan_2016

Blaustein, Albert P., and Gisbert H. Flanz. Constitutions of the Countries of the World; a Series of Updated Texts, Constitutional Chronologies and Annotated Bibliographies. "Azerbaijan Republic, Booklet 2, 1996" Permanent ed. Dobbs Ferry, N.Y: Oceana Publications, 1971.

Bahrain 🖉 edit

Articles 25 & 26 of the 1973 Bahrain Constitution protect privacy in the home and all types of communication. Article 25 states: "Places of residence shall be inviolable. They may not be entered or searched without the permission of their occupants except in the circumstances and manner specified by the law." Article 26 states: "Freedom of postal, telegraphic and telephonic communications and the secrecy thereof shall be guaranteed. No communications shall be censored nor the contents thereof revealed except in cases of necessity prescribed by the law and in accordance with the procedures and guarantees stated therein."

References:

“Bahrain Old Constitution (1973).” International Constitutional Law Project: https://www.servat.unibe.ch/icl/ba01000_.html

Bangladesh 🖉 edit

Article 43 of the 1972 Bangladesh Constitution grants the right to privacy in the home and correspondence: "Every citizen shall have the right, subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, public morality or public health- (a) to be secured in his home against entry, search and seizure; and to the privacy of his correspondence and other means of communication."

References:

http://hrlibrary.umn.edu/research/bangladesh-constitution.pdf

Barbados 🖉 edit

Article 11(b) of the 1966 Barbados Constitution grants every person in Barbados privacy of their home. Article 20(1) prevents interference in correspondence, and Article 20.2(b) affirmed the State's authority in enforcing laws "protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence...."

References:

https://pdba.georgetown.edu/Constitutions/Barbados/barbados66.html#ch1

Belarus 🖉 edit

Article 28 of the 1994 Belarus Constitution asserts protection of many elements of private life, including communications and correspondence. Article 29 asserts protection of the status of the home.

References:

1994 Constitution of the Republic of Belarus: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzby0006&id=4&men_tab=srchresults

1994 Constitution of the Republic of Belarus as amended in 1996: https://www.venice.coe.int/webforms/documents/?pdf=CDL(2003)065-e

Belgium 🖉 edit

Article 11 of the 27 October 1830 Draft Constitution of Belgium articulated a defense of the right to privacy in the home, and Article 27 did the same for privacy of correspondence. Articles 10 and 22 of the 1831 Belgium Constitution guaranteed privacy in the home and correspondence, respectively.

References:

English translation of the French text of the draft of the constitution of 27 October 1830 35 (2009): https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzbe0096&id=5&men_tab=srchresults

1831 Constitution of Belgium: https://www.constituteproject.org/constitution/Belgium_1831

Belize 🖉 edit

In its only constitution since its independence, Belize protects privacy rights in Article 3(c). It protects family life, personal privacy, one’s home, and their dignity (Constitute Project, “Belize 1981 rev. 2011” ).

References:

1981 Constitution of Belize: https://pdba.georgetown.edu/Constitutions/Belize/belize81.html

Benin 🖉 edit

Article 2 of the 15 February 1959 Constitution of the Republic of Dahomey guaranteed the privacy of correspondence, telegraphy, and communication over the telephone, conditioned by respect for public order.

The inviolability of the domicile was guaranteed in Article 10 of the 1964 Constitution of the Republic of Dahomey, and the privacy of correspondence was guaranteed in Article 11 of the 1964 Constitution.

The 1990 constitution protects privacy in the home and of correspondence in Articles 20 and 21, respectively.

References:

1959 Constitution of the Republic of Dahomey: "Of the State and of Sovereignty," Republique du Dahomey, Constitution du 15 fevrier 1959 (1959): 57-57: https://heinonline-org.proxygw.wrlc.org/HOL/Page?handle=hein.cow/zzbj0032&id=3&collection=cow&index=#

1964 Constitution of the Republic of Dahomey: English translation of the French original text fo the Constitution of 1964 152 (2011) Title II: The Rights and Duties of the Citizen: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzbj0002&id=2&men_tab=srchresults

1990 Constitution of the Republic of Benin: https://constitutionnet.org/sites/default/files/Benin%20Constitution%20-%20English%20Summary.pdf

Bhutan 🖉 edit

In 2008, a new constitution was passed, which protected privacy rights in Article 19. Article 19 reads: "A person shall not be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence nor to unlawful attacks on the person's honour and reputation.”

References:

Bhutan 2008 Constitution: https://www.constituteproject.org/constitution/Bhutan_2008

Bolivia 🖉 edit

Article 147 of the 1826 Draft Constitution for the Republic of Bolivia protected the inviolability of the home, as did Article 152 of the 6 November 1826 Constitution.

Article 160 of the 1831 Bolivia Constitution protected the privacy of correspondence: "The secrecy of Letters is inviolable; the Employees of the Post Office shall be responsible for the violation of this guarantee, except in such cases as the Laws shall provide." The 1831 Constitution continued to protect the inviolability of the home as well, in Article 152: "Every Bolivian's abode is an inviolable asylum. No forcible entry can be made therein, unless under such circumstances, and in such a manner, as the Law shall determine."

Today, privacy rights are protected in Article 21(3). These protections are general, while Article 25 protects more specific privacy rights in the home and correspondence (Constitute Project, “Bolivia (Plurinational State of) 2009” ).

References:

1826 Draft Constitution for the Republic of Bolivia: English text of the draft Constitution of 1826. 892 (2010) Title XI: Of Guarantees https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzbo0002&id=18&men_tab=srchresults

6 November 1826 Constitution of Bolivia: English translation of the original Constitution of 1826 6 (2010) Title II: Of Religion. https://heinonline.org/HOL/P?h=hein.cow/zzbo0003&i=1

1831 Constitution of Bolivia: English translation of the original text of the Constitution of 1831 836 (2010) Title the Last: Of Guarantees https://heinonline-org.proxygw.wrlc.org/HOL/Page?handle=hein.cow/zzbo0004&id=20&collection=cow&index=

“Bolivia (Plurinational Republic of) 2009.” Constitute. https://www.constituteproject.org/constitution/Bolivia_2009

Bosnia and Herzegovina 🖉 edit

In the aftermath of the annexation of Bosnia and Herzegovina by the Austro-Hungarian Empire, the Imperial Government wrote a constitution for Bosnia and Herzegovina. The relationship between the two political entities was described in Section 1 of the 1910 Constitution of Bosnia and Herzegovina: "Bosnia and the Herzegovina constitute a separate and homogeneous administrative territory, which, in conformity with the Law of the 22nd February, 1880 ... is subject to the responsible administration and control of the Imperial and Royal Joint Ministry." Section 14 of the 1910 Constitution of Bosnia and Herzegovina protected the privacy of the home, and Section 15 protected the privacy of correspondence.

Privacy rights have been protected in Bosnia and Herzegovina since 1995 with their independence from Yugoslavia. The 1995 constitution protects these rights in Article 3(f). These protections include private and family life, home, and correspondence (Constitute Project, “Bosnia and Herzegovina 1995 rev. 2009” ).

References:

1910 Constitution of Bosnia and Herzegovina: British and Foreign State Papers (1912) https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/bfsprs0105&id=549&men_tab=srchresults#

“Bosnia and Herzegovina 1995 (Rev. 2009) Constitution.” Constitute. https://www.constituteproject.org/constitution/Bosnia_Herzegovina_2009?lang=en.

Botswana 🖉 edit

The 1966 constitution of Botswana includes privacy protections of the home in Article 3(c) and Article 9. Article 12, in protecting freedom of expression, also protects correspondence.

References:

1966 Constitution of Botswana: https://botswanalaws.com/consolidated-statutes/constitution-of-botswana

Brazil 🖉 edit

In its first constitution, Brazil guaranteed the inviolability of the home in Article 179.7 and of correspondence in Article 179.27.

Today personal privacy, the home, and correspondence are protected in Article 5(X-XII) (Constitute Project, “Brazil 1988 rev. 2017” ).

References:

1824 Political Constitution of the Empire of Brazil: https://en.wikisource.org/wiki/Constitution_of_the_Empire_of_Brazil

1988 Brazil Constitution: https://constituteproject.org/constitution/Brazil_ 2017? lang=en

Brunei 🖉 edit

Brunei lacks any legislation or constitutional provisions for privacy rights. The 1996 United States Department of State Report on Brunei Human Rights even says that law actively allows for intrusions of privacy.

References:

1996 United States Department of State Report on Brunei Human Rights: https://1997-2001.state.gov/global/human_rights/1996_hrp_report/brunei.html

Bulgaria 🖉 edit

Article 74 of the 1879 Constitution of the Principality of Bulgaria protects the privacy of the home: "No person can be imprisoned, and no house searched, except under the conditions expressed by the laws." Article 77 of the 1879 Constitution protects the privacy of correspondence: "Private letters and telegrams are secret and inviolable. A special law will determine the responsibility of those to whom letters and telegrams are confided." These same rights to privacy with respect to the home and to correspondence were also promised by Articles 85 and 86, respectively, of the 1947 Constitution of the People's Republic of Bulgaria, as well as by Articles 49 and 51 of the 1971 Constitution of the People's Republic of Bulgaria.

The right to privacy, including family life, private life, honor, dignity, and reputation, is protected in Article 32 of the 1991 constitution (Constitute Project, “Bulgaria 1991 rev. 2015”).

References:

1879 Constitution of the Principality of Bulgaria: English translation of the Bulgarian original text of the Constitution of 1879 6 (2014) Chapter XII: The Subjects of the Principality of Bulgaria: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzbg0031&id=7&men_tab=srchresults

1947 Constitution of the People's Republic of Bulgaria: "Chapter VIII: Basic Rights and Obligations of Citizens," Constitution of the People's Republic of Bulgaria : 241-244 https://heinonline-org.proxygw.wrlc.org/HOL/Page?handle=hein.cow/zzbg0007&id=9&collection=cow&index=

1971 Constitution of the People's Republic of Bulgaria: "Chapter III: Basic Rights and Obligations of the Citizens," [Constitution of the People's Republic of Bulgaria] (1971): 14-22 https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzbg0021&id=17&men_tab=srchresults

1991 Constitution of the Republic of Bulgaria: https://constituteproject.org/constitution/Bulgaria_ 2015? lang=en

Burkina Faso 🖉 edit

Article 11 of the 1970 Constitution of Upper Volta proclaimed the inviolability of the home. Section One, Paragraph 4 of the 1977 Constitution of Upper Volta protected the privacy of correspondence.

The 1991 Burkina Faso Constitution protects privacy rights in Article 6. It reads, “The residence, the domicile, private and family life, [and] the secrecy of correspondence of every person, are inviolable. It can only be infringed according to the forms and in the cases specified by the law” (Constitute Project, “Burkina Faso 1991 rev. 2015” ).

References:

1970 Constitution of Upper Volta: "Title II: Fundamental Rights and Duties of Man and the Citizen," Constitution of Upper Volta (1970): 1006-1008 https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzbf0015&id=3&men_tab=srchresults

1977 Constitution of Upper Volta: "Section I: The Liberties," Constitution de la Republique Haute-Volta (1977): 2-3 https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzbf0031&id=3&men_tab=srchresults

https://constituteproject.org/constitution/Burkina_Faso_ 2015? lang=en

Burundi 🖉 edit

In the 1962 Constitution of Burundi, Article 12 provides for privacy of the home: "The domicile shall be inviolable. Search may not take place except in the circumstances and form provided by law." Article 20 concerns the status of privacy of correspondence: "The secrecy of correspondence shall be inviolable. Nevertheless, a law shall institute agents authorized to open suspect letters in the mails."

In the 1998 Burundi Constitution, privacy rights are contained in Article 23 and protect privacy, family, home, and correspondence (Constitution Net, “Constitution of Burundi”). Today, they are contained in Article 28 of the 2018 constitution (Constitute Project, “Burundi 2018” ).

References:

English translation of the Constitution of 1962, "Title II: Barundi and their Rights," Constitution of the Kingdom of Burundi : 20-21: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzbi0002&id=3&men_tab=srchresults

https://constitutionnet.org/sites/default/files/transitional_national_constitution_and_transitional_constitution_act_1998-2001_0.pdf

https://constituteproject.org/constitution/Burundi_ 2018? lang=en

Cambodia 🖉 edit

The 1947 Constitution offered privacy rights with reference to the home and to correspondence. Article 11 of that document held that "The domicile is inviolable. No one may get in except in the cases specified by the Law and according to the forms it prescribes." Article 12 concerned correspondence: "The secrecy of letters is inviolable, temporary derogations being explicitly provided for by the Law when the higher interest of the Nation makes it necessary."

The 1993 constitution contains privacy rights in Article 40: “The rights to privacy of residence, and to the confidentiality of correspondence by mail, telegram, fax, telex and telephone, shall be guaranteed” (Office of the Council of the Ministers of Cambodia, “Constitution of the Kingdom of Cambodia”).

References:

1947 Cambodia Constitution: Advocatetanmoy Law Library. https://advocatetanmoy.com/wp-content/uploads/2022/06/cambodia-constitution-1947.pdf

1993 Cambodia Constitution as revised up to 1999: https://pressocm.gov.kh/en/archives/9539

Cameroon 🖉 edit

Two elements of privacy were asserted in the 1972 Cameroon Constitution. The first concerned the home: "the home is inviolate. No search may be conducted except by virtue of the law". The second concerned correspondence: "the privacy of all correspondence is inviolate. No interference may be allowed except by virtue of decisions emanating from the Judicial power".

References:

1972 Constitution of Cameroon as revised up to 2008: https://www.constituteproject.org/constitution/Cameroon_2008?lang=en

Canada 🖉 edit

According to section E8 of the Constitution Act of 1982, "Everyone has the right to be secure against unreasonable search or seizure."

References:

Constitution Act of 1982: https://laws-lois.justice.gc.ca/pdf/const_e.pdf

Cape Verde 🖉 edit

Article 33 makes violations of privacy inadmissible in court, while Article 38 grants the right to “personal identity, to civil rights, to a name, honor, and reputation, and to personal and family privacy”. Article 41 extends privacy rights to correspondence, and Article 42 extends it to electronic data privacy (Constitute Project, “Cape Verde 1980 rev. 1992” ).

References:

Cape Verde's Constitution of 1980 with Amendments through 1992: https://www.constituteproject.org/constitution/Cape_Verde_1992

Central African Republic 🖉 edit

In 1994, a new constitution was passed in the Central African Republic. Article 13 granted private communications inviolable and Article 14 did the same for the private home . Today, private communication is seen in Article 16 and the home is inviolable in Article 19 (Constitute Project, “Central African Republic 2016” ).

References:

Constitution of the Central African Republic, Adopted on 28 December 1994, promulgated on 14 January 1995: https://g7plus.fd.uc.pt/pdfs/CentralAfricanRepublic.pdf

“Central African Republic 2016 Constitution.” Constitute. Last modified 2016. https://www.constituteproject.org/constitution/Central_African_Republic_2016

Chad 🖉 edit

Article 5 of the 1959 Chad Constitution proclaimed the inviolability of the domicile.

Both the 1996 and 2018 Chad Constitutions protect the right to privacy in Article 17 and the right to privacy in communications in Article 45 and 47, respectively.

References:

1959 Chad Constitution: "Title I: Of the State, of Sovereignty and of the Public Freedoms," Constitution of the Republic of Chad 31 March 1959 (1959): 3-4 https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zztd0003&id=3&men_tab=srchresults

1996 Chad Constitution: French original text of the Constitution of 1996. 4 (2009) Chapter I: Of the Freedoms and of the Fundamental Rights https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zztd0001&id=6&men_tab=srchresults

2018 Chad Constitution: https://constituteproject.org/constitution/Chad_ 2018? lang=en

Chile 🖉 edit

Article 16 of the 1812 Provisional Constitutional Regulation of Chile offered protections relevant to the right to privacy: "The right that the citizens have to the security of their persons, homes and effects and papers, will be respected; and no orders will be made without probable cause, supported by a judicial affirmation [juramento], and without designating with clarity the places or things that will be examined or apprehended." Article 224 of the 1822 Constitution of Chile proclaimed the sanctity of "the inviolability of letters and the freedom of private conversations".

The right to privacy is protected under the current constitution. Article 19.4 protects personal life and data: "Respect and protection of the private life and honor of the individual and his family, and specifically, the protection of his personal data. The treatment and protection of these data will be handled in the manner and conditions set forth by law...." Article 19.5 protects the home and communication: "The inviolability of the home and of all forms or private communication. The home can only be searched and the private communications and documents intercepted, opened or registered in the circumstances and manner prescribed by law...."

References:

1812 Provisional Constitutional Regulation of Chile:"Provisional Constitutional Regulation, 26/27 October 1812," Provisional Constitutional Regulation, 26/27 October 1812 (1812): 1-10: https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzcl0108&id=9&men_tab=srchresults

1822 Constitution of Chile: English translation of the Spanish original text of the Constitution of 1822 27 (2013) Chapter IV: Of the Administration of Justice and of the Individual Guarantees https://heinonline-org.proxygw.wrlc.org/HOL/Page?handle=hein.cow/zzcl0114&id=27&collection=cow&index=

1980 Chile Constitution with revisions up to 2021: https://www.constituteproject.org/constitution/Chile_2021

China 🖉 edit

The 1908 Memorial and Edict on Constitutional Government implied the privacy of the domicile: "Officers and people shall not be disturbed without cause in their possession of property, nor interfered with In their dwellings."

In 1975, the Chinese Constitution protected the right to privacy to the person and the home in Chapter III, Article 28 (Constitution of the People’s Republic of China, 1975, 39). Today, Articles 38-40 protect privacy in China. Article 38 is for personal dignity, 39 for the home, and 40 for correspondence (Constitute Project, “China (People’s Republic of) 1982 rev. 2018” ).

References:

1908 Memorial and Edict on Constitutional Government: English translation of the Edict of 1908 191 (2012) Memorial and Edict on Constitutional Government, August 27, 1908 https://heinonline.org/HOL/Page?collection=cow&handle=hein.cow/zzcn0021&id=3&men_tab=srchresults

1975 Constitution of the People's Republic of China: https://china.usc.edu/sites/default/files/article/attachments/peoples-republic-of-china-constitution-1975.pdf

China (People’s Republic of) 1982 (rev. 2018): https://constituteproject.org/constitution/China_2018

Colombia 🖉 edit

Article 169 of the 1821 Constitution of the Republic of Colombia protected the privacy of the home, and article 170 of that Constitution protected the privacy of correspondence.

The 1991 Colombian constitution is very explicit in its privacy protections in Article 15. Section 1 grants privacy to people and family life, section 2 is for data privacy, section 3 is for correspondence (Constitute Project, “Colombia 1991 rev. 2015” ).

References:

1821 Constitution of the Republic of Colombia: English translation of the Spanish original text of the Constitution of 1821 718 (2009) Title VIII: General Regulations: https://heinonline.org/HOL/Page?handle=hein.cow/zzco0007&id=21&collection=cow&index=#

1991 Colombia Constitution (rev. 2015): https://constituteproject.org/constitution/Colombia_2015

Comoros 🖉 edit

Today, privacy provisions are in Article 26 and Article 27, which grant privacy in the home and correspondence (Constitute Project, “Comoros 2018” ). Before this constitution, similar clauses were in the 1996 constitutional preamble, drawn from the United Nations Universal Declaration of the Rights of Man (Constitution Net, “CONSTITUTION of the FEDERAL ISLAMIC REPUBLIC OF THE COMOROS”).

https://constituteproject.org/constitution/Comoros_ 2018? lang=en http://constitutionnet.org/sites/default/files/Comoros%20Constitution.pdf

Costa Rica 🖉 edit

Today, privacy rights are protected in Articles 23 (the home) and 24 (communications and intimacy) (Constitute Project, “Costa Rica 1949 rev. 2020” ).

https://constituteproject.org/constitution/Costa_Rica_ 2020? lang=en

Croatia 🖉 edit

Article 34 of the 1991 constitution protects the home. Article 35 protects personal and familial life, as well as dignity. Article 36 protects correspondence (Constitute Project, “Croatia 1991 rev. 2013” ).

https://constituteproject.org/constitution/Croatia_ 2013? lang=en

Cuba 🖉 edit

The 2019 constitution protects personal and familial privacy in Article 48, the home in Article 49, and correspondence in Article 50 (Constitute Project, “Cuba 2019” ). Privacy was not in the previous Cuban constitution of 1976 (Constitute Project, “Cuba 1976 rev. 2002” ).

https://constituteproject.org/constitution/Cuba_ 2019? lang=en https://constituteproject.org/constitution/Cuba_ 2002? lang=en

Cyprus 🖉 edit

Article 15 of the 1960 constitution reads: “Every person has the right to respect for his private and family life.” Article 16 expands these protections to the home, as Article 17 expands them to correspondence and communication (Constitute Project, “Cyprus 1960 rev. 2013” ).

https://constituteproject.org/constitution/Cyprus_ 2013? lang=en

Czech Republic 🖉 edit

Article 7(1) of the 1993 constitution guarantees the inviolability of persons and private life. Article 10 protects life from intrusion by others, and it also protects data privacy (Constitute Project, “Czech Republic 1993 rev. 2013” ).

https://constituteproject.org/constitution/Czech_Republic_ 2013? lang=en

Democratic Republic of the Congo 🖉 edit

The personal right to privacy is granted in Article 31 of the 2005 Constitution, while the home is protected under Article 29 (Constitute Project, “Congo (Democratic Republic of the) 2005 rev. 2011” ). Before this, the right to privacy in home and correspondence were granted in the Zaire 1990 constitution (amended from a previous version, though unclear which previous version) in Articles 22 & 23 (World Statesmen, “Complete Text of the Zairian Constitution After the Enactment of Law No. 90-002 of July 5, 1990 Concerning the Modification of Certain Provisions of the Constitution”).

https://constituteproject.org/constitution/Democratic_Republic_of_the_Congo_ 2011? lang=en https://www.worldstatesmen.org/Zaire 1990. pdf

Denmark 🖉 edit

In the 1953 constitution, Article 72 protects the right to privacy in the home, while also preventing the search of private communications. It states that “The dwelling shall be inviolable,” which includes “house searching, seizure, and examination of letters and other papers.” (Constitute Project, “Demark 1953” ) The general form of the constitution derives from the 1849 Danish Constitution (Danish Parliament, “The Constitutional Act of Denmark”).

References:

1849 Constitutional Act of Denmark: https://www.constituteproject.org/constitution/Denmark_1953

1953 Denmark Constitution: https://www.thedanishparliament.dk/en/democracy/the-constitutional-act-of-denmark

Djibouti 🖉 edit

Today, the right to privacy in the home and communications are protected in the 1992 constitution Articles 12 & 13. Personal life is not protected (Constitute Project, “Djibouti 1992 rev. 2010” ).

https://constituteproject.org/constitution/Dominica_ 2014? lang=en

Dominica 🖉 edit

Article 1(c) of the only constitution Dominica has had, written in 1978, protects the right to privacy in the home. Article 7(1) protects privacy during a search (Constitute Project, "Dominica 1978 rev. 2014" ).

https://constituteproject.org/constitution/Dominica_ 2014? lang=en

Dominican Republic 🖉 edit

In the 2015 constitution, Article 44 establishes a right to privacy and personal honor: In respect to right to privacy it reads “all people have the right to privacy. The respect and non-interference into private and family life, the home, and private correspondence are guaranteed.” The constitution has established that the “home and domicile and all private premises of the person are inviolable,” in addition to the recognition that people’s documents should be private: “The inviolability of private correspondence, documents, or messages in physical, digital, electronic, or all other formats is recognized.” The right to personal honor is established by “the right to honor, good name, and one’s own image are recognized. All authorities or individuals who violate them are obligated to compensate or repair them in accordance with the law.”

https://www.constituteproject.org/constitution/Dominican_Republic_2015

East Timor 🖉 edit

The Constitution of East Timor, or Timor-Leste, protects the right to private life, home, and communication during evidence collection in Article 34, privacy in general in Article 36, and privacy in the home and communication in Article 37. The text of Section 36 is noteworthy for the generality of its protection: "Every individual has the right to honour, good name and reputation, protection of his or her public image and privacy of his or her personal and family life."

References:

2002. Constitution of the Democratic Republic of Timor-Leste. http://timor-leste.gov.tl/wp-content/uploads/2010/03/Constitution_RDTL_ENG.pdf.

Ecuador 🖉 edit

Article 65 of the 1830 Constitution protected the inviolability of the home: "The house of a citizen is inviolable -therefore cannot be broken into except in cases and requirements prevented by law."

The 1869 Constitution defended the right of inviolability of the home in similar terms in Article 105, and asserted protection of the privacy of correspondence in Article 107: "Epistolary correspondence is inviolable. Papers or goods belonging to private persons cannot be opened, intercepted, or examined, excepting in the cases specified by the law."

The 1897 Constitution offered a similar defense of privacy of correspondence, but applied the guarantee more broadly: "Epistolary and telegraphic correspondence is inviolable, and may not be made use of in trials for political offences. It is forbidden to intercept, open, or register papers or effects which are private property, except in the cases indicated by law."

Article 11(3) of the 2008 Constitution enforces and protects the rights put forth by the constitution and international treaties: “The rights and guarantees set forth in the Constitution and in international human rights instruments shall be directly and immediately enforced by and before any civil, administrative or judicial servant, either by virtue of their office or at the request of the party”. In Chapter 6, Rights to Freedom, Article 66, Sections 11 and 19-22 set out more specific privacy regulations in terms of convictions, correspondence, the home, personal data, and privacy rights (Constitute Project, “Ecuador 2008 rev. 2021).

References:

1830 Constitution of Ecuador: English translation of the original Constitution of 1830. 15 (2017) Part VIII: Civil Rights and Guarantees https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzec0081&id=15&men_tab=srchresults

1869 Constitution of Ecuador: English translation of the original Constitution of 1869 1244 (2010) Title XI: Of Guarantees https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzec0003&id=16&men_tab=srchresults

1878 Constitution of Ecuador: Spanish text of the constitution of 1878 414 (2017) Section III: Guarantees https://heinonline-org.proxygw.wrlc.org/HOL/Page?collection=cow&handle=hein.cow/zzec0056&id=1&men_tab=srchresults

2021. “Ecuador 2008 (Rev. 2021) Constitution.” 2021. ConstitutionNet. https://www.constituteproject.org/constitution/Ecuador_2021?lang=en.

Egypt 🖉 edit

The 1923 constitution of Egypt protects personal freedom in Article 4, privacy in the home in Article 8, and correspondence in Article 11 (Constitution Net, “Royal Decree No. 42 of 1923 On Building a Constitutional System for the Egyptian State”). Today, these rights are protected in Articles 57 & 58 (Constitute Project, “Egypt 2014 rev. 2019” ).

References:

“Royal Decree No. 42 of 1923” 1923: https://constitutionnet.org/sites/default/files/1923_-_egyptian_constitution_english_1.pdf

https://www.constituteproject.org/constitution/Egypt_2019?lang=en ... further results

Is the identification of this right associated with a particular era in history, political regime, or political leader?

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{{{Question heading}}} 🖉 edit

TThe right to privacy has diverged in many ways since its most notable first mention in The Right to Privacy by Samuel Warren and Louis Brandeis. What started in 1890 as the idea of protection against gossip about oneself and the ability to enjoy life uninterrupted has evolved into various international and national conventions and laws. The right to privacy was first enshrined at a supranational level before it was established in individual states (Krishnamurthy, 2020, 26). The right’s first appearance in legal documentation was in the United Nation’s (UN) 1948 Universal Declaration on Human Rights (UDHR). Article 12 of the UDHR (1948) states “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” The UHDR is not a treaty, so the right was not yet entrenched and more of a suggestion for states to incorporate into their laws and practices. Two years later, the Council of Europe passed the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) which has similar tones in Article 8, though with an exception for national security in Article 8 (2) but is legally binding (1950). Article 8 of the ECHR specifically protects one’s family life, personal life, correspondence, and home (Roagna, 2021, 9). Worldwide, the right to privacy became codified in 1966 with the passage of the UN’s International Covenant on Civil and Political Rights (ICCPR), in which Article 17 has almost identical language to the UDHR’s Article 12. In subsequent UN treaties, this right to privacy was explicitly granted to children and migrants as well (Convention on the Rights of the Child, 1989, Art. 16; International Covenant on the Protection of All Migrant Workers and Members of Their Families, 1990, Art. 14). Complying with the ICCPR: In the United States, the right to privacy was not originally codified but established through a variety of Supreme Court cases beginning in the 1960s (Privacy, n.d.). In 1965, the Court ruled on Griswold v. Connecticut. The majority opinion written by Justice Douglas claims that the express personal freedoms named in the First, Third, Fourth, Fifth, and Ninth Amendments create an implied “zone of privacy” (Privacy, n.d.). Justice Harlan’s concurring opinion, referenced in later Supreme Court privacy cases, claims privacy zones derive from the Fourteenth Amendment (Privacy, n.d.). Later, legislation was passed regulating specific sectors, beginning in 1974 with the Family Educations Rights and Privacy Act (FERPA), which protects student data, and the Privacy Act which regulates the use of data by federal agencies (History of privacy timeline, 2021). The European Court of Human Rights has refined the implementation of ECHR Article 8 through case law (Roagna, 2021, 7). In deciding these cases, the Court must decide if the complaint is related to Article 8 and, if so, if the right has been interfered with outside of the exceptions laid out in Article 8 (2) (Roagna, 2021, 11). For this reason, there is no clear-cut definition as to which national laws may conflict with Article 8 (Roagna, 2021, 12). The Court has provided protections for ‘quasi-familial’ relationships, relationships that may develop later (i.e., one has the right to adopt), the development of personality, photographs, and data collection, ruling these areas are part of private and/or family life (Roagna, 2021, 10-19). The Court has also provided lengthy protections to family life with a broad definition of family which evolves with European customs (Roagna, 2021, 27). The protection of a home has also been interpreted broadly, requiring continuous ties to a location, mostly due to the French translation of “home” to “domicile” (Roagna, 2021, 30-31). The Court rules for high protection of means of communication as it can be easily breached (Roagna, 2021, 32). This protection includes information gathered from monitored internet use and remains in places no matter the content of the message (Roagna, 2021, 32). The Digital Era: Since these international conventions have become effective and enforceable, there has been a lot of technological change and little change in these agreements (Human right to privacy, n.d.). The UN Human Rights Committee (UNHRC) noted in General Comment 16, adopted regarding ICCPR’s Article 17 in 1988, that the legislation in many states was not enough to ensure the “protection against both unlawful and arbitrary interference,” and that data collection “must be regulated by law” (Krishnamurthy, 2020, 27; UN Human Rights Committee, 1994, para. 2 & 10). In essence, this comment was requesting states enact more protective privacy law legislation, and, specifically, data regulation law, as the right to privacy evolved to be dominated by electronic data (Krishnamurthy, 2020, 27). There have been two approaches to this call for better data privacy regulation: general regulation and regulation by sector. The European Union has taken the general regulation approach with the passage of the 1995 European Data Protection Directive and the 2016 General Data Protection Regulation (GDPR). The GDPR affects people and companies worldwide, requiring that data collected is truly needed, accurate, processed safely, and that all of this is done in a clear, legal, and transparent way (Krishnamurthy, 2020; Wolford, n.d.). The United States has chosen to regulate privacy data by sector, beginning with FERPA in 1974 (Krishnamurthy, 2020, 29; History of privacy timeline, 2021). This approach has led to some strict laws preventing unauthorized access to personal information in some areas regulated by specific legislation (Krishnamurthy, 2020, 29). In areas without specific legislation, however, Americans take great liberties while collecting data (Krishnamurthy, 2020, 29). Put in combination with the lacking legislation preventing interference or data attacks, some question how compliant the United States is with Article 17 of the ICCPR (Krishnamurthy, 2020, 29). However, as of 2020, 29% of states are still drafting or have yet to draft such legislation (UN Committee on Trade and Development). Privacy in Former Sovereign States It is worth noting that some states have always had some privacy rights since they gained independence because their previous constitution and laws contained such provisions. This is the case with states that were formerly in the Soviet Union. The 1977 Constitution (Fundamental Law) of the Union of Soviet Socialist Republics, which was then implemented in nearly identical form in the various republics as their own constitution, protected “the privacy of citizens, and of their correspondence, telephone conversations, and telegraphic communications” in Article 56 (USSR, 1982, 35). Additionally, Czechoslovakia protected privacy rights of the person, home, and correspondence in Article 30 & 31 in the 1960 constitution (Czechoslovakia, 1964, 233).

REFERENCES:

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/

{{{Question heading}}} 🖉 edit

Privacy, conceptualized as a named legal right, has been fairly new. As stated by Negley, “Few philosophers would argue that privacy is a "natural" right or that the intrinsic nature of privacy establishes it as a legal right” (319). Rather, identification of privacy as a right and not just a value has resulted from various violations of the right throughout modern history. In a United States context, the right to privacy is often associated with the Supreme Court case, Griswold v. Connecticut in 1965, in which the Court overruled a Connecticut law banning contraceptives for married couples by using “the personal protections expressly stated in the First, Third, Fourth, Fifth, and Ninth Amendments to find that there is an implied right to privacy in the Constitution” (“Privacy”). Griswold expanded and highlighted legal and political discourse around privacy as a specific right protected by the US Constitution. The Third and Fourth Amendments, which deal with quartering soldiers in citizens’ houses and unlawful searches and seizures of citizen property, came about because colonists felt violated by the British government’s actions to maintain control of the colonies in the years leading up to the Revolutionary War: “The 1774 [Quartering] Act expanded British officers’ ability to refuse unsuitable housing and seize ‘uninhabited houses, out-houses, barns, or other buildings’ for purposes of quartering soldiers,” (“Historical Background”). Additionally, “the colonists, still under the thumb of the British king, were subject to arbitrary and invasive searches under the “Writs of Assistance,” which allowed British troops and government officials to search homes and private property looking for goods that were imported illegally or on which a tax had not been paid,” (Burling, 2021). This context contributed to early codification of rights related to privacy in the United States.

In 1890, Boston lawyers Samuel Warren and Louis Brandeis wrote an article for the Harvard Law Review entitled, “The Right to Privacy.” The article is often cited by scholars as the invention of the concept of the “right to privacy” in American law (Glancy, 1979). Glancy places the article within the context of “the post-Civil War decades [that] had brought to Boston and the rest of the United States ‘countless, little-noticed revolutions’ in the form of a variety of inventions which made the personal lives and personalities of individuals increasingly accessible to large numbers” (Glancy, 1979, 7). Technological advancement correlating with an increase in discourse about the right to privacy in this era can be mirrored with modern concerns over privacy and technology.

Concerns over government surveillance efforts in the late 20th and early 21st centuries further brought the right to privacy into the spotlight of American politics:

“During the Cold War, the federal government was involved in various programs that spied on the American public’s telephone calls, radio signals, and mail. In programs such as the FBI’s COINTELPRO and the CIA’s Operation CHAOS, not only were individuals considered to be ‘threats to national security’ targeted, but also unrelated citizens who got caught up in the searches. The 9/11 terrorist attacks and the subsequent War on Terror led to another wave of mass surveillance, extending to citizens and their luggage on airplanes, automated drones, and the burgeoning field of global Internet communications” (“Constitutional Amendments”).

These efforts resulted in much discourse about the right to privacy, with supporters claiming that the surveillance was justified under the protection of national security, and opponents arguing that the widespread and invasive nature of the programs was not necessary and therefore a major violation of the right to privacy (“Constitutional Amendments”).

Additional events that contributed to privacy being considered as a fundamental right were the Snowden and Cambridge Analytica scandals, which also brought the right to privacy to light in an international context. Though the right to privacy is enshrined in Article 12 of the United Nations Universal Declaration of Human Rights, according to Humble “the right to privacy has historically not been at the forefront of discussions within the international community and the United Nations. This position changed after the Edward Snowden and Cambridge Analytica revelations.” In 2013, Edward Snowden leaked information on the National Security Agency’s information-gathering programs, revealing “how vulnerable our everyday digital communications are to government surveillance, and how much governments want to collect our information, no matter how trivial or unrelated it may be to any tangible national security threat” (PoKemper, 2014). Additionally, the Snowden scandal changed “the vocabulary through which [the right to privacy] was articulated. At the UN, states are supposed to employ a universal vocabulary, enabling therefore claims for the recognition of privacy as a human right. The enactment of a universal vocabulary destabilizes the core of mass surveillance practices,” (Bauman et al., 2014, 128-129). The Cambridge Analytica scandal, which revealed how users’ personal data on the Facebook social media platform was being collected and used, similarly shed light on issues relating to data privacy rights around the world. The scandal also highlighted users’ opinions about their right to privacy. In a study of young adults in Israel who chose to continue their use of Facebook after the scandal, “in-depth interviews suggest that users perceive privacy not as an integral component of one’s civil rights but as a negotiable commodity traded according to societal norms,” and that “it is the users’ responsibility to manage their privacy, as it is Facebook and other social media companies’ right to profit from activities on their platforms” (Afriat et al., 2021, 116). These individuals viewed privacy not as a fundamental right but rather as a commodity. As technology around the world advances, discourse about the right to privacy as a fundamental right will likely become more present.

References:

Afriat, Hagar, Shira Dvir-Gvirsman, Keren Tsuriel, Lidor Ivan. 2021. “‘This is capitalism. It is not illegal’: Users’ attitudes toward institutional privacy following the Cambridge Analytica scandal.” The Information Society, 37 no. 2 115-127. https://doi.org/10.1080/01972243.2020.1870596

Bauman, Zygmunt, Didier Bigo, Paulo Esteves, Elspeth Guild, Vivienne Jabri, David Lyon, RBJ Walker. 2014. “After Snowden: Rethinking the Impact of Surveillance.” International Political Sociology, 8 no. 2 121-144. https://doi.org/10.1111/ips.12048

Burling, James. 2021. “The 4th Amendment to the Constitution: A Primer.” Pacific Legal Foundation. https://pacificlegal.org/fourth-amendment-primer/?psafe_param=1&gad_source=1&gclid=CjwKCAjw5Ky1BhAgEiwA5jGujndXaC_UxPEgAFNOTC857KpBtWo4qgdidNIMhpLa7QjXW-hiOzn5xhoCvT0QAvD_BwE

“Constitutional Amendments - Amendment 4 - ‘The Right to Privacy.’” Ronald Reagan Presidential Library and Museum. The National Archives. Accessed August 1, 2024. https://www.reaganlibrary.gov/constitutional-amendments-amendment-4-right-privacy

Glancy, Dorothy. 1979. “The Invention of the Right to Privacy.” Arizona Law Review, 21 no. 1. https://law.scu.edu/wp-content/uploads/Privacy.pdf

“Historical Background of the Third Amendment.” Cornell Law School, Legal Information Institute. https://www.law.cornell.edu/constitution-conan/amendment-3/historical-background-of-the-third-amendment

Humble, Kristian. 2021. “International Law, Surveillance, and the Right to Privacy.” The Right to Privacy Revisited. Routledge Imprint. https://www.taylorfrancis.com/chapters/edit/10.4324/9781003252191-2/international-law-surveillance-protection-privacy-kristian-humble

Negley, Glenn. “Philosophical Views on the Value of Privacy.” Duke Law. Accessed August 1, 2024. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3111&context=lcp

PoKemper, Dinah. 2014. “Dispatches: How Snowden Changed the World.” Human Rights Watch. https://www.hrw.org/news/2014/06/05/dispatches-how-snowden-changed-world?gad_source=1&gclid=CjwKCAjw5Ky1BhAgEiwA5jGujvY_OUa9teDuEfKpXAEkeAFI7h7HVZPk-sobJksUty5h4NiQVLrOXxoCA1sQAvD_BwE

“Privacy.” Cornell Law School, Legal Information Institute. Accessed August 1, 2024. https://www.law.cornell.edu/wex/privacy

United Nations General Assembly. 1948. “Universal Declaration of Human Rights.” Accessed August 2, 2024. https://www.un.org/en/about-us/universal-declaration-of-human-rights

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The recognition of privacy rights as fundamental and legally-protectable can be traced back to seminal writings, key legal cases, and the growing awareness of the impact of technological advancements on personal privacy. The conceptualization of privacy has been widely debated and has undergone significant evolution over the past century. While deeply rooted in historical principles of ancient and common law, the concept of privacy has been continually redefined to address the challenges posed by technology and changing social landscapes. It has often been associated with personal freedom and dignity.

Earlier protections afforded to the inviolability of the home and correspondence made the privacy of property acceptable. These rights, enshrined in many constitutions during the 1800s, laid the groundwork for the modern concept of privacy. For example, the seminal 1789 “Declaration of the Rights of Man” stated, “Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified” (Declaration of the Rights of Man 1789). The inviolability of the home protected individuals from unwarranted intrusions by the state, recognizing a private sphere free from governmental interference. Similarly, the protection of correspondence remained confidential, safeguarding the privacy of individual expression.

Samuel Warren and Louis Brandeis’s 1890 article “The Right to Privacy” served as a catalyst in the movement to legally recognize privacy rights. They argued for the necessity of recognizing privacy as a distinct legal right, separate from existing protections of person and property under existing law. Additionally, the conceptualization of privacy was needed to respond to the modern era: “This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition” (Brandeis & Warren 1890, 193). Furthermore, they highlighted the inadequacies of existing legal frameworks to address the non-physical aspects of privacy, emphasizing the need for the evolution of the law in response to changing social and technological landscapes. In particular, the right “to be let alone” is a fundamental aspect of privacy to Warren and Brandeis in the modernizing world (Warren & Brandeis 1890, 194).

Despite Warren and Brandeis’s popular arguments, early 20th-century legal developments were slow to incorporate a broad conception of privacy rights. A notable example is the 1928 Supreme Court case Olmstead v. United States, where the Court held that wiretapping a person’s home telephone did not violate the Fourth Amendment because it did not involve a physical trespass (Solove 2008, 1101). However, legal decisions began to shift in the mid-20th century, starting with the 1965 Griswold v. Connecticut case. The Court ruled that a right to privacy could be inferred from several amendments in the Bill of Rights, thereby preventing states from making the use of contraception by married couples illegal (Griswold v. Connecticut 1985). This established privacy as a constitutionally protected right and laid the groundwork for subsequent decisions that expanded privacy protections.

Correspondingly, further landmark cases and bills recognized privacy rights. Katz v. United States in 1967 overruled the Olmstead decision; the Privacy Act of 1974, created in response to the Watergate scandal, aimed to regulation the collection and use of personal information by federal agencies; the Right to Financial Privacy Act of 1978 was passed by Congress in response to a court case that held that individuals had not property interest in their bank records (Solove 2008, 1146; Regan 1995, 366).

Internationally, many institutions influenced the development of privacy rights. Early on, Europe enacted several pieces of legislation to protect privacy. Article 8 of the 1950 European Convention on Human Rights explicitly recognized the right to respect for private and family life, home, and correspondence (Bygrave 2014, 12). This right has been one of the most frequently contested in case law and has influenced the development of privacy laws in Europe and across the globe. In fact, the United Nations Human Rights Committee stated, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence, nor to unlawful attacks upon his honour and reputation” in Article 17 of the International Covenant on Civil and Political Rights (Bygrave 2014, 57).

In the 21st-century, significant advancements in digital technology make the protection of privacy rights challenging. The explosion of digitized information and the rise of new media forms raise complex questions regarding the adequacy of existing privacy laws. William Prosser’s influential work on privacy tort law, while providing a foundational framework, has been criticized for its limitations in addressing contemporary privacy issues (Richards & Solove 2010, 1187). In response, David Lyon and William Staples have discussed the implications of surveillance for privacy in modern society, highlighting the need for pinging vigilance and adaptation of privacy protections in response to evolving technological and social landscapes (Lyon 2001, 222).

Overall, the recognition of privacy rights as fundamental and legally-protectable has been a dynamic and evolving process. From the early arguments of Warren and Brandeis to the landmark Supreme Court cases and legislative action, the concept of privacy has continually adapted to new challenges and contexts. These actions were all in response to the changing nature of privacy threats and to ensure legal protections could continue to evolve to these new challenges.

References Bygrave, L. A. (2014). "Data Privacy Law: An International Perspective." Oxford University Press. https://doi.org/10.1093/acprof:oso/9780199675555.001.0001. Declaration of the Rights of Man (1789). https://avalon.law.yale.edu/18th_century/rightsof.asp. Griswold v. Connecticut, 381 U.S. 479 (1965). https://supreme.justia.com/cases/federal/us/381/479/. Penfold, R. (2002). [Review of Surveillance Society: Monitoring Everyday Life; Everyday Surveillance: Vigilance and Visibility in Post Modern Life, by D. Lyon & W. Staples]. The British Journal of Criminology, 42(1), 222–224. http://www.jstor.org/stable/23638774 Regan, P. M. (1995). "Legislating Privacy: Technology, Social Values, and Public Policy." University of North Carolina Press. Richards, N. M., & Solove, D. J. (2010). "Prosser’s Privacy Law: A Mixed Legacy." California Law Review, 98(6), 1887-1924. https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2104&context=faculty_publications. Solove, D. J. (2008). "Understanding Privacy." Harvard University Press. https://doi.org/10.2307/3481326. Warren, S.D., & Brandeis, L.D. (1890). “The Right to Privacy.” Harvard Law Review, 4(5), 193-220. https://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html.