Property:Contents
Jump to navigation
Jump to search
P
The [[Probable year:: 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 [[Probable year:: 1992]] with Amendments through [[Probable year:: 2013]]” ).
https://www.constituteproject.org/constitution/Socialist_Republic_of_Vietnam_[[Probable year:: 2013]]. pdf?lang=en
https://constitutionnet.org/country/constitutional-history-vietnam +
There are no explicit protections of privacy in Yemen, though Article 20 does not allow for private confiscation without legal judgment (Constitute Project, “Yemen [[Probable year:: 1991]]: Rev. [[Probable year:: 2015]]” ).
https://www.constituteproject.org/constitution/Yemen_[[Probable year:: 2015]]? lang=en
https://giswatch.org/en/country-report/communications-surveillance/yemen +
Privacy was protected in the first constitution of Zambia in [[Probable year:: 1964]] in Chapter 3, Articles 13(c) and 19 (World Statesmen, “Laws of Zambia: The Constitution”).
Today, Article 11(d) and 17 of the [[Probable year:: 1991]] Zambian Constitution protect the right to privacy (Constitute Project, “Zambia’s Constitution of [[Probable year:: 1991]] with Amendments Through [[Probable year:: 2016]]” ).
https://www.worldstatesmen.org/Constitution-Zambia[[Probable year:: 1964]]. pdf
https://constituteproject.org/constitution/Zambia_[[Probable year:: 2016]]. pdf?lang=en +
The [[Probable year:: 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 [[Probable year:: 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/[[Probable year:: 2016]]/ 04/zimbabwe_upr[[Probable year:: 2016]]. pdf +
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/
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
Although there are various regional and international human rights treaties protecting the right to privacy, the International Covenant on Civil and Political Rights (ICCPR), as well as the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR) are often regarded as the most fundamental and widely respected. Article 17 of the ICCPR states that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence” and Article 19 continues:
(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
(3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others, and (b) For the protection of national security or of public order, or of public health or morals.
In his paper “The Privacy Principle,” Frederic Gilles Sourgens claims that ““these two provisions make up the backbone of the human right to privacy” (351), where protection applies to any intrusion of personal information, including thoughts opinions, religious beliefs, health, relationships, and sexual encounters (Sourgens, “Privacy Principle,” 351). The ICCPR supports that the state must inform persons of reason of intrusion in non public spaces, as well as the nature of the information collected, but may intrude “to the extent proportionate with specific threats” (Sourgens, “Privacy Principle,”353). The ICCPR “explicitly distinguishes between the obligations to respect and to ensure human rights, while the ECHR speaks…only of the obligation to secure in the actual text” (Milanovic “Privacy in the Digital Age,” 102). Additionally, Article 2(1) of the ICCPR claims that states are responsible for “all individuals within its territory and subject to its jurisdiction” (Milanovic “Privacy in the Digital Age,” 101).
Although there are frameworks within the treaties that support the protection of privacy, there are many limitations to the legislation itself. The primary flaw is that the interpretation of ‘jurisdiction’ and ‘territory’ are contested by states (Milanovic “Privacy in the Digital Age,”101). The common conception is that human rights instruments are purely territorial, however, intelligence programs often operate outside the territory of signatory states (Sourgens, “Privacy Principle,” 353). The International Court of Justice (ICJ) has ruled that “States parties to the Covenant should be bound to comply with its provisions”, (Sourgens, “Privacy Principle,”353) with regional treaties such as the ECHR and American Convention on Human Rights (ACHR) respecting this claim (354). However, many states reject this extraterritorial application of privacy protection, arguing that treaty rights only apply within the sovereign territory of signatory states (Sourgens, “Privacy Principle,” 356). Historically, the US and other states had not expressed a clear view on the territorial scope of ICCPR (Milanovic “Privacy in the Digital Age,” 103), with the US eventually stating that there is a default presumption against extraterritorial application of the treaties in 1995 (Milanovic “Privacy in the Digital Age,”105). Additionally, countries such as China are not a party to the ICCPR or other treaties with privacy protections, and do not have domestic laws to restrict government surveillance powers (Sourgens, “Privacy Principle,” 358). Russia has also attempted to counteract rulings of the European Court using domestic legislation, and France similarly minimized its basic privacy protections after the 2015 mass shootings in Paris (Sourgens, “Privacy Principle,” 358).
The COVID-19 pandemic has also placed national surveillance at the forefront, as governments and research institutions use location data to keep track of cases (Zwitter and Gstrein, “Big Data,” 2). Location data is collected through phone network, wifi connections, and satellite based radio navigation (GPS) (Zwitter and Gstrein, “Big Data,” 2). Article 15 of the ECHR was updated in December 2019 to allow states to derogate in situations of:
(1) war or other public emergency threatening the life of the nation,
(2) taking measures which are strictly required by the exigencies of the situation, and
(3) provided that measures are not inconsistent with other obligations under international law (Zwitter and Gstrein, “Big Data,” 3).
Data protection and privacy are included in those rights that are subject to derogation during times of crises (Zwitter and Gstrein, “Big Data,”3). Data ownership, such as location tracking, is a matter of contract law and is often included in the terms of use, leaving the legality of the practice to individual consent (Zwitter and Gstrein, “Big Data,” 3). The conclusion that Zwitter and Gstrein come to is that there is a “lack of dedicated legal frameworks to address the use of data in times of political crisis” (Zwitter and Gstrein, “Big Data,”4), therefore allowing for the infringement of privacy rights despite the existence of international and regional treaties.
REFERENCES:
Sourgens, Frederic Gilles. “The Privacy Principle.” Yale Journal of International Law, 42(2), 345-408, 2017.
Milanovic, Marko. “Human rights treaties and foreign surveillance: privacy in the digital age.” Harvard International Law Journal, 56(1), 81-146, 2015.
Zwitter, Andrej and Gstrein, Oskar J. “Big data, privacy and COVID-19 – learning from humanitarian expertise in data protection.” Int J Humanitarian Action 5, (4), 2020.
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 +
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).
REFERENCES:
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/
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
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” ([[Probable year:: 1950]]) . The Universal Declaration on Human Rights ([[Probable year:: 1948]]) and the International Covenant on Civil and Political Rights ([[Probable year:: 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, [[Probable year:: 2013]], I§5). Additionally, the European Union implemented the General Data Protection Regulation (GDPR) which prevents the sharing of personal data with outside sources (Wolford, n.d.). The GDPR applies to any companies operating in or with the EU causing it to have international implications (Wolford, n.d.).
References:
European Convention on Human Rights. Council of Europe. Nov. 4, [[Probable year:: 1950]]. https://www.echr.coe.int/documents/convention_eng.pdf
International Covenant on Civil and Political Rights. United Nations General Assembly (UNGA). Dec. 16, [[Probable year:: 1996]]. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
Office of the United Nations High Commissioner for Human Rights. ([[Probable year:: 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. [[Probable year:: 1787]]. https://www.senate.gov/civics/constitution_item/constitution.htm
Universal Declaration on Human Rights. UNGA. Dec. 10, [[Probable year:: 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, [[Probable year:: 2021]], from https://gdpr.eu/what-is-gdpr/
Like many rights, privacy is not absolute (Siddiky, [[Probable year:: 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, [[Probable year:: 2000]], [[Probable year:: 1095]]) . However, in Connick v. Meyers ([[Probable year:: 1983]]) , the United States Supreme Court decided that, while working for the government, matters of public concern are protected and private while intraoffice grievances are not (Connick v. Meyers; Volokh, [[Probable year:: 2000]], [[Probable year:: 1095]]) .
As Warren & Brandeis suggested in The Right to Privacy in [[Probable year:: 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, [[Probable year:: 1890]], 195). This distinction is still maintained today, allowing for the publishing of ‘newsworthy’ stories about public figures (Volokh, [[Probable year:: 2000]], [[Probable year:: 1088]]; Richards, [[Probable year:: 2010]], [[Probable year:: 1307]]) . However, the courts have not defined what constitutes newsworthy and have even left the definition to juries (Volokh, [[Probable year:: 2000]], [[Probable year:: 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 ([[Probable year:: 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, [[Probable year:: 2010]], [[Probable year:: 1332]]- [[Probable year:: 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, [[Probable year:: 2010]], [[Probable year:: 1334]]) . In essence, in the commercial sphere between competitors, the right to privacy became inapplicable in the interest of consumers (Richards, [[Probable year:: 2010]], [[Probable year:: 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, [[Probable year:: 2000]], [[Probable year:: 1057]]) . Volokh ([[Probable year:: 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 ([[Probable year:: 1058]]) . In publishing, the actions of private people are protected (Richards, [[Probable year:: 2010]], [[Probable year:: 1307]]; Volokh, [[Probable year:: 2000]], [[Probable year:: 1055]]) . Volokh ([[Probable year:: 2000]]) posits this protection extends beyond actions to embarrassing photos or stories which exhibit a lack of dignity ([[Probable year:: 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, [[Probable year:: 2000]], [[Probable year:: 1097]]) . This general protection of the right to privacy is consistent with Richards’ ([[Probable year:: 2010]]) conclusion from Brandeis’ writings: that privacy protections allow for new ideas to be formed through development in private conversations ([[Probable year:: 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, [[Probable year:: 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, [[Probable year:: 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, [[Probable year:: 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, [[Probable year:: 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, [[Probable year:: 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, [[Probable year:: 2003]], [[Probable year:: 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, [[Probable year:: 2003]], [[Probable year:: 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, [[Probable year:: 2003]], [[Probable year:: 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, [[Probable year:: 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, [[Probable year:: 2017]], 359). However, many involved in the industry have interests in limiting privacy in this area for their professional ease (Roscoe & Szypszak, [[Probable year:: 2017]], 374). In Europe, the only people that can file these records are notaries, but the US does not offer similar protections (Roscoe & Szypszak, [[Probable year:: 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, [[Probable year:: 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, [[Probable year:: 2015]], 372). At first, parties and candidates begin by looking at state and local party registration lists (Bennett, [[Probable year:: 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, [[Probable year:: 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, [[Probable year:: 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, [[Probable year:: 2015]], 373).
References
11 FCR § 102.17(c)(4). ([[Probable year:: 2021]]). https://www.fec.gov/regulations/102-17/[[Probable year:: 2021]]- annual-102#102-17-c-4
Bennett, C.J. ([[Probable year:: 2015]]). Trends in voter surveillance in western societies: Privacy intrusions and democratic implications. Surveillance & Society 13(3/4), 370-384. https://doi.org/10.24908/ss.v13i3/4.5373
Connick v. Myers. 461 US 138 (1983). Oyez. Retrieved September 28, [[Probable year:: 2021]], from https://www.oyez.org/cases/[[Probable year:: 1982]]/ 81-[[Probable year:: 1251]]
Rastgoufard, B. ([[Probable year:: 2003]]). Pay attention to that green curtain: Anonymity in the courts. Case Western Reserve Law Review 53(4), [[Probable year:: 1009]]- [[Probable year:: 1040]]. https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=[[Probable year:: 1512]]& context=caselrev
Richards N.M. ([[Probable year:: 2010]], Oct.). The puzzle of Brandeis, privacy, and speech. Vanderbilt Law Review 63(5) [[Probable year:: 1293]]- [[Probable year:: 1352]]. https://scholarship.law.vanderbilt.edu/vlr/vol63/iss5/3/
Roscoe, E. & Szypszak, C. ([[Probable year:: 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. ([[Probable year:: 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. ([[Probable year:: 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), [[Probable year:: 1049]]- [[Probable year:: 1124]]. https://www.jstor.org/stable/1229510
Warren, S. & Brandeis, L. ([[Probable year:: 1890]], Dec. 15). The right to privacy. Harvard Law Review 4(5), 193-220. http://links.jstor.org/sici?sici=0017-811X%281890[[Probable year:: 1215]]% 294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C
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” ([[Probable year:: 1950]]) . The Universal Declaration on Human Rights ([[Probable year:: 1948]], Art. 12) and the International Covenant on Civil and Political Rights ([[Probable year:: 1996]], Art. 17) only prevent arbitrary and unlawful searches, allowing for reasonable searches.
References:
European Convention on Human Rights. Council of Europe. Nov. 4, [[Probable year:: 1950]]. https://www.echr.coe.int/documents/convention_eng.pdf
International Covenant on Civil and Political Rights. United Nations General Assembly (UNGA). Dec. 16, [[Probable year:: 1996]]. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
Universal Declaration on Human Rights. UNGA. Dec. 10, [[Probable year:: 1948]]. https://www.un.org/en/about-us/universal-declaration-of-human-rights +
While the Fourth Amendment of the United States Constitution is in place to protect people’s privacy, a fact continuously recognized by the Supreme Court, it continues to leave people vulnerable to the decisions of authorities due to a lack of clarity and accountability provided by the courts (Enforcing the Fourth Amendment, n.d.). The Fourth Amendment is explicit in that it prevents unreasonable search and seizure (Enforcing the Fourth Amendment, n.d.). However, it is hard to determine what is reasonable and the Supreme Court has claimed that the reasonableness of a search is situationally dependent (Enforcing the Fourth Amendment, n.d.; US GPO, [[Probable year:: 1992]], [[Probable year:: 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, [[Probable year:: 1992]], [[Probable year:: 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, [[Probable year:: 1992]], [[Probable year:: 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, [[Probable year:: 1992]], [[Probable year:: 1227]]) . This debate starts with the Court’s opinions in Terry v. Ohio ([[Probable year:: 1968]]) and United States v. Mendenhall([[Probable year:: 1980]]) that state seizure is either restraining liberty or the belief that one is not at liberty to leave (US GPO, [[Probable year:: 1992]], [[Probable year:: 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, [[Probable year:: 1992]], [[Probable year:: 1230]]) . Recently, this standard has been applied less restrictively and more often, creating some tension between the right to privacy and public safety (GPO, [[Probable year:: 1992]], [[Probable year:: 1231]]) .
Exceptions don’t just result from court rulings. The USA PATRIOT Act of [[Probable year:: 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, [[Probable year:: 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, [[Probable year:: 2007]], 142, 153).
References:
Enforcing the Fourth Amendment: Exclusionary Rule. (n.d.). Cornell Law School Legal Information Institute. Retrieved Oct. 9, [[Probable year:: 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, [[Probable year:: 2021]], from https://www.justice.gov/archive/ll/highlights.htm
Rubel, A. ([[Probable year:: 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.[[Probable year:: 1007]]/ s10982-005-5970-x
US Government Publishing Office (US GPO). ([[Probable year:: 1992]], June 29). Fourth Amendment: Search and Seizure (S. Doc. 103-6). https://www.govinfo.gov/app/details/GPO-CONAN-[[Probable year:: 1992]]/ GPO-CONAN-[[Probable year:: 1992]]- 10-5/summary
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of [[Probable year:: 2001]], H.R. 3162, 107th Cong. ([[Probable year:: 2001]]) . https://www.congress.gov/bill/107th-congress/house-bill/3162
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” ([[Probable year:: 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 ([[Probable year:: 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, [[Probable year:: 1967]]) . This test examines whether the information was meant to be kept private and if it had been disclosed (Hu, [[Probable year:: 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, [[Probable year:: 2018]], 130; United States v. Jones, [[Probable year:: 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, [[Probable year:: 2012]]) . Hu, citing Justices Sotomayor and Alito, feels that the Katz test ends before cyber-surveillance begins and recognizes the need for change (Hu, [[Probable year:: 2018]], 139, 141).
In analyzing Fourth Amendment Supreme Court rulings, Orin Kerr found that four general models have been used to decide privacy cases ([[Probable year:: 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, [[Probable year:: 2017]], 506, 524). Kerr claims the last of these considerations was the basis for the Katz ruling ([[Probable year:: 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, [[Probable year:: 2017]], 507, 508). Kerr concludes by suggesting there is no one size fits all test or model because of the importance of case facts ([[Probable year:: 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 ([[Probable year:: 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 ([[Probable year:: 1937]]) the Court ruled that Senn could not invoke his privacy in work against the right to publicity of the union’s picketing (Richards, [[Probable year:: 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, [[Probable year:: 1334]]) . He also protected counter-speech in this opinion (Richards, [[Probable year:: 1334]]) .
References
Hu, M. ([[Probable year:: 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-[[Probable year:: 2018]]/ cybersurveillance-intrusions-and-an-evolving-katz-privacy-test/
Katz v. United States, 389 U.S. 347 ([[Probable year:: 1967]]) . https://www.law.cornell.edu/supremecourt/text/389/347
Kerr, O. ([[Probable year:: 2007]]). Four models of Fourth Amendment protection. Stanford Law Review 60(2), 503-552. http://www.stanfordlawreview.org/wp-content/uploads/sites/3/[[Probable year:: 2010]]/ 04/Kerr.pdf
Richards N.M. ([[Probable year:: 2010]], Oct.). The puzzle of Brandeis, privacy, and speech. Vanderbilt Law Review 63(5) [[Probable year:: 1293]]- [[Probable year:: 1352]]. https://scholarship.law.vanderbilt.edu/vlr/vol63/iss5/3/
United States Constitution. [[Probable year:: 1787]]. https://www.senate.gov/civics/constitution_item/constitution.htm
United States v. Jones, 565 U.S. 400 ([[Probable year:: 2012]]) . https://www.law.cornell.edu/supremecourt/text/10-[[Probable year:: 1259]]
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, [[Probable year:: 1651]]/ [[Probable year:: 1965]], 130). For instance, one had the right to protect themselves with their private strength without being a threat to the commonwealth (Hobbes, [[Probable year:: 1651]]/ [[Probable year:: 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, [[Probable year:: 1651]]/ [[Probable year:: 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, [[Probable year:: 1642]]/ [[Probable year:: 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, [[Probable year:: 1642]]/ [[Probable year:: 1651]], 40). Without obligation, there is certainly little to prevent the ruler from imposing on subjects and revoking their privacy.
Locke
In [[Probable year:: 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, [[Probable year:: 1689]]/ [[Probable year:: 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, [[Probable year:: 1689]]/ [[Probable year:: 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, [[Probable year:: 1689]]/ [[Probable year:: 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, [[Probable year:: 1970]], 47, 55, 73). However, these rights that are given up usually have specific limitations (Kant, [[Probable year:: 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, [[Probable year:: 1970]], 59). However, Kant also suggests limiting the right to reason because it can still “expand to its fullest” while it is limited (Kant, [[Probable year:: 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, [[Probable year:: 1890]], 193; Kant, [[Probable year:: 1970]], 75). This coercion is imposed uniformly on all subjects, but not the ruler (Kant, [[Probable year:: 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, [[Probable year:: 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, [[Probable year:: 1970]], 84; Hobbes, [[Probable year:: 1651]], 40).
Sieyes
In his essay titled Views of the Executive Means Available to the Representatives of France in [[Probable year:: 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, [[Probable year:: 1788]]/ [[Probable year:: 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, [[Probable year:: 1788]]/ [[Probable year:: 2003]], 137).
Mill
John Stuart Mill, an English thinker, recognizes that English laws tended to interfere with privacy (Mill, [[Probable year:: 1859]]/ [[Probable year:: 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, [[Probable year:: 1859]]/ [[Probable year:: 2011]], 24; Warren & Brandeis, [[Probable year:: 1890]], 193).
References:
Hobbes, T. ([[Probable year:: 1651]]) . De cive (T. Hobbes, Trans.). UK Public Library. (Original work published [[Probable year:: 1642]]) . http://www.public-library.uk/ebooks/27/57.pdf
Hobbes, T. ([[Probable year:: 1965]]) . Leviathan. Liberty Fund. (Original work published [[Probable year:: 1651]]) . http://files.libertyfund.org/files/869/0161_Bk.pdf
Kant, I. ([[Probable year:: 1970]]) . Kant: Political writings (R.S. Reiss, Ed., [[Probable year:: 2003]] ed.). Cambridge University Press.
Locke, J. ([[Probable year:: 2010]]) . A letter concerning toleration and other writings (M. Goldie, Ed.). Liberty Fund. (Original work published [[Probable year:: 1689]]) . http://files.libertyfund.org/files/[[Probable year:: 2375]]/ Locke_[[Probable year:: 1560]]_ EBk_v6.0.pdf
Mill, J.S. ([[Probable year:: 2011]]) . On liberty. Project Gutenberg. (Original work published in [[Probable year:: 1859]]) . https://www.gutenberg.org/files/34901/34901-h/34901-h.htm#Page_1
Sieyes, E. ([[Probable year:: 2003]]) . Political writings (M. Sonenscher, Ed.). Hackett Publishing Company. (Original work published in [[Probable year:: 1788]]) .
Warren, S. & Brandeis, L. ([[Probable year:: 1890]], Dec. 15). The right to privacy. Harvard Law Review 4(5), 193-220. http://links.jstor.org/sici?sici=0017-811X%281890[[Probable year:: 1215]]% 294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C
Privacy Torts
Privacy violations under tort law was how Warren & Brandeis originally developed the right in [[Probable year:: 1890]] (Citron, [[Probable year:: 2010]], [[Probable year:: 1805]]) . These violations, usually unwanted intrusions or disclosures can result from negligent or intentional actions and result in civil lawsuits rather than questions of constitutional legality (Citron, [[Probable year:: 2010]], [[Probable year:: 1806]]; Tort, n.d.). Violations are hard to define as they change with technology (the original call for privacy was in relation to the ‘instant photograph’), which creates more and more opportunities for violations (Citron, [[Probable year:: 2010]], [[Probable year:: 1809]]; Warren & Brandeis, [[Probable year:: 1890]], 195). However, the law changes slower than technology creating some disconnect in legal remedies for new technology (Citron, [[Probable year:: 2010]], [[Probable year:: 1810]]) .
Constitutional Privacy
Constitutions only protect people from government actors and international covenants only affect the laws and regulations which governments put in place (Hudson, [[Probable year:: 2018]]; Dunn, [[Probable year:: 2009]]) . Even so, most allowances of government invasions of privacy in the United States have evolved because the government mimicked the actions of private actors, placing private conduct at the baseline of privacy expectations (Kamin, [[Probable year:: 2004]], 101, 115).
At a basic level, once information is willingly given to someone other than oneself, the courts have continuously ruled that there is no longer the expectation for privacy. This holds true with information that is given to both private companies and individuals (Kamin, [[Probable year:: 2004]], 101). The Katz decision somewhat demonstrates this curtailment of privacy by creating the plain view doctrine. If something is in plain view, even in a private space, it is not private (Kamin, [[Probable year:: 2004]], 104). This decision extrapolates on the theory that as long as someone else may reasonably have that information, it is an unprotected area under the Fourth Amendment (Kamin, [[Probable year:: 2004]], 104). So, by letting someone into one’s home or publishing information online, one is inherently limiting their Fourth Amendment protections. As such, authorities can ask private companies to perform searches or subpoena these actors rather than those they are investigating, depending on the company’s privacy policies (Kamin, [[Probable year:: 2004]], 102, 137).
In United States v. Jacobsen ([[Probable year:: 1984]]) privacy protections were tested when officials were able to open a package that FedEx had damaged and opened for insurance purposes (Kamin, [[Probable year:: 2004]], 99, United States v. Jacobsen, [[Probable year:: 1984]]) . Upon its opening, FedEx employees suspected the package contained cocaine (Kamin, [[Probable year:: 2004]], 99). Had federal officials gotten to it first, it would not have been able to be searched, even if it was damaged, but the information provided by FedEx from the private search was enough to imply the plain view doctrine thus permitting a warrantless search by the DEA (Kamin, [[Probable year:: 2004]], 100; US v. Jacobsen, [[Probable year:: 1984]]) . The Supreme Court upheld the granting of the search and subsequent arrest warrant which was obtained because the DEA confirmed the contents were cocaine based on the ‘tip’ from private actors. The Court said that “[w]hether those invasions were accidental or deliberate, and whether they were reasonable or unreasonable, they did not violate the Fourth Amendment because of their private character” (US v. Jacobsen, [[Probable year:: 1984]]) . Kamin ([[Probable year:: 2004]]) goes as far as to say that “[t]he fact that the private actor did something the government would not have been permitted to do simply did not covert the subsequent, otherwise reasonable, police conduct into a search that implicated the Fourth Amendment” (100-101). That is to say, after the package was opened due to the damage by a non-governmental party, privacy could no longer be expected, despite that it is reasonable to expect privacy during shipping (Kamin, [[Probable year:: 2004]], 100).
References:
Citron, D.K. ([[Probable year:: 2010]], Dec. 1). Mainstreaming Privacy Torts. California Law Review 98(6). https://www.jstor.org/stable/25799956
Dunn, C. ([[Probable year:: 2009]], Apr. 28). Applying the Constitution to private actors (New York Law Journal). NYCLU ACLU of New York. https://www.nyclu.org/en/publications/column-applying-constitution-private-actors-new-york-law-journal
Hudson, D.L. ([[Probable year:: 2018]], Oct. 20). In the age of social media, expand the reach of the First Amendment. Human Rights Magazine 43(4), n.p. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/in-the-age-of-socia-media-first-amendment/
Kamin, S. ([[Probable year:: 2004]], Dec. 1). The private is public: The relevance of private actors in defining the Fourth Amendment. Boston College Law Review 46(1), 83-147. https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=[[Probable year:: 2293]]& context=bclr
Tort. (n.d.). Cornell Law School Legal Information Institute. Retrieved Oct. 15, [[Probable year:: 2021]], from https://www.law.cornell.edu/wex/tort
United States v. Jacobsen, 466 US 109 ([[Probable year:: 1984]]) . https://www.law.cornell.edu/supremecourt/text/466/109
Warren, S. & Brandeis, L. ([[Probable year:: 1890]], Dec. 15). The right to privacy. Harvard Law Review 4(5), 193-220. http://links.jstor.org/sici?sici=0017-811X%281890[[Probable year:: 1215]]% 294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C
Privacy protections are typically limited in times of emergency, but the type of emergency seems to dictate its limitations.
Natural Disasters
A Wilson Center report from [[Probable year:: 2013]] outlines various times in which natural disasters have elicited temporary easing of privacy rules to aid in searching for missing persons. The first examples were from Australia after the [[Probable year:: 2002]] Bali earthquake and the [[Probable year:: 2004]] Boxing Day tsunami. During the Bali earthquake, many governmental agencies had to spend time creating their own missing persons reports (Reidenberg, Gellman, Debelak, Elewa, & Liu, [[Probable year:: 2013]], 12). This was recognized as a waste of resources in light of the disaster and the importance of timeliness (Reidenberg et al., [[Probable year:: 2013]], 12). The [[Probable year:: 2004]] tsunamis renewed this sentiment (Reidenberg et al., [[Probable year:: 2013]], 12). In response to these impeded disaster responses, Australia passed Part VIA to the Australian Privacy Act in [[Probable year:: 2006]] (Reidenberg et al., [[Probable year:: 2013]], 13). Part VIA allows for sharing of otherwise protected information through a government emergency declaration if “(1) the entity reasonably believes that the individual may be involved in the disaster; and (2) the collection, use or disclosure of personal information is for a permitted purpose related to the disaster” (Reidenberg et al., [[Probable year:: 2013]], 13, 14). It also has stipulations on how long these special provisions can be in place and works for events both in and out of Australian borders while specifically preventing disclosure to media outlets (Reidenberg et al., [[Probable year:: 2013]], 13-14)
.
Despite New Zealand’s comprehensive privacy laws, similar actions were taken in New Zealand after the [[Probable year:: 2011]] Christchurch earthquake. There were stipulations in the Privacy Act to permit the sharing of information in some circumstances, it was unclear if they directly applied to natural disaster emergencies (Reidenberg et al., [[Probable year:: 2013]], 15). This lack of clarity was impeding rescue efforts and the Privacy Commissioner, who is granted some discretion through the Privacy Act, took steps to allow temporary authorization of information sharing concerning the emergency at hand (Reidenberg et al., [[Probable year:: 2013]], 16). Incidentally, many realized that this liberation of privacy issues reassured a variety of sectors’ information sharing in their emergency response (Reidenberg et al., [[Probable year:: 2013]], 17). These reassurances caused the Privacy Commissioner to propose and pass the Civil Defence National Emergencies (Information Sharing) Code in [[Probable year:: 2013]], allowing for these different privacy stipulations to be counted on during emergency planning (Reidenberg et al., [[Probable year:: 2013]], 19).
The United States notoriously lacks privacy law. However, there is regulation in the medical field – Health Insurance Portability and Accountability Act of [[Probable year:: 1966]] (HIPAA). HIPAA was somewhat suspended after Hurricane Katrina in light of nine of the eleven New Orleans hospitals incapacitated and people fleeing to surrounding states to receive medical attention (Reidenberg et al., [[Probable year:: 2013]], 19-21). It prioritized providing treatment over payment and aided in locating missing persons by publishing facility directories (Reidenberg et al., [[Probable year:: 2013]], 21). This privacy law alteration was less comprehensive than those in New Zealand and Australia after natural disasters, but it shows that the response regarding privacy exceptions is dependent on need.
All of these disasters culminated in the creation of the Missing Persons Community of Interest (MPCI), in which non-government actors collaborated to create standardized missing persons databases after disasters (Reidenberg et al., [[Probable year:: 2013]], 25). At the time the report was written, there were five interlocking systems to record who was missing and try to connect these people with worried family (Reidenberg et al., [[Probable year:: 2013]], 27). These systems were used multiple times from [[Probable year:: 2006]] to [[Probable year:: 2012]] when this report was written (Reidenberg et al., [[Probable year:: 2013]], 27). The systems all have varying balances of access and privacy and, interestingly, one of these services is run by the International Committee of the Red Cross out of Geneva, Switzerland and is explicitly exempt from the Swiss Federal Act on Data Protection (Reidenberg et al., [[Probable year:: 2013]], 29, 35). Additionally, in [[Probable year:: 2011]], the International Conference of Data Protection and Privacy Commissioners on Data Protection and Major Natural Disasters asked countries to review their privacy laws to make sure they were flexible in the event of a major natural disaster (Reidenberg et al., [[Probable year:: 2013]], 73).
Disease
Rothstein ([[Probable year:: 2020]]) suggests the following be considered when creating policy exceptions and interventions to health information during disease outbreaks: (1) necessity and effectiveness, (2) proportionality and minimal infringement, (3) purpose limitations, and (4) justice ([[Probable year:: 1374]]) . Policies that become altered during the outbreak should remain monitored for continued justification of the alteration and should discontinue at the end of the outbreak (Rothstein, [[Probable year:: 2020]], [[Probable year:: 1375]]) .
During the COVID-19 pandemic, Canada realized the conflict between the creation of a public health database and data privacy law. Data privacy laws vary by province (some have legislation, others default to federal law), sector (public and private), and profession (i.e., healthcare data is strictly regulated) (Bernier and Knoppers, [[Probable year:: 2020]], 454-455). Generally, data cannot be shared between provinces, though this is debated based on local and federal laws, nor used for purposes other than for which it was collected (Bernier and Knoppers, [[Probable year:: 2020]], 455). However, all these limits can be loosened during public health emergencies. There are legislative carve-outs for combating health risks, and during COVID-19 the Privacy Commissioner allowed officials to forgo consent from each individual, a privilege that is repealed after the emergency (Bernier and Knoppers, [[Probable year:: 2020]], 455).
War
McDonald ([[Probable year:: 2020]]) describes privacy as a social good and notes there is a trade-off between privacy and national security, claiming these rights are dependent on context (380). As such, these privacy limitations can be toward individuals or society, but they usually come to light ex parte (McDonald, [[Probable year:: 2020]], 385, 380). However, it is unclear who dictates when this trade-off between privacy and security begins, ends, or how invasive it is as war surveillance is largely unregulated; there is no law of war regarding privacy (McDonald, [[Probable year:: 2020]], 385, 386). It seems feasible violations can be committed by both one’s own country and the opposition. By one’s own country in the sense that they don’t want traitors, resulting in actions similar to how the United States placed Japanese Americans into internment camps during WWI or passed the Sedition Act of [[Probable year:: 1798]] (Share America, [[Probable year:: 2015]]) . Alternatively, the opposition can somewhat feasibly be expected to also survey those they are at war against, especially when attacking and trying to avoid civilian injury (McDonald, [[Probable year:: 2020]], 381). Enemies may also invade privacy through espionage and intelligence which isn’t necessarily legal under international law though it is not limited to wartime (Pun, [[Probable year:: 2017]], 360-361, 364; McDonald, [[Probable year:: 2020]], 384).
References:
Bernier, A. & Knoppers, B.M. (2020, June 26). Pandemics, privacy, and public health research. Canadian Journal of Public Health 111(4), 454-457. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7318908/pdf/41997_2020_Article_368.pdf
McDonald, J. (2020). Information, privacy, and just war theory. Ethics & International Affairs 34(3), 379-400. https://doi.org/10.1017/S0892679420000477
Pun, D. (2017, Summer). Rethinking espionage in the Modern Era. Chicago Journal of International Law 18(1), 353-391. https://chicagounbound.uchicago.edu/cjil/vol18/iss1/10/
Quinton, A. (1988, Autumn). Plagues and morality. Social Research: An International Quarterly 55(3), 451-462. https://www.jstor.org/stable/40970516
Reidenberg, J.R., Gellman, R., Debelak, J., Elewa, A., & Liu, N. (2013). Privacy and missing persons after natural disasters. Woodrow Wilson International Center for Scholars Commons Lab. https://www.wilsoncenter.org/publication/privacy-and-missing-persons-after-natural-disasters
Rothstein, M.A. (2020, Aug. 12). Public health and privacy in the pandemic. American Journal of Public Health 110(9), 1374-1375. https://www.doi.org/10.2105/AJPH.2020.305849
Share America. (2015, Apr. 6). Civil liberties in wartime. United States Department of State. Retrieved October 18, 2021, https://share.america.gov/civil-liberties-wartime/
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, [[Probable year:: 1992]], [[Probable year:: 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 ([[Probable year:: 1886]]) , based in the Fourth and Fifth Amendments, then evolved with Weeks v. US ([[Probable year:: 1914]]) , which claimed derivation from the Fifth Amendment but appeared to be based in the Fourth. Its current state results from Mapp v. Ohio ([[Probable year:: 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, [[Probable year:: 1992]], [[Probable year:: 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, [[Probable year:: 1992]], [[Probable year:: 1208]]- [[Probable year:: 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, [[Probable year:: 1992]], [[Probable year:: 1258]]) . These facts prevent the right to privacy from being perceived as threatening to government authorities.
References:
Enforcing the Fourth Amendment: Exclusionary Rule. (n.d.). Cornell Law School Legal Information Institute. Retrieved Oct. 9, [[Probable year:: 2021]], from https://www.law.cornell.edu/constitution-conan/amendment-4/enforcing-the-fourth-amendment-the-exclusionary-rule
US Government Publishing Office (US GPO). ([[Probable year:: 1992]], June 29). Fourth Amendment: Search and Seizure (S. Doc. 103-6). https://www.govinfo.gov/app/details/GPO-CONAN-[[Probable year:: 1992]]/ GPO-CONAN-[[Probable year:: 1992]]- 10-5/summary
The right to privacy is a widely accepted right throughout the world. Currently, 186 constitutions around the globe include the right to privacy. Within these constitutions however, there are discrepancies in the language and what is considered to fall under the ‘right to privacy’ umbrella. In the most obvious cases, there is a considerable differentiation between the age of the constitutions being compared. For example, the United States has maintained the same Constitution since 1789 with its last alteration being the 27th Amendment in 1992. Privacy, however, was addressed in the 4th Amendment in 1791 which 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.”(U.S. Constitution- Fourth Amendment). While formal alterations or additions to the US Constitution have been relatively scarce, the United States legal system, as it pertains to the Constitution, has evolved. Through judicial review, the Supreme Court has applied interpretations to the original document. We see this instance in the 1960 Supreme Court Case Griswold v. Connecticut. This landmark case ruled that the Constitution protected the right of marital privacy (Griswold v. Connecticut, 381 U.S. 479 (1965)). This provides insight on how the US addresses rights, like the right to privacy, that are not explicitly stated in the Constitution.
Looking at other countries suggests some of the range of approaches to the right to privacy. For an alternate example we can look to the current constitution of Albania. Albania’s active constitution was ratified in 1998 with the latest modification being made in 2016. Articles 35-37 of the constitution addresses the right to privacy in much broader scope than the United States, “No one may be obliged, except when the law requires it, to make public the data connected with his person,” (Constitute Project 2020) “The freedom and secrecy of correspondence or any other means of communication are guaranteed,” and “The inviolability of the residence is guaranteed.” (Constitute Project 2020) More is included within these articles but the three main points address the “data,” the communication, and the residence of the individual. Clearly, the language used in Albania’s constitution applies to a lot more aspects of one's privacy than the language used in the US constitution. With that said, the structure of Albania’s government differs from that of the United States, especially when it comes to the judicial system. Albania has a Supreme Court and a Constitutional Court. The latter is responsible for interpreting “the compatibility of international agreements with the mandates of the Constitution prior to their ratification; verifies compliance with the Constitution in legislative acts passed by local, regional and central government bodies; and adjudicates individual citizens’ claims of constitutional rights breaches and violations,” (“Researching the Albanian Legal System” 2019). Furthermore, “Judicial review by the Constitutional Court may be requested upon petitions submitted by the President of the Republic, the Prime Minister, 1/5th of Parliament’s members, the Head of High State Control as well as any lower court,” (“Researching the Albanian Legal System” 2019). A specific example of this occurred in 2008 as law no. 9887, “On Protection of Personal Data,” expanded and defined privacy rights as it pertained to personal data. This was brought forward by the Council of Ministers, which falls under the executive branch of the Albanian government. This same law was then subsequently amended in 2012 and 2014 to modify the right to privacy in an era of technology. We can see these protections in action as six different multinational companies were fined in April of 2024 for violating Albania's privacy rights (“Albania” 2024). In Albania, there are more avenues for other branches of government to directly bring forward issues of constitutionality and, as we have seen with law no. 9887, propose new legislation meant to refine or analyze contemporary applications of constitutional law. Additionally, justices, for both the Supreme Court and Constitutional Court, serve for a single term of 9 years. This is just another factor in how constitutional rights are interpreted and applied. In 2020, Algeria enacted its current constitution which shares similar constitutional provisions on the right to privacy. In articles 47 and 48 it confirms that, “Every person shall have the right to the protection of his honor and private life. Every person shall have the right to the confidentiality of his correspondence and private communications in all their forms…The protection of individuals when handling personal data shall be a fundamental right.” (Constitute Project 2020).
Another longstanding constitution, that of the Kingdom of the Netherlands, was originally enacted in 1814 but has been subsequently amended up until the year 2008. Articles 10, 12, and 13 state, “Everyone shall have the right to respect for his privacy, without prejudice to restrictions laid down by or pursuant to Act of Parliament,”(Constitute Project 2020) “Entry into a home against the will of the occupant shall be permitted only in the cases laid down by or pursuant to Act of Parliament, by those designated for the purpose by or pursuant to Act of Parliament,”(Constitute Project 2020) and “The privacy of correspondence shall not be violated except in the cases laid down by Act of Parliament, by order of the courts. The privacy of the telephone and telegraph shall not be violated except, in the cases laid down by Act of Parliament, by or with the authorization of those designated for the purpose by Act of Parliament.” (Constitute Project 2020) Again, there is more included within the official articles, but the main points are delivered. Communication and residence are clearly stated but one's data, as proclaimed by the previous two constitutions, is not explicitly stated. We can also look towards Somalia’s constitution which was enacted in 2012 that states, “The home and other dwellings of the person shall be inviolable, and their entry, search or surveillance shall not be allowed without a reasoned order from a judge. Any such order must be read properly to the occupier of the dwelling before entry, and the inspecting authority is prohibited to violate the law,” (Constitute Project 2020). Here, the right to privacy explicitly secures one’s home but not much else. How one’s “other dwellings” are officially defined is not included in the country’s constitution. So, in looking at these examples, and various others, it is hard to definitively define the extent of one's “right to privacy” as there is no international consensus and the language used in many constitutions worldwide are not cut and dry. Furthermore, while the age of a country’s constitution may be a factor, how their political system is structured is also an important consideration when determining the scope of this right.
References:
Congress.gov. 2022. “U.S. Constitution - Fourth Amendment - Resources - Constitution
Annotated - Congress.gov - Library of Congress.” Constitution.congress.gov. Constitution
Annotated. 2022. https://constitution.congress.gov/constitution/amendment-4/.
“Researching the Albanian Legal System.” n.d. GlobaLex - Foreign and International Law
Research. Accessed July 30,
2024. https://www.nyulawglobal.org/globalex/Albania1.html#thejudi.
“Albania.” n.d. DataGuidance. Accessed July 30, 2024.
https://www.dataguidance.com/jurisdiction/albania.
Read. 2020. “Read about ‘Right to Privacy’ on Constitute.” Constituteproject.org. 2020.
https://www.constituteproject.org/constitutions?key=privacy.
Griswold v. Connecticut, 381 U.S. 479 (1965)