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With federalism, there is often one state that leads the rest – in terms of privacy legislation, California leads the United States, and the German state Hessen led Germany and the European Union (Mills, [[Probable year:: 2008]], 167; Petkova, [[Probable year:: 2016]], 5, 4). Though the EU is not properly a federalist entity, federalism encouraged and promoted privacy as a fundamental right. Privacy rights began in Hessen, became federal law after German parliamentary action, and eventually became supranational as the EU passed encompassing privacy legislation in [[Probable year:: 1995]] (Petkova, [[Probable year:: 2016]], 4). Later iterations of the [[Probable year:: 1995]] law led to the [[Probable year:: 2018]] General Data Protection Regulation which has provisions that help regulate information privacy outside of EU borders, including in the United States.
In the United States, federalism clarifies and further protects the right to privacy. This is important because the federal right is still based on Supreme Court opinions rather than explicit constitutional provisions or legislation. This lack of explicit language allows states to “provide leadership in the privacy area because of the constitutional options available” and drive for change (Mills, [[Probable year:: 2008]], 162; Petkova, [[Probable year:: 2017]], 24). As of [[Probable year:: 2008]], ten states in the US (Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina, and Washington) explicitly protect privacy in their constitutions (Mills, [[Probable year:: 2008]], Appendix II). At least twenty states have passed privacy legislation (with some overlap between the ten with constitutional provisions, namely California). State privacy legislation focuses on data privacy, improving security measures for storing personal information, notifying individuals of security breaches, and enabling security alerts and/or freezes on credit reports (Mills, [[Probable year:: 2008]], 167). Most states hoped their passage would signal the federal government to pass privacy legislation (Sabin, [[Probable year:: 2021]]) . Schwartz acknowledges that this legislation would be possible under the Commerce Clause, though the effects would depend on the text ([[Probable year:: 2009]], 922). Some scholars are wary of federal legislation as states have created a successful legal landscape based on experimentation and consequence, and federal legislation could disrupt the balance, create uncertainty, and be hard to amend (Bellia, [[Probable year:: 2009]]; Schwartz, [[Probable year:: 2009]], 922-931).
Federalism results in the lack of consistent privacy laws and rights. For instance, in Germany, every company needs to have a data protection officer. In the EU, the GDPR only requires public companies and certain private companies to have this position, while allowing all other private companies to opt-in to having this role (Petkova, [[Probable year:: 2017]], 20). These different laws can alter privacy protection outcomes based on the jurisdiction in which the incident took place, especially if the rights are challenged in courts. This was the case in Florida’s Rolling v. State. Six college students were brutally murdered in Gainesville, Florida and their families hoped to prevent the press from releasing the photos of their bodies. Mills, who was asked to consult on the case, knew this would be a complex legal question as the Florida laws technically allowed for these records to be open to ensure police accountability, but he also knew the families would suffer severe harm were these photos to appear publicly. The Florida Supreme Court decided that the laws in place allowed for a compromise: the photos could be made available to the public by the records custodian upon a reasonable request provided there were restrictions on the copying and removal of the photos. Mills acknowledges that had the situation been occurred in another jurisdiction, the result would not have been the same and the photos likely would have been published (Mills, [[Probable year:: 2008]], 247-251).
References:
Bellia, P.L. ([[Probable year:: 2009]]) . Federalization of Information Privacy Law. Yale Law Journal 118(5), 868-900. https://www.jstor.org/stable/40389431
Mills, J.L. ([[Probable year:: 2008]]) . Privacy: The lost right. Oxford University Press.
Petkova, B. ([[Probable year:: 2016]]) . The Safeguards of Privacy Federalism. Lewis & Clark Law Review 20(2). https://www.law.nyu.edu/sites/default/files/upload_documents/Petkova%20The%20Safeguards%20of%20Privacy%20Federalsim_0.pdf
Petkova, B. ([[Probable year:: 2017]]) . Domesticating the “foreign” in making transatlantic data privacy law. International Journal of Constitutional Law 15(4), [[Probable year:: 1135]]- [[Probable year:: 1156]]) . https://www.law.nyu.edu/sites/default/files/upload_documents/Petkova%20Domesticating%20the%20Foreign%20in%20Making.pdf
Sabin, S. ([[Probable year:: 2021]], Apr. 27). States are moving on privacy bills. Morning Consult. https://morningconsult.com/[[Probable year:: 2021]]/ 04/27/state-privacy-congress-priority-poll/
Schwartz, P.M. ([[Probable year:: 2009]]) . Preemption and privacy. Yale Law Journal 118(5). https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5155&context=ylj
As Warren & Brandeis suggest in The Right to Privacy ([[Probable year:: 1890]]) , the right to privacy directly conflicts with freedom of the press and speech. They wanted to protect people from writings beyond what defamation and publishing law covered. However, by proposing privacy protections that extended beyond these laws, they were inherently limiting what could be published. While this limitation was intentional, it was sure to be contentious as the First Amendment had been in place and protected for nearly 100 years and privacy rights were not prominent in any part of the world before this time. The First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (US Constitution, [[Probable year:: 1787]], Amd. 1).
The United States Supreme Court Cases offer plenty of examples of press and privacy rights conflicting, as “the rights guaranteed by the First Amendment do not require total abrogation of the right to privacy” (Briscoe v. Reader’s Digest Association, Inc., [[Probable year:: 1971]]) . In some cases, privacy prevails, in others, the First Amendment. One of the cases was New York Times Company v. United States ([[Probable year:: 1971]]) in which the New York Times published the Pentagon Papers but the Nixon administration argued that those should be kept private for national security concerns. In a 6-3 decision, the Court claimed that these were not to be considered private or secure and that the freedom of the press prevailed (NYT v. US, n.d.). Also in [[Probable year:: 1971]], the Court ordered Branzburg to reveal his sources to a grand jury, despite the sources explicitly asking to not be revealed in Bransburg v. Hayes. Had secrecy been maintained, the press would have more rights than individuals during the grand jury (Branzburg v. Hayes, n.d.). Additionally, other cases such as Cox Broadcasting Corporation v. Cohn ([[Probable year:: 1975]]) and Florida Star v. BJF ([[Probable year:: 1989]]) held that freedom of the press overtakes privacy rights when the information is lawfully and publicly available. Cohen v. Cowles Media Company ([[Probable year:: 1991]]) granted privacy to press informants if they had been promised confidentiality with promissory estoppel because the principle applies generally not just to the press (Cohen v. Cowles Media Company, n.d.). The contrast of Branzburg and Cohen shows how interpretive and circumstantial privacy rights are, while NYT v. NASA ([[Probable year:: 1991]]) reveals that privacy rights are dependent on the media used to publish the information. In this instance, the US District Court for the District of Columbia allowed for transcripts of the Challenger astronauts’ last words to be published by the Times, but not the voice recordings (Mills, [[Probable year:: 2008]], 36).
Privacy rights also conflict with the right to information. The government recognized this right with the Freedom of Information Act in [[Probable year:: 1966]] (FOIA). This act granted anyone the ability to request access to federal agency records but not the records of private companies. The goal of having public records is to keep the government accountable, but this risks people’s privacy based on the nature of the information agencies collect (Mills, [[Probable year:: 2008]], 50). However, nine exemptions and three exclusions in FOIA limit access to these records. The exclusions are narrow and related to law enforcement and ongoing intelligence investigations and are unaffected by FOIA. The exemptions authorize government agencies to withhold information from those requesting it (Freedom of Information Act, n.d). Luckily, the exceptions and exemptions and the Privacy Act of [[Probable year:: 1974]] considered the right of privacy and aimed to prevent the collision of these rights (Mills, [[Probable year:: 2008]], 51).
Privacy is also put aside when considering public security and health (Mills, [[Probable year:: 2008]], 227). In the United States, this lack of priority became clear with the [[Probable year:: 1978]] Foreign Intelligence Surveillance Act (FISA) and PATRIOT Act of [[Probable year:: 2001]], which both expanded the ability of the FBI to have access to information on individuals that may or may not be a threat to the nation’s security. Many courts have upheld acts that place public security over personal privacy rights. To use an example less severe than terrorism, such is the case with the release of sex offenders (Mills, [[Probable year:: 2008]], 224). While it hurts one’s reputation to have their name released in connection with this crime, it protects the greater community and their neighbors by alerting them.
References:
Branzburg v. Hayes. (n.d.). Oyez. Retrieved November 12, 2021, from https://www.oyez.org/cases/1971/70-85
Briscoe v. Reader’s Digest Association, Inc, 4 Cal. 3d 529 (CA Sup. Ct. 1971). https://law.justia.com/cases/california/supreme-court/3d/4/529.html
Cohen v. Cowles Media Company. (n.d.). Oyez. Retrieved November 12, 2021, from https://www.oyez.org/cases/1990/90-634
Cox Broadcasting Corporation v. Cohn. (n.d.). Oyez. Retrieved November 15, 2021, from https://www.oyez.org/cases/1974/73-938
Florida Star v. B. J. F. (n.d.). Oyez. Retrieved November 15, 2021, from https://www.oyez.org/cases/1988/87-329
Freedom of Information Act, The. (n.d.). Department of State. Retrieved Sept. 14, 2021, from https://foia.state.gov/learn/foia.aspx
Mills, J.L. (2008). Privacy: The lost right. Oxford University Press.
New York Times Company v. United States. (n.d.). Oyez. Retrieved November 12, 2021, from https://www.oyez.org/cases/1970/1873
U.S. Constitution. (1787). https://www.archives.gov/founding-docs/constitution-transcript
Warren, S. & Brandeis, L. (1890, Dec. 15). The right to privacy. Harvard Law Review 4(5), 193-220. http://links.jstor.org/sici?sici=0017-811X%2818901215%294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C
Joseph Wronka posits that the UDHR has tiers of rights, arranged by article. Article 1, human dignity, is the first and foremost right. Articles 2-21, which includes the right to privacy in Article 12, are civil and political rights, protecting people from their government. The right to speech, press, religion, and vote are also protected in these articles (Wronka, [[Probable year:: 1994]]; UDHR [[Probable year:: 1948]]) . Below these rights were the positive rights in which a government should provide “to ensure an existence worthy of human dignity” and solidarity rights (Wronka, [[Probable year:: 1994]]) . So, there is some recognition of a hierarchy between fundamental rights, but nothing has been written on the hierarchy among rights of the same tier.
In practice, however, privacy seems to be overshadowed by other rights. On one hand, privacy rights can overtake rights such as the freedoms of speech and press. On the other hand, these rights have stifled privacy rights in many instances. Hixon suggests that privacy rights prevail in cases of information gathering but press and speech rights prevail during and after publishing (Hixon, [[Probable year:: 1987]], 178). Mills suggests this difference in protection is due to the publication medium and the perceived benefit to the public (Mills, [[Probable year:: 2008]], 36, 117).
In the United States, some scholars have noted that “free-speech and free-press rights almost always trump information privacy rights,” suggesting there is a hierarchy within fundamental rights in at least one nation (Mills, [[Probable year:: 2008]], 108). Hixon referred to privacy as “at best a correlative right,” and “sociological notion,” while Milles calls it a “precondition” (Hixon, [[Probable year:: 1987]], 44, 45; Mills, [[Probable year:: 2008]], 116). Press freedoms only require a “newsworthy” and “public interest” standard to be upheld, while privacy rights have had to be fought for continuously in courts. In this fight, the inadequacy of American privacy law has shown through, stemming from the lack of explicit protection in the Constitution (Hixon, [[Probable year:: 1987]], 76). Public figures continuously have information published about them, protected under free speech, leaving them vulnerable to the news cycles (Hixon, [[Probable year:: 1987]], 133).
References:
Hixon, R.F. ([[Probable year:: 1987]]) . Privacy in a public society: Human rights in conflict. Oxford University Press.
Mills, J.L. ([[Probable year:: 2008]]) . Privacy: The lost right. Oxford University Press.
Universal Declaration on Human Rights. UNGA. Dec. 10, [[Probable year:: 1948]]. https://www.un.org/en/about-us/universal-declaration-of-human-rights
Wronka, J. ([[Probable year:: 1994]]) . Human rights and social policy in the United States: An educational agenda for the 21st Century. Journal of Moral Education 23(3). https://doi.org/10.[[Probable year:: 1080]]/ 0305724940230304
The right to privacy is listed in many international treaties – the Universal Declaration of Human Rights ([[Probable year:: 1948]]) , the European Convention for the Protection of Human Rights and Fundamental Freedoms ([[Probable year:: 1950]]) , the International Covenant on Civil and Political Rights ([[Probable year:: 1966]]) , International Covenant on the Protection of All Migrant Workers and Members of their Families ([[Probable year:: 1990]]) , and Convention on the Rights of the Child ([[Probable year:: 1989]]) . The consistency with which it is held as a fundamental right certainly suggests it’s high status. The consistency with which it is present in many national constitutions confirms this suggestion (see “What is the oldest written source in this country that mentions this right” above).
References:
Convention on the Rights of the Child. United Nations General Assembly (UNGA). Nov. 20, [[Probable year:: 1989]]. https://www.ohchr.org/en/professionalinterest/pages/crc.aspx
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. UNGA. Dec. 16, [[Probable year:: 1996]]. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
International Covenant on the Protection of All Migrant Workers and Members of Their Families. UNGA. Dec. 18, [[Probable year:: 1990]]. https://www.ohchr.org/Documents/ProfessionalInterest/cmw.pdf
Universal Declaration on Human Rights. UNGA. Dec. 10, [[Probable year:: 1948]]. https://www.un.org/en/about-us/universal-declaration-of-human-rights +
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
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
The right to privacy has been interpreted in various ways. The EU has strict legislation regarding data privacy and the Council of Europe has outlined in Article 8(1) of the ECHR ([[Probable year:: 1950]]) the right to privacy in the four spheres of family life, private life, communication, and the home (Wolford, n.d.). On the other hand, the United States has outlined protections from government interference in the private sphere in the Bill of Rights, has comparatively less (& less encompassing) legislation on the issue, and has relied on the courts to protect people from private entities and in the home (U.S. Constitution; [[Probable year:: 1787]], Amendment 4; Privacy, n.d.). These differences result in a more consistent application of privacy rights in Europe compared to the United States.
In the home, Europeans have had a safe, private space since [[Probable year:: 1950]] (ECHR, [[Probable year:: 1950]], Art. 8(1)). In the United States, this right wasn’t concrete until long after the Supreme Court began ruling on the privacy cases in the mid-[[Probable year:: 1960]]s (Privacy, n.d.). However, it remains that Americans have a higher expectation of privacy in the home than in a public area (Electronic Surveillance, n.d.). In an extreme example of lack of privacy in the home, Albanians working for the Soviet government did not own anything in their homes – the state owned it all (Lubonja, [[Probable year:: 2001]], 239).
Exceptions to privacy at home include police entering with and, in some cases, without a warrant. New Zealand also utilizes court-issued warrants to prevent officials from entering the home, but if officials are actively preventing a crime, enforcing a law, making an arrest, or aiding in an emergency, they do not need a warrant (Community Law, n.d.). Within the European Union, this warrant can come from a court within any part of the EU’s jurisdiction. The European Evidence Warrant (EEW) allows a warrant issued to gather evidence to be valid across the EU and the European Arrest Warrant (EAW) applies this principle to the arrest of criminals taking exploiting the open borders within the EU (European evidence warrant, [[Probable year:: 2006]]; European arrest warrant, n.d.). EEWs can also be used to get cell phone records (The European evidence warrant, [[Probable year:: 2006]]) . In the United States, a customer can ask for those records to be turned over to authorities or authorities can use a subpoena (FCC [[Probable year:: 2019]]) .
The Prüm Convention demonstrates another aspect of inter-European collaboration in crime-solving efforts, leading to interesting implications for data privacy. Belgium, Austria, the Netherlands, Germany, France, Luxembourg, and Spain all signed this treaty, to which other nations can opt-in, in an effort to increase cross-border security (Prüm Convetion, [[Probable year:: 2005]]) . At the roots, it allows the parties to ask each other for help solving crimes by sharing data from each nation’s crime database (Walsch, [[Probable year:: 2008]], 86). By not creating an international crime database, each nation is required to ask other nations for the needed data (Walsch, [[Probable year:: 2008]], 86). This method allows the shared data to be governed by each nation’s specific data privacy laws, but it lands in an unregulated grey area after the data transfer (Walsch, [[Probable year:: 2008]], 85). Differences in privacy law become clear when looking at what personal data is collected from people. Some states collect DNA in all criminal cases, others only when the person has been in prison for over two years, and others do not collect DNA at all (Walsch, [[Probable year:: 2008]], 86). In the context of solving international crime, these differences mean some states tend to be more helpful than others.
References:
Community Law. (n.d.). Entry powers: When the police can come into your home. Retrieved Sept. 21, 2021, from https://communitylaw.org.nz/community-law-manual/chapter-31-police-powers/entry-powers-when-the-police-can-come-into-your-home/entry-without-a-warrant-to-prevent-or-investigate-crimes/
Electronic Surveillance. (n.d.). Cornell Law School Legal Information Institute. Retrieved Sept. 20, 2021, from https://www.law.cornell.edu/wex/electronic_surveillance
European arrest warrant. (n.d.). European Commission. Retrieved Sept. 21, 2021, from https://ec.europa.eu/info/law/cross-border-cases/judicial-cooperation/types-judicial-cooperation/european-arrest-warrant_en
European Convention on Human Rights. Council of Europe. Nov. 4, 1950. https://www.echr.coe.int/documents/convention_eng.pdf European evidence warrant. (2006, June 1).
European Commission. Retrieved Sept. 21, 2021, from https://ec.europa.eu/commission/presscorner/detail/en/PRES_06_168
European evidence warrant, The: The acquisition and admissibility of foreign evidence. (n.d.). Academy of European Law. Retrieved Sept. 20, 2021, from https://www.era.int/cgi-bin/cms?_SID=d241949ae554074b1e14fd12b7f05d3f5d1e38df00162723613600&_sprache=en&_bereich=artikel&_aktion=detail&idartikel=121538
Federal Communications Commission (FCC). (2019, Dec. 30). Protecting your privacy: Phone and cable records. https://www.fcc.gov/consumers/guides/protecting-your-privacy
Lubonja, F. (2001). Privacy in a totalitarian regime. Social Research 68(1), 237-254. https://www.jstor.org/stable/40971449
Privacy. (n.d.). Cornell Law School Legal Information Institute. Retrieved Sept. 8, 2021, from https://www.law.cornell.edu/wex/privacy
Prüm Convention. AT-BE-DE-ES-FR-LU-NL. May 27, 2005. 10900/05. https://ec.europa.eu/anti-fraud/sites/default/files/docs/body/prumtr.pdf
U.S. Constitution. Amendment IV. https://www.archives.gov/founding-docs/constitution-transcript
Walsch, C. (2008, Nov. 9). Europeanization and democracy: Negotiating the Prum Treaty and the Schengen III Agreement. Politicka Misao, XVL(5), 81-90.
Wolford, B. (n.d.). What is GDPR, the EU’s new data protection law? GDPR EU. Retrieved Sept. 9, 2021, from https://gdpr.eu/what-is-gdpr/
Rhoda Howard and Jack Donnelly ([[Probable year:: 1986]]) describe six regime types: liberal, minimal, traditionalist, communist, corporatist (authoritarian), and developmental. When comparing regime type to the ‘valuation of privacy,’ liberal regimes are ranked highly, and minimal regimes are ranked very highly (Howard & Donnelly, [[Probable year:: 1986]], 814). The other regime types, all communitarian regimes rather than individualistic, were ranked low or very low regarding privacy (Howard & Donnelly, [[Probable year:: 1986]], 814). At their cores, communitarian regimes do not have privacy because it can be argued, as Howard and Donnelly ([[Probable year:: 1986]], 211) do, that the allowance of freedoms may lead to self-destruction. Thus, privacy is ignored (Howard & Donnelly, [[Probable year:: 1986]], 211). Fatos Lubonja agrees with this sentiment, writing that privacy did not exist in Albania under the totalitarian regime, and cites his experience in Albanian prisons as an example (Lubonja, [[Probable year:: 2001]]) . He also admitted to self-censorship in the private diaries which originally got him arrested, supposing many others had censored themselves in the same way (Lubonja, [[Probable year:: 2001]], 247).
Resources
Howard, R.E., & Donnelly, J. ([[Probable year:: 1986]], Sept.) Human dignity, human rights, and political regimes. The American Political Science Review 80(3), 801-817. https://doi.org/10.[[Probable year:: 2307]]/ 1960539
Lubonja, F. ([[Probable year:: 2001]]) . Privacy in a totalitarian regime. Social Research 68(1), 237-254. https://www.jstor.org/stable/4097[[Probable year:: 1449]] +
The right to privacy is expressed in many places: Article 12 of the Universal Declaration of Human Rights ([[Probable year:: 1948]]) , Article 17 of the International Covenant on Civil and Political Rights ([[Probable year:: 1996]]) , Article 7 of the Charter of Fundamental Rights of the European Union (CFREU) ([[Probable year:: 2009]]) , and Article 8 of the European Convention on Human Rights (ECHR) ([[Probable year:: 1950]]) . Nationally, this right has been cited in the [[Probable year:: 1988]] Brazil Constitution and United States case law (derived from the US Constitution). In India, the Supreme Court ruled unanimously in [[Probable year:: 2017]] that the right to privacy for all people falls under Article 21, which provides the “protection of life and personal liberty” (McCarthy, [[Probable year:: 2017]]; Mahaprata & Choudhary, [[Probable year:: 2017]]) . However, many exceptions to privacy are also listed alongside the right to privacy in these supreme documents, despite the belief in its inviolability.
Article 8(2) of the ECHR provides that privacy interference can only occur in instances “of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 7 of the CRFEU can be breached by a search or arrest warrant issued by any EU state (European arrest warrant, n.d.; European evidence warrant, [[Probable year:: 2006]]) . In Article 5 Sections X-XII, the Brazilian Constitution outlines the right to privacy in areas related to private life, the home, and correspondence. These sections also clearly outline exceptions; Section XI recognizes that officials can enter a home “in cases of flagrante delicto, disaster or rescue, or, during the day, with a court order,” and Section XII allows criminal proceedings to methodically breach this privacy. In the United States, privacy zones – derived from the First, Third, Fourth, Fifth, and Ninth Amendments in Griswold v. Connecticut ([[Probable year:: 1965]]) in conjunction with the Due Process Clause in the Fourteenth Amendment – have extended privacy to Americans in various ways (Privacy, n.d.). Again, a court-issued search or arrest warrant may breach this right to privacy, especially in the home.
Data Privacy
The US has very little data privacy due to a lack of legislation and regard. Most data regulation is due to compliance with the [[Probable year:: 2018]] implementation of the EU’s General Data Protection Regulation, which applies to any company collecting any data on European citizens or companies with a large number of customers based in Europe (Wolford, n.d.). On the other hand, the Brazilian Supreme Court extended these Article 5 protections to data privacy in [[Probable year:: 2020]] (Bioni & Monteiro, [[Probable year:: 2020]]) . Additionally, New Zealand’s Information Privacy Principles (IPP) in Article 22 of the Privacy Act [[Probable year:: 2020]] protect data collection, but also provides some exceptions in IPP 11 and 12.
Relationships
In [[Probable year:: 2018]], the Indian Supreme Court declared part of Section 377 unconstitutional against Articles 14, 15, 19, and 21 of the Constitution (Rai, [[Probable year:: 2018]]) . This ruling allowed those in LGBT relationships privacy in the home, but again, this privacy was not granted in public spaces (Rai, [[Probable year:: 2018]]) . Similarly, the right to a private relationship went through the courts in the United States. First, it was granted to interracial couples in [[Probable year:: 1967]] through Loving v. Virginia ([[Probable year:: 1967]]) and then to same-sex couples through Obergefell v. Hodges in [[Probable year:: 2015]]. In Brazil, relationships are protected under Article 5(X), which states “personal intimacy, private life, honor and reputation are inviolable, guaranteeing the right to compensation for pecuniary or moral damages resulting from the violation thereof” (Brazil Constitution, [[Probable year:: 1988]]) .
Communication
Private communication is protected under Article 5(XII) of the Brazilian Constitution ([[Probable year:: 1988]]) . In the United States, the right to private communication became convoluted with the [[Probable year:: 2001]] USA PATRIOT ACT, which authorized the interception and disclosure of communication under certain circumstances.
References:
Bioni, B.R. & Monteiro, R.L. (2020, June 9). A landmark ruling in Brazil: Paving the way for considering data protections as an autonomous fundamental right. Future of Privacy Forum. https://fpf.org/blog/a-landmark-ruling-in-brazil-paving-the-way-for-considering-data-protection-as-an-autonomous-fundamental-right/
Brazil Constitution. (1988). https://www.constituteproject.org/constitution/Brazil_2017.pdf?lang=en
Charter of Fundamental Rights of the European Union. Dec. 1, 2009. https://fra.europa.eu/en/eu-charter Constitution of India. (1950). https://legislative.gov.in/constitution-of-india
European arrest warrant. (n.d.). European Commission. Retrieved Sept. 21, 2021, from https://ec.europa.eu/info/law/cross-border-cases/judicial-cooperation/types-judicial-cooperation/european-arrest-warrant_en
European Convention on Human Rights. Council of Europe. Nov. 4, 1950. https://www.echr.coe.int/documents/convention_eng.pdf European evidence warrant. (2006, June 1).
European Commission. Retrieved Sept. 21, 2021, from https://ec.europa.eu/commission/presscorner/detail/en/PRES_06_168
Worldwide
A [[Probable year:: 2018]] Deloitte survey has revealed that the EU’s General Data Protection Regulation (GDPR) is having a positive international impact on the perception of data collection and storage even just six months after its implementation (Deloitte, [[Probable year:: 2018]], 4). The GDPR has had a worldwide effect on privacy laws as it requires all companies which collect data on EU citizens to comply with the law, regardless of the location of their headquarters (Wolford, n.d.). At the most basic level, respondents felt companies have begun to care more about data protection (Deloitte, [[Probable year:: 2018]], 6). Additionally, over 3 out of 4 respondents were aware of their rights under this law and some had already used this knowledge to alter what data companies were collecting about them (Deloitte, [[Probable year:: 2018]], 13, 14, 19). On the other hand, 19% of those polled felt that organizations did not care about privacy (Deloitte, [[Probable year:: 2018]], 6) and only 51% felt the law had put them in control of the personal data that companies have access to (Deloitte, [[Probable year:: 2018]], 18).
European Union
In a [[Probable year:: 2019]] European Union (including North Macedonia) study conducted a year after the implementation of the GDPR, the European Commission concurred with Deloitte in that the GDPR had made people more aware of their rights (Vandystadt & Voin, [[Probable year:: 2019]]) . However, only 20% of these respondents knew which authority was responsible for protecting privacy rights (Vandystadt & Voin, [[Probable year:: 2019]]; Awareness of the general data protection regulation, [[Probable year:: 2019]]) .
United States
In [[Probable year:: 2002]], a Harris Poll found that 63% of respondents found the privacy legislation in place to be inadequate (EPIC, [[Probable year:: 2021]]) . In [[Probable year:: 2019]], 75% of those surveyed felt the government should regulate companies and their use of personal data (Auxier, [[Probable year:: 2020]]) . In [[Probable year:: 2020]], 79% of the population wanted national privacy legislation enacted (Auxier, [[Probable year:: 2020]]) . It is clear that over time, Americans have become more concerned about the use of their personal data, especially in the private sector (Auxier et al., [[Probable year:: 2019]]; Auxier, [[Probable year:: 2020]]) . Despite this fact, the United States has still not enacted sweeping privacy legislation at a national level. At the state level, California was the first state to enact privacy legislation in [[Probable year:: 2018]], and at least nineteen other states have followed suit with the hope that it will signal the federal government to propose some sort of national privacy legislation for ease of compliance (Sabin, [[Probable year:: 2021]]) . However, Americans seem to be fine with either approach, with polls showing around 70% find their state government to be responsible for this issue and the same percent find the federal government to be responsible (Sabin, [[Probable year:: 2021]]) .
New Zealand
In [[Probable year:: 2012]], the New Zealand Privacy Commissioner published a privacy study completed by UMR Research. This study found that 90% of people wanted the government to protect their data and be told by companies how their data was being used (Privacy Commissioner, [[Probable year:: 2012]], 9). Interestingly, only 66% were concerned about the presence of their personal data online (Privacy Commissioner, [[Probable year:: 2012]], 12). However, 88% of respondents wanted businesses to be punished if they were using data incorrectly, and 97% wanted the Privacy Commissioner to be able to reprimand companies if they were breaching the then enforceable [[Probable year:: 1993]] Privacy Act (Privacy Commissioner, [[Probable year:: 2012]], 23, 10). Since this study was published, the [[Probable year:: 1993]] Privacy Act has been updated. Now, if an investigation reveals a breach of duty or misconduct, Article 96 of the Privacy Act [[Probable year:: 2020]] requires the Commissioner to refer the matter to authorities, reflecting some of the public’s wants revealed in the [[Probable year:: 2012]] poll.
British Columbia
In [[Probable year:: 2020]], Canadian non-profit, Freedom of Information and Privacy Association or FIPA, worked with Ipsos and polled British Columbians surrounding their attitudes regarding privacy law. About half of them were unsure if the current laws were protective enough or admitted they thought current privacy laws were lacking (FIPA, [[Probable year:: 2020]]) . When asked about the transparency of Canadian companies, 50% felt companies were not open about their data practices and 75% felt that Canadian companies may send their data to non-Canadian companies (FIPA, [[Probable year:: 2020]]) . However, one-third of respondents from the same study knew British Columbian privacy law and its protections and three-quarters would like a public education initiative to teach these protections (FIPA, [[Probable year:: 2020]]) .
References:
Auxier, B. (2020, May 4). How Americans see digital privacy issues amid the COVID-19 outbreak. Pew Research Center. https://www.pewresearch.org/fact-tank/2020/05/04/how-americans-see-digital-privacy-issues-amid-the-covid-19-outbreak/
Auxier, B., Rainie, L., Anderson, M., Perrin, A., Kumar, M., & Turner, E. (2019, Nov. 15). Americans and privacy: Concerned, confused, and feeling lack of control over their personal information. Pew Research Center. https://www.pewresearch.org/internet/2019/11/15/americans-and-privacy-concerned-confused-and-feeling-lack-of-control-over-their-personal-information/
Awareness of the general data protection regulation – one year on. (2019). European Commission. https://europa.eu/eurobarometer/surveys/detail/2222
Deloitte. (2018). A new era for privacy: GDPR six months on. https://www2.deloitte.com/content/dam/Deloitte/uk/Documents/risk/deloitte-uk-risk-gdpr-six-months-on.pdf
Electronic Privacy Information Center (EPIC). (2021). Public opinion on privacy. https://epic.org/privacy/survey/
FIPA. (2020, June 4). British Columbians want action on privacy protection: Polling results. https://fipa.bc.ca/2020-privacy-poll/
Privacy Act 2020, 2020 No. 31, (2021). https://www.legislation.govt.nz/act/public/2020/0031/latest/LMS23223.html
Privacy Commissioner. (2012, Apr.). UMR omnibus results. https://www.privacy.org.nz/assets/Files/Surveys/Privacy-Commission-UMR-Omni-Results-Apr-2012.pdf
Sabin, S. (2021, Apr. 27). States are moving on privacy bills. Morning Consult. https://morningconsult.com/2021/04/27/state-privacy-congress-priority-poll/
Vandystadt, N., & Voin, M. (2019, July 24). GDPR shows results, but work needs to continue. European Commission. https://europa.eu/eurobarometer/api/deliverable/download/file?deliverableId=69715
Wolford, B. (n.d.). What is GDPR, the EU’s new data protection law? GDPR EU. Retrieved Sept. 9, 2021, from https://gdpr.eu/what-is-gdpr/
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.
The [[Probable year:: 1964]] Afghan Constitution protected only the right to privacy in the home in Article 28 (“Afghanistan [[Probable year:: 1964]] Constitution”). Today, Article 38 offers similar protections and Article 37 protects communications (Constitute Project, “Afghanistan [[Probable year:: 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 +
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 [[Probable year:: 1998]] constitution (Constitute Project, “Albania [[Probable year:: 1998]] rev. [[Probable year:: 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. +
Today, the [[Probable year:: 2020]] constitution protects the inviolability of the domicile in Article 47 and, in Article 46, private life and private communication (Constitute Project, “Algeria [[Probable year:: 2020]]” ). Previously, these rights were protected in the [[Probable year:: 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 +
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 [[Probable year:: 1993]]” ).
https://constituteproject.org/constitution/Andorra_[[Probable year:: 1993]]? lang=en +
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 [[Probable year:: 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 +
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. +
Articles 18 & 19 of the [[Probable year:: 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 [[Probable year:: 1853]], reinst. [[Probable year:: 1983]], rev. [[Probable year:: 1994]]” ).
References:
https://www.constituteproject.org/constitution/Argentina_1994 +
The [[Probable year:: 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 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 [[Probable year:: 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 +