Right to Privacy in USA

The right to privacy is an element of various legal traditions to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy.

Since the global surveillance disclosures of 2013, initiated by ex-NSA employee Edward Snowden, the inalienable human right to privacy has been a subject of international debate. In combating worldwide terrorism, government agencies, such as the NSA, CIA, R&AW and GCHQ, have engaged in mass, global surveillance.

There is now a question as whether the right to privacy act can co-exist with the current capabilities of intelligence agencies to access and analyse virtually in every detail of an individual's life. A major question is that whether or not the right to privacy needs to be forfeited as part of the social contract to bolster defense against supposed terrorist threats.

Background

State of consideration of constitutional laws and acts formed by sectors and sections

Privacy uses the theory of natural rights, and generally responds to new information and communication technologies. In the United States, an article in the December 15, 1890 issue of the Harvard Law Review, written by attorney Samuel D. Warren and future U.S. Supreme Court Justice, Louis Brandeis, entitled "The Right to Privacy", is often cited as the first implicit declaration of a U.S. right to privacy. Warren and Brandeis wrote that privacy is the "right to be let alone", and focused on protecting individuals. This approach was a response to recent technological developments of the time, such as photography, and sensationalist journalism, also known as "yellow journalism".

Privacy rights are inherently intertwined with information technology. In his widely cited dissenting opinion in Olmstead v. United States (1928), Brandeis relied on thoughts he developed in his 1890 article The Right to Privacy. But in his dissent, he now changed the focus whereby he urged making personal privacy matters more relevant to constitutional law, going so far as saying "the government [was] identified...as a potential privacy invader." He writes, "Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet." At that time, telephones were often community assets, with shared party lines and the potentially nosey human operators. By the time of Katz, in 1967, telephones had become personal devices with lines not shared across homes and switching was electro-mechanical. In the 1970s, new computing and recording technologies began to raise concerns about privacy, resulting in the Fair Information Practice Principles.

Definitions

In recent years there has been only few attempts to clearly and precisely define the "right to privacy". In 2005, students of the Haifa Center for Law & Technology asserted that in fact the right to privacy "should not be defined as a separate legal right" at all. By their reasoning, existing laws relating to privacy in general should be sufficient. Other experts, such as William Prosser, have attempted, but failed, to find a "common ground" between the leading kinds of privacy cases in the court system, at least to formulate a definition. One law school treatise from Israel, however, on the subject of "privacy in the digital environment," suggests that the "right to privacy should be seen as an independent right that deserves legal protection in itself." It has therefore proposed a working definition for a "right to privacy":

The right to privacy is our right to keep a domain around us, which includes all those things that are part of us, such as our body, home, property, thoughts, feelings, secrets and identity. The right to privacy gives us the ability to choose which parts in this domain can be accessed by others, and to control the extent, manner and timing of the use of those parts we choose to disclose.

An individual right

Alan Westin believes that new technologies alter the balance between privacy and disclosure, and that privacy rights may limit government surveillance to protect democratic processes. Westin defines privacy as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others". Westin describes four states of privacy: solitude, intimacy, anonymity, reserve. These states must balance participation against norms:

Each individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives.

— Alan Westin, Privacy and Freedom, 1968

Under liberal democratic systems, privacy creates a space separate from political life, and allows personal autonomy, while ensuring democratic freedoms of association and expression.

David Flaherty believes networked computer databases pose threats to privacy. He develops 'data protection' as an aspect of privacy, which involves "the collection, use, and dissemination of personal information". This concept forms the foundation for fair information practices used by governments globally. Flaherty forwards an idea of privacy as information control, "[i]ndividuals want to be left alone and to exercise some control over how information about them is used".

Marc Rotenberg has described the modern right to privacy as Fair Information Practices, "the rights and responsibilities associated with the collection and use of personal information". Rotenberg emphasizes that the allocation of rights are to the data subject and the responsibilities are assigned to the data collectors because of the transfer of the data and the asymmetry of information concerning data practices.

Richard Posner and Lawrence Lessig focus on the economic aspects of personal information control. Posner criticizes privacy for concealing information, which reduces market efficiency. For Posner, employment is selling oneself in the labour market, which he believes is like selling a product. Any 'defect' in the 'product' that is not reported is fraud. For Lessig, privacy breaches online can be regulated through code and law. Lessig claims "the protection of privacy would be stronger if people conceived of the right as a property right", and that "individuals should be able to control information about themselves". Economic approaches to privacy make communal conceptions of privacy difficult to maintain.

A collective value and a human right

There have been attempts to reframe privacy as a fundamental human right, whose social value is an essential component in the functioning of democratic societies. Amitai Etzioni suggests a communitarian approach to privacy. This requires a shared moral culture for establishing social order. Etzioni believes that "[p]rivacy is merely one good among many others", and that technological effects depend on community accountability and oversight. He claims that privacy laws only increase government surveillance.

Priscilla Regan believes that individual concepts of privacy have failed philosophically and in policy. She supports a social value of privacy with three dimensions: shared perceptions, public values, and collective components. Shared ideas about privacy allows freedom of conscience and diversity in thought. Public values guarantee democratic participation, including freedoms of speech and association, and limits government power. Collective elements describe privacy as collective good that cannot be divided. Regan's goal is to strengthen privacy claims in policy making: "if we did recognize the collective or public-good value of privacy, as well as the common and public value of privacy, those advocating privacy protections would have a stronger basis upon which to argue for its protection".

Leslie Regan Shade argues that the human right to privacy is necessary for meaningful democratic participation, and ensures human dignity and autonomy. Privacy depends on norms for how information is distributed, and if this is appropriate. Violations of privacy depend on context. The human right to privacy has precedent in the United Nations Declaration of Human Rights. Shade believes that privacy must be approached from a people-centered perspective, and not through the marketplace.

Universal Declaration of Human Rights

A right to privacy is explicitly stated under Article 12 of the 1948 Universal Declaration of Human Rights:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Privacy Laws of the United States

Although the Constitution does not explicitly include the right to privacy, the Supreme Court has found that the Constitution implicitly grants a right to privacy against governmental intrusion from the First Amendment, Third Amendment, Fourth Amendment, and the Fifth Amendment. This right to privacy has been the justification for decisions involving a wide range of civil liberties cases, including Pierce v. Society of Sisters, which invalidated a successful 1922 Oregon initiative requiring compulsory public education, Griswold v. Connecticut, where a right to privacy was first established explicitly, Roe v. Wade, which struck down a Texas abortion law and thus restricted state powers to enforce laws against abortion, and Lawrence v. Texas, which struck down a Texas sodomy law and thus eliminated state powers to enforce laws against sodomy.

The 1890 Warren and Brandeis article "The Right To Privacy" is often cited as the first implicit declaration of a U.S. right to privacy. This right is frequently debated. Strict constructionists argue that such right exists (or at least that the Supreme Court has more jurisdiction to protect such a right), while some civil libertarians argue that the right invalidates many types of currently allowed acts not to be surveillance (wiretaps, public cameras film industry, etc.).

Most states of the United States also grant a right to privacy and recognize four torts based on that right:

1. Intrusion upon seclusion or solitude, or into private affairs;
2. Public disclosure of embarrassing private facts;
3. Publicity which places a person in a false light in the public eye; and
4. Appropriation of name or likeness.

The 4 privacy torts above were introduced by William Prosser, some even argue this in addition to the "right to privacy" by Warren and Brandeis form the basis for modern U.S. privacy legislation.

Also, in some American jurisdictions the use of a person's name as a keyword under Google's AdWords for advertising or trade purposes without the person's consent has raised certain personal privacy concerns.

Right to privacy and social media content laws have been considered and enacted in several states, such as California’s “online erasure” law protecting minors from leaving a digital trail. However, the United States is still far behind that of European Union countries in protecting privacy online. For example, the “right to be forgotten” ruling by the EU Court of Justice protects both adults and minors.

On March 11, 2015, Intelligence Squared US, an organization that stages Oxford-style debates, held an event centered on the question, "Should the U.S. adopt the 'Right to be Forgotten' online?" The side against the motion won with a 56% majority of the voting audience.

https://en.wikipedia.org/wiki/Right_to_privacy

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Cell tower records can and do provide a record of a person’s whereabouts and movements.  With a 5 to 4 decision on the matter, the Supreme Court decided on June 22, 2018, that a warrant is needed to gain access to this private information.  See https://www.nytimes.com/2018/06/22/us/politics/supreme-court-warrants-cell-phone-privacy.html

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“Roe v. Wade, 410 U.S. 113 (1973), is a landmark decision issued in 1973 by the United States Supreme Court on the issue of the constitutionality of laws that criminalized or restricted access to abortions. The Court ruled 7–2 that a right to privacy under the Due Process Clause of the 14th Amendment extended to a woman's decision to have an abortion, but that this right must be balanced against the state's interests in regulating abortions: protecting women's health and protecting the potentiality of human life.”

           See https://en.wikipedia.org/wiki/Roe_v._Wade

This Wikipedia article states:

The Court declined to adopt the district court's Ninth Amendment rationale, and instead asserted that the "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the district court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Douglas, in his concurring opinion in the companion case, Doe, stated more emphatically, "The Ninth Amendment obviously does not create federally enforceable rights."

Justice Blackmun's majority opinion explicitly rejected a fetal "right to life" argument. The Court instead recognized the right to an abortion as a fundamental right included within the guarantee of personal privacy. As a result, regulations limiting abortion had to be justified by a "compelling state interest," and legislative enactments regulating abortion had to be narrowly tailored to meet the compelling interests; in other words, Justice Blackmun applied a strict scrutiny analysis to abortion regulations.