WASHINGTON, April 30, 2017 – The Constitution of the United States does not provide for the right to privacy. The word privacy does not even appear in the Constitution. Yet, everyone claims it and everyone assumes it.
Thus, is there a “right” to privacy? There is. The Supreme Court of the United States has said that several Amendments create this right. The Fourth Amendment, in particular, stops the police and other government agents from searching people or their property without “probable cause” that they have committed a crime. Other amendments protect the freedom to make certain decisions about our bodies and our private lives without interference from the government – which includes public schools.
Moreover, around the world, privacy is mentioned in over 150 national constitutions, and the right is explicitly stated under Article 12 of the 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 or reputation. Everyone has the right to the protection of the law against such interference or attacks.
Secret celebrity weddings, student lockers, a woman’s decision about abortion, going through an airport metal detector, doctor-patient confidentiality, content of email, and a journalist’s belief that the public “has the right to know” are but a few of the issues addressed under the heading of the right to privacy. Which bathroom should a transgender person use? Are the privacy rights of those in the bathroom a concern?
The Supreme Court has established many privacy protections in its rulings. Many of the broadest rulings focus on issues of sex and sexuality, and around the institution of marriage, and what goes on inside the couple’s home.
In that regard rulings have involved and protected “privacy” with regard marital choice, the right of married couples to decide what language to teach their children, or whether or not to use contraceptives. A representative case was decided in 1967 (and recently was made into a movie), when, in Loving v. Virginia, the court rejected a ban on interracial marriage as a violation of the marital right to privacy. Two years earlier the court ruled in Griswold v. Connecticut that the government had no right to prevent married couples from using contraceptives.
Some legal scholars argue that there is no right to privacy, offering that courts ruling that there is are examples of judicial activism or judicial legislation. They argue that the First Amendment’s protection of the right to “free exercise of religion” is not a right to “privacy of belief.”
Issues of privacy have always been difficult to resolve when security is involved. The tragedy of the attacks on September 11, 2001 radically changed the U.S. government’s attitude about privacy rights. Today it is normal course to submit to body scans in metal detectors at airports, and even to take off shoes and submit to pat-downs in airport security lines.
The disclosure of global surveillance in 2013, courtesy of Edward Snowden, made clear that much of what was thought to be private is, in fact, not.
Government agencies such as the National Security Agency (NSA), the Central Intelligence Agency (CIA), The Research and Analysis Wing (RAW, the primary foreign intelligence agency of India), and the Government Communications Headquarters (GCHQ), a British Intelligence and Security organization, all have far-reaching views into the lives and communications of the world, and all have been justified as necessary “intrusions” in the fight against terrorism.
Russia is alleged to have had such significant information about U.S. citizens that they influenced the most recent Presidential election.
A real discussion continues about whether the right to privacy can co-exist with the current capabilities of governments to access and analyze virtually every detail of an individual’s life.
The PEW Research Center concluded a study last September, 2016. In sum, they concluded Americans are more concerned about protection, and say that anti-terrorism programs don’t go far enough, than they are concerned about civil liberties. Most believe is it acceptable for the government to monitor many others, including foreign citizens, foreign leaders and American leaders. The study found that 57% said it was unacceptable to monitor U.S. citizens.
Governments are not the only entities that may seemingly have stripped individuals of their privacy. One of the top privacy issues is that of guarding both personal and business data.
Businesses track and collect data, and they know a dizzying array of information about those who visit their websites or respond to their ads or to their surveys. Businesses know their shoppers’ addresses, email addresses, ages, birthdays, likes, dislikes, friends, buying habits, sexual preferences, education levels, income levels, political leanings, and much, much more.
From the data obtained, individuals are targeted with ads specifically designed just for them. Then the personal information is sold to others, to all measure of businesses and organizations, for the same sales and other purposes.
The biggest social media platform, Facebook, has sharing “holes” according to experts, and individuals’ photographs are tagged on Facebook, and on other social media sites, such that you are being identified wherever you travel.
Obtaining information about anyone, legally, is easy and takes just a few clicks of a mouse. It is no wonder identity theft is now the biggest crime in the world.
Beyond websites, businesses track the movements of those in and around their brick and mortar stores with security cameras. Living a secluded life or “under the radar” is almost impossible.
Further, seemingly everyone has a mobile telephone camera. The act of sexting (sending nude or sexually enticing photographs of yourself to another person) begs the privacy question about the sender disseminating the images. Revenge porn takes that similar concept even further, when what once were thought to be private photos are used against someone after a relationship breakup.
Future Supreme Court Justice Louis Brandeis, a co-author of an article often cited as the first implicit declaration of a U.S. right to privacy, published in the Harvard Law Review in 1890, certainly would roll over now if he heard about today’s custom of intrusion into the lives of people that he said had the r”ight to be let alone.”
A law school treatise from Israel on privacy in the digital environment claims “the right to privacy should be seen as an independent right that deserves legal protection in itself.” A definition thus proposed:
“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.”
We think we have rights. We do. We just can’t control them in today’s world.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.
Samakow has now also started a small business consulting firm. The website for this business is brand new and Mr. Samakow will be most appreciative of any and all comments. www.thebusinessanswer.com.