Right to Privacy

The right to privacy has developed as a nearly universal human right. The best evidence of that trend is the adoption of comprehensive privacy and data protection standards and statutes, as well as the right's inclusion in the Universal

Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the European Convention on Human Rights and Fundamental Freedoms.

An example of broad support for privacy rights can be found in the 1980 Organization for Economic Protection and Development (OECD) Guidelines on the Protection of Privacy and the 1985 Declaration on Transborder Flows of Personal Data, which document international guidance concerning the collection and management of personal information. Containing core principles, the Guidelines assist both governments and the private sector in their efforts to protect privacy and personal data.

As an example at the national level, Australia—in its Privacy Act of 1988—recognized privacy principles based on OECD Guidelines. Sometimes privacy principles have also been embedded in national constitutions, as in Article 22 of the Belgian Constitution or Article 5 of the Constitution of Brazil. The French Constitutional Council has ruled that the right to privacy is implicit in the French Constitution, as has the Indian Supreme Court, interpreting its country's 1950 Constitution.

In addition to protection of personal data, privacy involves respect for the right of people to be left alone, at least when governments or others, acting under carefully prescribed public policy, are unable to demonstrate some compelling justification for intruding. The right to privacy places a high value on individual autonomy—especially valued in the United States—and holds that autonomy ought to prevail across a range of decisions, for example, those involving intellectual pursuits, religious and moral choices, family matters, and most aspects of the sexual conduct of consenting adults. Privacy interests usually cannot be protected effectively except by balancing the interests of individuals, groups, and governments, and in the end, when privacy is protected, this usually results from the coercive authority of the state—most often through the courts. Thus, the right to privacy has come to be seen as a potentially important obstacle against technological intrusions. As in the OECD Guidelines, the protection of personal data—potentially retrievable through various electronic means—is regarded as a pressing contemporary problem. However, whether an abstract right to privacy can be enforced effectively in the face of intrusive and often invisible technologies is an open question, especially when terrorism or national security may be involved.

In private lawsuits the right to privacy has been successful in protecting against

1. Intrusion into a person's private affairs,
2. Public disclosure of private facts about a person's life,
3. Publication of materials that place a person in a false light in the eyes of the public, and
4. Exploitation of, especially for commercial purposes, a person's name or likeness.

These four instances have been enshrined in the Restatement of the Law of Torts.

As a right protected by the U.S. Constitution, privacy has focused most prominently on reproductive freedom, although the right is also important in protecting individuals against other unwarranted intrusions by government officials, especially in instances of eavesdropping or searches.

the warren-brandeis legacy

Most scholars cite the key contribution of Samuel Warren and Louis Brandeis in their "The Right of Privacy," (1890) to the conceptualization of the right to privacy in American jurisprudence . Warren and Brandeis cited English precedents , but their article chiefly addressed intrusions on privacy through the unauthorized publication of private materials, especially photographs. They did concede that the right to privacy should not prohibit the publication of any matter that is truly of public or general interest. However, in their view, if the publication is of purely private information, neither the truthfulness of the matter published nor the absence of malice on the part of the publisher should be a defense. The remedies Warren and Brandeis proposed were damages, tangible actual damages, as well as compensation for injury to feelings. They also called for the use of injunctions in some cases.

The U.S. Constitution is silent as to the right to privacy, although the Ninth Amendment says that the "enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." These "retained rights," which presumably existed prior to constitutional government, have been held to include the right to privacy. Moreover, courts have determined that privacy interests are protected by the First Amendment (freedom of speech, religion, assembly, and association), the Fourth Amendment (protection against unreasonable searches and seizures), the Fifth Amendment (protection against self-incrimination), and—as decided by state governments—the due process clause of the Fourteenth Amendment. A key case establishing a constitutional right to privacy was Griswold v. Connecticut (1965). Justice William Orville Douglas (1898–1980) wrote in Griswold that the right of privacy could be found in the penumbras (shadows) cast by the First, Fourth, Fifth, Ninth, and Fourteenth amendments. Other members of the majority in Griswold relied directly on privacy as a "retained right" under the Ninth Amendment, but the majority agreed that decisions of a married couple concerning birth control were not the business of the government.

Before Griswold several important judicial decisions were rendered that in retrospect appear to implicate privacy, although each was decided on other grounds. These included the right of parents to decide where and how their children should be educated and the right of private associations to refuse to disclose their membership lists to authorities without some compelling justification, which was found lacking in this instance.

In a 1967 decision the U.S. Supreme Court relied on the "reasonable expectation of privacy" as the basis for protection against police interception of telephone calls when no probable cause warrant had been issued. Reasonable expectation has since been a core determinant of whether a governmental intrusion constitutes a violation of the Fourth Amendment. Another application came in a 1969 decision that held that the public sale, display, or distribution of obscenity was not protected by freedom of expression but found the possession of pornographic materials in the privacy of one's home could not be the subject of a search, seizure, or consequent arrest (with the exception of child pornography).

termination of pregnancies

By far the most controversial application of the right to privacy has concerned the extension of reproductive freedom to include the termination of pregnancy. The 1973 decision of the Supreme Court in Roe v. Wade has been the subject of continuing controversy for more than thirty years. Unlike the decision in Griswold, the Court's majority recognized that the respect for the prospect of life and societal concerns had to be taken into account in determining limits on a woman's autonomy in making decisions concerning her body. Justice Harry A. Blackmun's (1908–1999) opinion balanced these factors by adopting a trimester rule. A woman's autonomy was respected and protected during the first trimester of pregnancy. During the second trimester the government could intrude, but only for the purpose of protecting the life and health of the woman, and during the third trimester the government could intervene to protect the interest of the unborn child and to prohibit abortions that were not based on protecting the life or health of the woman.

It probably was the practical but extra-textual and innovative character of the trimester rule that chiefly outraged legal commentators who are textual purists. Most opponents of Roe v. Wade, however, were religious moralists whose view that life begins at conception precluded all abortions, except for those who reluctantly conceded that abortions might be appropriate in the instance of forcible rape or incest. Efforts to put justices on the Supreme Court who might vote to repeal Roe v. Wade have been a continuing feature of the conservative social agenda in American politics. On the other side of the fence, for those who support a woman's "right to choose," it has been a litmus test of liberal political views.

The core of the Roe decision often has rested on the views of one or two justices, most notably those of Justice Sandra Day O'Connor (b. 1930), the first woman to serve on the Supreme Court. The Court has ruled that neither the federal government nor state governments have any obligation to provide public funds for nontherapeutic abortions. The decisive votes on the Court in Planned Parenthood v. Casey (1992) reflected movement toward a "undue burden" rule. Thus, the question that must be decided is whether a state regulation or limitation on abortion places a substantial obstacle in the path of a woman's right to choose. One example of a circumstance held to be an undue burden was a state requirement of spousal notification as a condition to a woman's decision to terminate a pregnancy.

internet privacy

In the mid-1990s the debate over Internet free-speech rights came to a head when the Group of Seven (G-7) nations began formulating plans to control information passed along the Internet in the name of preventing terrorism.

In one proposal the G-7 nations (Britain, Canada, France, Germany, Italy, Japan, and the United States) sought to limit private encryption programs, fearing terrorists would use unbreachable programs to hide their communications. Encryption programs are used to "scramble" messages sent over the Internet so they cannot be read by any Internet user. The G-7 wanted to regulate encryption programs and hold the "key" to decoding messages, promising to do so only if they sensed a security threat.

This proposal raised concerns among many who believed it would be a violation of free speech and privacy for governments to have access to their citizens' private communications. Soon after this proposal was announced, the Global Internet Liberty Campaign (GILC) was launched. The GILC, which works to protect free speech and privacy, is made up of the American Civil Liberties Union, the Electronic Privacy Information Center, Human Rights Watch, and other international human-rights and free-speech advocates.

While the GILC was initially able to prevent this plan from becoming reality, many countries, including the United States, regulate the exportation of encryption programs, fearing the most powerful ones should not be available abroad for terrorists to use. The GILC remained an active force into the twenty-first century, as governments renewed calls for restricting the Internet and other forms of electronic communication as a means to prevent terror.

sexual orientation

Individual autonomy concerning sexual conduct also has proved controversial with respect to homosexuals. The Supreme Court's decision in Bowers v. Hardwick (1986) upheld a Georgia statute that criminalized sodomy even for adults in the privacy of a home. The majority refused to recognize the fundamental right of adults to engage in private sexual conduct. The opinions of the four dissenters in Bowers, however, were consistent with the origins of the right to privacy in upholding the right to be left alone. However, in 2003 the Court reconsidered in the case of Lawrence v. Texas. In this instance a Texas statute only criminalized sodomy between homosexuals. Most regulations of private adult heterosexual conduct had been decriminalized. A majority of the Court voided the Texas statute on grounds of equal protection of the law and the right to privacy. The extension of equal protection to cover sexual orientation was a key development, but the affirmation of the right to privacy was a direct repudiation of Bowers v. Hardwick.

data privacy

The advent of high-speed information technology in the late twentieth century raised a number of pressing concerns about privacy, especially the capacity of powerful government-owned computer systems to scan huge amounts of information. The first legislation addressing these concerns materialized in the early 1970s, with the first U.S. law coming in 1974. One advocacy report notes that all such laws require that personal information must be (1) obtained lawfully, (2) used only for the intended purpose, (3) not excessive for the intended purpose, and (4) destroyed once the purpose is served.

The world after the September 11, 2001, terrorist attacks has made data privacy concerns even more compelling. For example, the USA Patriot Act relies significantly on database surveillance, including, for example, the possible examination of the records of public libraries to see what books the patrons are reading. The act also permits government surveillance of any transmission that uses Web technology or airwave transmission. Its full ramifications in terms of privacy have not been yet been determined. However, a United States District Court late in 2004 declared certain portions of the Patriot Act to be unconstitutional. Even so, the only definitive judgment must come from the Supreme Court of the United States. The U.S. government also has led efforts to limit privacy and enhance the surveillance of law enforcement. The Global Internet Privacy Campaign (now the Global Internet Liberty Campaign) has called attention to two policies. One has been the mandate that digital telephone switches and cellular and satellite phones have built-in surveillance features. The other has been regulation of the private use of encryption programs.

Project ECHELON, an alliance between the U.S. National Security Agency (NSA) and the United Kingdom's Government Communication Headquarters (GCHQ), provides for the scanning of most worldwide data communication for key words, with real-time scanning capability yet to come. Video surveillance (CCTV) is now a feature of everyday urban life, especially in the United Kingdom. Workplace surveillance, both electronic and video, also is becoming a commonplace feature of everyday life.

protection of identity

Issues involving personal identity also have come to the fore. Whether the issue is identity theft or national or international identity registration systems, privacy concerns raise important issues. The retrieval of biometric data, including DNA or facial identification, is at the cutting edge, with appropriate regulations yet to be determined.

The long list of developments here demonstrates that the privacy concerns raised by Warren and Brandeis in 1890 may still be relevant in abstract principle but quaint in their details. Technology-driven social changes promise to outstrip the capacity of the law to enforce effective controls. Perhaps most ominous is the reality that individuals lack the capacity to protect their own privacy. Probably the only way to monitor electronic surveillance and intrusion effectively is through countervailing institutions and programs that themselves require sophisticated technology, large resources, and their own technocratic personnel; of course, these programs and institutions might have much the same capacity to intrude on personal privacy as the governmental institutions that they claim to monitor. The old question "Who will watch the watchers?" has taken on new meaning and relevance. It catapults the transnational and international protection of privacy rights to the first order of importance.

Privacy rights have been recognized in Article 12 of the Universal Declaration of Human Rights (1948) ("No one should be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honour or reputation"), the International Covenant on Civil and Political Rights (adopted in 1966, entered into force in 1976), and regional rights documents such as the European Convention on Human Rights and Freedoms (adopted in 1950, entered into force in 1953), the American Convention of Human Rights (adopted in 1969, entered into force in 1978), and the American Declaration of the Rights and Duties of Man (adopted in 1948). The most extensive application of privacy rights in these documents so far has occurred through Article 8(1) of the European Convention, which provides for the protection of private life and family life, home, and personal correspondence, whereas Article 8(2) provides that any interference with these rights (1) must transpire "in accordance with the law," (2) are permitted only "in the interest of national security, pubic safety or economic well-being of the country," and (3) are "necessary in a democratic society." Cases involving the interpretation of these words have been prominent in decisions of the European Court of Human Rights.

As noted above, entirely circumscribing the family with the right to privacy may have the consequence of limiting the rights of children. The UN Convention on the Rights of the Child (adopted in 1989, entered into force in 1990) has sought to address this issue, its purpose, in part, being to separate the rights of children from those of families and to treat children sometimes as independent "rights actors" relative to their parents and governments. Indeed, it is characteristic of privacy claims that they almost always involve the balancing of competing interests, as this discussion has clearly demonstrated.

See also: Freedom of Expression; Freedom of Religion and the State; Freedom of Religion, Foundations of.

bibliography

Abraham, Henry, and Barbara Perry. Freedom and the Court. Lawrence: University Press of Kansas, 2002.

American Law Institute, Philadelphia. Restatement of the Law of Torts, 2nd ed., 1990. <http://www.ali.org>.

Bowers v. Hardwick. 478 U.S. 186, 106 S.C. 2841 (1986).

Feldman, David. "The Scope of Legal Privacy." Civil Liberties and Human Rights in England and Wales, 2nd ed. Oxford, UK: Oxford University Press, 2002.

Electronic Privacy Information Center. <http://www.epic.org>.

Global Internet Liberty Campaign. <http://www.gilc.org>.

Griswold v. Connecticut. 391 U.S. 145, 85 S.C. 1678 (1965).

Lawrence v. Texas. 539 U.S. 538, 123 S.C. 2472 (2003).

OECD Privacy Guidelines (1980), Declaration on Transborder Data Flows (1985), and Ministerial Declaration on the Protection of Privacy on Global Networks (1998). <http://www.oecd.org>.

Patriot Act. <http://http://www.epic.org/privacy/terrorism/hr3162.html>.

Planned Parenthood v. Casey. 505 U.S. 111 S.C. 2791 (1992).

Roe v. Wade. 410 U.S. 113, 93 S.C. 705 (1973).

Warren, Samuel D., and Louis D. Brandeis. "The Right to Privacy." Harvard Law Review IV (1890):193–220.

Donald W. Jackson