Privacy: Legal and Ethical Issues

views updated

Privacy: Legal and Ethical Issues

█ JUDSON KNIGHT

Among the foundational principles of the Western liberal tradition that binds the American political system is the belief that the rights of the individual, wherever possible, must be preserved against the authority of the state. Emanating from that principle is the implication that individuals have a right to privacy, a right implied—as noted by several distinguished Supreme Court justices over time—in the U.S. Constitution. Balancing and sometimes apparently contradicting this right to privacy is the need for security on a national and sometimes a local level. This conflict of needs and aims has given rise to public debate over numerous specific issues, including national security measures undertaken in the wake of the September 11, 2001, terrorist attacks.

Privacy Rights in Tort and Constitutional Law

A wide array of U.S. laws, both tort and constitutional, support the individual's right to privacy. In tort law, persons have a right to seek legal redress for invasions of privacy undertaken for the purposes of material gain, mere curiosity, or intention to defame. These protections extend to all persons under U.S. law, though public figures—a term strictly defined in legal statutes—have somewhat less broad rights of privacy.

Some national constitutions spell out the rights of the individual, with the assumption that all other privileges belong to the government. The U.S. Constitution, by contrast, delineates government authority, with the provision that all other rights belong to individuals. To James Madison and other founders of the republic, these guarantees did not go far enough, and therefore, Congress passed the Bill of Rights, or the first 10 amendments to the Constitution. Among these are several that would later figure heavily in debates over privacy: the First Amendment, with its protection of free speech; the Fourth Amendment, against unlawful search and seizure; and the Fifth Amendment, which provides for due process under law. The Fourteenth Amendment, passed after the Civil War to protect the rights of freed slaves, extends Fifth Amendment provisions to states as well.

Contrary to popular belief, neither the Constitution nor its amendments contain any reference to privacy as a right per se. The concept of "The Right to Privacy" comes from an influential 1890 Harvard Law Review article by that title, under which Supreme Court Justice Louis Brandeis, writing with Samuel Warren, put forward the proposition that privacy rights extend beyond mere protection against clear-cut intrusions on privacy. Thereafter, a number of landmark decisions in the Supreme Court broadened the concept of privacy as defined in constitutional law. Among these was Griswold v. Connecticut (1965), involving a state law that prohibited the use of contraceptives. Writing for the Court, which struck down the law, Justice William O. Douglas held that the "penumbra" of the First, Fourth, and Fifth collectively provides a "zone of privacy".

The Revolution of the 1970s

The 1970s saw a revolution in privacy rights, not only through the Court—whose Griswold decision set the stage for the protection of abortion rights in Roe v. Wade (1973)—but also in the legislative branch of government. In 1974, Congress passed the Privacy Act, which restricts the authority of government agencies to collect information on individuals or to disclose that information to persons other than the individual. The Privacy Act also requires agencies to furnish the individual with any information on him or her that the agency had in its files.

In 1967, Congress had passed the Freedom of Information Act (FOIA), which limits the ability of U.S. federal government agencies to withhold information from the public by classifying that information as secret, but it greatly expanded FOIA provisions in 1975. Together with the Privacy Act—the two are often referred to collectively as the Freedom of Information-Privacy Acts (FOIPA)—these served to further extend the rights of individuals against government intrusion. Like FOIA, the Federal Wiretapping Act of 1968 had been passed earlier, but it, too, was extended in the 1970s. (Today, all U.S. states have laws against wiretapping and telephone recording.)

Many of these changes occurred as a response, either directly or indirectly, to the Watergate scandal and the subsequent revelations of illegal wiretapping, recording, and surveillance activity conducted by the Nixon White House and other compartments of the federal government. In 1976, Congress passed the Foreign Intelligence Surveillance Act (FISA). FISA, which became law in 1978, placed checks and balances on the authority of government agencies to conduct surveillance on persons accused of conducting espionage—authority that had been misused by Federal Bureau of Investigation director J. Edgar Hoover in some domestic intelligence campaigns during the 1950s and 1960s.

Privacy Issues in the 1990s and Beyond

In September, 1997, Congress passed the Fair Credit Reporting Act (FCRA), which requires potential employers to obtain written authorization from a job candidate or employee before accessing records from a consumer reporting agency. The employer is also required to notify the employee or applicant if any adverse action is taken pursuant to a negative report. Thus federal law extended privacy rights to protect the individual from intrusion by businesses as well as the government.

Many privacy issues at the dawn of the twenty-first century involved new technologies and new developments in the national security environment. In the area of technology, the broadening of access to the Internet brought with it a number of concerns regarding government monitoring of e-mail and other traffic—concerns heightened by the revelation, in the late 1990s, that the National Security Agency and counterparts in other parts of the English-speaking world monitor global communications through the Echelon surveillance system. On the one hand, the Internet has provided new venues for illegal activity such as the dissemination of child pornography; on the other hand, groups such as the American Civil Liberties Union (ACLU) contend that government monitoring of such activities is often used against innocent persons.

The ACLU has been among the most vocal opponents to intensified security measures undertaken in the wake of the September 2001 bombings. In October 2001, Attorney General John Ashcroft presented a proposed antiterrorism bill that would broaden government authority under FISA. Questioning these and other measures, ACLU spokespersons, acknowledging the need for heightened security, stated that the ACLU's goal is to monitor the proposal for increased law enforcement power to ensure that they have maximum effectiveness with a minimal erosion of civil liberties."