C H A P T E R 6
PrivacyThe right of the people to be secure in their persons,
houses, papers, and effects,
against unreasonable searches
and seizures, shall not be violated….. Fourth Amendment to the U.S. Constitution
The enumeration in the Constitution,
of certain rights, shall not be construed to deny or
disparage others retained by the people.
Ninth Amendment to the U.S. Constitution
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty,
or property, without due process of law….
Fourteenth Amendment to the U.S. Constitution
Rights, while often perceived as absolute, are never static or unchanging. Freedom of speech means that people for the most part have the right to say what they think, but the means by which they say it, the opportunities they may have to express themselves, do change over time, and as a result the nature of the right also changes. Technological developments, as well as social and cultural evolution, may affect how we think of particular rights, and these changes may also determine how those rights are defined. No better case exists than the right to privacy, a right that is not mentioned in the Constitution, and yet a right that the courts and the people have invested with constitutional status.
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|Sir William Pitt, Earl of Chatham, on the right of an Englishman to be secure in his home (1763)|
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail its roof may shake the wind may blow through it the storm may enter the rain may enter but the King of England cannot enter; all his forces dare not cross the threshold of that ruined tenement.
Pitt's famous comment sums up what until recently many people saw as the heart of privacy, the right to be let alone within one's home, safe from the powers of the government. In America, the Fourth Amendment to the U.S. Constitution establishes this notion that the people have a right to be safe in their own homes, and it is a notion reinforced by the Third Amendment's command that soldiers shall not be quartered in private residences.
The notion of privacy as security from prying, from having one's personal behavior or business displayed in public for all to see and comment on, is the invention of the industrial age. In ancient times, and indeed up to the 18th century, privacy in the sense of solitude, isolation, of space for one's self, was unknown except for the rich or the nobility. Most people lived in small, bare housing, the entire family often sleeping together in one room. Indeed, as a legal concept, "privacy" originally referred to a form of defamation, the appropriation of one's name or picture without that individual's permission.
But as Western society grew wealthier, as a middle class grew with the means to afford larger houses where members of a family could have separate spaces of their own, the meaning of privacy also changed. Now it became a matter of individuality, of people assuming that what they did beyond the arena of public life was no one's business except their own. Neither the government, the media, nor in fact anyone else had any business knowing about their private life.
Privacy, in its modern meaning, is very much related to individuality, and is a right of the person, not of the group or the society. "Without privacy," the political scientist Rhoda Howard has written, "one cannot develop a sense of the human individual as an intrinsically valuable being, abstracted from his or her social role." The opposite is also true: Without a sense of individuality, there can be no perception of a need for privacy.
Privacy, like most rights, relates directly to democracy. Human beings have a need both for discourse and interaction with others, as well as time and space for themselves. Privacy is not isolation or exile, but rather a self-chosen desire to be alone or with a few other people of one's choice. Solitary confinement in prison, for example, is not privacy, but wandering alone or with a friend in the mountains conjures up what we mean by the word. In solitude we can think through ideas, free from pressures of the government or the market. George Orwell understood perfectly the relationship of freedom and privacy when in his classic novel of totalitarianism, 1984, he abolished privacy and substituted the all-seeing omni-present eye of the government.
Although privacy is not specifically mentioned in the Constitution, it is evident that the Founding Generation knew and valued the concept. A few years before the Revolution, for example, Massachusetts enacted an excise tax that required homeowners to tell the tax collectors how much rum had been drunk in their houses the prior year. The people immediately protested, on the grounds that a man's home was his castle, and what he did there was none of the business of the government.
|Pamphlet Protesting excise tax in Massachusetts (1754)|
It is essential to the English Constitution, that a Man should be safe in his own House; his House is commonly called his Castle, which the Law will not permit even a sheriff to enter into, but by his own Consent, unless in a criminal case.
The idea of privacy could be found in the political philosophy of John Locke, as well as that of Thomas Jefferson and others of the Founding Fathers. Federalist Papers 10 and 51 laud the idea of privacy, and the liberty embedded in the Constitution was that of liberty from the government. Whatever else it may mean, the Fourth Amendment clearly protects the privacy of the individual in his or her home against unwarranted governmental intrusion. As for the failure to mention privacy by name, it was not the only right that is implicitly rather than explicitly protected, and to make sure that people did not misunderstand, Madison in the Ninth Amendment pointed out that the listing of certain rights did not in any way mean that the people had given up other rights not mentioned.
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Up until the middle of the 19th century if one had stopped the average American and asked what privacy meant, the answer surely would have centered on the inviolability of the home. Starting after the Civil War, the country absorbed millions of immigrants into its cities, creating more crowded and congested living conditions. Space in a modern city is at a premium, and the notion of privacy began to change as people's living conditions changed. Technology also threatened privacy, as the telephone made it possible for people to enter other people's homes without going there. One used to have to go to someone's home, to physically be there, in order to converse; now one merely had to call. Other technological inventions such as inexpensive cameras and cheap window glass made it possible for people to literally look into others' homes and pry into their affairs.
The greatest threat to privacy in the late 19th century came from the rise of daily newspapers, whose editors discovered that the poorer classes loved to read about the social lives of the rich and famous. Not only could their doings now be made public, but in exposing private foibles, the new mass media could also ruin reputations. Thus, at first, the law of privacy dealt primarily with reputation, and the law was used to keep busybodies, reporters, and others from publicizing private aspects of a person's life in such a way as to humiliate them.
It was this threat to reputation that led two young Boston lawyers, Samuel D. Warren and Louis D. Brandeis, to write an article in 1890 urging that the old common law proscriptions on invasion of privacy be expanded to include the modern forms generated by the Industrial Revolution. Although legal scholars and others discussed the proposal, little happened at the time. Americans were still getting used to the differences that technology had made in their lives, and had not yet recognized just how intrusive modern life could be.
Beginning in the 1920s, however, the Supreme Court began to conceive of a constitutional right of privacy, and if the issues involved seem a little removed from current concerns, these decisions nonetheless lay the foundation for the current constitutional definition. In one case, the Court chastised federal agents for seizing private papers without an appropriate warrant. If police could act this way against a citizen, Justice William R. Day explained, then "the protection of the Fourth Amendment declaring his right to be secure [in his home] might as well be stricken from the Constitution."
In addition to the Fourth Amendment, the Fourteenth Amendment's Due Process Clause also provides a legal basis for privacy. According to the interpretation given by the Court, "due process" not only refers to the procedural rights associated primarily with criminal cases, but also includes "substantive" rights relating to personal liberty. Thus in a case striking down a state law prohibiting the teaching of foreign languages, Justice James C. McReynolds held that this liberty included "not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations, to marry, to establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." The issues McReynolds listed are basically private matters marriage, child-rearing, conscience.
The most far-reaching statement came in a case engendered by the new technology of the telephone. Police had taken to listening in on wire-tapping conversations of people they suspected of criminal activity. When the accused persons claimed that the wiretaps had violated their Fourth Amendment right to be free of searches without warrants, the majority of the Court said that the taps had physically been outside of the building, and therefore no search had taken place.
Some members of the Court disagreed, and although Justice Louis D. Brandeis the same man who 35 years earlier had co-authored that seminal article on privacy wrote in dissent, eventually his views on privacy in general, and wire-tapping in particular, would prevail.
|Justice Louis D. Brandeis, dissenting in Olmstead v. United States (1928)|
Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them on any subject, and although proper, confidential, and privileged, may be overheard. . . .
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure, and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone the most comprehensive of rights and the one most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.
Brandeis considered it irrelevant that the Framers of the Fourth Amendment had not used the word "privacy" specifically, nor had they mentioned wire-tapping. How could they, since telephones had not been invented! What he and others have sought is not the literal meaning of the words, but what the Framers intended namely, that government should leave people alone. The manner of intrusion did not matter; the fact of it did.
Eventually Brandeis's view prevailed, and, in the 1960s, the Court ruled that wire-tapping did violate a constitutionally protected right of privacy. As Justice Potter Stewart explained, the Fourth Amendment protects people not places. If people have legitimate expectations of privacy, such as in their home, then they may invoke the protection of the Constitution to ensure that privacy.
Changes in a different kind of technology triggered the leading case in privacy in the mid-1960s, a case that is at the base of all modern privacy discussion. In the 19th century moral crusaders had secured passage of laws in the state of Connecticut banning either the use of birth control devices or the dissemination of information about them. Although by 1960 most people ignored these laws, they remained on the books, and family-planning clinics worried that social conservatives might someday invoke their use. That is exactly what happened when one anti-contraception group induced the government of Connecticut to prosecute a clinic run by Planned Parenthood that dispensed information about birth control, as well as the devices themselves.
Because the use of substantive due process had been limited following the court crisis of the 1930s, in which the Roosevelt administration had attacked the Court for using due process as a means of striking down legislation it did not like, the Supreme Court as late as 1965 hesitated to use the Fourteenth Amendment's Due Process Clause. Moreover, the Fourth Amendment was not appropriate here, because the object of the government's prosecution was not a private home but a medical clinic. Nonetheless, in Griswold v. Connecticut (1965) the Court asked the question Did the people want the state to be involved with intimate private decisions about family planning? The answer was clearly no, because this was a personal matter, a private decision, in which that the state had no business intruding. Justice Douglas, in striking down the state law and upholding the right of the clinic to dispense birth control information, declared that privacy, even though not mentioned directly, nonetheless enjoyed the constitutional protection that Justice Brandeis a generation earlier had proclaimed. "Specific guarantees in the Bill of Rights," he declared, "have penumbras, formed by emanations from those guarantees that help give them life and substance. . . . Various guarantees create zones of privacy." While creative, Douglas's opinion did not directly address the important Constitutional concept of due process. However, within a few years and via several other cases, the Court in fact adopted the notion of liberty interests in the Due Process Clause as the constitutional basis for privacy.
Following the decision in Griswold that information about birth control, and the decision whether to use it, constituted a private matter, the Court in a case involving a woman's right to have an abortion, a few years later extended the right of privacy. Roe v. Wade (1973) has been the Court's most controversial decision in over a century and a half, and opponents of abortion believe that the Court totally misconstrued the Constitution; defenders of choice argue that the court's pro-abortion stance in this case is a logical extension of the concept of privacy as well as the more specific liberty interest contained in the Fourteenth Amendment. In subsequent cases, the Court and its members have returned to this issue and the basic division still exists, but many people, even those who are unsure of whether abortions should be permitted, would agree with Justice O'Connor's views.
|Justice Sandra Day O'Connor, in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)|
It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. . . . At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
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The latest manifestation of changes in how privacy is perceived, and how technology is again the driving force, is the extension of personal autonomy to include a person's right to refuse medical treatment and, in effect, choose to die. In 1990, the Supreme Court confronted an issue it had never heard before, a claim for a right to die. In fact, it was a relatively new issue for the nation as a whole, arising from the amazing explosion of medical technology in the previous three decades. People who up until the 1960s would have been expected to die from severe accidents or illnesses could now be helped, although this technology had significant limits as well as some negative effects. Some people kept "alive" through this new technology may have very little quality of life, and may decide that they would rather be dead than lead a life tied to medical machinery.
Chief Justice William H. Rehnquist found that the Constitution protected a right to die, deriving from the guarantees of personal autonomy embedded in the Fourteenth Amendment's Due Process Clause. A long line of decisions, he held, support the principle "that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment." Within a few years, this new form of privacy, the right-to-die, had become statutorily and judicially embedded in the laws of all 50 states, and Congress had passed a patients' rights bill that required hospitals receiving federal funds to obey patient directives in regard to refusal of treatment.
|Chief Justice William H. Rehnquist, in Washington v. Glucksberg (1997)|
The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the right to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.
There is a major debate going on now as to the extent of this new version of privacy. While most people agree that terminally ill people ought to be allowed to decline treatment if they so choose, some groups argue that the notion of personal autonomy ought to be expanded to include physician-assisted suicide. One's life, they argue, is one's own, and what people choose to do with that life, whether they choose to live or die, ought to be a matter of their own decision, a private matter. This view has not gained widespread acceptance, and it is a major policy issue at the moment; yet both sides still agree that personal autonomy as a form of protected privacy is a right.
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|Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy" (1890)|
Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closets shall be proclaimed from the house-tops."
In his opinion in the wire-tapping case, as well as in the earlier article he had written, Justice Brandeis sounded a dire warning that technology would give the government the power not only to eavesdrop on people's telephonic or even spoken conversations, but someday to examine their papers and documents without ever entering their home. While Brandeis worried about the government using this technology, in modern times people have begun to see such threats to privacy as coming not just from the government, but from other sources as well. This raises a very interesting question about the right of privacy.
In nearly all of the rights discussed in this book, the original and continuing aim has been to protect the individual against the government. Freedom of speech ensures that the government will not silence unpopular expressions or punish those who utter them. Freedom of religion guarantees that the government will not establish a church or somehow restrict the free exercise of those whose faith is different from that of others. The press is protected against government censorship, while the rights of the accused require the government to adhere to fair procedures in a criminal trial. Neither the Constitution nor the Bill of Rights addresses the question of what happens when non-governmental actors infringe upon individual liberties. Congress has acted in certain instances when private actors have threatened the civil liberties of people of color, but we now, and not only in the United States, face the issue of privacy in what many are calling the "Information Age."
Once again technology, this time in the form of computers and the Internet, threatens to overwhelm the ability of people to control information about themselves. To take but one example, in the United States most people who carry health insurance do so with a private company. In order for these companies to reimburse physician services, the doctors have to file forms detailing the nature of the illness, its progress, and the steps taken to counter it, such as medication or surgery. This information is then entered on computers, and as the years go by a very detailed record of a person's health accumulates.
There is no question that some people need to have access to this information. The insurance company must make certain there is no fraud, and that services billed have in fact been delivered. If a new doctor takes over the case, he may need to review the patient's past history. But who else, if anyone, should have access to a person's medical records? Should prospective employers? Should insurance companies seeking generalized information about prospective clients? Should medical researchers seeking to build a database in an effort to discover a cure for a disease? Once a computer database is created, it is almost impossible to maintain total security over it. Moreover, many firms that gather information about their business clients and customers such as credit-card companies believe the information belongs to them and that they are free to sell it, or otherwise distribute it, without the permission of the individual. To whom does one's medical history or financial records belong the individual, or companies with whom he or she does business?
We are now entering an era of even greater information becoming available about an individual thanks to such advances as the mapping of the human genome and DNA classification. There is no doubt that DNA detection has proven a major advance in criminal investigation, helping not only to prove the guilt of some perpetrators but also the innocence of people wrongly accused and perhaps even convicted of crimes they did not commit.
But some researchers believe that a person's DNA contains markers that show whether that person is prone to certain diseases and perhaps even to some kinds of social behavior. Who should have access to this information? Should decisions be based on the alleged proclivity of a certain gene sequence, a situation that is far from a statistical certainty? Who owns the information about one's body? Is this also not a form of privacy? The main invader of this zone of privacy, however, at present is not the government, but private companies specializing in biological research.
The personal computer and access to the Internet are rapidly becoming as common as the telephone or television. The Internet has been hailed as the greatest public forum ever devised, in which any person, no matter what his wealth, can be heard by others. But as anyone who owns a computer can testify, one is constantly bombarded by unwanted messages on one's e-mail, and by a barrage of advertisements on server home pages. Hackers can invade personal as well as industrial computers, and the unleashing of computer viruses can wreak havoc at both the individual and corporate level. But it is not just a question of monetary damages. Should not one be able to view one's computer as a personal instrument, one in which private messages may be composed and sent to specific recipients? Who has the right, besides the owner, of determining what information, what messages, what solicitations, will land on one's screen, wanted or not?
Today, when Americans and others in the industrialized world talk about a right to privacy, they are talking about a right that while it may be centuries old in concept, is evolving almost as rapidly as the technology that threatens it. People are worried that "Big Brother," to use Orwell's name for an omniscient government, will know too much about them, and use that information to their detriment. But as much as they are worried about government, they are also worried about threats to their privacy from business, from the medical establishment, and from criminals who may use information collected over the Internet to harm their interests.
Congress has attempted to protect informational privacy through a number of statutes, including the Electronics Communications Privacy Act, but the problem is that the amount of information available is growing at an exponential rate, far faster than the means to control and regulate access. There is so much information available today that a clever person, armed only with access to the Internet and a person's Social Security number, can secure all sorts of information about that person, including traffic violations, credit report, purchasing habits, and more and, with enough information, even "steal" that person's public identity. The right to be let alone is still valued highly by civilized people; how they will protect that right in the new Information Age remains to be seen.
For further reading:
Ellen Alderman and Carolyn Kennedy, The Right to Privacy (New York: Knopf, 1995).
David H. Flaherty, Protecting Privacy in Surveillance Societies (Chapel Hill: University of North Carolina Press, 1989).
Richard F. Hixson, Privacy in a Public Society (New York: Oxford University Press, 1987).
Philippa Strum, Privacy: The Debate in the United States since 1945 (Fort Worth: Harcourt Brace, 1998).
Alan F. Westin, Privacy and Freedom (New York: Athenaeum, 1968).
Chapter 7: Trial by Jury »