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Tuesday, November 13, 2012

You Have No Express Right To Privacy

The U. S. Constitution contains
no express right to privacy.
Most Americans assume they possess a right to privacy guaranteed in the U.S. Constitution. They believe privacy is a meaningful and valuable concept afforded to them as American citizens. Yet, an express right in the Constitution would be "explicit and plain." It would be "direct, not dubious or ambiguous." And, it would be set forth in words that make it "known distinctly and explicitly, and not left to inference." A distinct recognition of complete privacy, the privacy many people assume is guaranteed to citizens of the United States, is not expressed in the Constitution.

Do you know that the word privacy does not even appear
in the Constitution, leading some legal scholars
to deny that a general Constitutional right to it exists.

Granted, the Bill of Rights reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as the following:

(a) The privacy of beliefs (1st Amendment),
(b) The privacy of the home against demands that it be used to house soldiers (3rd Amendment),
(c) The privacy of the person and possessions as against unreasonable searches (4th Amendment),
(d) The privilege against self-incrimination, which provides protection for the privacy of personal information. (5th Amendment).

And, in addition, the Ninth Amendment states that the "enumeration of certain rights" in the Bill of Rights "shall not be construed to deny or disparage other rights retained by the people."

Although some persons have interpreted the Ninth Amendment as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments, the meaning of the Ninth Amendment is elusive,
According to one well known argument there is no right to privacy and there is nothing special about privacy because any interest protected as private can be equally well explained and protected by other interests or rights, most notably rights to property and bodily security.

The Supreme Court, however, beginning as early as 1923 and continuing through its recent decisions, has broadly read the "liberty" guarantee of the Fourteenth Amendment to guarantee a fairly broad right of privacy that has come to encompass decisions about child rearing, procreation, marriage, and termination of medical treatment. Polls show most Americans support this broader reading of the Constitution.

In order to determine whether the government has valid cause to interfere in people's lives, the Court applies a "rational basis test" to determine whether the legislation is related to a legitimate government interest.

If the law passes the rational basis test, the Court next applies "strict scrutiny" to determine whether there is a compelling state interest that justifies violating the group's or the individual's fundamental rights, and whether the law is applied as narrowly as possible to infringe those rights as little as  possible.

So, Exactly What is Privacy?

Privacy is the expectation that confidential personal information disclosed in a private place will not be disclosed to third parties, when that disclosure would cause either embarrassment or emotional distress to a person of reasonable sensitivities. Information is interpreted broadly to include facts, images (e.g., photographs, videotapes), and disparaging opinions.

The right of privacy is restricted to individuals who are in a place that a person would reasonably expect to be private (e.g., home, hotel room, telephone booth). There is no protection for information that either is a matter of public record or that the victim voluntarily disclosed in a public place.

Many citizens believe people should be protected by privacy when they "believe that the conversation is private and cannot be heard by others who are acting in an lawful manner."

Sadly, the easiest method to keep information confidential is to disclose it to no one. (Ronald B. Standler, "Privacy Law in the USA," May 24 1998)

 What is the Scope of Privacy Today?

Does the scope of privacy really deal with liberty? Is it really a concern about the protection of individual autonomous choice from governmental interference? Privacy enables people control over their personal information as well as control over their bodies and personal choices they deem very important for the development of concepts of self.

The Supreme Court now claims (Whalen v. Roe, 429 U.S. 589, 1977) that there are two different dimensions to privacy: both control over information about oneself and control over one's ability to make certain important types of decisions.

Much recent literature has extended this view and has focused on the value of privacy not merely for the individual interests it protects, but also for its social value. Concerns over the accessibility and retention of electronic communications and the expansion of camera surveillance have led commentators to focus attention on loss of individual privacy as well as privacy protection with respect to the state and society

It is evident that privacy is also a public value in that it has value not just to the individual as an individual or to all individuals in common but also to the democratic political system. Privacy is rapidly becoming a collective value in that technology and market forces are making it hard for any one person to have privacy without all persons having a similar minimum level of privacy. (P. Regan,  Legislating Privacy, 1995)

Now, there are massive databases and Internet records of information about individual financial and credit history, medical records, purchases and telephone calls. Most people do not know what information is stored about them or who has access to it. The ability for others to access and link the databases, with few controls on how they use, share, or exploit the information, makes individual control over information about oneself more difficult than ever before.

Modern Privacy Issues

Here are some examples of issues concerning privacy that call for immediate thought and evaluation.(Judith DeCew, "Privacy," Stanford Encyclopedia of Philosophy, May 14 2002)

* Caller ID, originally designed to protect people from unwanted calls from harassers, telemarketers, etc., involves privacy concerns for both the caller and the called.

* There is widespread mandatory and random drug testing of employees and others, and the Supreme Court has said policies requiring all middle and high school students to consent to drug testing in order to participate in extracurricular activities does not violate the Fourth Amendment, although the Court has disallowed mandatory drug tests on pregnant women for use by police.

* It had seemed that heat sensors aimed at and through walls to detect such things as growing marijuana would be acceptable. However, in 2001, in Kyllo v. U.S. (533 U.S. 27), another close 5–4 decision, the Court decided that thermal imaging devices that reveal information previously unknowable without a warrant does constitute a violation of privacy rights and the Fourth Amendment.

* Surveillance photos are commonly taken of those using Fast Lane, resulting in tickets mailed to speeding offenders, and similar photos are now taken at red lights in San Diego and elsewhere, leading to surprise tickets.

* Face scanning in Tampa, at casinos, and at large sporting events such as the Super Bowl, matches those photos with database records of felons, resulting in the capture of multiple offenders on the loose but also posing privacy issues for other innocents photographed without their knowledge.

* Some rental car drivers are now tracked by Global Positioning System (GPS) satellites, enabling car rental companies, not police, to levy stiff fines for speeding.

* The media has recently uncovered an FBI Web surveillance system called Carnivore, that appears to sample the communications of as many Internet users as it chooses, not just suspects.

* Echelon is a covert global satellite network said to have the ability to intercept all phone, fax, and e-mail messages in the world, and may have up to 20 international listening posts.

* Airline passengers will soon be able to go through customs with a two second biometric scan that confirms identity by mapping the iris of the eye, and U.S. airlines are considering using “smart cards” which will identify passengers by their fingerprints.

*There is a proliferation of biometric identification using faces, eyes, fingerprints, and other body parts for identifying specific individuals, and the technology for matching the information with other databases is advancing quickly. 

In addition to these newer concerns, how about the old arguments about privacy as it relates to these things:

*  Birth control and reproductive freedom,

* Patients' medical records,

* Viewing pornography at home,

* Abortion,

* Affairs -- interpersonal relationships, and intimacy in communication,

* Sexual harassment,

* Victim anonymity in rape cases,

* Publicity that puts a person in a "false light" to the public.

My Take

I believe privacy has moral value because it shields us by providing certain freedom and independence -- freedom from scrutiny, prejudice, pressure to conform, exploitation, and the judgment of others. I believe we are losing too many battles in the war to protect our privacy.

The significance of privacy is almost always justified for the individual interests it protects: personal information, personal spaces, and personal choices, protection of freedom and autonomy in a liberal democratic society. (Judith DeCew, "Privacy," Stanford Encyclopedia of Philosophy, May 14 2002) I believe this standard must be held.

Although the government needs strong powers to protect its citizens in this day of terrorist activities, the executive branch also needs to provide a strong voice on behalf of civil liberties and individual rights, including privacy. Important components of our liberty are at stake

We, as American citizens, must become more aware of the erosion of our privacy. By staying informed and taking action now to protect it, we can preserve something that is fundamental to our union. Even if privacy is not expressly protected in the Constitution, a government of the people must maintain the liberty to be secure in private matters. Otherwise, the country will suffer under a regime that regulates the interactions of society.

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