Constitutional Right to Privacy? Recent

¶ … Constitutional Right to Privacy?

Recent events have again raised the question of whether Americans enjoy an inherent right to privacy. The Bush Administration's "terrorist surveillance program," government recording of internet searches, and other forms of data collection have all raised basic concerns about the rights possessed by United States citizens. Experts on either side of the issue have long argued that Constitutional law and legal precedent favor the implementation of one standard or another; that listening into phone calls, searching vehicles stopped at checkpoints, profiling of travelers at airports, and so on are either essential tools in the fight against crime and terrorism, or gross violations of individual liberties. The argument is as old as the nation itself.

Many have interpreted the Fourth Amendment of the United States Constitution as an attempt by the Framers to establish privacy as a fundamental right of all Americans. Yet, its provisions are vague when applied in such a broad fashion leading others to argue equally vehemently that the Fourth Amendment constitutes a prohibition against unlawful searches and seizures and nothing more. Over the years, numerous cases have modified our understanding of the "right to privacy," but amazingly, none has ever truly defined the term. Privacy as both a concept and right remains elusive, its definition changing with the times, and the necessities of the moment.

To understand the opposing sides, one must first understand the issue. Privacy as a legal right and precept is notoriously difficult to describe. Even to the lay person, it can mean many different things.

Privacy, in the widest sense, might be best understood as the right of an individual to control access to personal information and activities; to prevent others from gaining access to these facts and activities unless there exists some pressing social need for this "personal data" to made public knowledge. As well, privacy could be said to include the freedom from such searches and seizures that might tend to expose this "personal data" - in particular, such searches and seizures as might be conducted without regard to due process of law, and which violate other basic principles and rights established under law. A basic legal and philosophical argument in regard to privacy rights concerns whether or not the right to privacy is fundamental; fundamental in the sense of being beyond any specific statute - a right that exists a priori and which must be taken into consideration regardless of most other legal circumstances. Extreme examples of this "privacy as fundamental" thinking would be found in the concepts of attorney-client privilege, or in the secrecy of the confessional. Nonetheless, most legal arguments over privacy revolve around whether the concept is a right that is guaranteed by the United States Constitution, or whether privacy as such is defined merely by statute and precedent, and may be modified - or even abolished - by any future legislative enactment or judicial decision. According to legal scholar, Joseph Sobran, the Framers of the United States Constitution specifically addressed the matter of privacy rights:

The eighteenth-century minds of Madison and his peers were not too antediluvian to formulate a right to privacy. But they understood that so general a right was too general even for a Constitution. It could mean too many things, not all of which the United States could be committed to. So they protected privacy, like liberty, through more specific provisions, such as the guarantee against unreasonable search and seizure.

Sobran's observations aside, these provisions could be viewed much more narrowly. William F. Buckley, Jr. cites a passage from the Harvard Long-Term Legal Strategy Project that analyzes information collection from the viewpoint of today's National security concerns. The quotation is particularly broad in its application of the idea that most information is not protected:

There is no constitutional right to privacy of information that an individual has freely furnished to such parties as credit card, electronic communications or car rental companies. That information can provide a trail of activities that, if identified, would reveal a likely terrorist plan.... We should not forgo this opportunity to 'connect the dots' in time."

As in the case of many arguments against a right to control one's own personal information, the argument given is one of public safety - of the need to sacrifice one individual's privacy for the sake of protecting the community. Criminal investigations are also frequently cited as a reason for interfering with what others might term privacy rights.

The 1961 case of Mapp v. Ohio was landmark in determining the rules governing evidence seized by police during the course of an investigation. In a precedent-setting interpretation of the Fourth Amendment rules of search and seizure, the United States Supreme Court ruled that, "All evidence obtained by searches and seizures in violation of the Federal Constitution is inadmissible in a criminal trial in a state court." (367 U.S. 643)

In the matter of Mapp v. Ohio, police had arrived at the residence of a Miss Mapp and her daughter based on a tip that a suspect in recent bombing was hiding out in the Mapp Residence. Authorities also believed that "a large amount of policy paraphernalia [was] being hidden in the home."

Possessing no warrant of any kind nor, as the court noted, offering any explanation as to why they had not obtained a warrant, the police proceeded to force their way into the residence, search it, and hold and arrest Miss Mapp.

During the hearing, it was the State of Ohio's contention that, even if the search were made without authority, or otherwise unreasonably, it is not prevented from using the unconstitutionally seized evidence at trial... that in a prosecution in a State court for a State crime the Fourteenth Amendment [367 U.S. 643, 646] does not forbid the admission of evidence obtained by an unreasonable search and seizure."

The United State Supreme Court, however, found otherwise, stating that,

Constitutional provisions for the security of person and property should be liberally construed.... It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon."

The ruling clearly placed the rights to privacy of the suspect above any presumed right of the state, or other law enforcement authorities, to search for and obtain evidence in connection with ongoing criminal cases. The case of Mapp v. Ohio dramatically altered police procedure across the United States. It forced police and other investigators to be scrupulously careful in their adherence to the laws regarding the obtaining of search warrants, and to proceed against suspects only after all legal requirements had been satisfied.

The case is especially significant in light of today's "war on terror." Miss Mapp was accused of harboring a bomber, as well as inflammatory literature. These circumstances relate closely to the idea of contemporary authorities investigating a terrorist attack, and using all means necessary to break up terrorist cells, eliminate "safe houses," and otherwise disrupt communications between anti-American radicals and their confederates. The war on terror comes on the heels of decades of rising crime rates. Public hysteria about violent crime, especially, dovetails with widespread fears of a catastrophic terrorist attack on the style of the horrific events of September 11, 2001. Police have been notoriously unwilling to adhere even to the rules first established by Mapp, frequently lying on the stand when questioned about the Exclusionary rules regarding unlawfully obtained evidence.

The rationalization is clearly one of a need to occasionally "bend the law" in connection with matters of public safety. One can argue that the harm done to the individual, or individuals, who have been subject to illegal search and seizure is less than the harm that would be done to large numbers of people, or to the general population, national security, international relations, etc. Privacy, in these instances becomes not a right, but a commodity, that changes in value according to the circumstances. Different peoples and cultures possess different notions of privacy. Even within a culture, privacy can be construed in widely different ways.

These varying definitions of privacy often arise from what one segment of society views as a moral imperative. Take for example, the current arguments in the United States over gay marriage - an issue that relates strongly to conceptions of personal privacy, especially as those conceptions apply to the control of one's body, or sexual activity. There is also the fight over abortion - the issue, in this case, control of a woman's body, and "ownership" of reproductive rights, as opposed to the public "right," or "interest" in guaranteeing the birth of any viable fetus. In the first instance, the right of gay people to marry must be based on a recognition of a right to engage in sexual relations that are not recognized as "legitimate" or "moral" by all persons and segments of American society. At one time, prohibitions against non-heterosexual sex were nearly universal. Now, they exist in some states, but not in others. Sodomy laws, in order to be enforced, require an invasion of what many would see as the most intimate kind of personal privacy. In the case of Bowers v. Hardwick the United States Supreme Court failed to strike down Georgia's sodomy laws, as they applied to homosexuals, because rather than treat the matter as one of privacy rights, the court instead viewed the case from the perspective of whether there existed within the United States and its traditions, a right to engage in homosexual activity.

In the Supreme Court's opinion, privacy in this case was defined by,

Whether the act you wish to commit is fundamental, meaning "traditional," necessary for "ordered liberty," or "deeply rooted" in history -- valued by the majority of people in our nation over time. It relies on an act-based conception of privacy and ignores spatial boundaries entirely.

Similarly, privacy issues have frequently been raise din regard to abortion rights. Ever since Roe v. Wade, many states have enacted laws restricting access to abortion and abortion procedures - including even the recent passage of the Partial Birth Abortion ban by the federal government. The fight against many of these laws has been based largely on privacy grounds:

The presence of a state constitutional right to privacy significantly increases the likelihood of court intervention in the area of abortion legislation. Because state constitutional right to privacy provisions can serve as grounds to invalidate restrictive abortion laws and are associated with increased court intervention.... policymakers will be less inclined to enact restrictive abortion legislation when constitutional right to privacy provisions are present.

These arguments would appear to contradict the United States Supreme Court's ruling in Bowers v. Hardwick, as in the instance of abortion rights, it is the right of individual women to pursue a personal choice that is at issue, as opposed to a concept of public morality, or generally construed rights that must be applicable to all.

The idea of generally construed rights applicable to all is another way of conceiving of Bowers v. Hardwick's "ordered liberty." Ordered liberty is an interesting concept as it conceives of rights and freedoms that are handed down by society as a whole. Freedoms that are not part of a nation's or people's traditions, or that do not become universally accepted over time, are not rights per se - they are not construed as rights by the general population and therefore do not exist within the public sphere. Returning to the issue of protecting the American population from terrorist acts, one finds what is likely the broadest possible application of the notion of ordered liberty in opposition to personal privacy rights. In the case of California v. Ciraolo, the United States Supreme Court ruled that the aerial surveillance that was used to discover marijuana plants growing in a suspect's fenced-in backyard did not constitute any unlawful invasion of privacy. In the Court's opinion,

Any member of the public flying in this airspace who glanced down could have seen everything... The officers observed." In an age of routine air travel, Ciraolo was unreasonable in expecting his marijuana plants to be protected from aerial observation."

Clearly, had the observations of the suspect's premises been attempted from the ground, they would have been impossible. The fence surrounding the suspect's house would have served as a sufficient guarantee of the suspect's privacy to the extent that any legal authority wishing to examine the suspect's backyard would have had to obtain a search warrant. It evidently did not matter to the court that an aviator would not normally have flown so low, and so close to the suspect's backyard as to have seen objects so small as marijuana plants. The court's decision reflected the view that, in the case of an overflight - regardless of circumstances - one could "happen" top notice something that would not be protected by any recognized right of privacy i.e. If you want to protect your property from aerial view, cover it with something. No expectation to aerial privacy exists just like no expectation to privacy exists in the case of overseas calls because, so officials of the Bush Administration could argue, there has been no tradition of such things being private - an international electronic communication is simply a variation on a person carrying a message across a border, in which case, that person would be subject to customs regulations, etc. By the same token, a person could sit in a tall tree and look over a fence at a bunch of marijuana plants.