The right to privacy in the United States Constitution and federal law

Right to Privacy

Being a citizen of the United States comes with many benefits in comparison to citizenship in other countries. Through the U.S. Constitution and the Bill of Rights we are granted certain rights -- the right to free speech, freedom of religion, freedom of the press, and freedom of assembly -- just to name a few. However, despite the 27 amendments the Bill of Rights that guarantee American protections and liberties, there is no explicit law that guarantees protection to a citizen's right to privacy (Davis, 2009). It is more of an assumed protection, although most Americans do not realize it.

In 1928, Associate Supreme Court Justice Louis Brandeis referred to the right to privacy as the "right to be left alone" (De Bruin, 2010). This assertion is often supported with a citation of the 14th amendment which states: "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; nor deny to any person within its jurisdiction the equal protection of the laws" (Doyle & Bagaric, 2005). It's a clause subject to interpretation, much like the 1st, 4th and 5th amendments which are also used to support the right to privacy for all U.S. citizens (Davis, 2009). In short, the idea is that all surveillance and investigation into our personal worlds, affairs and communications should not be conducted without probable cause. It is presumed that each person has the right to their share of anonymity without interference and scrutiny from others and particularly from the government (Ruiz, 1998).

The idea of privacy has changed over the years. Technology, for example, has transformed the way personal information is accessed, used and shared resulting in a number of state and industry specific laws that have been created to address issues of privacy and information security in the modern era (Woo, 2006). The 10th amendment gives individual states power to create state constitutions or laws that speak to personal issues of privacy for residents. The Privacy Act of 1974 prevents the unauthorized disclosure of personal information held by the federal government (Davis, 2009). The Fair Credit Reporting Act grants a certain right to privacy for consumers whose information is collected and stored by the major credit reporting agencies (Neville, 2000). The Children's Online Privacy Protection Act gives parents to power to monitor and limit the personal information available about their underage children (Woo, 2006). Perhaps most notable are the Sarbanes-Oxley Act, Health Insurance Portability and Accountability Act (HIPAA) rules and Gramm-Leach-Bliley Act (GLBA) which all address the use of personal information across computer networks. Each guarantee an individual's right to privacy by stipulating data security measures be put in place by companies (De Bruin, 2010).

It is clear that there are a number of laws that infer the right to privacy. This suggests that the concept is universally accepted and in the current information age, considered a concern that warrants protection. With rampant identity theft and data misuse, this is understandable. However, this also raises other questions. What exactly is privacy? Is it truly a right and if so, should there be limits? This paper will explore these questions and their implications by looking at the concept of the right to privacy through a more philosophical lens.

Defining Privacy

The words "private" or "privacy" can hold many different meanings. Both words are of Latin origin and convey meanings of the "singular person" or "individual" (Mill, 2008). The words are often used interchangeably as antonyms of the word "public" (Davis, 2009). Privacy then, makes reference to the inner mental and physical life of a person that is withdrawn from public view and awareness (Taylor & Perry, 2012).

In the world of philosophy, all thoughts and feelings are private. They come into the human mind as very personal - an inherent quality requiring no withdrawal from the public. However, with other things in life steps must be taken to introduce privacy. This might include acts such as adding a privacy fence around a property, having tinted windows installed on a car, or placing curtains at a bedroom window (Ruiz, 1998). This is where the debate about a "right" to privacy truly begins. We have personal sphere of existence in which we can make a conscious choice to share or not, and when pushed or violated by others, the intrusion is viewed as a violation of our right (Doyle & Bagaric, 2005).

To illustrate this point, Janice Richardson presents a traditional image of privacy. She references the image of an individual seated at the center of a grouping of concentric circles that range from the most private to public (2011). In the first circle are the individual's innermost thoughts and those actions which do not encroach directly upon others. In the next concentric circle are the realms of family and home. The outer circles consist of work and civil society, with government at the outermost fringe. In this image, the divide between public and private appears clear and distinct and is often related to a particular place - home, work place, public arena, and government (Mills, 2008). Privacy involves self-selection of what personal information to share, with whom, to what extent, and by what means.

Conclusion

From the presence of surveillance cameras in public spaces, to grocery stores sharing consumer purchase information with marketers, to airlines requiring extensive personal details from travelers, we live in a world that is constantly doing a balancing act in regards to privacy rights. Sharing private information can have unpleasant after-effects; but by the same token it can help to protect and/or encourage certain social and civil benefits such as improved public security and economic growth (Davis, 2009).

Still, at a very basic, human level the legitimate right to privacy is the right not to have things that are rightfully private made public without our consent, so long as others are not harmed (Taylor & Perry, 2012). Our conversations, photos, and personal diaries for instance should not be made public without permission. The right to privacy has myriad layers and has been used throughout U.S. history to advance controversial topics and freedoms such as the legalization of contraception, abortion, and assisted suicide. The debate rages on with no firm definition of what the right to privacy is and what it protects.

Perhaps the best way to think about the subject of a right to privacy is by reflecting on the core components at the heart of the debate: the right not to have what is rightfully private made public and the right to do whatever we wish, whenever we wish with no interference without our consent. What is often missing, with the exception of more philosophical debates, is personal responsibility (De Bruin, 2010). Unlawful access to personal information, especially through modern technology, is a valid and very real threat to personal privacy. However, many people voluntarily making their personal life public through social media websites such as Facebook and other forms of information sharing that may ultimately leave them vulnerable to privacy violations. We cannot complain about such violations and at the same time not exercise prudence and good judgment in how we open up our world. In some ways our use of social media undermines our claims to privacy (Cowan, 2010).

The other inference in the discussion is that what we want or choose to do on any level should be our business and no one else's (Doyle & Bagaric, 2005). There is a danger, as presented by many of the authors cited in this paper, when a person's opinions, personal whims and inclinations take precedence over what can be deemed objective truth (Neville, 2000). The "common good" needs to be the cornerstone of personal choice, freedoms, and rights, and even then there will be debate and questions of subjective opinion (Laas-Mikko & Sutrop, 2012). For instance, in the 1973 legal case of Roe vs. Wade, the federal government ruled that a woman's right to manage her own body overrides the right of the child to life (Ruiz, 1998). Objective reality suggests that it is not the woman's body that she is dismembering; it is the body of another. The common good, or subjective reality, in such a scenario is debatable. If you were to ask both the unborn child and expecting mother where the limits of the woman's right to privacy lies, you would most likely get two very different answers. Just one example of why the issue of the right to privacy is such a contentious one with very unclear boundaries.