Privacy and the United States government consists of enacted legislation, funding of regulatory agencies, enforcement of court precedents, creation of congressional committees, evaluation of judicial decisions, and implementation of executive orders in response to major court cases and technological change. Because the United States government is composed of three distinct branches governed by both the separation of powers and checks and balances, the change in privacy practice can be separated relative to the actions performed by the three branches.
The purpose of the legislative branch: To perform congressional actions that clarify what constitutes privacy tort, to outline punishments for those who violate privacy law, and to protect the people's “right to privacy” through regulation. The purpose of judiciary branch: To examine individual privacy issues and create widespread precedent that both protects and infringes upon existing personal privacy law vested within Congressional legislation and constitutional amendments. The purpose of executive branch: To pursue actions that help emphasize certain issues and expedite the process regarding particular policy through platform politics, executive orders, and pushing and signing of bills into law.
Congress, the Supreme Court, and the Presidency work closely with one another to help define privacy law in the United States and often build upon each other when improving privacy practice and regulation. Prior to implementation of these branch actions, the notion of privacy rights can be traced back to the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments of the United States Constitution.
Privacy in the US Constitution The Constitution of the United States serves as one of the most influential founding documents of the United States federal government. The United States Constitution's primary purpose is to frame the structure and function of the three branches of government; however, its amendments are commonly used as evidence for the notion of a legal right to privacy.
First Amendment The First Amendment states the government cannot violate the individual's right to " freedom of speech, or of the press". In the past, this amendment primarily served as a legal justification for infringement on an individual's right to privacy; as a result, the government was unable to clearly outline a protective scope of the right to speech versus the right to privacy. The most common cases through which individual private privacy is infringed upon is through unregulated freedom of speech and press which includes defamation speech under the First Amendment.Davies, Kathleen J. 2017. "Write to Privacy: Literature, Letters, Law, and the Inviolate Personality in America's Long Nineteenth Century." Dissertation Abstracts International 78(4). Initially, in the case of criminal libel and press defamation cases, the Court often protected the individual's right to speech; however, as protection of privacy became a larger political issue, the Courts and Congress realized that the information must be "well-informed" to fall within the protection of the First Amendment especially when another's right to privacy is involved.
Third Amendment The Third Amendment protects against the sanctity and privacy within the home, by protecting against the quartering of soldiers. This justifies personal private property and protections against governing bodies usurping power and private property during times of war. Although not used that often, it ensures protection of the right to privacy of the home over federal use.Gross, Hyman. 1967. " The Concept of Privacy.” New York University Law Review 34: 1893.
Fourth Amendment The Fourth Amendment states that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated”. Therefore, the Fourth Amendment gives a constitutional right to security for people's "private places, and private things". Most privacy violation court cases (prior to explicit court precedents and legislation) relied on the "unreasonable" verbiage as the basis for there arguments of infringement of privacy. This suggests that whenever a search or seizure was deemed unreasonable the seized evidence was considered unlawful and could not be used in the trial after arresting and booking the plaintiffs. This amendment required law officials to obtain a warrant prior to searching the client if there was no justification for "reasonable cause". The government previously used privacy and intrusiveness as the measure through which to determine the "unreasonableness"; however now they use a combination of the "expectation of privacy" through “societal knowledge”, and legislation to determine the need of warrantless searches within varying contexts and environments.
Fifth Amendment The Fifth Amendment protects against involuntary self-incrimination during trial. Often known as pleading the fifth, this right allows individuals the right to remain silent and maintain a sense of privacy when being interrogated by the state. This amendment provides security towards both "the sanctity of a man's home" and "the privacies of his/her life" by protecting the privacy of an individual's personal information.
Ninth Amendment Even though certain rights are not clearly outlined within the constitution, the Ninth Amendment states that these unenumerated rights are still protected by the government. This provides a legal justification through which to consider the right to privacy as a fundamental right of the individual. The Fourteenth Amendment even provides lawyers with the legal justification, in the Supreme Court, to protect an entities right to privacy. Post World War II, this amendment was used to help protect individual liberty; for example, in the Griswold v. United States court case it was used to broadly justify the right to privacy not mentioned within the first eight amendments.Hostetler, David R., and Seiko F. Okada. 2013. "Children's privacy in virtual K-12 education: virtual solutions of the amended Children's Online Privacy Protection Act (COPPA) rule." North Carolina Journal Of Law & Technology, Online Ed 167.
Fourteenth Amendment The Fourteenth Amendment has embedded within it the due process clause and equal protection clauses, which state that no state shall "deprive any person of life, liberty, or property, without due process", this has been interpreted to serve as a protection of privacy within the family, marriage, motherhood, procreation, and child rearing. This amendment introduced natural law to privacy rights, allowing court cases to "reasonably weight the interests involved" when analyzing the free exercise of one's privacy rights.Roscoe Pound, The Fourteenth Amendment and the Right of Privacy, 13 W. Res. L. Rev. 34 (1961) Therefore, court cases involving Fourteenth Amendment privacy rights often asks two questions: Does the situation infringe on the plaintiff's right and is there a state interest that justifies the defendant's argument.
Privacy and the Judicial Branch The purpose of the judicial branch in the United States government is to act as a regulatory agent that interprets laws relative to the U.S. Constitution. The judicial branch consists of a federal court system with a final level of appeal of the United States Supreme Court. The Supreme Court can influence an individual's or entity's right to privacy through judicial interpretation of isolated court cases that explore privacy infringement. The privacy cases that reach the Supreme Court ultimately lead to Supreme Court decisions and precedent that modify the accepted privacy rights within the country. While it is still unclear whether Congress or Court decisions come first when making strides in the arena of privacy protections, court precedents play a major role in the way privacy is viewed and interpreted by other federal agencies, companies, and individuals alike. Privacy laws and cases get blurred when privacy is applied to the Internet or an online situation. Social media, websites, and mobile device apps are all examples of various components of the internet that could be subject to privacy violations or court review.Unodc.org. 2020. Non-Binding Guidelines On The Use Of Social Media By Judges. [online] Available at: https://www.unodc.org/documents/ji/social_media/Draft_Non-binding_Guidelines_on_the_Use_of_Social_Media_by_Judges_-_for_circulation.pdf [Accessed 2 November 2020].
Griswold v. Connecticut (1965) When Estelle Griswold, Executive Director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, a medical professor at Yale Medical School were arrested for aiding in the dissemination of contraceptive to married couples in violation of Connecticut statutes, the Court held that these Connecticut statutes outlawing the use of contraceptive were unconstitutional. This case was a large victory for privacy rights, because it held that the Connecticut statute outlawing the dissemination of contraceptives to unmarried couples as unconstitutional because it violated a constitutional right of privacy. Justice Douglas concluded that a combination of the First, Third, Fourth, Fifth, and Ninth Amendments led to the Griswold v. Connecticut decision of "marital privacy".
Katz v. United States (1967) When Katz was recorded by a recording device placed by government agents in the public telephone booth, the Court held that the charges against him were based on the government's infringement on his right to privacy through an illegal "search and seizure" outlined in the Fourth Amendment. Prior to this court case the Fourth Amendment was often used to protect against the right of privacy to “material things”, however, this court decision overturned the prior precedent from the Olmstead v. United States decision.
Katz Test Established in the court case Katz v. United States, this test currently governs Fourth Amendment scope not outlined within legislation. Derived from Justice Harlan's concurring opinion, the Katz test has two parts: the first asks whether the person exhibited and understood the expectation of privacy, and the second asks if this expectations can be considered "reasonable" and commonly held by the remainder of society.
Roe v Wade (1973) After being unable to legally and illegally obtain an abortion in a clinic in Texas, the plaintiff decided to argue against the constitutionality of the Texas statute that outlawed abortions that were not required for the safety of the mother. The plaintiff argued that the statute violated her right to privacy under the Ninth Amendment. Working off of the Griswold v Connecticut decision, the Supreme court decided that under the due process clause of the Fourteenth Amendment, a woman had a "fundamental" right to abort a pregnancy, given she does so within a specified time period. Roe v Wade marked a major advancement for privacy rights.
Cox Broadcasting Corp v. Cohn (1975) Eight months after the rape and death of a 17-year-old girl, a broadcasting corporation revealed the unidentified victim on national television without the permission of the father. The Georgia Supreme court cited that the right to privacy of the family preceded the right to freedom of the press and concurred in favor of the plaintiff. The U.S. Supreme Court however later overruled this decision stating that the press's First Amendment right still applied. The Supreme Court was heavily influenced by the article The Right to Privacy in this Court decision, and would later use the verbiage of the article in other court cases dealing with privacy.Bedingfield, David. 1992. "Privacy or Publicity? The Enduring Confusion Surrounding the American Tort of Invasion of Privacy." The Modern Law Review no. 1: 111.
The Right To Privacy