Right to privacy

The right to privacy is an element of various legal traditions to restrain governmental and private actions that threaten the privacy of individuals.[1][2] Over 150 national constitutions mention the right to privacy.[3]

Since the global surveillance disclosures of 2013, initiated by ex-NSA employee Edward Snowden, the inalienable human right to privacy has been a subject of international debate. In combating worldwide terrorism, government agencies, such as the NSA, CIA, R&AW and GCHQ, have engaged in mass, global surveillance.

There is now a question as whether the right to privacy act can co-exist with the current capabilities of intelligence agencies to access and analyse virtually in every detail of an individual's life. A major question is that whether or not the right to privacy needs to be forfeited as part of the social contract to bolster defense against supposed terrorist threats.

Private sector actors could also threaten the right to privacy. Increasingly, questions have arisen about the use of personal data for targeted advertising, sharing data with external parties and reusing personal data within big data by large technology giants, such as Amazon, Apple, Facebook, Google, and Yahoo. These concerns have been strengthened by scandals, revealing that the psychographic company Cambridge Analytica was using personal data, illegitimately obtained through Facebook, to manipulate and influence large groups of people, including during the 2016 US Presidential elections.

Background

State of consideration of constitutional laws and acts formed by sectors and sections

Privacy uses the theory of natural rights, and generally responds to new information and communication technologies. In the United States, an article in the December 15, 1890 issue of the Harvard Law Review, written by attorney Samuel D. Warren and future U.S. Supreme Court Justice, Louis Brandeis, entitled "The Right to Privacy", is often cited as the first explicit declaration of a U.S. right to privacy. Warren and Brandeis wrote that privacy is the "right to be let alone", and focused on protecting individuals. This approach was a response to recent technological developments of the time, such as photography, and sensationalist journalism, also known as "yellow journalism".[4]

Privacy rights are inherently intertwined with information technology. In his widely cited dissenting opinion in Olmstead v. United States (1928), Brandeis relied on thoughts he developed in his 1890 article The Right to Privacy. But in his dissent, he now changed the focus whereby he urged making personal privacy matters more relevant to constitutional law, going so far as saying "the government [was] identified...as a potential privacy invader." He writes, "Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet." At that time, telephones were often community assets, with shared party lines and the potentially nosey human operators. By the time of Katz, in 1967, telephones had become personal devices with lines not shared across homes and switching was electro-mechanical. In the 1970s, new computing and recording technologies began to raise concerns about privacy, resulting in the Fair Information Practice Principles.

Definitions

In recent years there has been only few attempts to clearly and precisely define the "right to privacy". In 2005, students of the Haifa Center for Law & Technology asserted that in fact the right to privacy "should not be defined as a separate legal right" at all. By their reasoning, existing laws relating to privacy in general should be sufficient.[5] Other experts, such as William Prosser, have attempted, but failed, to find a "common ground" between the leading kinds of privacy cases in the court system, at least to formulate a definition.[5] One law school treatise from Israel, however, on the subject of "privacy in the digital environment," suggests that the "right to privacy should be seen as an independent right that deserves legal protection in itself." It has therefore proposed a working definition for a "right to privacy":

The right to privacy is our right to keep a domain around us, which includes all those things that are part of us, such as our body, home, property, thoughts, feelings, secrets and identity. The right to privacy gives us the ability to choose which parts in this domain can be accessed by others, and to control the extent, manner and timing of the use of those parts we choose to disclose.[5]

An individual right

Alan Westin believes that new technologies alter the balance between privacy and disclosure, and that privacy rights may limit government surveillance to protect democratic processes. Westin defines privacy as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others". Westin describes four states of privacy: solitude, intimacy, anonymity, reserve. These states must balance participation against norms:

Each individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives.

— Alan Westin, Privacy and Freedom, 1968[6]

Under liberal democratic systems, privacy creates a space separate from political life, and allows personal autonomy, while ensuring democratic freedoms of association and expression.

David Flaherty believes networked computer databases pose threats to privacy. He develops 'data protection' as an aspect of privacy, which involves "the collection, use, and dissemination of personal information". This concept forms the foundation for fair information practices used by governments globally. Flaherty forwards an idea of privacy as information control, "[i]ndividuals want to be left alone and to exercise some control over how information about them is used".[7]

Marc Rotenberg has described the modern right to privacy as Fair Information Practices: "the rights and responsibilities associated with the collection and use of personal information." Rotenberg emphasizes that the allocation of rights are to the data subject and the responsibilities are assigned to the data collectors because of the transfer of the data and the asymmetry of information concerning data practices.[8]

Richard Posner and Lawrence Lessig focus on the economic aspects of personal information control. Posner criticizes privacy for concealing information, which reduces market efficiency. For Posner, employment is selling oneself in the labour market, which he believes is like selling a product. Any 'defect' in the 'product' that is not reported is fraud.[9] For Lessig, privacy breaches online can be regulated through code and law. Lessig claims "the protection of privacy would be stronger if people conceived of the right as a property right", and that "individuals should be able to control information about themselves".[10] Economic approaches to privacy make communal conceptions of privacy difficult to maintain.

A collective value and a human right

There have been attempts to reframe privacy as a fundamental human right, whose social value is an essential component in the functioning of democratic societies.[11] Amitai Etzioni suggests a communitarian approach to privacy. This requires a shared moral culture for establishing social order.[12] Etzioni believes that "[p]rivacy is merely one good among many others",[13] and that technological effects depend on community accountability and oversight. He claims that privacy laws only increase government surveillance.[14]

Priscilla Regan believes that individual concepts of privacy have failed philosophically and in policy. She supports a social value of privacy with three dimensions: shared perceptions, public values, and collective components. Shared ideas about privacy allows freedom of conscience and diversity in thought. Public values guarantee democratic participation, including freedoms of speech and association, and limits government power. Collective elements describe privacy as collective good that cannot be divided. Regan's goal is to strengthen privacy claims in policy making: "if we did recognize the collective or public-good value of privacy, as well as the common and public value of privacy, those advocating privacy protections would have a stronger basis upon which to argue for its protection".[15]

Leslie Regan Shade argues that the human right to privacy is necessary for meaningful democratic participation, and ensures human dignity and autonomy. Privacy depends on norms for how information is distributed, and if this is appropriate. Violations of privacy depend on context. The human right to privacy has precedent in the United Nations Declaration of Human Rights. Shade believes that privacy must be approached from a people-centered perspective, and not through the marketplace.[16]

Universal Declaration of Human Rights

A right to privacy is explicitly stated under Article 12 of the 1948 Universal Declaration of Human Rights:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Privacy laws in different countries

United States

Although the Constitution does not explicitly include the right to privacy, the Supreme Court has found that the Constitution implicitly grants a right to privacy against governmental intrusion from the First Amendment, Third Amendment, Fourth Amendment, and the Fifth Amendment.[17] This right to privacy has been the justification for decisions involving a wide range of civil liberties cases, including Pierce v. Society of Sisters, which invalidated a successful 1922 Oregon initiative requiring compulsory public education, Griswold v. Connecticut, where a right to privacy was first established explicitly, Roe v. Wade, which struck down a Texas abortion law and thus restricted state powers to enforce laws against abortion, and Lawrence v. Texas, which struck down a Texas sodomy law and thus eliminated state powers to enforce laws against sodomy.

The 1890 Warren and Brandeis article "The Right To Privacy" is often cited as the first implicit declaration of a U.S. right to privacy.[4] This right is frequently debated. Strict constructionists argue that such right exists (or at least that the Supreme Court has more jurisdiction to protect such a right), while some civil libertarians argue that the right invalidates many types of currently allowed acts not to be surveillance (wiretaps, public cameras film industry, etc.).

Most states of the United States also grant a right to privacy and recognize four torts based on that right:

  1. Intrusion upon seclusion or solitude, or into private affairs;
  2. Public disclosure of embarrassing private facts;
  3. Publicity which places a person in a false light in the public eye; and
  4. Appropriation of name or likeness.

The four privacy torts above were introduced by William Prosser in his California Law Review article titled "Privacy" in 1960.[18] Some argue that these torts, along with the "Right to Privacy" article by Samuel Warren and Louis Brandeis form the basis for modern U.S. privacy legislation.

Also, in some American jurisdictions the use of a person's name as a keyword under Google's AdWords for advertising or trade purposes without the person's consent[19] has raised certain personal privacy concerns.[20]

Right to privacy and social media content laws have been considered and enacted in several states, such as California’s “online erasure” law protecting minors from leaving a digital trail. However, the United States is still far behind that of European Union countries in protecting privacy online. For example, the “right to be forgotten” ruling by the EU Court of Justice protects both adults and minors.[21]

India

A nine-judge bench of the Supreme Court headed by Chief Justice JS Khehar, ruled on August 24, 2017 that the Right to Privacy is a fundamental right for Indian citizens under the Constitution of India (mostly under Article 21 and additionally under Part III rights). Thus no legislation passed by the government can unduly violate it. Specifically, the court adopted the three-pronged test required for encroachment of any Article 21 right – legality-i.e. through an existing law; necessity, in terms of a legitimate state objective and proportionality, that ensures a rational nexus between the object of the invasion and the means adopted to achieve that object. This clarification was crucial to prevent the dilution of the right in the future on the whims and fancies of the government in power.[22] This ruling by the Supreme Court paved the way for decriminalisation of homosexuality in India on 6 September 2018, thus legalising same-sex sexual intercourse between two consenting adults in private.[23] India is the world’s biggest democracy and with this ruling, it has joined United States, Canada, South Africa, the European Union and the UK in recognizing this fundamental right.[24]

The new data sharing policy of Whatsapp with Facebook after Facebook acquired Whatsapp in 2014 has been challenged in the Supreme Court. The Supreme Court must decide if the right to privacy can be enforced against private entities.[25]

Journalism

It is often claimed, particularly by those in the eye of the media, that their right to privacy is violated when information about their private lives is reported in the press. The point of view of the press, however, is that the general public have a right to know personal information about those with status as a public figure. This distinction is encoded in most legal traditions as an element of freedom of speech.

Mass surveillance and privacy

Governmental organizations such as the NSA, CIA, and GCHQ amongst others conduct mass surveillance throughout the world. Programs such as PRISM, MYSTIC, and other operations conducted by NATO-member states are capable of collecting a vast quantity of metadata, internet history, and even actual recordings of phone calls from various countries. The existence of programs is justified by their conductors in terms of supposed benefits for defense and law enforcement, however this is also in conflict with the right to privacy established under various treaties, constitutions, and the Universal Declaration of Human Rights. The argument in favor of privacy has therefore come under a larger opposition to intelligence operations carried out for political purposes, and has become a contentious issue since it undermines the perceived need of nations to spy on the general population in order to maintain their power structures.

Support

  • The right to privacy is alluded to in the Fourth Amendment to the US Constitution, which states, "The right of the people to be secure in their persons, houses, papers, and effects,[lower-alpha 1] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."[27] The logical extension of the amendment to digital properties would make sense since if the internet had existed when it was written, digital documents would have been considered more important than the literal "papers" mentioned in the text.
  • Privacy helps to avoid unwanted and potentially intrusive interference in an individual's personal affairs.
  • Privacy is one of the rights that were absent in the society in George Orwell's Nineteen Eighty-Four. Without privacy, there would be nothing to stop a Big Brother-like entity from taking control of every aspect of life.

Opposition

  • In 1999, during a launch event for the Jini technology, Scott McNealy, the chief executive officer of Sun Microsystems, said that privacy issues were "a red herring" and then stated "You have zero privacy anyway. Get over it."[28]
  • The nothing to hide argument states that government data mining and surveillance programs do not threaten privacy unless they uncover some illegal activities and those committing such activities do not have the right to keep them private. One who supports this argument may state, "I've got nothing to hide" thus, not opposing data mining and surveillance.[29]
  • In wake of the Snowden scandal, governments have claimed that there is an existential terrorist threat that overrides the so-called right to privacy.

See also

Notes

  1. ↑ Effects are items of property.[26]

References

  1. ↑ "The Privacy Torts" (December 19, 2000). Privacilla.org.
  2. ↑ "Right to Privacy". faculty.uml.edu. Retrieved 31 March 2018.
  3. ↑ "Read about "Right to privacy" on Constitute". constituteproject.org. Retrieved 31 March 2018.
  4. 1 2 Warren and Brandeis, "The Right to Privacy", 4 Harvard Law Review 193 (1890)
  5. 1 2 3 Yael Onn, et al., Privacy in the Digital Environment, Haifa Center of Law & Technology, (2005) pp. 1–12
  6. ↑ Westin, A. (1968). Privacy and Freedom (Fifth ed.). New York.: Atheneum.
  7. ↑ Flaherty, D. (1989). Protecting privacy in surveillance societies: The federal republic of Germany, Sweden, France, Canada, and the United States. Chapel Hill, U.S.: The University of North Carolina Press.
  8. ↑ Allen, A. & Rotenberg, M. (2016). Privacy Law and Society. West Academic.
  9. ↑ Posner, R. A. (1981). The economics of privacy. The American Economic Review, 71(2), 405–409.
  10. ↑ Lessig, L. (2006). Code: Version 2.0. New York, U.S.: Basic Books.
  11. ↑ Johnson, Deborah (2009). Beauchamp, Bowie, Arnold, eds. Ethical theory and business (8th ed.). Upper Saddle River, N.J.: Pearson/Prentice Hall. pp. 428–442. ISBN 0136126022.
  12. ↑ Etzioni, A. (2006). Communitarianism. In B. S. Turner (Ed.), The Cambridge Dictionary of Sociology (pp. 81–83). Cambridge, UK: Cambridge University Press.
  13. ↑ Etzioni, A. (2007). "Are new technologies the enemy of privacy?" Knowledge, Technology & Policy, 20, 115–119.
  14. ↑ Etzioni, A. (2000). A communitarian perspective on privacy. Connecticut Law Review, 32(3), 897–905.
  15. ↑ Regan, P. M. (1995). Legislating privacy: Technology, social values, and public policy. Chapel Hill, U.S.: The University of North Carolina Press.
  16. ↑ Shade, L. R. (2008). Reconsidering the right to privacy in Canada. Bulletin of Science, Technology & Society, 28(1), 80–91.
  17. ↑ Wang, Hao. Protecting Privacy in China: A Research on China's Privacy Standards and the Possibility of Establishing the Right to Privacy and the Information Privacy Protection Legislation in Modern China. Heidelberg: Springer, 2011. Print.
  18. ↑ M., Richards, Neil; J., Solove, Daniel (2010). "Prosser's Privacy Law: A Mixed Legacy". California Law Review. 98 (6). doi:10.15779/z38541p.
  19. ↑ Fishman, Ross. "Bad Precedent: Lawyer Censured for Buying Google Keywords for Other Lawyers and Law Firms". The National Law Review. Retrieved 5 March 2014.
  20. ↑ "Robert L. Habush and Daniel A. Rottier, Plaintiffs-Appellants, v. William M. Cannon, Patrick O. Dunphy and Cannon & Dunphy, S.C., Defendants-Respondents" (PDF). Case No.: 2011AP1769. Court of Appeals of Wisconsin Published Opinion. Opinion filed: February 21, 2013. Retrieved 5 March 2014.
  21. ↑ Zurbriggen, Eileen L.; Hagai, Ella Ben; Leon, Gabrielle. "Negotiating privacy and intimacy on social media: Review and recommendations". Translational Issues in Psychological Science. 2 (3): 248–260. doi:10.1037/tps0000078.
  22. ↑ "For the Many and the Few: What a Fundamental Right to Privacy Means for India - The Wire". The Wire. Retrieved 31 March 2018.
  23. ↑ "Too Lazy to Read Right to Privacy Ruling? Here's the TL;DR Version". The Quint. Retrieved 2017-08-25.
  24. ↑ "Andhrastar – Breaking News, Andhra News, Telangana News, India News, Bollywood, Tollywood News, World News". andhrastar.com. Retrieved 2017-08-25.
  25. ↑ "Whatsapp-Facebook Privacy Case - Supreme Court Observer". Supreme Court Observer. Retrieved 2018-01-05.
  26. ↑ Denniston, Lyle (April 25, 2014). "Argument preview: Police and cellphone privacy". SCOTUSblog. Retrieved July 1, 2014.
  27. ↑ "America's Founding Documents". archives.gov. 30 October 2015. Retrieved 31 March 2018.
  28. ↑ Sprenger, Polly. "Sun on Privacy: 'Get Over It'". Wired. January 26, 1999. Retrieved on Feb 6, 2017.
  29. ↑ Mordini, p. 252.

Sources

  • Mordini, Emilio. "Nothing to Hide: Biometrics, Privacy and Private Sphere". In: Schouten, Ben, Niels Christian Juul, Andrzej Drygajlo, and Massimo Tistarelli (editors). Biometrics and Identity Management: First European Workshop, BIOID 2008, Roskilde, Denmark, May 7–9, 2008, Revised Selected Papers. Springer Science+Business Media, 2008. pp. 245–258. ISBN 9783540899907. doi:10.1007/978-3-540-89991-4_27.
  • Lever, Annabelle. "Feminism, Democracy and the Right to Privacy" (Archive; archive). Minerva - An Internet Journal of Philosophy. ISSN 1393-614X. 2005. Volume 9.
  • Moore, Adam D. Privacy Rights: Moral and Legal Foundations (Pennsylvania State University Press, August 2010). ISBN 978-0-271-03686-1.
  • "The Privacy Torts" (December 19, 2000). Privacilla.org, a "web-based think tank", devoted to privacy issues, edited by Jim Harper ("About Privacilla")
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