Privacy, Technology and Perspective
Abortion is a Privacy Issue Too. In light of the recent release of a Supreme Court draft overruling Roe v. Wade and Planned Parenthood v. Casey – based largely on notions of “privacy” – perhaps it would be helpful to take an overview of the different things people often mean when they say the word “privacy,” and bring into sharper focus what they should mean by it.
Let’s start with Professor Prosser’s familiar post-war collection of four “privacy” torts, which generally protect individuals from personal invasion or trespass by others. “Prosser’s 4 Torts of Privacy” include:
– the right to seclusion (“peeping toms,” wiretapping, cameras in bathroom stalls),
– the right to have control of one’s name, likeness, etc. for endorsements,
– the right not to be portrayed in a false light, and
– the right to be free from public disclosure of embarrassing private facts.
Of course, not all of “Prosser’s 4 Torts of Privacy” are recognized by every state. Even where they are recognized, all four are subject to complex, variable applications and restrictions (not least by the First Amendment). Still, when laypeople hear the word “privacy,” some variations of Prosser’s 4 Torts often come first to mind.
Now turn to the newest category – “information” or “digital” privacy. Historically, we have approached the privacy of one’s records or personal information on a “sector by sector” basis in this country, through sector-specific statutes like HIPAA (health care), the FCRA (credit etc.), COPPA (children), FERPA (students), and so on. Lately, California and several other states have begun following Europe’s lead in enacting consumer privacy laws that move across business sectors and require general privacy practices, greatly complicating an already complex business environment.
But in our world today, by far the most sacred, the most opaque, the most important, and the least understood meaning of “privacy” is that meaning which has a long, broad, and deep constitutional heritage, stemming from what the Constitution was – and is – meant to do.
The word “privacy” isn’t spoken in the U.S. Constitution (any more than the word “marriage” is), but the concept runs throughout the Bill of Rights. To give just a few examples, your “privacy” to choose your own associations is protected under the First Amendment, the ancient “my home is my castle” doctrine is protected under the Third, and your rights against search and seizure where you have a reasonable expectation of privacy are protected under the Fourth. As Roe v. Wade explained, “The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”
Why is this? What do these “privacy rights” throughout the Constitution – by whatever name and however expressed – have in common?
Together, these examples of protected “privacy” – which you might think of as “autonomy” – all work together in an ever-evolving process of defining both what it means to be a person, and what it means to be an American citizen.
This right to privacy (or autonomy if you prefer) long pre-dates Roe, and forms the basis on which many other fundamental rights are grounded. Griswold (contraception), Loving (interracial marriage), Lawrence (sexual practices among consenting adults), and Obergefell (same-sex marriage) have all been based on this right to privacy and the autonomy of private American citizens to construct their private lives as they wish.
Don’t confuse these different kinds of privacy rights. Don’t discount them, much less sneer at them or boast about clever arguments to make sophist points. They are at the center of the questions “what it means to be a person,” and “what it means to be an American.”
Remember: Privacy protects the powerless.
And one of these days, that may be you.
Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.