The right to privacy is an element of various legal traditions that intends to restrain
governmental
A government is the system or group of people governing an organized community, generally a state.
In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is a ...
and private actions that threaten the
privacy
Privacy (, ) is the ability of an individual or group to seclude themselves or information about themselves, and thereby express themselves selectively.
The domain of privacy partially overlaps with security, which can include the concepts of a ...
of individuals. Over 150 national constitutions mention the right to privacy. On 10 December 1948, the United Nations General Assembly adopted the
Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the Human rights, rights and freedoms of all human beings. Drafted by a UN Drafting of the Universal De ...
(UDHR), originally written to guarantee individual rights of everyone everywhere; while ''right to privacy'' does not appear in the document, many interpret this through Article 12, which states: "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."
Since the
global surveillance disclosures of 2013, initiated by ex-
NSA
The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
employee
Edward Snowden
Edward Joseph Snowden (born June 21, 1983) is an American and naturalized Russian former computer intelligence consultant who leaked highly classified information from the National Security Agency (NSA) in 2013, when he was an employee and su ...
, the right to privacy has been a subject of international debate. Government agencies, such as the
NSA
The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
,
FBI
The Federal Bureau of Investigation (FBI) is the domestic Intelligence agency, intelligence and Security agency, security service of the United States and its principal Federal law enforcement in the United States, federal law enforcement age ...
,
CIA
The Central Intelligence Agency (CIA ), known informally as the Agency and historically as the Company, is a civilian intelligence agency, foreign intelligence service of the federal government of the United States, officially tasked with gat ...
,
R&AW
The Research and Analysis Wing (abbreviated R&AW; hi, ) is the foreign intelligence agency of India. The agency's primary function is gathering foreign intelligence, counter-terrorism, counter-proliferation, advising Indian policymakers, a ...
and
GCHQ
Government Communications Headquarters, commonly known as GCHQ, is an intelligence and security organisation responsible for providing signals intelligence (SIGINT) and information assurance (IA) to the government and armed forces of the Unit ...
, have engaged in
mass
Mass is an intrinsic property of a body. It was traditionally believed to be related to the quantity of matter in a physical body, until the discovery of the atom and particle physics. It was found that different atoms and different elementar ...
,
global surveillance
Global mass surveillance can be defined as the mass surveillance of entire populations across national borders.
Its existence was not widely acknowledged by governments and the mainstream media until the global surveillance disclosures by Edwar ...
. Some current debates around the right to privacy include whether privacy can co-exist with the
current capabilities of
intelligence agencies
An intelligence agency is a government agency responsible for the collection, analysis, and exploitation of information in support of law enforcement, national security, military, public safety, and foreign policy objectives.
Means of informatio ...
to access and analyze many details of an individual's life; whether or not the right to privacy is forfeited as part of the
social contract
In moral and political philosophy
Political philosophy or political theory is the philosophical study of government, addressing questions about the nature, scope, and legitimacy of public agents and institutions and the relationships betw ...
to bolster defense against supposed terrorist threats; and whether threats of terrorism are a valid excuse to spy on the general population. Private sector actors can also threaten the right to privacyparticularly technology companies, such as
Amazon
Amazon most often refers to:
* Amazons, a tribe of female warriors in Greek mythology
* Amazon rainforest, a rainforest covering most of the Amazon basin
* Amazon River, in South America
* Amazon (company), an American multinational technology c ...
,
Apple
An apple is an edible fruit produced by an apple tree (''Malus domestica''). Apple fruit tree, trees are agriculture, cultivated worldwide and are the most widely grown species in the genus ''Malus''. The tree originated in Central Asia, wh ...
,
Meta, Google,
Microsoft
Microsoft Corporation is an American multinational technology corporation producing computer software, consumer electronics, personal computers, and related services headquartered at the Microsoft Redmond campus located in Redmond, Washing ...
, and
Yahoo
Yahoo! (, styled yahoo''!'' in its logo) is an American web services provider. It is headquartered in Sunnyvale, California and operated by the namesake company Yahoo! Inc. (2017–present), Yahoo Inc., which is 90% owned by investment funds ma ...
that use and collect
personal data. These concerns have been strengthened by scandals, including the
Facebook–Cambridge Analytica data scandal
In the 2010s, personal data belonging to millions of Facebook users was collected without their consent by British consulting firm Cambridge Analytica, predominantly to be used for political advertising.
The data was collected through an app ca ...
, which focused on
psychographic
Psychographics is a qualitative methodology used to describe traits of humans on psychological attributes. Psychographics have been applied to the study of personality, values, opinions, attitudes, interests, and lifestyles. Two approaches to ...
company
Cambridge Analytica
Cambridge Analytica Ltd (CA), previously known as SCL USA, was a British political consulting firm that came to prominence through the Facebook–Cambridge Analytica data scandal. It was started in 2013, as a subsidiary of the private intellig ...
which used personal data from Facebook to influence large groups of people.
History
The concept of a human ''"right to privacy"'' begins when the Latin word ''ius'' expanded from meaning "what is fair" to include "a right – an entitlement a person possesses to control or claim something," by the
Decretum Gratiani
The ''Decretum Gratiani'', also known as the ''Concordia discordantium canonum'' or ''Concordantia discordantium canonum'' or simply as the ''Decretum'', is a collection of canon law compiled and written in the 12th century as a legal textbook b ...
in
Bologna
Bologna (, , ; egl, label= Emilian, Bulåggna ; lat, Bononia) is the capital and largest city of the Emilia-Romagna region in Northern Italy. It is the seventh most populous city in Italy with about 400,000 inhabitants and 150 different nat ...
, Italy in the 12th century.
In the United States, an article in the 15 December 1890 issue of the ''
Harvard Law Review
The ''Harvard Law Review'' is a law review published by an independent student group at Harvard Law School. According to the ''Journal Citation Reports'', the ''Harvard Law Review''s 2015 impact factor of 4.979 placed the journal first out of 143 ...
'' entitled "
The Right to Privacy," written by attorney
Samuel D. Warren II
Samuel Dennis Warren (1852 – February 18, 1910), also Samuel Dennis Warren II, was an American attorney from Boston, Massachusetts.
Biography
Warren was born in 1852. His father was also named Samuel D. Warren, known as S.D. Warren, who found ...
and future U.S. Supreme Court Justice
Louis Brandeis
Louis Dembitz Brandeis (; November 13, 1856 – October 5, 1941) was an American lawyer and associate justice on the Supreme Court of the United States from 1916 to 1939.
Starting in 1890, he helped develop the "right to privacy" concept ...
, is often cited as the first explicit finding of a U.S. right to privacy. Warren II 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
Yellow journalism and yellow press are American terms for journalism and associated newspapers that present little or no legitimate, well-researched news while instead using eye-catching headlines for increased sales. Techniques may include e ...
."
Privacy rights are inherently intertwined with information technology. In his widely cited
dissenting opinion
A dissenting opinion (or dissent) is an opinion in a legal case in certain legal systems written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment.
Dissenting opinions are no ...
in ''
Olmstead v. United States
''Olmstead v. United States'', 277 U.S. 438 (1928), was a decision of the Supreme Court of the United States, on the matter of whether wiretapping of private telephone conversations, obtained by federal agents without a search warrant and subsequ ...
'' (1928), Brandeis relied on thoughts he developed in the article "The Right to Privacy."
[ In that dissent, he urged that personal privacy matters were more relevant to ]constitutional law
Constitutional law is a body of law which defines the role, powers, and structure of different entities within a State (polity), state, namely, the executive (government), executive, the parliament or legislature, and the judiciary; as well as th ...
, going so far as to say that "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 potentially eavesdropping switchboard operator
In the early days of telephony, companies used manual telephone switchboards, and switchboard operators connected calls by inserting a pair of phone plugs into the appropriate jacks. They were gradually phased out and replaced by automated system ...
s. By the time of ''Katz Katz or KATZ may refer to:
Fiction
* Katz Kobayashi, a character in Japanese anime
* "Katz", a 1947 Nelson Algren story in '' The Neon Wilderness''
* Katz, a character in ''Courage the Cowardly Dog''
Other uses
* Katz (surname)
* Katz, British C ...
'', 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 raised more concerns about privacy, resulting in the Fair Information Practice Principles.
In recent years there have been few attempts to clearly and precisely define the "right to privacy."
An individual right
Alan Westin
Alan Furman Westin (October 11, 1929 – February 18, 2013) was a Professor of Public Law & Government Emeritus, Columbia University, former publisher of ''Privacy & American Business'', and former President of the Center for Social & Legal Resea ...
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
Under liberal democratic systems, privacy creates a space separate from political life, and allows personal autonomy, while ensuring democratic freedoms of association
Freedom of association encompasses both an individual's right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interests of its members, and the right of an association to accept or decline memb ...
and expression
Expression may refer to:
Linguistics
* Expression (linguistics), a word, phrase, or sentence
* Fixed expression, a form of words with a specific meaning
* Idiom, a type of fixed expression
* Metaphorical expression, a particular word, phrase, o ...
. Privacy to individuals is the ability to behave, think, speak, and express ideas without the monitoring or surveillance of someone else. Individuals exercise their freedom of expression through attending political rallies and choosing to hide their identities online by using pseudo names.
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, "individuals want to be left alone and to exercise some control over how information about them is used".
Marc Rotenberg
Marc Rotenberg is president and founder of the Center for AI and Digital Policy, an independent non-profit organization, incorporated in Washington, D.C. Rotenberg is the editor of ''The AI Policy Sourcebook'', a member of the OECD Expert Group o ...
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.
Richard Posner
Richard Allen Posner (; born January 11, 1939) is an American jurist and legal scholar who served as a federal appellate judge on the U.S. Court of Appeals for the Seventh Circuit from 1981 to 2017. A senior lecturer at the University of Chica ...
and Lawrence Lessig
Lester Lawrence Lessig III (born June 3, 1961) is an American academic, attorney, and political activist. He is the Roy L. Furman Professor of Law at Harvard Law School and the former director of the Edmond J. Safra Center for Ethics at Harvard ...
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 labor market, which he believes is like selling a product. Any 'defect' in the 'product' that is not reported is fraud. 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". 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
Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hu ...
, whose social value is an essential component in the functioning of democratic societies.
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 allow 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 a 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".
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.
Privacy laws in different countries
Privacy laws apply to both public and private sector actors.
Australia
Australia does not have a constitutional right to privacy. However, the '' Privacy Act 1988'' ( Cth) provides a degree of protection over an individual's personally identifiable information and its usage by the government and large companies. The ''Privacy Act'' also outlines the 13 Australian Privacy Principles.
Australia also lacks a tort
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
against invasions of privacy. In the 2001 case of , the High Court of Australia
The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution.
The High Court was established fol ...
explained that there stood the possibility of "a tort identified as unjustified invasion of privacy", but that this case lacked the facts to establish it. Since 2001, there have been some state-based casesnamely the 2003 case ; and the 2007 case that attempted to establish a tortious invasion of privacy, but these cases were settled before decisions could be met. Further, they have received conflicting analyses by later cases.
Canada
China
The Constitution is the highest law in China. Privacy rights have been applied throughout China. The Constitution provides direction for all states in China and it further stipulates that "all states must abide by and be held accountable for any violation of the Constitution and the law; the law specifically protects civil rights of a citizen's personal dignity and confidentiality of correspondence.' China has a new standard and the first of its kind for the country coming into effect 1 January 2021, the Civil Code is the first of its kind sweeping law replacing all laws covering general provisions, real property, contracts, personality rights, marriage and family, inheritance, tort liability, and supplementary provisions.
In many cases raised in the legal system, these rights have been overlooked as the courts have not treated each case with the same legal precedent for each case. China deploys mass surveillance
Mass surveillance is the intricate surveillance of an entire or a substantial fraction of a population in order to monitor that group of citizens. The surveillance is often carried out by local and federal governments or governmental organizati ...
on its population including through the use of closed-circuit television
Closed-circuit television (CCTV), also known as video surveillance, is the use of video cameras to transmit a signal to a specific place, on a limited set of monitors. It differs from broadcast television in that the signal is not openly t ...
.
European Union
Compared to the United States, the European Union (EU) has more extensive data protection laws.
The General Data Protection Regulation
The General Data Protection Regulation (GDPR) is a European Union regulation on data protection and privacy in the EU and the European Economic Area (EEA). The GDPR is an important component of EU privacy law and of human rights law, in partic ...
(GDPR) is an important component of EU privacy law
Privacy law is the body of law that deals with the regulating, storing, and using of personally identifiable information, personal healthcare information, and financial information of individuals, which can be Personally identifiable information ...
and of human rights law
International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law are primarily made up of treaties, ag ...
, in particular Article 8(1) of the Charter of Fundamental Rights of the European Union
The Charter of Fundamental Rights of the European Union (CFR) enshrines certain political, social, and economic rights for European Union (EU) citizens and residents into EU law. It was drafted by the European Convention and solemnly proclaim ...
.
Under GDPR, data about citizens may only be gathered or processed under specific cases, and with certain conditions. Requirements of data controller parties under the GDPR include keeping records of their processing activities, adopting data protection policies, transparency with data subjects, appointing a Data Protection Officer, and implementing technical safeguards to mitigate security risks.
Council of Europe
The Council of Europe
The Council of Europe (CoE; french: Conseil de l'Europe, ) is an international organisation founded in the wake of World War II to uphold European Convention on Human Rights, human rights, democracy and the Law in Europe, rule of law in Europe. ...
gathered to discuss the protection of individuals, during the Convention Treaty No.108 was created and opened for signature by members States and for accession by non-member States.
The Convention closed and the was renamed Convention 108: Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.
Convention 108 has undergone 5 ratifications with the last ratification 10 January 1985 officially changing the name to Convention 108+ and providing the summary stating the intent of the treaty as:
''The first binding international instrument which protects the individual against abuses which may accompany the collection and processing of personal data, and which seeks to regulate at the same time the transfrontier flow of personal data.''
Increase use of the Internet and technological advancement in products lead to the Council of Europe to look at Convention 108+ and the relevance of the Treaty in the wake of the changes.
In 2011 the modernization of Convention 108+ started and completed in 2012 amending the treaty with Protocol CETS No223.
This modernization of Convention 108+ was in progress while the EU data protection rules were developed, the EU data protection rules would be adapted to become the GDPR.
India
The new data sharing
Data sharing is the practice of making data used for scholarly research available to other investigators. Many funding agencies, institutions, and publication venues have policies regarding data sharing because transparency and openness are consid ...
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.
The Indian Supreme Court
The Supreme Court of India ( IAST: ) is the supreme judicial authority of India and is the highest court of the Republic of India under the constitution. It is the most senior constitutional court, has the final decision in all legal matters ...
with nine-judge bench under JS Khehar, ruled on 24 August 2017, that the right to privacy is a fundamental right for Indian citizens per Article 21 of the Constitution and additionally under Part III rights. Specifically, the court adopted the three-pronged test required for the encroachment of any Article 21 right – legalityi.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. The Court adopted a liberal interpretation of the fundamental rights to meet the challenges posed an increasing digital age. It held that individual liberty must extend to digital spaces and individual autonomy and privacy must be protected.
This ruling by the Supreme Court paved the way for decriminalization of homosexuality in India on 6 September 2018, thus legalizing same-sex sexual intercourse between two consenting adults in private. 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.
Israel
In Israel privacy protection is a constitutional basic right and is therefore protected by the Basic Law. Basic Law: the Knesset passed on 12 February 1958, but the Third Knesset. The Twelfth Knesset update to the Basic Law occurred on 17 March 1992. This update added to the law Human Dignity and Liberty by defining: Human freedom in Israel as being the right to leave the country and enter it, as well as the right to privacy and intimacy, refrainment from searches relating to one's private property, body and possessions, and avoidance of violations of the privacy of one's speech, writings and notes.
October 2006 Israel established a regulatory authority, the PPA, part of the Ministry of Justice. PPA defined the Privacy Law and associated regulates based on two principles: general right to online privacy and the protection of personal data stored in databases.
Russia
The Constitution of the Russian Federation: Article 45 states:
# State protection of human and civil rights and freedoms in the Russian Federation shall be guaranteed.
# Everyone shall the right to protect his (her) rights and freedoms by all means not prohibited by law.
The Russian Constitution specifically articles 23 and 24, institutes individual citizen the right to privacy. Russia, a member of the Strasbourg Convention, ratified processing of personal data against automatic processing and afterwards adopted a new convention. The new Russian Federal Law No.152-FZ R implemented on 27 July 2006, was updated to cover Personal Data and this law extends privacy to include personal and family secrets. Its main target is to protect individuals' personal data.
Privacy entered the forefront of Russian legislature in 2014 when the approach to privacy turned to the goal of protecting privacy of government operations and the people of Russia. The amendments originally modified the Personal Data Law which has since been renamed The Data Localisation Law. The new law requires business operators who collect any information on Russian citizens' must maintain the collected data locally. This means that data transmission, processing, and storage must be in a database in Russia. 1 March 2021, the new amendment came into effect. Consent from the data subject is required if the data operator wants to use the data publicly.
United States
The Constitution of the United States
The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
and United States Bill of Rights
The United States Bill of Rights comprises the first ten amendments to the United States Constitution. Proposed following the often bitter 1787–88 debate over the ratification of the Constitution and written to address the objections rais ...
do not explicitly include a right to privacy. Currently no federal law takes a holistic approach to privacy regulation.
In the US, privacy and associated rights have been determined via court cases and the protections have been established through laws.
The Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
in ''Griswold v. Connecticut
''Griswold v. Connecticut'', 381 U.S. 479 (1965), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protects the liberty of married couples to buy and use contraceptives withou ...
, 381 U.S. 479'' (1965) found that the Constitution guarantees a right to privacy against governmental intrusion via '' penumbras'' located in the founding text.
In 1890, Warren and Brandeis drafted an article published in the ''Harvard Law Review
The ''Harvard Law Review'' is a law review published by an independent student group at Harvard Law School. According to the ''Journal Citation Reports'', the ''Harvard Law Review''s 2015 impact factor of 4.979 placed the journal first out of 143 ...
'' titled "The Right To Privacy" that is often cited as the first implicit finding of a U.S. stance on the right to privacy.
Right to privacy has been the justification for decisions involving a wide range of civil liberties
Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may ...
cases, including ''Pierce v. Society of Sisters
''Pierce v. Society of Sisters'', 268 U.S. 510 (1925), was an early 20th-century United States Supreme Court decision striking down an Oregon statute that required all children to attend public school. The decision significantly expanded coverage ...
'', which invalidated a successful 1922 Oregon
Oregon () is a U.S. state, state in the Pacific Northwest region of the Western United States. The Columbia River delineates much of Oregon's northern boundary with Washington (state), Washington, while the Snake River delineates much of it ...
initiative
In political science, an initiative (also known as a popular initiative or citizens' initiative) is a means by which a petition signed by a certain number of registered voters can force a government to choose either to enact a law or hold a pu ...
requiring compulsory public education
State schools (in England, Wales, Australia and New Zealand) or public schools (Scottish English and North American English) are generally primary or secondary schools that educate all students without charge. They are funded in whole or in pa ...
; ''Roe v. Wade
''Roe v. Wade'', 410 U.S. 113 (1973),. was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to have an abortion. The decision struck down many federal and s ...
'', which struck down an abortion law from Texas
Texas (, ; Spanish language, Spanish: ''Texas'', ''Tejas'') is a state in the South Central United States, South Central region of the United States. At 268,596 square miles (695,662 km2), and with more than 29.1 million residents in 2 ...
, and thus restricted state powers to enforce laws against abortion; and ''Lawrence v. Texas
''Lawrence v. Texas'', 539 U.S. 558 (2003), is a landmark decision of the U.S. Supreme Court in which the Court ruled that most sanctions of criminal punishment for consensual, adult non- procreative sexual activity (commonly referred to as so ...
'', which struck down a Texas sodomy law, and thus eliminated state powers to enforce laws against sodomy
Sodomy () or buggery (British English) is generally anal or oral sex between people, or sexual activity between a person and a non-human animal ( bestiality), but it may also mean any non- procreative sexual activity. Originally, the term ''sodo ...
. ''Dobbs v. Jackson Women's Health Organization
''Dobbs v. Jackson Women's Health Organization'', , is a landmark decision of the U.S. Supreme Court in which the court held that the Constitution of the United States does not confer a right to abortion. The court's decision overruled both ''R ...
'' later overruled ''Roe v. Wade'', in part due to the Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
finding that the right to privacy was not mentioned in the constitution, leaving the future validity of these decisions uncertain.
Legally, the right of privacy is a basic law which includes:
# The right of persons to be free from unwarranted publicity
# Unwarranted appropriation of one's personality
# Publicizing one's private affairs without a legitimate public concern
# Wrongful intrusion into one's private activities
In 2018, California set out to create a policy promoting data protection, the first state in the United States to pursue such protection. The resulting effort is the California Consumer Privacy Act
The California Consumer Privacy Act (CCPA) is a state statute intended to enhance privacy rights and consumer protection for residents of California, United States. The bill was passed by the California State Legislature and signed into law by Jer ...
(CCPA), reviewed as a critical juncture where the legal definition of what privacy entails from California lawmakers' perspective. The California Consumer Protection Act is a privacy law protecting the residents of California and their Personal identifying information. The law enacts regulation over all companies regardless of operational geography protecting the six Intentional Acts included in the law.
For the health care sector where medical records are part of an individual's privacy, The Privacy Rule of the Health Insurance Portability and Accountability Act was passed in 1996. This act safeguards medical data of the patient which also includes giving individuals rights over their health information, like getting a copy of their records and seeking correction. Medical anthropologist Khiara Bridges
Khiara M. Bridges (born 1978/1979)[Style Across Americ ...](_blank)
has argued that the US Medicare system requires so much personal disclosure from pregnant women that they effectively do not have privacy rights.
Intentions of the CCPA Act
The intentions included in the Act provide California residents with the right to:
# Know what personal data is being collected about them.
# Know whether their personal data is sold or disclosed and to whom.
# Say no to the sale of personal data.
# Access their personal data.
# Request a business to delete any personal information about a consumer collected from that consumer.
# Not be discriminated against for exercising their privacy rights.
Mass surveillance
United States
Governmental organizations such as the National Security Agency
The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
(NSA), CIA, and GCHQ amongst others are authorized to conduct mass surveillance
Mass surveillance is the intricate surveillance of an entire or a substantial fraction of a population in order to monitor that group of citizens. The surveillance is often carried out by local and federal governments or governmental organizati ...
throughout other nations in the world. Programs such as PRISM
Prism usually refers to:
* Prism (optics), a transparent optical component with flat surfaces that refract light
* Prism (geometry), a kind of polyhedron
Prism may also refer to:
Science and mathematics
* Prism (geology), a type of sedimentary ...
, MYSTIC, and other operations conducted by NATO
The North Atlantic Treaty Organization (NATO, ; french: Organisation du traité de l'Atlantique nord, ), also called the North Atlantic Alliance, is an intergovernmental military alliance between 30 member states – 28 European and two No ...
-member states are capable of collecting a vast quantity of metadata, internet history, and even actual recordings of phone calls from various countries. Domestic law enforcement at the federal level is conducted by the Federal Bureau of Investigation
The Federal Bureau of Investigation (FBI) is the domestic intelligence and security service of the United States and its principal federal law enforcement agency. Operating under the jurisdiction of the United States Department of Justice, ...
, so these agencies have never been authorized to collect US data.
After the September 11 attacks
The September 11 attacks, commonly known as 9/11, were four coordinated suicide terrorist attacks carried out by al-Qaeda against the United States on Tuesday, September 11, 2001. That morning, nineteen terrorists hijacked four commercia ...
, the NSA turned its surveillance apparatus on the US and its citizens.
In March 2013, James Clapper
James Robert Clapper Jr. (born March 14, 1941) is a retired lieutenant general in the United States Air Force and former Director of National Intelligence. Clapper has held several key positions within the United States Intelligence Community. H ...
, the Director of National Intelligence
The director of national intelligence (DNI) is a senior, cabinet-level United States government official, required by the Intelligence Reform and Terrorism Prevention Act of 2004 to serve as executive head of the United States Intelligence Commu ...
at the time, testified under oath that the NSA does not "wittingly" collect data on Americans. Clapper later retracted this statement.
The US Government's own Privacy and Civil Liberties Oversight Board
The Privacy and Civil Liberties Oversight Board (PCLOB) is an independent agency within the executive branch of the United States government, established by Congress in 2004 to advise the President and other senior executive branch officials to en ...
(PCLOB) reviewed the confidential security documents, and found in 2014 that the program did have ''"a single instance involving a threat to the United States in which the program made a concrete difference"'' in counterterrorism or the disruption of a terrorist attack.
China
The Chinese government is conducting mass surveillance in Xinjiang
Xinjiang, SASM/GNC: ''Xinjang''; zh, c=, p=Xīnjiāng; formerly romanized as Sinkiang (, ), officially the Xinjiang Uygur Autonomous Region (XUAR), is an autonomous region of the People's Republic of China (PRC), located in the northwest ...
province for detention of Muslims. As part of its "Strike Hard Campaign against Violent Terrorism" policy the authorities in China have subjugated 13 million Turkish Muslims to the highest order of restrictions.
During the COVID-19 pandemic
The COVID-19 pandemic, also known as the coronavirus pandemic, is an ongoing global pandemic of coronavirus disease 2019 (COVID-19) caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The novel virus was first identif ...
the Chinese authorities documented the contact information and travel history of every individual and issued red, yellow and green badges/codes for transportation and entering stores. These badges/codes were also sometimes misused to freeze bank accounts and pressurize the protestors who were angry about the severe restrictions. The privacy of these health codes remain unacknowledged and unaddressed.
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 has 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
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...
.
Publication of private facts
Publication of private facts speaks of the newsworthiness of private facts according to the law and the protections that private facts have. If a fact has significant newsworthiness to the public, it is protected by law under the freedom of the press
Freedom of the press or freedom of the media is the fundamental principle that communication and expression through various media, including printed and electronic News media, media, especially publication, published materials, should be conside ...
. However, even if the fact is true, if it is not newsworthy, it is not necessarily protected. Digital Media Law Project
The Berkman Klein Center for Internet & Society is a research center at Harvard University that focuses on the study of cyberspace. Founded at Harvard Law School, the center traditionally focused on internet-related legal issues. On May 15, 200 ...
uses examples such as sexual orientation
Sexual orientation is an enduring pattern of romantic or sexual attraction (or a combination of these) to persons of the opposite sex or gender, the same sex or gender, or to both sexes or more than one gender. These attractions are generall ...
, HIV status, and financial status to show that these can be publicly detrimental to the figure being posted about. The problem arises from the definition of newsworthiness.
Newsworthiness
According to Digital Media Law Project, the courts will usually side with the press
Press may refer to:
Media
* Print media or news media, commonly called "the press"
* Printing press, commonly called "the press"
* Press (newspaper), a list of newspapers
* Press TV, an Iranian television network
People
* Press (surname), a fam ...
in the publication of private facts. This helps to uphold the freedom of the press in the US Constitution
The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the nation ...
. "there is a legitimate public interest in nearly all recent events, as well as in the private lives of prominent figures such as movie stars, politicians, and professional athletes." Digital Media Law Project supports these statements with citations to specific cases. While most recent events and prominent figures are considered newsworthy, it cannot go too far and too deep with a morbid curiosity
Curiosity (from Latin '' cūriōsitās'', from ''cūriōsus'' "careful, diligent, curious", akin to ''cura'' "care") is a quality related to inquisitive thinking such as exploration, investigation, and learning, evident by observation in humans ...
. The media gain a lot of leverage once a person becomes a prominent figure and many things about their lives become newsworthy. Multiple cases such as Strutner v. Dispatch Printing Co., 442 N.E.2d 129 (Ohio Ct. App. 1982) show that the publication of a person's home address and full name who is being questioned by the police is valid and "a newsworthy item of legitimate public concern." The last part to consider is whether this could be considered a form of doxxing
Doxing or doxxing is the act of publicly providing personally identifiable information about an individual or organization, usually via the internet. Historically, the term has been used interchangeably to refer to both the aggregation of this in ...
. With the court upholding the newspaper's right to publish, this is much harder to change in the future. Newsworthiness has much around it that is held up by court rulings and case law
Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a l ...
. This is not in legislation but is created through the courts, as many other laws and practices are. These are still judged on a case-by-case basis as they are often settled through a lawsuit
-
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...
of some form. While there is a fair amount of case law supporting newsworthiness of subjects, it is hardly comprehensive and, news publications can publish things not covered and defend themselves in court for their right to publish these facts.
Technology
Private sector actors can also threaten the right to privacyparticularly technology companies, such as Amazon
Amazon most often refers to:
* Amazons, a tribe of female warriors in Greek mythology
* Amazon rainforest, a rainforest covering most of the Amazon basin
* Amazon River, in South America
* Amazon (company), an American multinational technology c ...
, Apple
An apple is an edible fruit produced by an apple tree (''Malus domestica''). Apple fruit tree, trees are agriculture, cultivated worldwide and are the most widely grown species in the genus ''Malus''. The tree originated in Central Asia, wh ...
, Facebook, Google, and Yahoo
Yahoo! (, styled yahoo''!'' in its logo) is an American web services provider. It is headquartered in Sunnyvale, California and operated by the namesake company Yahoo! Inc. (2017–present), Yahoo Inc., which is 90% owned by investment funds ma ...
that use and collect personal data.
In some American jurisdictions, the use of a person's name as a keyword under Google's AdWords
Google Ads (formerly Google AdWords) is an online advertising platform developed by Google, where advertisers bid to display brief advertisements, service offerings, product listings, or videos to web users. It can place ads both in the result ...
for advertising or trade purposes without the person's consent has raised certain personal privacy concerns.
The 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.
Privacy is a major issue in the health care sector with technology becoming an essential component of it. Connecting personal data of patients to internet make them vulnerable to cyber attacks. There are also concerns about how much data should be stored and who should have access to it.
Protection of minors
United Kingdom
Laws and courts in the UK uphold the protection of minors in the journalistic space. The Independent Press Standards Organisation
The Independent Press Standards Organisation (IPSO) is the regulator of the newspaper and magazine industry in the UK. It was established on 8 September 2014 after the windup of the Press Complaints Commission (PCC), which had been the main ind ...
(IPSO) in the UK have shown that the usage of footage of a 12-year-old girl being bullied in 2017 can be retroactively taken down due to fears of cyber-bullying
Cyberbullying or cyberharassment is a form of bullying or harassment using electronic means. Cyberbullying and cyberharassment are also known as online bullying. It has become increasingly common, especially among teenagers, as the digital ...
and potential harm done to the child in the future. This was after the Mail Online published the video without any attempt to hide the identity of the child. Following the newsworthiness point, it is possible that content like this would be allowed in the United States due to the recentness of the event. Protection of minors is a different matter in the United States with new stories about minors doing certain things and their faces are shown in a news publication. The Detroit Free Press
The ''Detroit Free Press'' is the largest daily newspaper in Detroit, Michigan, US. The Sunday edition is titled the ''Sunday Free Press''. It is sometimes referred to as the Freep (reflected in the paper's web address, www.freep.com). It primari ...
, as an example, chose to do a hard-hitting story about prostitution and drugs from a teenager but never named her or showed her face, only referring to her and the "16-year-old from Taylor". In the UK, During the case of Campbell v MGN, Lord Hope stated that the protection of minors will be handled on a case-by-case basis and affected by the child's awareness of the photo and their expectation of privacy. Many factors will be considered such as the age of the children, activity, usage of real names, etc.
United States
The protection of minors in the United States often falls on the shoulders of the Children's Online Privacy Protection Act (COPPA
The Children's Online Privacy Protection Act of 1998 (COPPA) is a United States federal law, located at ().
The act, effective April 21, 2000, applies to the online collection of personal information by persons or entities under Federal ju ...
). This protects any children under the age of 13 from the collection of their data without their parent's or guardian's permission. This law is the reason why many sites will ask if you are under 13 or require you to be 13 to sign up. While this law is intended to protect preteen children, it fails to protect the information of anyone older than 13, including teenage minors. It also begins to overlap with other privacy protection laws such as the Health Insurance Portability and Accountability Act
The Health Insurance Portability and Accountability Act of 1996 (HIPAA or the Kennedy– Kassebaum Act) is a United States Act of Congress enacted by the 104th United States Congress and signed into law by President Bill Clinton on August 21, 1 ...
(HIPAA).
See also
* Bank Secrecy Act
The Bank Secrecy Act of 1970 (BSA), also known as the Currency and Foreign Transactions Reporting Act, is a U.S. law requiring financial institutions in the United States to assist U.S. government agencies in detecting and preventing money laun ...
, a US law requiring banks to disclose details of financial transactions
* Information privacy
Information privacy is the relationship between the collection and dissemination of data, technology, the public expectation of privacy, contextual information norms, and the legal and political issues surrounding them. It is also known as data pr ...
* Internet privacy
Internet privacy involves the right or mandate of personal privacy concerning the storing, re-purposing, provision to third parties, and displaying of information pertaining to oneself via Internet. Internet privacy is a subset of data privacy. Pr ...
* MAINWAY
MAINWAY is a database maintained by the United States' National Security Agency (NSA) containing metadata for hundreds of billions of telephone calls made through the largest telephone carriers in the United States, including AT&T, Verizon, and ...
* Nothing to hide argument
The nothing to hide argument states that individuals have no reason to fear or oppose surveillance programs, unless they are afraid it will uncover their own illicit activities. An individual using this argument may claim that an average person s ...
* Right to be forgotten
The right to be forgotten (RTBF) is the right to have private information about a person be removed from Internet searches and other directories under some circumstances. The concept has been discussed and put into practice in several jurisdiction ...
* Stakeholder theory
References
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, 7–9 May 2008, Revised Selected Papers''. Springer Science+Business Media
Springer Science+Business Media, commonly known as Springer, is a German multinational publishing company of books, e-books and peer-reviewed journals in science, humanities, technical and medical (STM) publishing.
Originally founded in 1842 in ...
, 2008. pp. 245–258. . .
*
External links
* Lever, Annabelle.
Feminism, Democracy and the Right to Privacy
. ''Minerva – An Internet Journal of Philosophy''. . 2005. Volume 9.
* Moore, Adam D
(Pennsylvania State University Press, 2010). .
*
" (19 December 2000). Privacilla.org, a "web-based think tank", devoted to privacy issues, edited by Jim Harper
")
{{Authority control
Digital rights
Human rights