In the United States, the right to privacy is a legal argument used in cases involving public and private actions that are deemed a threat to the privacy of an individual. The origin of the right to privacy argument is often attributed to the U.S. constitution specifically the fourth amendment. According to the constitution scholar Peter Irons ( 2006) in addition to the fourth amendment, the first, third, fifth and ninth amendments included specific guarantees in the Bill of Rights that created zones of privacy that prohibit the government from intruding on the rights of individuals without showing proper cause. Historically right to privacy has been used in cases involving foreign and domestic terrorism, wiretapping, potential human rights violations, unlawful detention, abortion rights, police searches, and the regulation of sexual acts.
Like Irons many constitutional scholars share the belief that the concept of right to privacy comes from the U.S. Constitution, however there are some scholars who disagree and maintain the belief that the concept of “right to privacy” has no constitutional anchor (Irons, 2006, p.445). In the 1970’s, the Associate Justice of the Supreme Court Harry Blackmun used the controversy to draft the court’s opinion in Roe vs. Wade.
To determine if the concept of privacy had a constitutional anchor and write the court’s opinion concerning abortion rights, Associate Justice Blackmun examined cases that were not related to abortion. Instead he examined a police search involving fraudulent custom declarations, the right to own pornographic films and the right to place bets in a telephone. While many of these examples might seem to be unrelated, they all involve the government’s invasion of an individual’s privacy (Irons, 2006, p.446). After numerous cases involving issues of privacy, Blackmun (2006) found that a “right to of personal privacy” or the “guarantee of certain zones of privacy” exist in the constitution anchored by language found in the fourteenth amendment which includes a concept of personal liberty.
Civil liberties proponents such as the American Civil Liberties Union (ACLU) argue that post 9-11 attacks, the United States’ government has used Homeland Security laws such as the Patriot Act which were designed to protect the country from potential foreign and domestic terrorist attacks to instead infringe of the civil liberties of American Citizens. Since the attacks, they have used litigation, lobbying and dissemination of information to the public to protect and preserve an individual’s right to privacy; proponents of this agenda believe that individual rights and liberties are a right guaranteed in the Constitution.
There are just as many people in the United States who applaud the effort of the United States Department of Homeland Security and other agencies and departments that work collectively to thwart act of terrorism. They argue that the horrific act of terrorism on September 11th and other acts of terrorism that have taken place in the United States and abroad had changed the original expectation of privacy. Moreover, they argue that technology has changed drastically since Blackmun first established a constitutional anchor to the concept of right to privacy. The Department of Homeland Security and the nation’s counterintelligence departments have been able to use technology in remarkable ways to gather information that can be used to prevent terrorist attacks.
However, civil liberties proponents cite numerous incidences in recent years where the United States government acting under the guise of protecting the nation from terrorism, has violated the privacy of individuals and groups through illegal wiretapping, illegal search and seizures, unlawful detainment, According to a recent article in the Washington Post, an internal audit of the National Security Agency revealed that they had broken privacy rules thousands of times each year (Gellman, 2013). The audit found that most of the violations involve unlawful surveillance of people in America and abroad; both are violations of executive orders issued by the President of the United States.
NSA officials argued that most of these errors were the result of miscommunication and typographical errors and that it wasn’t their intent to violate the law (Gellman, 2013). Nonetheless, this recent revelation adds to the growing suspicions of the American public and the foreign community who are skeptical of the manner in which the U.S. has treated individuals suspected of terrorism; specifically the manner in which the government has captured, detained and interrogated individuals or enemy combatants who have been accused of committing acts of terrorism or supporting terrorist organizations.
In the same manner that former Associate Justice Blackmun discovered that the right to privacy argument encompassed a wide range of legal cases, is the same reason that interpretation of the argument can be polarizing and sometimes confusing. Proponents and Opponents of the right to privacy argument understand its importance but they disagree on whether the right to privacy should supersede the right to collective safety. Whether it is the abortion issue or human rights issues, the relevance and significance of the right to privacy legal precedence will remain a formidable issue among members of the legal community, the public and civil liberties advocates.
- Adams, G. B., & Balfour, D. L. (2009). Unmasking administrative evil (3rd ed.). Thousand Oaks: Sage Publications.
- Gellman, B. (2013, August 15). NSA broke privacy rules thousands of times per year, audit finds. Retrieved from http://www.washingtonpost.com/world/national-security/nsa-broke-privacy-rules-thousands-of-times-per-year-audit-finds/2013/08/15/3310e554-05ca-11e3-a07f-49ddc7417125_story.html
- Irons, P. (2006). A People’s History of the Supreme Court. Garamond: Penguin Books.
- Shane, S. (2005, December 16). Behind Power, One Principle. Retrieved from http://www.nytimes.com/2005/12/17/politics/17legal.html?pagewanted=all