Essentially, the right of privacy involves the right of individuals to be let alone, at least when governments or others fail to demonstrate some compelling reason for intruding. The right of privacy places a high value on individual autonomy and holds that autonomy ought to prevail across a range of decisions—for example, those involving intellectual pursuits, religious and moral choices, family matters, and sexual conduct of adults. Privacy usually is seen as highly individualist in nature and thus is consistent with the traditionally individualistic U.S. social and political culture; however, privacy interests usually cannot be protected except by balancing interests of individuals, groups, and governments. These days, privacy has come to be seen as a potentially important obstacle against technological intrusions; for example, the protection of personal data potentially retrievable through various electronic means is regarded as a pressing contemporary problem.
In private lawsuits, the right of privacy has sustained recovery for (1) intrusion into a person’s private affairs, (2) public disclosure of private facts about a person’s life, (3) publishing materials that place a person in a false light in the eyes of the public, and (4) exploiting, especially for commercial purposes, a person’s name or likeness. These four instances have been enshrined in the Restatement of the Law of Torts (1981).
As a right protected by the U.S. Constitution, the privacy issue has focused most prominently on reproductive freedom, although the right is also important in protecting against other unwarranted intrusions by government officials, especially in instances of eavesdropping or searches.
Most scholars cite the key contribution of Samuel Warren and Louis Brandeis in their 1890 article in Harvard Law Review, ‘‘The Right to Privacy,’’ to the conceptualization of a right of privacy in American jurisprudence, but there were a few other important antecedents. For example, an advocacy group currently working for privacy rights suggests that the English Justices of the Peace Act (1361) was founded on privacy when it provided for the arrest of ‘‘peeping toms and eavesdroppers.’’ One recent text suggests that Thomas Cooley’s idea of the ‘‘right to be let alone,’’ written in 1888, was a foundation stone, but one which was inferred from English common-law decisions. For example, in his 1765 opinion in Entick v. Carrington, 19 Howard State Records 1029 (K.B. 1765), voiding a warrant issued by a minister of the government of the day (rather than a magistrate) to enter a home and search for personal papers thought to contain a libel, Chief Justice Camden wrote, ‘‘We can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society, for papers are often the dearest property any man can have.’’
Warren and Brandeis also cited English precedents, but their article was chiefly concerned with intrusions on privacy through unauthorized publication of private materials, especially photographs. For example, they cited the case of Prince Albert v. Strange (1849) for the common-law rule that prohibited not only reproductions of etchings that Prince Albert and Queen Victoria had made for their private use and enjoyment, but also even publication of a description of them. The justices did concede that the right to privacy ought not to prohibit publication of any matter that is truly of public or general interest. However, in their view, if the publication is of purely private information, neither the truth of the matter published nor the absence of malice of the publisher should be a defense. For this view they cited the common-law view that a man ‘‘is entitled to be protected in the exclusive use and enjoyment of that which is exclusively his.’’ Their conclusion was that ‘‘the principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality.’’
The remedies Warren and Brandeis proposed were damages, tangible actual damages as well as compensation for ‘‘injury to feelings.’’ They also called for the use of injunctions in certain cases.
In Boyd v. U.S., 116 U.S. 616 (1886), Justice Bradley liberally construed the Fourth Amendment protection against unreasonable searches to raise a privacy interest in the protection of a businessman’s private papers and invoices. This privacy interest was viewed as one aspect of common-law property rights, citing Entick v. Carrington (discussed earlier in the context of Thomas Cooley’s ‘‘right to be let alone’’). In 1891, only a year after the Warren and Brandeis article, Justice Gray, writing for a majority of the U.S. Supreme Court, confirmed ‘‘the right to be let alone’’ in the case of Union Pacific Railway Co. v. Botsford, 141 U.S. 250 (1891). The railroad had sought a court order for a surgical examination to determine the extent of injuries to a plaintiff who had claimed head injuries from falling from an upper berth in a sleeping car. Gray found this to be ‘‘an indignity, and assault and a trespass’’ upon the plaintiff. This decision was, of course, prior to modern pretrial discovery procedures.
Yet, more than thirty years later in Olmstead v. U.S., 277 U.S. 438 (1928), a majority of the U.S. Supreme Court failed to recognize wiretapping of private telephone conversations as a breach of the Fourth Amendment’s protection against unreasonable searches and seizures because there had been no physical trespass in the electronic intrusion. But change was coming, for Justice Brandeis had joined the Supreme Court in 1916, and his dissenting opinion in Olmstead viewed the invasion of privacy as the critical aspect of the case and the requirement of a physical trespass and seizure to be outmoded. He wrote that ‘‘every unjustifiable intrusion by the Government on the privacy of the individual, whatever the means employed’’ must be seen as a violation of the Fourth Amendment. He noted, presciently, that ‘‘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.’’ Eventually, Congress passed the Federal Communications Act of 1934, which made the interception and divulgence of telephone or telegraphic messages a federal crime. However, the FBI took the position that it could continue with wiretaps so long as the messages were not divulged in criminal prosecutions.
Critics nonetheless have long argued that the U.S. Constitution is silent as to a right of privacy, although the Ninth Amendment says that the ‘‘enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.’’ These ‘‘retained rights,’’ which presumably existed prior to constitutional government, have been held to include the right of privacy. Moreover, in addition to the Fourth Amendment protection against unreasonable searches and seizures, privacy interests have been found to be protected by the First Amendment (freedom of speech, religion, assembly, and association), the Fifth Amendment (protection against self-incrimination), and—as to state governments— by the due process clause of the Fourteenth Amendment.
In his dissent in Poe v. Ullman, 367 U.S. 497 (1961), in which a majority of the U.S. Supreme Court refused on narrow procedural grounds to take a case challenging the 1879 Connecticut statute prohibiting the use of birth control measures, Justice Harlan wrote that the law violated ‘‘what by common understanding throughout the English-speaking world, must be granted to be the fundamental aspect of ‘liberty,’ the privacy of the home in its most basic sense.’’
The key case in which a majority of the Court supported a broadly conceived constitutional right of privacy was Griswold v. Connecticut, 391 U.S. 145 (1965). Justice Douglas wrote in Griswold that the right of privacy could be found in the ‘‘penumbras’’ (shadows) cast by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Douglas’s vivid, emphatic rhetoric is worth repeating:
We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or worse, hopefully enduring, and intimate to the degree of being sacred.
Other members of the majority in Griswold relied chiefly on privacy as a ‘‘retained right’’ under the Ninth Amendment, but, whatever their differences as to the reasons, the majority agreed that decisions of a married couple concerning birth control were none of the business of the government. Harlan repeated his view from Poe v. Ullman that the statute violated the due process clause of the Fourteenth Amendment by violating ‘‘basic values ‘implicit in the concept of ordered liberty.’’’ But Chief Justice Warren and Justice Brennan joined with Justice Goldberg’s opinion that the ‘‘language and history of the Ninth Amendment reveal that the framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the [Bill of Rights].’’ Thus, the right of privacy ‘‘in the marital relation is fundamental and basic—a personal right ‘retained by the people’ within the meaning of the Ninth Amendment.’’ Justice Douglas relied on a broader view of the Ninth Amendment, a position that by itself create federally enforceable rights, but that may be part of the foundation for the rights that may be encompassed within the liberty guaranteed by the due process clause of the Fourteenth Amendment.
It should be noted that Justice Stewart joined Justice Black’s dissent in Griswold, which protested that the use of the due process clause of the Fourteenth Amendment and of the Ninth Amendment simply provided the opportunity for the Supreme Court to strike down ‘‘all state laws that it considers to be arbitrary, capricious, unreasonable or oppressive.’’ Judgments made on the basis of natural justice, rather than on specific provisions of the Constitution, might be appropriate for legislators, Justice Black argued, but not for judges. It was in this sense that the justice was a strict constructionist. He was not sympathetic with the possibility that our constitutional founders believed in natural, though sometimes unspecified, rights.
Following Griswold in the 1971 case of Eisenstadt v. Baird, 405 U.S. 438 (1972), the Supreme Court declared unconstitutional a state law that prohibited the sale of contraceptive devices to unmarried persons. This was found to be discriminatory against single persons, but Justice Brennan went further in writing that ‘‘if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or begat a child.’’
Before Griswold there were several important decisions that, in retrospect, appear to implicate privacy, though each was decided on other grounds. These included the right of parents to decide where and how their children should be educated (Pierce v. Society of Sisters, 268 U.S. 510, 1925) as well as the right of private associations to refuse to disclose their membership lists to authorities, absent some compelling justification (NAACP v. Alabama, 357 U.S. 449, 1958).
In the 1967 decision in Katz v. U.S., 389 U.S. 347 (1967), the U.S. Supreme Court relied on the ‘‘reasonable expectation of privacy’’ as the basis for protecting against police interception of telephone calls when no probable-cause warrant had been issued. This decision concluded that eavesdropping through a microphone attached to the wall of an enclosed public telephone booth, while technically not a trespass as customarily required by the Fourth Amendment protection against unreasonable searches and seizures since the 1928 Olmstead decision, clearly violated an objectively justifiable expectation for the privacy of the conversation in the booth. Thus, whatever a person ‘‘seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.’’
The reasonable expectation of privacy has since been a core determinant of whether a governmental intrusion constitutes a violation of the Fourth Amendment, but it should be noted that the rule has sometimes had unpredictable outcomes. In the 1979 case of Smith v. Maryland, 442 U.S. 735 (1979), the Supreme Court held that the use of a ‘‘pen register,’’ which, when connected to a telephone line, records phone numbers called (but not the content of the calls), was not an unlawful search because the phone subscriber, in the Court’s view, does not have a reasonable objective expectation of privacy in the numbers called. This certainly was not a strong affirmation of the right of privacy.
The Supreme Court also has held that there may be no reasonable expectation of privacy even when law enforcement officers have committed a technical trespass. Thus, in 1984 in Oliver v. U.S., 466 U.S. 170 (1984), the ‘‘open fields’’ doctrine sustained a search and seizure without warrant of a field in which marijuana was growing on the grounds that there can be no objectively justifiable expectation of privacy for such an open field (even though the field was behind a locked gate posted with a ‘‘No Trespassing’’ sign). Furthermore, in 1986 in California v. Ciraolo, 476 U.S. 207 (1986), the Supreme Court held that there was no reasonable expectation of privacy against police surveillance from a helicopter. However, Kyllo v. U.S., 121 U.S. (1986), held that the use of thermal imaging (from outside a house) by federal agents to detect heat lamps in a house that were being used to grow marijuana was an unreasonable search in the absence of a probable-cause warrant. Altogether, the outcomes relying on a reasonable expectation of privacy are mixed and seem inconsistent.
Another application of the expectation of privacy, though in this instance under the First Amendment, came in a 1969 decision in Stanley v. Georgia, 394 U.S. 561 (1969), that held that, while holding that the public sale, display, or distribution of obscenity was not protected by freedom of expression, the possession of pornographic materials in the privacy of one’s home could not be the subject of a search, seizure, or consequent arrest (with the notable exception of child pornography). Thus, Justice Marshall wrote for a unanimous Supreme Court, ‘‘If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or films he may watch.’’ This ruling did not apply to pornographic films that were shown in a public ‘‘adults only’’ movie theatre.
By far the most controversial application of the right of privacy has been in the extension of reproductive freedom to include the termination of pregnancy. The 1973 decision of the U.S. Supreme Court in Roe v. Wade, 410 U.S. 113 (1973), has been the subject of continuing controversy for more than forty years. Unlike the decision in Griswold, the court’s majority recognized that the respect for the prospect of life and societal concerns about terminating a pregnancy had to be taken into account in determining limits on a woman’s autonomy in making decisions concerning her body. Justice Blackmun’s opinion balanced these by adopting a trimester rule. A woman’s autonomy was respected and protecting during the first trimester of pregnancy. During the second trimester, government could intrude, but only for the purpose of protecting the life and health of the woman; during the third trimester, government could intervene to protect the interest of the unborn child and to prohibit abortions not required for protecting the life or health of the woman.
Justice Blackmun thus concluded that the right of personal privacy includes the decision whether to terminate a pregnancy, but that the right was not unqualified. While the state of Texas claimed in Roe that life ‘‘begins at conception and is present throughout pregnancy’’ and therefore the state had the right to protect life ‘‘from and after conception,’’ the justice concluded that the Court ‘‘need not resolve the difficult questions of when life begins.’’ During the first trimester, before the viability of the fetus, the woman’s right to choose prevailed.
It probably was the extratextual and innovative character of the trimester rule that chiefly outraged legal commentators who purport to be textual purists. During the hearings on his nomination to the Supreme Court, Robert Bork testified against a creative interpretation of the Ninth Amendment:
I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says ‘‘Congress shall make no’’ and then there is a ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the Court can make up what might be under the ink blot if you cannot read it.
In commenting on this quote, law professor Randy Barnett has argued that our constitutional framers had an understanding of the rights retained by the people that rested on natural law—natural rights that are boundless—that is, they are beyond complete specification. Barnett proposed that such an understanding can readily be translated into a simple presumption in favor of liberty. Such a presumption would require that governments demonstrate a compelling justification for interfering with individual liberty. It is interesting that Barnett’s conclusion is quite consistent with the right to be left alone, absent compelling justification, that was the original basis of the right of privacy. His conclusion was:
Adopting the presumption of liberty would enable us finally to acknowledge the Ninth Amendment’s unique constitutional function by resisting legislative or executive usurpation of the unenumerated rights ‘‘retained by the people’’ while, at the same time, avoiding unfettered judicial discretion.
Many opponents of Roe v. Wade, however, are moralists who believe that the effort to protect potential life is indeed sufficiently compelling to overcome any presumption of liberty. Their firm conviction that life begins at conception precludes all abortions (except for those who reluctantly concede that abortions might be appropriate in the instance of forcible rape or incest). Efforts to put justices on the Supreme Court who might vote to repeal Roe v. Wade have been a continuing feature of the conservative social agenda in American politics. On the other side, the ‘‘right to choose’’ has been a litmus test of liberal political views.
The core of the Roe decision has often rested on the views of one or two justices, most notably on the view of Justice Sandra Day O’Connor, the first woman to serve on the U.S. Supreme Court. In a dissenting opinion in 1983, Justice O’Connor wrote that the ‘‘trimester approach is a completely unworkable method of accommodating the conflicting personal rights and compelling state interests that are involved in the abortion context.’’ The decisive votes on the Supreme Court have moved toward an ‘‘undue burden’’ rule proposed by Justice O’Connor in Maher v. Roe (432 U.S. 464) in 1977: ‘‘Roe did not declare an unqualified ‘constitutional right to an abortion.’ ... Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate a pregnancy.’’
Thus the question that must be decided is whether a state regulation or limitation on abortion represents an undue burden on a woman’s autonomy. One example that has been held an undue burden was a state requirement of spousal notification as a condition to a woman’s choice to terminate a pregnancy (Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992); in the same case the Supreme Court upheld a state requirement of informed consent by one parent when the pregnant woman was a minor, although it required a judicial bypass when a minor could show sufficient maturity to make a decision on her own or that parent notification and consent was not in her best interest.
The Supreme Court also has ruled that neither the federal nor state governments have any obligation to provide public funds for nontherapeutic abortions (Maher v. Roe, 1977 [state], and Harris v. McRae, 448 U.S. 297, 1980 [federal—the Hyde Amendment]).
Individual autonomy concerning sexual conduct has also proven controversial with respect to homosexuals. The U.S. Supreme Court’s decision in Bowers v. Hardwick, 478 U.S. 186 (1986), upheld a Georgia sodomy statute that criminalized sodomy even for adults in the privacy of a home. The majority refused to recognize a fundamental right for adults to engage in private sexual conduct.
Writing for the Court Justice White failed to find any fundamental rights for homosexuals to engage in sodomy. He noted that sodomy was a criminal offense in the common law of England and was against the laws of the thirteen states that ratified the original U.S. Bill of Rights. Justice White was unwilling to consider the possible voiding of all sexual crimes committed in private, such as adultery or incest. In his view traditional morality provided an adequate rational for such laws. Above all, he was quite unwilling to extend the right of privacy to protect private homosexual conduct of consenting adults. Chief Justice Burger went even further in finding the criminalization of sodomy to be ‘‘firmly rooted in Judeo-Christian moral and ethical standards.’’ He added that homosexual sodomy had been a capital offense under Roman law.
The four dissenters in Bowers said that the case was not about a fundamental right to engage in homosexual conduct, but rather it was simply about the ‘‘most comprehensive of rights and the right most valued by civilized men, namely the right to be let alone.’’ The majority view in Bowers did not last long, for in 2003 the U.S. Supreme Court reconsidered in Lawrence and Garner v. Texas, U.S. 123 S.Ct. 2472 (2003).
In this instance a Texas statute criminalized only sodomy by homosexuals. Most provisions respecting regulation of private adult heterosexual conduct had been decriminalized. The court’s majority voided the Texas statute apparently on grounds of equal protection of the law and of privacy. Justice Kennedy noted that despite almost twenty years of controversy, the Court had sustained in Planned Parenthood v. Casey (1992) the central holding of Roe v. Wade that ‘‘our laws and tradition afford constitutional protection to decisions affecting marriage, procreation, contraception, family relations, child rearing and education.’’ The justice also noted that the Court’s decision in Romer v. Evans, 517 U.S. 620 (1996), had struck down legislation directed at homosexuals as a class. The extension of equal protection to cover sexual orientation, particularly in the concurring opinion of Justice O’Connor, was a key development, but the affirmation of the right of privacy in Justice Kennedy’s opinion was a direct repudiation of Bowers v. Hardwick.
Thus, Justice Kennedy wrote that ‘‘liberty protects the person from unwarranted government intrusions into a dwelling or other private places.... Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. He concluded that ‘‘Bowers was not correct when its was decided, and it is not correct today’’— a conclusion that found Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, in dissent, upholding the correctness of the holding in Bowers. Justice Thomas also wrote separately, saying that while he found the Texas statute to be ‘‘uncommonly silly,’’ he could find no ‘‘general right of privacy’’ within the Constitution with which to strike it down.
The advent of high-speed information technology in the past few decades also has raised a number of pressing concerns about privacy, especially the capacity of powerful government-owned computer systems to scan huge amounts of information. The first legislation addressing these concerns came in the early 1970s, with the first U.S. law coming in 1974. One advocacy report notes that all such laws require that personal information must be: (1) obtained lawfully, (2) used only for the intended purpose, (3) not excessive for the intended purpose, and (4) destroyed once the purpose is served.
The post 9/11 world has made data privacy concerns even more compelling. For example, the U.S. PATRIOT Act relies significantly on database surveillance, including, for example, the prospect of examining records of public libraries to see what books its patrons are reading. Any transmission that uses Web technology or airwave transmission is open to government surveillance and the ramifications for privacy have not yet been determined. The U.S. government has led efforts to limit privacy and to enhance surveillance by law enforcement. Federal law formerly relaxed probable-cause requirements in the instance of investigation of foreign intelligence and for special courts to hear cases in national security electronic surveillance. The PATRIOT Act and its extensions proposed by the second Bush administration would extend surveillance to nonstate actors who may be engaged in preparing or executing acts of terrorism. However, the surveillance net cast by the administration has potential application to the private records of millions of Americans, an outcome immediately challenged in federal court.
Issues involving personal identity have also come to the fore. Whether the issue is identity theft or national or international identity registration systems, privacy concerns raise important issues. The retrieval of biometric data, including DNA—or facial features identification—is at the cutting edge, with appropriate rules and regulations yet to be determined.
The recitation of developments in the past several paragraphs demonstrates that the privacy concerns raised by Warren and Brandeis in 1890 may still be relevant in abstract principle, but quaint in the details. Technology-driven social changes promise to outstrip the capacity of the law to enforce effective controls. Perhaps most ominous is the reality that individuals today lack the capacity to protect their privacy. Probably the only way to monitor electronic surveillance and intrusion is through countervailing institutions and programs that themselves require sophisticated technology, large resources, and their own technocratic personnel; of course, these might have much the same capacity to intrude on personal privacy as the governmental institutions that they would watch. The old question—Who will watch the watchers?—has taken on new meaning and relevance. This question moves transnational and international protection of privacy rights to first order of importance.
Privacy rights have been recognized in Article 12 of the Universal Declaration of Human Rights (1948) (‘‘No-one should be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honor or reputation’’), in the International Covenant on Civil and Political Rights, and in regional rights documents such as the European Convention on Human Rights and Freedoms (1950), the American Convention of Human Rights, and the American Declaration of the Rights and Duties of Man (1965). The most extensive application of privacy rights in these documents, so far, has been through Article 8(1) of the European Convention, which provides for protection of private and family life, home and correspondence, while Article 8 (2) provides that any interference with these must be (1) ‘‘in accordance with the law’’; (2) permitted only ‘‘in the interest of national security, public safety or economic well-being of the country’’; and (3) ‘‘necessary in a democratic society.’’ Cases interpreting these words have been prominent among decisions of the European Court of Human Rights.
As noted in a recent text, it is interesting that entirely circumscribing the family with the right of privacy may have the consequence of limiting the rights of children; thus, the U.N. Convention of the Rights of the Child has had the purpose, in part, of separating the rights of children from the rights of families and treating children sometimes as independent ‘‘rights actors’’ relative to their parents and governments. Indeed, it is characteristic of privacy claims that they almost always involve the balancing of competing interests, as we have seen in this entry.
DONALD W. JACKSON
References and Further Reading
Cases and Statutes Cited