A General Right to Privacy? Probably Not

-- By SamuelDostart - 16 Feb 2013

The class discussion about how the 4th Amendment went astray led me to wonder what it would take to put it or our privacy rights back on track.

Lessons from the Past: Brown v. Board of Education

To me, the most obvious relatively recent example of the Supreme Court changing its stance on an integral Constitutional issue with profound societal implications was Brown v Board of Education.

As a brief recap, Plessy v Ferguson, an 1896 case, permitted state-sponsored segregation on the basis of race as long as they were “separate but equal.” The Supreme Court ruled in the 1954 case Brown v Board of Education that “separate but equal is inherently unequal,” requiring desegregation.

I believe there are at least two relevant lessons for 21st century privacy rights learned from the context in which the Brown v. Board decision was rendered. First, at the time of Brown v. Board, the Civil Rights Movement was a recognized component of mainstream U.S. society. Had it not been, I do not believe the court would have acted. A second lesson I take from Brown v Board comes from the inner workings of how the Supreme Court reached its decision. 8 of the 9 judges personally believed segregation was wrong, and Justice Warren famously argued that the court had to overrule Plessy to maintain its legitimacy as an institution of liberty. This suggests that Supreme Court Justices will be much more likely to pass a landmark case with widespread social implications and high implementation costs if they think that much of society agrees, and they too personally believe doing so is right.

Applying Brown's Lessons to 21st Century Privacy

Public Support for General Privacy Rights

Unfortunately, most people in today’s society tend to not care or even be aware of the extent to which their personal information is data mined or passed on private parties. There is no mainstream "Privacy Rights" movement -- the closest to a public head, Julian Assange, is sadly not a common topic of conversation. The most common public discussion over privacy rights is frustration over Facebook's ever-changing privacy settings.

Two quotes come to mind:

“The greatest trick the devil ever played was convincing the world that he did not exist.” - Charles Baudelaire

“All that is necessary for the triumph of evil is that good men do nothing.” - Edmond Burke

Current Supreme Court Justices' Views of a General Right to Privacy

It is also not clear whether a majority of the current Justices believe in a general right to privacy. The only outspoken Justice, Justice Scalia, believes there is no generalized right to privacy.

Testing Justice Scalia’s thoughts on the subject, Fordham law professor Joel Reidenberg had his class procure a dossier on Justice Scalia, causing Scalia to tersely respond:

"I stand by my remark... that it is silly to think that every single datum about my life is private.

It is not a rare phenomenon that what is legal may also be quite irresponsible... What can be said often should not be said. Prof. Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any."

Justice Scalia';s remark suggests that he was not aware of the extent to which data mining occurs, and indicates the at least one of the current Justices does not understand the importance of privacy to maintaining a free society in the 21st Century. However, the Supreme Court has previously recognized a limited right to privacy.

A Brief History of the Right to Privacy

In the 1965 7-2 decision Griswold v Connecticut, Justice Douglas wrote that a right to privacy can be found in the “penumbras” and “emanations” of other Constitutional protections. Justice Harlan and White argued in a concurring opinion that there is a right to privacy in the Due Process Clause of the 14th Amendment. The right to privacy was not unanimously believed in, with two Justices dissenting. In the early 70s another 7-2 decision, Roe v Wade, found that a right to privacy existed and mentioned that it may be based in the Fourteenth Amendment or the Ninth Amendment.

However, in the 1977 case Whalen v. Roe the Supreme Court held that NY State was permitted to keep private information about its citizens’ health records to assist it in policing drug violations. The court held this was a valid exercise of NY’s police powers to protect the health of its citizens.

Given the lack of clear public or judicial support for privacy law reform, judicial reform concerning privacy law is unrealistic. Further, courts typically look for a balancing of equities, and due to fear mongering by the government, this may not be an open-shut issue. The Military Industrial Complex, citing terrorists with nuclear bombs, bio-terror weapons, and keyboards, will continue to urge the Supreme Court to keep any right to privacy so small as to be trivial.

A General Right to Privacy in the Second Amendment?

I believe an adequately strong general right to privacy can be found in the Second Amendment. At the time of the drafting of the Constitution, there was no military industrial complex, and no standing army. Giving civilians the right to bear arms meant that if they joined together in great enough numbers, they could create a sizable opposition to the US government – and potentially win. In other words, I see the core of the Second Amendment to not be the right to own a gun (a trivial right if not tied to a greater purpose). I see the core of the Second Amendment to be the preservation of ultimate freedom in the people, who must be ensured the ability to stand up to the government. Given today’s military industrial complex and surveillance state, I would argue that the Second Amendment requires the need for a mandated privacy right strong enough to prevent the government’s ability to gain enough information to control us.

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