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Computers, Privacy & the Constitution
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The Sociopolitical Significance of the Right to Privacy (Second Draft)-- By BlaineTracy - 29 Apr 2024IntroductionThe precedential relevance of a constitutional right to privacy has come into question under recent Supreme Court decisions. What Justice Brandeis in dissent originally described as “the right to be let alone” was adopted more fully by the Court in Griswold v. Connecticut. There, a constitutional right to privacy was inferred through “penumbras” surrounding the First, Third, Fourth, Fifth, and Ninth Amendments. This amorphous right to privacy would exert some influence over later decisions—such as Roe v. Wade, Lawrence v. Texas, and Obergefell v. Hodges_—but did not gain the concrete following many scholars had hoped. The legal value of a right to privacy has become even shakier in the wake of _Dobbs v. Jackson Women’s Health, overturning Roe v. Wade. This paper argues that the primary value of a “right to privacy” is not, however, in its legal enforceability. The right to privacy is a cultural tool that engenders among the public a more open skepticism towards invasive government action and a greater willingness to defend one’s anonymity than would be possible without the conception of privacy as a “right.” Even if the right to privacy loses whatever jurisprudential weight it once had, it remains an important cultural value.The Right to Privacy Fosters Scrutiny Towards Government ActionRegardless of the current posture of a constitutional right to privacy before the current Supreme Court’s shifting jurisprudence, the American public has increasingly conceptualized privacy as a “right” to be safeguarded against governmental or corporate intrusion. The increase in proposed and enacted data privacy legislation over the last few years reflects an appetite among the public for these protections. One can debate whether the public takes the most sensible or impactful course of action to protect its privacy, but the desire for such protections is certainly growing. When individuals choose to view incursions into their privacy as infringements on their rights, they are much more likely to voice open skepticism or disapproval towards those incursive actions. They are more likely to vote against such proposals or the elected officials who advance them. They may even be more likely to boycott companies that engage in privacy-erosive practices if they can sever their ties to the predominant anti-privacy technological landscape. If individuals viewed privacy merely as an aspiration or a privilege, rather than as a right, they may exhibit even less willingness to oppose the erosion of privacy than they currently do. Individuals have a more legitimate basis to challenge government invasions of privacy when they view privacy as a right, rather than a privilege. The legitimacy earned when an action is said to curtail rights has been exemplified throughout American history. Whenever someone wants to oppose a government action in the modern political era, the first avenue of attack is to paint that action as violative of some constitutional right. The issues subject to this phenomenon span the political spectrum and vary in their closeness to an enumerated constitutional right—ranging from abortion restrictions to gun control and education access to income taxes. By framing the sociopolitical debate over privacy as an issue of individual rights, privacy is granted the same legitimacy and urgency as the most contentious policy issues of the day. The impact of advocating for privacy “rights” is felt far beyond the specific legal context in which a constitutional right may be implicated—it is a political tool to encourage skepticism of intrusions on privacy and foment popular interest in the debate over privacy protections.The Right to Privacy Mobilizes Popular ActivismThe increase in resistance to privacy-erosive actions described above is perhaps a result of the increasing societal reliance on tools that limit individuals’ ability to protect their privacy. A popular backlash to corporate and state actors who have been emboldened to strip away at individuals’ anonymity and secrecy will gain more solid footing when it can use a “right” to privacy as a rhetorical device. Its arguments will carry persuasive power to a broader audience when framed in the terms of protecting rights. It would be more difficult to convince people to act on behalf of their own privacy without the use of a powerful rights-based framework, particularly when so many people already make significant sacrifices to their privacy on a daily basis. Many policy issues that have been tied to a rights-based rhetorical framework use the idea of rights infringements to mobilize people into activism, not just more passive forms of political activity like donating or voting. If privacy advocates hope to maximize the reach of their ideas and the impact those ideas have on actual policy, they can use a privacy rights framework to build a social movement. Movement activism towards greater protections of privacy is one way to continue popularizing the privacy invasions people tolerate in their daily lives and can eventually foster true legislative action to protect privacy. Although this paper visualizes movement activism for privacy rights as a budding future initiative, one can see the seeds of this movement being planted. People continue to become more aware of the pervasive surveillance system by which they are surrounded. Currently, the acts of resistance that have gained popular attention are minor, if not trivial. People now commonly install privacy covers over their webcams, or reject unnecessary cookies on websites, or deactivate their device's GPS capabilities. The average person likely has little understanding of how readily they are being tracked and surveilled despite these small protests; however, ten years ago, even fewer people would have thought to protect their privacy in these ways. The public interest in protecting individual privacy from technological surveillance is growing, slowly but surely. While there is not yet a concrete grass roots campaign to protect privacy rights, the groundwork for such a movement has been laid.This would be the place to offer evidence that such mobilization is actually happening, or has happened. Pro-privacy mobilization as an organizational activity exists: there are organizations in various countries that organize around such issues, including in India SFLC.in, an offshoot of my Software Freedom Law Center founded by my former law partner Mishi Choudhary, In the US, the EFF, CDT, EPIC are all examples of organizational activity. But is the mobilization model factually appropriate? Am I missing other relevant phenomena? ConclusionThis paper argues that the “right to privacy” extends beyond its utility as a legal doctrine. The viability of the right to privacy as a path towards legal remedy places it precariously into the hands of the courts, which have already begun to undermine its constitutional basis. Rather than relying so heavily on its technical function as a constitutional right, this paper suggests that the most valuable use of the right to privacy lies in its sociopolitical power. Framing privacy as a right can encourage greater opposition towards privacy-restrictive actions and can form the basis for rights-based movement advocacy. Both of these uses of the “right” to privacy may be more effective ways to protect privacy than any avenue that relies on the courts.I think the argument needs strengthening at one important point, above. You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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