Constitution as a Source of Privacy Law
Constitution
- Constitution is a source of legal authority for US government
- states the relationship between federal gov and states
- provides some authority for individual rights
- Constitution does not explicitly describe privacy
- but is pieced together by various provisions
- constitutional right to privacy refers to the right to be free from government observation and intrusion
- amendments that contribute to constitutional right to privacy:
- First Amendment
- Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances
- implies freedom of thought, which relates to privacy
- Third Amendment
- No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law
- provides limited right to privacy in own homes
- Fourth Amendment
- The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause… .
- forms the basis for privacy rights
- Fifth Amendment
- No person shall be … compelled in any criminal case to be a witness against himself… .
- One interpretation is that it protects the privacy of one’s thoughts
- First Amendment
- each sets forth the general elements that are part of an overall right to privacy
Court Decisions
- Court decisions also establish privacy:
- Wheaten v. Peters (1834)
- first time Supreme Court acknowledged a person has an interest in being “let alone”
- In 1890, Samuel Warren and Louis Brandeis more fully explained this right to privacy in their article The Right to Privacy
- referred to a right they called “the right to be let alone”
- legal cases still refer to this
- Griswold v. Connecticut (1965)
- first U.S. Supreme Court decision to state a constitutional right to privacy
- found that the right to privacy was a fundamental right that was present in the Constitution
- Katz v. United States (1967)
- held that the Fourth Amendment of the U.S. Constitution protects a person’s right to privacy
- holding meant that the right of privacy belongs to the individual and not just locations (such as a person’s home)
- Justice Harlan, in his concurring opinion in this case, used the famous term “a reasonable expectation of privacy”
- is a belief regarding private places that society recognizes as valid
- Courts use this idea to determine whether an ordinary person would believe he or she was in a private place
- held that the Fourth Amendment of the U.S. Constitution protects a person’s right to privacy
- Whalen v. Roe (1977)
- specifically recognized a right of “informational privacy”
- focuses on the ability to control information
- “We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files”
- recognized the future privacy concerns inherent in Big Data collections
- specifically recognized a right of “informational privacy”
- United States v. White (1971)
- found that there is no right of privacy in information voluntarily shared with another person
- Smith v. Maryland (1979)
- found that there is no right to privacy in electronic communications’ routing information
- NASA v. Nelson (2011)
- found that performing background checks on contract NASA employees does not violate any constitutional right to information privacy
- Carpenter v. United States (2018)
- ruled that the government must get a warrant before accessing a person’s cell phone location data
- Wheaten v. Peters (1834)
Important
Case law refers to the decisions courts make in the cases they decide.
- Most high-level courts, such as the U.S. Supreme Court and the highest-level state courts, publish their opinions on cases.
- These opinions contribute to the body of case law, which is a part of common law.