Hello, and my thoughts on "privacy"
Huzzah! After much lurking I have worked up the courage to register and comment, a thread having arisen on which I might have useful insights. I will start here, and in the fullness of time will no doubt work up to commenting on those on which I do not.
There is a body of strong minds around here that can help contribute to my own vocabulary on “rights theory,” a notion which I have for some time been considering in pursuit of my own studies and interests. I might wait to get my legs underneath me here to dive down that rabbit hole, but I’d suggest that a mindful backdrop around discussions like this is what one views as the “source” of rights.
So, starting with the OP:
> It also seems absurd to me that anyone reading the Fourth Amendment can argue that we do not have a very specific right to privacy.
This position is first and foremost pregnant with the assumption that the Constitution is the “source” of rights in the first place. I would suggest that while this is useful shorthand for those attempting to discern the metes and bounds of a particular Constitutional provision, it misses an important piece of the rights puzzle for those looking for “larger” answers to rights issues. The Constitution itself does not suggest that it is the source of the rights it enumerates, nor (I would argue) was that the position of the Framers. It is only over time that we have increasingly looked to the document itself as the source of the interests it purports to detail.
At any rate, to the OP’s point I assert that the interest protected by the Fourth Amendment in and of itself is not a guarantee of “privacy” beyond the sense of being left alone in certain spheres of interest (“persons, houses, papers, and effects”) by the Government – a significant interest, but not a “very specific right to privacy.” My position is admittedly complicated by the fact that modern Fourth Amendment analysis takes place under the rubric of the “legitimate expectation of privacy,” but that term is analytic shorthand and does not encompass many of the things that ordinary Americans would view as “private.” The take away here might be to consider the space between “keeping something private” and “keeping something beyond the reach of government interference.”
The case referenced by the OP with the hotel room may be a conflation of
Bowers and some other case. The defendant in
Bowers was arrested in his home pursuant to a warrant after he missed a court date. The issue there (as pointed out in post 2) was about the constitutionality of laws outlawing “sodomy.” These laws – coming full circle from
Bowers – are now considered unconstitutional as invasions of a type of privacy interest, but the Fourth Amendment was not the subject of Bowers; one who occupies a hotel room enjoys generally the same sorts of “privacy” rights enjoyed by a homeowner.
As to the penumbra /
Griswold / broader right to privacy pieces – faced with a Connecticut law outlawing the provision by a doctor of contraception to a married couple, the Court struck down the law around the notion that it invaded the “privacy” of the marital relationship (here one can see the beginnings of the problem of discussing the issue strictly in terms of “privacy” – inasmuch as it was the dispensing of the contraception by the doctor to the couple which was unlawful, the strict “privacy” of the marital relationship had already been breached by their inclusion of their doctor in the discussion). The court was divided in its reasoning between no fewer than three distinct theories; Justice Douglass for the majority suggested that there were these “penumbras” – emanations – of interests arising from other provisions of the first nine amendments (the third, the fourth, the fifth, the ninth) which taken together added up to a “right of privacy.” Justice Harlan II in concurrence suggested that the Fourteenth Amendment’s guarantee of Due Process provided certain “substantive” rights (as contrasted with procedural ones) which among them included the right of a married couple to make decisions about family planning free from government interference. This view, rather than Douglass’, has been the ascendant one; it forms the basis for most subsequent Supreme Court decisions on privacy, including most significantly
Roe v. Wade and its progeny.
This does not mean that Douglass was wrong; I think there is much to commend his reasoning, and am myself dissatisfied with the reasoning of
Roe for reasons similar to those I suggested above when critiquing Griswold (that is, the interests we are talking about protecting in these cases are not strictly about “privacy” as much as they are about keeping the government from making decisions about one’s intimate affairs). At any rate, it is useful to understand that the Due Process clause is the source of modern privacy “rights,” and the discomfort of that fit forms the backdrop for much debate in this area.
@ Randfan, the best example of Douglass’ reasoning is indeed found in
Griswold itself – that the enumerated proscription against involuntary quartering of troops in one’s home, the enumerated right to be free of unreasonable searches, the enumerated right to be free from compelled self-incrimination, and the reminder that the enumeration of rights was not intended to disparage other NON-enumerated rights all added up to a certain “zone” in which the Constitution clearly intended the government not to intrude, such as the marital bedroom. There are no other specific judicial examples, as Douglass’ reasoning never gained traction on the Court, but the same reasoning could be applied to the other big issues of privacy since tackled by the Court – the right to contraception generally, to reproductive choice, and to the freedom of one’s intimate relations.
The thread then takes off in two different streams, one of which boils down to the notion that government invasions of privacy are less relevant given the increase of non-governmental invasions of privacy, and the other being that the concept of “privacy” itself is less and less useful as it becomes easier to know what’s happening inside a private space because of the ubiquity of seeing what happens outside that space (apologies if my brevity misstates any intervening points, and I stand cheerfully prepared to be corrected if I have obscured any needful nuance). These two problems are at the forefront of concern for privacy-minded sorts in the US legal community; they are related problems from a constitutional perspective.
Note that the Constitution has little to say about how private actors behave amongst themselves; the problem of Google collecting my data and selling it to others is not a “constitutional” problem in the traditional sense. At the point at which the Government is working in such close concert with private actors that those actors can be said to be Government actors, the problem solves itself (to some extent) through the “state actor” doctrine, but this doctrine – like most Court-driven principles – evolves slowly, too slow for most folks’ taste but at the comfortable conservative pace of the judiciary. Experience (to paraphrase Justice Holmes) is the engine of the law; these experiences are accumulating through ever-tightening iterations, and this may be part of the tension (i.e., it’s not that the doctrine is evolving more slowly than usual, but that the “world is moving more quickly”).
Beyond the state actor issue, this problem is a good example of why we as Americans should not fetishize the Constitution. Far too many people, IMO, look to the Constitution as both the start and the end of discussions on rights, when in fact it is neither. There is a problem when, in order to live as an ordinary citizen, I must surrender much of my “private” information to third-parties who can then use it without limitation. This problem should concern all liberty-minded types, but its solution is not Constitutional – it is statutory. In short, if we care for our privacy, we must pass laws to protect it.
On a certain level there is nothing new under the sun here – “vigilance is the price of liberty” and all that. The larger problem I see (if there must be a problem) is a lack of civic understanding, and a willingness to cede all discussion of liberty and rights to questions of Constitutional interpretation (which is deeply important, but somewhat esoteric) – as if Robert Bork’s (or Antonin Scalia’s) inability to “find” privacy in the Constitution makes privacy less of a concern to the average person.
To come full circle (I hope), this gives somewhere to go from Randfan’s “any information you get that doesn’t violate my privacy, have at it” – position, or at least some other things to consider. As a for-instance, here are some things which are arguably not “private” in a Constitutional sense:
- Information from your cellphone including the numbers called, the length of the call, and your location as based on cell-tower data.
- Information from your bank including, pretty much, your complete bank statement – where, when, and what you did with your debit or credit card.
- Information from your utility company – for some folks, only their monthly electric and gas usage – for those of us with “smart meters,” a minute-by-minute rendering of your utility use.
- Information from your ISP. ‘Nuff said.
I’m not sure how the above factors into the formulation of “information… that doesn’t violate [one’s] privacy” and I’m certainly not meaning to pick on Randfan! Rather, I mean to point out that a more robust discussion about what we mean by “privacy” is probably helpful to avoid a goalposts problem.
Whew! I think that’s enough for a firstie. I apologize for those observations which were at once obvious to some and insufficiently illuminating to others – I will take some time to find the proper “voice” for this forum, on which I have lurked with great delight and respect for some time. I hope some portion of the above was useful to the OP’s inquiry, and also that it might spur a discussion of these issues writ large. We’ll see!
- Ian
