The Universal Declaration of Human Rights puts the right to privacy between right to be presumed innocent and freedom of movement: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
The US has long wrestled with what “privacy” means in a legal context but has taken much of its cues from Supreme Court Justice Louis Brandeis, whose 1890s Harvard Law Review article defined privacy as “the right to be let alone.”
“The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man’s home and privacies of life. This is a recognition of the significance of man’s spiritual nature, his feelings, and his intellect,” Brandeis wrote. Since his influential article, US law has centered on three areas of privacy protection.
The first is privacy in the home, and it’s the most established legal right. “A man’s house is his castle” dates as far back as John Adams, who heard the statement in a Boston courtroom, defending then-colonists against searches by the British king. The founders eventually ratified the Fourth Amendment to the Constitution—the one that protects “persons, houses, papers, and effects.” Police to this day need a warrant to physically enter a house. The Supreme Court has validated this again and again, even in cases, for instance, where cops have camped next door and used a microphone to listen through walls.
Related is the individual’s privacy protection from government in particular. George Orwell’s 1984 put “Big Brother” into the American vocabulary, inculcating generations of high school English students with dark images of an all-knowing government. Courts find protections from government intrusion across the First, Third, Fourth, Fifth, Ninth, and Fourteenth amendments—legal doctrines that remain in place but have been damaged by WikiLeaks-sized dents in public trust.
The third traditionally protected area has been particular types of personal information considered sensitive. The HIPAA laws of 1996, for example, mean that our medical prescriptions are off-limits without our consent. The Video Privacy Protection Act of 1988 restricts access to our movie rental records.
Even with these legal protections, Pew Research reports that 80 percent of American adults “agree” or “strongly agree” that Americans should be concerned about government monitoring of phone calls and internet communications. Part of the reason is that each of these legal doctrines sports gaping holes in the reality of a data world.
For instance, while protection of the home is well established, those protections have been shrinking in recent decades. As Supreme Court Justice Neil Gorsuch wrote in a late June dissent, “Take Florida v. Riley, which says that a police helicopter hovering 400 feet above a person’s property invades no reasonable expectation of privacy. Try that one out on your neighbors. Or California v. Greenwood, which holds that a person has no reasonable expectation of privacy in the garbage he puts out for collection. . . . I doubt, too, that most people spotting a neighbor rummaging through their garbage would think they lacked reasonable grounds to confront the rummager.”
While protections from government surveillance are legally enshrined, there is virtually no protection for information given to third parties like online businesses. In today’s world, the Big Four (Google, Facebook, Apple, and Amazon) may have more information about us than the government ever could. Once we upload data to “the cloud,” which the Big Four largely own, our legal protections are thin at best.
Chris Ridgeway comments at the intersection of technology and theology at chrisridgeway.net and you can follow him on Twitter at @ridgewaychris. He is the executive missioner of the Greenhouse Movement, an Anglican church planting organization based in Chicago.
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