The objective of this chapter is to trace the evolution of Right to Privacy. In the 1890s, Samuel Warren and Louis Brandeis developed the concept of privacy; they identified the ‘injury to the feelings’ and recognized it as a legal injury [ 17] and through invasions upon his privacy, subjected him to mental pain and distress [ 18] .
As a result, our culture’s definition of privacy has changed dramatically. Here are the mainstays of today’s privacy model: Let’s explore how each of these factors has gradually shifted the larger privacy definition. 1. Data tracking
Since 1965, the Supreme Court has most famously applied the right to privacy to abortion rights in Roe v. Wade (1973) and sodomy laws in Lawrence v. Texas (2003). That said, we will never know how many laws have not been passed or enforced due to the constitutional right to privacy.
Enacted December 31, 1974, the Privacy Act of 1974 is a U.S. federal law establishing a Code of Fair Information Practice on federal agencies’ collection, maintenance, use, and dissemination of personally identifiable information. 1977
Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protects a pregnant woman's liberty to choose to have an abortion without excessive government restriction.
Court ruled with a 7-2 decision in 1973 for Jane Roe that a woman's right to an abortion fell within the right to privacy protected by the Fourteenth Amendment, which prohibits states from "depriv[ing] any person of liberty without due process of law."
January 22, 1973Roe v. Wade / Date decided
What was the Roe v. Wade decision's biggest impact on American society? It divided Americans more than any other issue of the women's movement.
How has the Supreme Court influenced privacy rights? The Court expanded privacy rights when it ruled that women have a right to seek an abortion. The Court expanded privacy rights when it ruled that states cannot make homosexual conduct a crime.
In 2018, the Supreme Court ruled that the fetus' only inherent constitutionally protected right is the right to be born, overturning a High Court ruling that a fetus additionally possessed the children's rights guaranteed by Article 42A of the Constitution.
What is a main idea in the right to privacy? People can make their own lawful decisions. People can protect their property by any means necessary. People can decide if the government is intruding in their lives.
The right to privacy is the time-travel paradox of constitutional law: Even though it didn't exist as a constitutional doctrine until 1961 and didn't form the basis of a Supreme Court ruling until 1965, it is, in some respects, the oldest constitutional right. This assertion that we have "the right to be left alone," as Supreme Court Justice Louis ...
Three amendments to the U.S. Bill of Rights were ratified after the Civil War to guarantee the rights of newly freed African Americans: The Thirteenth Amendment (1865) abolished enslavement, the Fifteenth Amendment (1870) gave Black men the right to vote, and Section 1 of the Fourteenth Amendment (1868) broadened civil rights protections, which would naturally extend to the formerly enslaved population. "No State," the amendment reads, "shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
As such, modern tort law includes four general categories of invasion of privacy: intrusion into a person's solitude/private space by physical or electronic means; unauthorized public disclosure of private facts; publication of facts that place a person in a false light; and unauthorized use of a person's name or likeness to obtain a benefit. A variety of laws have worked in tandem over the centuries to allow Americans to stand up for their privacy rights:
It also includes the Ninth Amendment , which states that " [t]he enumeration of the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.". This amendment, however, does not specifically mention a right to privacy.
The Bill of Rights proposed by James Madison includes the Fourth Amendment, describing an unspecified "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." It also includes the Ninth Amendment, which states that " [t]he enumeration of the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This amendment, however, does not specifically mention a right to privacy.
Children's Online Privacy Protection Rule (COPPA), 1998. Online privacy has been an issue since the internet was fully commercialized in the United States in 1995. While adults have a host of means by which they can protect their data, children are completely vulnerable without oversight.
Nearly three decades later, the Financial Monetization Act of 1999 required that financial institutions provide customers with a privacy policy explaining what kind of information is being collected and how it's being used. Financial institutions are also required to implement a host of safeguards both online and off to protect the collected data.
The Federal Trade Commission Act (FTCA) of 1914 established the Federal Trade Commission and outlawed unfair or deceptive commercial practices. Since the 1970s, the FTC has been the leading federal agency that is most often involved with privacy issues, regulations, and enforcement.
Griswold v. Connecticut (1965) was a landmark Supreme Court case involving a Connecticut “Comstock law” that prohibited all forms of contraception. By a vote of 7-2, the Supreme Court ruled against the law on the basis of the “right to marital privacy,” laying the foundation for the right to privacy with regard to intimate practices.
In the second decade of the 20th century, the newly established Bureau of Investigations was actively working on investigating acts of foreign sabotage and rooting out subversion. Surveillance extended to monitoring and illegally opening correspondence of suspected subversives. When the bureau filed an official request to open mail, Solicitor General Judge William Lamar ruled against the privacy infringement and upheld long-established protections of sealed mail.
Following California, Virginia became the second state to enact major privacy legislation of general applicability in the United States. The CDPA will come into effect on January 1, 2023. On July 8, 2021, the state of Colorado officially enacted the Colorado Privacy Act. The law goes into effect on July 1, 2023.
George Orwell Writes 1984. 1984 is a dystopian novel written by George Orwell containing themes of nationalism, futurology, censorship, and surveillance. Inhabitants of Oceania, the “super-state” where the book takes place, have no privacy. Public and private spaces are filled with cameras and microphones.
Privacy Protection Study Commission was tasked with evaluating the Privacy Act and issuing a report containing its findings and recommendations for improvement. The Commission issued its final report and ceased operation in 1977.
Enacted December 31, 1974, the Privacy Act of 1974 is a U.S. federal law establishing a Code of Fair Information Practice on federal agencies’ collection, maintenance, use, and dissemination of personally identifiable information.
In Govind Case, Justice Mathew observed, that Right to Privacy has to be developed through step by step observation, he says, “The right to privacy in any event will necessarily have to go through a process of a case-by-case development” [ 11] . May be he thought that right to privacy is a foreign concept and Indian culture might face problem with that, or right to privacy has to be interpreted in an Indian way, which would obviously take time. Now his wish be comes true, Indian courts gradually step by step developed the right to privacy, through various cases Neera Mathur v LIC [ 12] , R. Rajagopal v State Of T.N. [ 13] , PUCL v Union of India [ 14] , Mr. ‘X’ v Hospital ‘Z’ [ 15] and specially after the broad interpretation of right to life in Maneka Gandhi v Union of India [ 16] , it now can be considered under the Art 21 of the Constitution.
Maneka Gandhi Case started the wide interpretation of Right to Life, which actually helped the Right to Privacy to fall into to the scope of Right to Life. Later on, the approach of Maneka Gandhi Case to interpret the Article 21 was followed by the Supreme Court in the cases related to Right to Privacy.
B. P. Jeevan Reddy, J. in R. Rajagopal v State of T.N. [ 6] observed that there are two types of Right to Life present – 1) the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and 2) the constitutional recognition given to the right to privacy against unlawful governmental invasion. This project is related to second type of Right to Privacy that is Constitutional Right to Privacy.
And Article 21 is of the widest amplitude and covers a variety of rights which go to constitute the personal liberty of man. Maneka Gandhi Case started the wide interpretation of Right to Life, which actually helped the Right to Privacy to fall into to the scope of Right to Life. Later on, the approach of Maneka Gandhi Case to interpret the Article 21 was followed by the Supreme Court in the cases related to Right to Privacy.
After this case R. Rajagopal alias R. R. Gopal v State of Tamil Nadu [ 80] was the case, which explained the issue of right to privacy in detailed. They observed that the right to privacy no longer subsists in case of matter of public record including Court records [
Unni Krishnan v State of A.P. [ 51] numbered the twelve meaning of right to life; and right to privacy was one of them [ 52] . Whereas P. Rathinam/Nagbhusan Patnaik v Union of India [ 53] refer the Unni Krishnan Case to explain the meaning of right to life.
In Sharda v Dharmpal [ 64] , Supreme Court held that a matrimonial court has the power to direct a party to undergo medical examination and passing of such an order would not be in violation of right of privacy or personal liberty under Article 21 of the Constitution of India [ 65] , in support of this supreme court agued that information which is necessary for society should not protected from the making known to other under right to privacy [ 66] .
“Privacy” is a reasonable expectation that personal information disclosed in a private place will not be disclosed to third parties when doing so would embarrass a person of ordinary sensitivities. In case law and statutes, courts and legislatures, respectively, have identified places people can expect privacy (e.g., their homes). And statutory law typically includes civil and criminal penalties for privacy violations. There would be no need for these and other privacy laws if people kept personal information to themselves and conducted the affairs they wanted kept private in their homes or other places they reasonably expect privacy. But people disclose personal information for a number of reasons. For example:
The word “privacy” does not appear in Connecticut's constitution, but that document's guarantees against unreasonable searches and seizure, compulsory testimony, and self-incrimination and its guarantees of freedom of association and religion are modeled after the federal constitution, which has been construed as protecting privacy. But the constitution protects against government action; privacy rights arising from tort law protect only against the conduct of private parties. The right under tort law to be free of an invasion of privacy was developed in an article written by Samuel Warren and Louis Brandeis entitled The Right to Privacy, 4 Harvard L.R. 193 (1890). They defined “privacy” in this article as the right to be left alone.
For generations, privacy meant denying people access to private information, protecting it, controlling it, and simply being left alone. In the online realm, it still means the same; the changes are around the challenges of keeping it intact.
First, the Facebook-Cambridge Analytica scandal showed the world how personal data could be used without people knowing it. Then, the enforcement of the General Data Protection Regulation (GDPR) showed them their data could be safe (well, sort of).
In 2020, more than 80% of Americans are concerned with the security of their mobile devices, but 44% of them use password autofill and other potentially dangerous features. We still have a long way to go in terms of securing internet data privacy.
Google’s privacy policy mostly reflected the era before smartphones – a time when little user data was collected, viewed or stored. Plus, the data used to be processed collectively, not individually. But not for long. 2004 is the year Facebook launched, and you know what social media is all about – sharing.
In the first digital years, when increasing numbers of people gained access to the internet and started using it regularly, concerns over digital privacy were low and only starting to emerge. The internet users of those days were more concerned about information transfer and storage than privacy.
You do the math. In 2017, people were stripped off $16 billion through identity theft causes. These and other cases helped users see the privacy issues the internet poses. So, in 2016, 86% of internet users claimed to have taken steps to remove or mask their digital footprints.
In 2014, Facebook randomly selected more than half a million users and played around with their news feeds, showing more positive news to some users, while others were shown more negative stories. The results led to nothing other than the anger of those who questioned the dubious ethics of the experiment.
Privacy is a right we all hold dear in many forms. We want to know that we have the right to privacy within our own homes and can live our lifestyles in the way we choose. We also want to be sure that companies and medics aren’t going to share confidential information with third parties.
Not directly, no. There is no straightforward amendment or article in the Constitution that mentions the right to privacy in the way most of us would define it. We might expect there to be a clause that states that all Americans have the right to a private life and private activities and beliefs within their own home.
The notion of a constitutional right to privacy is taken from an implied right via different articles and amendments. Considering these protections about freedoms and liberties, there is the idea that Americans do have a right to privacy. There isn’t anything set in stone, though.
There may not be any simple Constitutional article to use whenever there is an issue of privacy invasion, but the combined implications from the Constitution allow for clearer statutory laws. Over time, cases emerge where the rights of citizens are questioned concerning the aims or proposed laws from the government.
Abortion laws are a great example of all this because they are still contested today. Does the person seeking an abortion have the right to make a choice about having the child and the privacy to carry out procedures without others knowing? States still lean towards the fetus’s rights over the privacy and rights of beliefs of the parents.
The case-by-case approach of the Supreme Court for rulings on the rights and protections of the people makes sense because the needs of people evolve with time. Any amendment about the right to privacy created in the 1970s would have no provision for anything related to online privacy and digital personal data.
Some may fear this adaptable approach because the new ruling could allow for freedoms that take things too far. Many cases are open to debate based on the circumstances, and the ruling may not apply to all. A balance needs to be found between upholding the rights of those that feel victimized and the impact of their decisions.