privacy

n.

1. 1. The quality or condition of being secluded from the presence or view of others.
   2. The state of being free from unsanctioned intrusion: a person's right to privacy.
2. The state of being concealed; secrecy.

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The degree to which an individual can determine which personal information is to be shared with whom and for what purpose. Although always a concern when users pass confidential information to vendors by phone, mail or fax, the Internet has brought this issue to the forefront. Web sites often have privacy policies that stipulate exactly what will be done with the information you enter. For more information, visit www.privacyalliance.org and www.epic.org. Contrast with confidentiality, which deals with unauthorized access to data. See privacy policy, CPO, EU Directive, GLB, HIPAA and P3P.

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n

Definition: solitude, secrecy
Antonyms: openness, publicity, publicness, sociableness

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n

A culturally specific concept defining the degree of one’s personal responsibility to others in regulating behavior that is regarded as intrusive.

Any information that a person chooses to keep to himself or herself is considered "private" information. A person's right to privacy is protected under Article 12 of the United Nations (UN) Universal Declaration of Human Rights (1948): "No one shall be subjected to arbitrary interference with his privacy, family, home, or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks." UN member countries are morally, if not legally, bound by such declarations.

Privacy relates to personal information that a person would not wish others to know without authorization, and to a person's right to be free from the attention of others. Under the ethical principle of respect for a person's autonomy, public health workers have an obligation to respect privacy. What a person regards as private is a personal choice, and it can change throughout one's life. When people disclose private information for any public health purpose, it is expected that the information will be held in the strictest confidence. Only with this trust can public health programs succeed. One's right to privacy may, however, be superseded by legal requirements, particularly in matters pertaining to the welfare of vulnerable members of society (e.g., children) and where illegal drugs are concerned. Laws governing privacy and its limits also change over time and reflect a society's changing values.

Confidentiality and privacy are related, but distinct concepts. Privacy is a right, while confidentiality is an obligation one has to respect another's privacy. When we grant others access to ourselves, we necessarily give up some measure of privacy. However, we still retain a right over the dissemination of information in the contractual situation of informed consent. Informed consent is provided when securing a person's participation in research, or in relation to the physician-patient relationship. An infringement of confidentiality occurs when a person to whom information deemed private was disclosed in confidence fails to protect that information, or allows others access to it.

To protect privacy, agencies that compile health statistics are required to aggregate information when they tabulate subcategories of data to avoid any possible disclosure that could be inferred from small numbers of people having particular characteristics. In the context of screening people for markers of exposure to infection, researchers and practitioners have the obligation to consider the potential stigma associated with information that flows from such screening tests.

For example, in the case of HIV (human immunodeficiency virus) there is no evidence to suggest that the virus is spread through casual contact. Therefore, there is no overwhelming need for society to know a person's HIV antibody status. When government agencies implement screening programs for HIV, however, the possibility of the test results being made known could cause consternation to both the public and to individuals who test positive. Public health officials thus may implement screening programs by offering anonymous testing as a way of protecting the individual's right to privacy. There is a drawback to this, however, because the information cannot be linked to the person's record for research purposes. Nevertheless, any compulsory screening program should be done anonymously, thus avoiding any potential breach of privacy.

A voluntary screening program could be offered either anonymously or not. Generally, however, in the interest of public health, access to information is given priority over an individual's right to privacy, though it is important to give full and rational consideration to the modes of transmission and other characteristics of the pathogen of concern.

(SEE ALSO: Benefits, Ethics, and Risks; Codes of Conduct and Ethics Guidelines; Confidentiality; Ethics of Public Health; Informed Consent)

Bibliography

Beachamp, T. L., and Childress, J. F. (1994). Principles of Biomedical Ethics, 4th edition. New York: Oxford University Press.

Mann, J. M.; Gruskin, S.; Grodin, M. A.; and Annas, G. J., eds. (1999). Health and Human Rights: A Reader. New York: Routledge.

— COLIN L. SOSKOLNE; LEE E. SIESWERDA

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As more diagnostic, screening, and monitoring tests based on genetic data become available, privacy issues are becoming increasingly important. There are concerns that the results of genetic tests showing a person to be pre-disposed to a particular disease will fall into the hands of commercial medical suppliers or financial, legal, insurance, or government agencies, all of which control important products or services.

The confidentiality of medical information is of paramount importance to most consumers and patients. However, maintaining confidentiality is made difficult by the use of large medical record databases and other electronically stored records, to which any number of individuals may have access.

The Potential for Misuse of Medical Records

Medical records can be misused unless they are coded to hide patients' identifying information. If a patient has been treated for a particular disease and his or her medical records are not held in confidence, a company selling products related to the disease could directly contact the patient. Although this may not pose a problem in most cases, in some situations, such as if a patient was treated for a sexually transmitted disease, the patient might not want family members or others with access to his or her mail to know about the treatment. There are also concerns about the potential for discrimination arising from the use of these data in determining a patient's eligibility for employment, housing, or other services.

In the United States, legislation has been passed to deal with issues surrounding genetic and health information. The Health Insurance Portability and Accountability Act of 1996 was enacted to address privacy issues related to personal health information. This act requires that health care providers, health plans, and health care clearinghouses implement certain privacy standards regarding health information.

Although the act protects "all medical records and other individually identifiable health information," there is some concern that it does not provide sufficient protection for the privacy of genetic information. In 2001 additional protection was proposed in at least three bills in the U.S. Congress. These bills were intended to prohibit discrimination on the basis of genetic information with respect to health insurance. The area of privacy and genetic information continues to develop, with additional legislation on the federal and state levels certain to arise.

European countries have addressed issues of privacy and personal information in a Directive on Data Protection. This directive, which became effective in October 1998, established a comprehensive legal regime in the European Union that governs the collection and use of personal information.

Privacy questions abound when it comes to genetic testing to determine if a person carries particular genes. One concern is that patients affected by genetic diseases, as well as those potentially at risk of disease, could be discriminated against. Another is that genetic information could also lead to discrimination against the children of those directly affected by a genetic disease.

Genetic Information in the Justice System

Many similar concerns arise in the context of criminal law, including the potential uses of DNA databases. There are issues relating to the collection and maintenance of DNA samples or information from everyone who is arrested, whether or not they are convicted. There are issues relating to the collection and maintenance of DNA samples and/or information collected from individuals upon arrest. For example, the DNA and/or information obtained from certain individuals may be saved, even if the person is not convicted. Indeed, prosecutors have issued many arrest warrants in old cases based solely on stored DNA data. These warrants have resulted in successful prosecutions, but the question being asked in the courts is whether it is legal to base arrests solely on "cold hit identification" using DNA evidence.

In contrast to medically oriented genetic tests, the DNA tests used in criminal law generally do not test for the presence or absence of a particular gene, since the noncoding regions of a person's DNA can be distinguished much more easily from the DNA of other individuals. Different individuals have different DNA sequences in these noncoding regions because there is no evolutionary penalty for mutations in such regions, as they are not used to produce proteins.

This helps provide the high level of discrimination required in criminal cases, enabling a jury to say that, based in part on the DNA evidence, an accused person is guilty beyond a reasonable doubt. An important caveat however, and one not always understood by prosecutors or juries, concerns what a DNA match actually proves. While nonmatching DNA proves innocence, matching DNA does not prove guilt. In any large city, there will be at least a handful of people with similar DNA profiles. Even if DNA is found to be matching, a conviction must rely on other evidence, such as other physical evidence or eyewitness testimony.

Although the use of DNA data can assist investigations, there is an element of "big brother is watching" in its use. There are also concerns that by instituting wide programs of DNA collection based on arrests, not necessarily convictions, the practice will expand to other areas. For example, providing a DNA sample could be required, at some point, for obtaining a driver's license, marriage license, or social security number. There is also a question of what entities, including police departments, governmental agencies, employers, financial institutions, credit reporting businesses, and insurance carriers, would have access to the data. There is concern that by having genetic information recorded in a criminal record database, citizens would be subject to a wide variety of discrimination.

—Kamrin T. MacKnight

As Justice Hugo Black wrote, “ ‘Privacy’ is a broad, abstract and ambiguous concept” (Griswold v. Connecticut, 1965, p. 509). Any commentary on the approach taken by the Supreme Court in regard to the notion of “privacy” must begin by acknowledging the truth of Black's insight. There is no simple grouping of cases that allows one to discern a particular doctrine of “privacy” that has been adopted by the justices or that can be easily conveyed. Instead, one discovers that “privacy” and associated words, such as “private,” refer to a variety of notions, only loosely linked together, that have proved to be an enduring source of controversy in regard to the degree of constitutional protection afforded them.

Definitional Dilemmas

Perhaps the easiest way to demonstrate the protean qualities of the notion of privacy is through reference to some of the standard ways words like “private” and “privacy” are used in ordinary language. Contrast, for example, the quite different implications of the terms “private property” and “invasion of privacy.” To be sure, they are related to one another, but they nonetheless point in substantially different directions and have elicited quite different reactions from the Court.

Privacy and Political Liberalism.

Though the notion of private property clearly goes back to ancient times, it is especially resonant in the liberal tradition out of which so much American political thought has developed, and it is appropriate to begin by looking at it more closely. The first thing one might notice is that “private” is an adjective. The word “property” is not always preceded by that adjective. The standard contrasting term to “private” is “public,” and we often use the term “public property” to refer to property owned by the state, such as roads, parks, and government buildings. The sharp division between “public” and “private” is central to the liberal political tradition, especially as represented in the thought of someone like John Locke, and the term “private property” is central to the maintenance of this division.

What is “public” is, almost by definition, within the realm of government regulation; one of the purposes of governments is to regulate the conditions of public life. Further, one of the central roles of the Constitution is to place limits on what the state can do in the name of the public. Thus the First Amendment prevents the state from offering public property only to political groups whose views it supports, even though the owner of a private auditorium is free to use political criteria when renting the hall.

The point of terming something “private” is to suggest that it is, in important ways, protected against governmental interference. The strongest defense of government, especially in the more libertarian versions of the Lockean heritage, is to establish certain mechanisms, including police forces and courts for the enforcement of contracts, that will serve to safeguard the basic natural rights of “life, liberty, and property.” The basic value underlying the protection of such rights, according to most contemporary political theorists, especially those who come out of one or another version of the Kantian tradition, is autonomy, that is, individuals’ ability to choose for themselves how to live their lives.

According to those who emphasize individual autonomy, the state should, as much as possible, serve only to facilitate the choices made by private citizens, at least so long as those choices do not conflict with the rights of other individuals. Indeed, many contemporary theorists who reject any Lockean notion of a “natural right” to private property nonetheless support recognition of a legal right to private property on the grounds, as argued by Aristotle nearly twenty‐five hundred years ago, that its possession is necessary in order to allow the practical realization of freedom and autonomous choice. Egalitarians might object to a particular distribution of property within which too many poor people are without property and thus without effective means to realize their autonomy, but this distributional critique does not in the least entail a rejection of the basic importance of a realm of “private” rights protected against state negation.

Defending Minorities.

Emphasis on a protected “private” realm can serve as a way of defending unpopular minorities against the power of a majority tempted to use the apparatus of the state to regulate those it dislikes. Examples are legion, and each probably generates a different emotional resonance in the reader. On the one hand, there are those parents who wish to send their children to a “private” school that teaches the tenets of their religion, against the effort by the state to outlaw such schooling and require every child to attend a “public” school that inculcates in the child the state‐mandated way of looking at the world. (Just such an effort was made in the 1920s by the state of Oregon, then under the sway of the Ku Klux Klan, only to be rebuffed by the Supreme Court in Pierce v. Society of Sisters, 1925.) Or one can think, for example, of a privately owned restaurant that chooses to serve only whites; although a traditional notion of “private property” included the right to exclude anyone from one's property on whatever basis one wished, the Supreme Court had little trouble, in Heart of Atlanta Motel v. U.S. (1964) and Katzenbach v. McClung (1964), unanimously upholding the Civil Rights Act of 1964 and its prohibition of such exclusionary practices (see Segregation, De Jure). At the very least, these two examples should illustrate not only the complexities attached to notions such as “minority rights” and “majority imposition” but also the varying reactions of the Supreme Court to such claims.

Privacy versus Secrecy.

One must recognize that there is nothing at all “secretive” about “private” property and many other autonomy‐enhancing rights that have been judicially placed within a notion of “privacy.” Thus, a property owner often announces his or her status to the world. One can find similar examples in other realms. Most religious people, for example, are proud to proclaim their allegiance to their faiths’ tenets. No one reads the Free Exercise Clause of the First Amendment as protecting only “out‐of‐sight” religious practices. To be sure, even such limited protection would be better than the totalitarian denial of all freedom of religion, but the basic cases in the constitutional canon treating freedom of religion all deal with “public” practices, such as handing out religious literature or even vigorously attacking the “false doctrines” of another church deemed to represent the forces of evil (see also Religion).

In this context, it is useful to consider the institution of marriage. Even though many might consider marriage to be the most obvious symbol of private life, most people who marry proclaim their status publicly. As shall be discussed further in this essay's conclusion, problems arise when one tries to define notions such as property or marriage as “private” rather than “public,” but it should at least be clear that there is no necessary linkage between assigning a particular activity—whether it has to do with land development or love—to the realm of the “private” and viewing that activity as something to be kept out of the public eye.

This element of secrecy, however, is precisely what is important in the concept of “invasion of privacy.” To be sure, one cannot make sense even of this notion without recourse both to the value of autonomy and to some version of the public private distinction noted above. The “privacy” protected against invasion, however, relies for its force not so much on the formal distinction between the domains of the individual and of the state but rather on a widely shared perception that some aspects of life should be protected not only against public regulation but, far more importantly, against uninvited public observation. The definition of a secret suggests that one should be able to disclose it only to those one trusts. A standard example is the release of what is often termed “intimate” information about oneself. Thus the marital partners who invite the public to observe their exchange of vows certainly do not invite the guests to witness the sexual consummation of those vows.

These are not meant to be hard‐and‐fast distinctions. But they are intended to aid the understanding of the very different meanings attached to the overall concept of privacy and, as well, to the understanding of why the cases decided by the Supreme Court under that rubric often seem so confusing. The Court, over the last twenty years, has used the notion of privacy especially, but not exclusively, in cases involving contraception, abortion, and homosexuality. If one realizes that such cases much more often invoice privacy‐as‐autonomy—a realm of conduct protected against invasive state regulation—rather than privacy‐as‐secrecy—a realm of life that should be protected against the intrusive observation of others—then at least some of the confusion can be dissolved. The remainder of this essay will therefore be organized by reference to these two quite different conceptions of privacy.

Autonomous Choice

Although it is commonly argued that the Constitution lacks any specific textual reference to “privacy,” that argument overlooks the text of the Fifth Amendment, which states that “private property [shall not] be taken for public use, without just compensation.” The text makes no sense unless the framers of the Constitution believed, first, that the institution of private property already existed and, second, that there was something important about this institution worth protecting. That is, private property had a purpose, the most plausible purpose being that possessing private property helps one to become the master of one's own fate.

It is within this context that one should understand “The New Property,” an influential 1965 article by then‐Yale professor Charles Reich, which argues that the same kinds of constitutional protections accorded “old property,” such as land, should be accorded “new property,” such as social security, because of the latter's equally vital role in preserving individual autonomy. The deep paradox of Reich's article, however, lies precisely in the fact that the Supreme Court, throughout the twentieth century but especially following the so‐called constitutional revolution of 1937, has been increasingly disinclined to give strong protection to the “old property” against state regulation. Among the seminal cases in this regard is Euclid v. Ambler Realty Co. (1926), in which the conservative Justice George Sutherland, speaking for the Court, upheld a local zoning ordinance that severely restricted the development opportunities available to landowners. Although such zoning significantly reduced the practical market value of the land in question, it was deemed not to be a taking requiring compensation under the Fifth Amendment, which had been applied to the states through the Fourteenth Amendment.

Regulation of Private Property.

Certainly one of the central characteristics of what has come to be called the modern regulatory, or administrative state is its propensity to regulate the use of “private” property. The post‐1937 Court has expressed almost no concern about the constitutionality of such regulation. Only a few, exceptional cases have found regulations to constitute takings that require compensation (see Regulatory Taking). For better or worse, the protection of private property and the values attached to its ownership has increasingly been left to the vagaries of the ordinary political process, with judicial scrutiny limited to a bare minimum.

Post‐1937 constitutional theorists, then, were left with the task of explaining the withdrawal of any strong judicial regard for private property. Did it result from a general notion that the Court, as an arguably undemocratic (or at least antimajoritarian) institution, should defer to legislative decisions? Or, on the other hand, was it the consequence of a more limited notion—that the protection of private property, far from enhancing individual autonomy, tended to lessen it insofar as it served to prevent the redistribution of economic resources from those who had a great deal (and thus maximum autonomy) to those who had too little (and thus little, if any, practical autonomy)? Post‐New Deal constitutional theorists could be divided broadly into two camps, depending on which of these two rationales was emphasized to justify the diminution of protection given to traditional rights attached to the ownership of private property. These camps faced off when “privacy” reemerged as a major topic of litigation in the 1960s.

Contraception.

The modern debate about the constitutional protection accorded privacy derives from Griswold v. Connecticut (1965). In Griswold the Court declared unconstitutional a Connecticut law that both prohibited the use of contraceptives and prevented anyone from encouraging the use of contraceptives through, for example, medical counseling. Connecticut prosecuted the executive director of the Planned Parenthood League for giving information to married persons about contraception. The Supreme Court, in an opinion by Justice William O. Douglas, reversed Mrs. Griswold's conviction on the basis that it violated her (and her clinic's patients’) rights of privacy. Ignoring the Private Property Clause of the Fifth Amendment, Douglas noted that a general right of privacy is nowhere explicitly set out in the constitutional text, in contrast, say, to the right to free exercise of religion acknowledged in the First Amendment or the right against self‐incrimination set out in the Fifth Amendment. But, said Douglas, the real point of many of the “various guarantees” of the Constitution was precisely to “create zones of privacy” protected against state interference (p. 484).

Douglas pointed to cases interpreting the First Amendment, which had recognized the “freedom to associate and privacy in one's association”; to the Third Amendment, which prohibits the quartering of soldiers “in any house” in time of peace without the owner's consent; to the Fourth Amendment and its explicit affirmation of the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”; and to the Fifth Amendment's Self‐Incrimination Clause (p. 483). Douglas also took note of several cases from the 1920s involving private education. In 1923 the Court, in Meyer v. Nebraska, had invalidated a state ban (sparked by anti‐German feeling during World War I) on teaching German in private schools. Two years later, in Pierce v. Society of Sisters, the Court struck down Oregon's Klan‐inspired attempt to prohibit private schooling entirely.

Similarly, Douglas said, Connecticut's law could not survive, for it “concern[ed] a relationship lying within the zone of privacy created by several fundamental constitutional guarantees” (p. 485). In particular, it attempted to regulate one of the most intimate aspects of marriage—the circumstances under which the partners would relate to one another sexually. To prosecute someone for violating Connecticut's “use” prohibition would require extraordinary state intrusiveness. “Would we allow the police,” Douglas asked rhetorically, “to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” He responded, “The very idea is repulsive to the notions of privacy surrounding the marriage relationship” (pp. 485–486).

Griswold was a surprisingly controversial decision, though not, certainly, because of any judicial sympathy with what one dissenter, Justice Potter Stewart, called “an uncommonly silly law.” Instead, for the dissenters, Hugo Black especially, the decision recalled an earlier era of the Court in which it used similar concepts, though denominated “freedom of contract” rather than “privacy,” to carve out a protected realm of conduct against almost any regulation by the state. This earlier era was symbolized by the decision in Lochner v. New York (1905), in which the Court interpreted the Due Process Clause of the Fourteenth Amendment to hold unconstitutional a New York state law that attempted to limit to sixty the hours that a baker could work each week. According to the five‐justice majority in Lochner, this statute unconstitutionally interfered with the autonomy rights of the baker and his employee to negotiate as equals over the terms of employment.

Lochner occasioned perhaps the most‐quoted dissenting opinion in American judicial history, by Justice Oliver Wendell Holmes:

I think that the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. (p. 76)

An entire generation of scholars and lawyers used Holmes's opinion almost as an anthem in behalf of judicial deference to majority rule and as a rejection of the doctrine of substantive due process. To be sure, Justice Black, who dissented in Griswold, vigorously opposed state regulation of speech, but he based this philosophy of judicial overruling of majority will on the specific text of the First Amendment, as applied to the states through the Fourteenth Amendment (see Incorporation Doctrine). “I like my privacy as well as the next one,” wrote Black, “but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision” (p. 510). Black was squarely in the camp of those who viewed the message of 1937 as counseling general deference to legislative enactments unless explicitly prohibited by the constitutional text. Griswold was in his judgment as pernicious a decision as Lochner.

That Griswold and successor cases were written using the language of “privacy” was due primarily to the desire to avoid direct comparison with Lochner. These cases could have been decided using a different rhetoric, one more self‐consciously libertarian and focusing on the centrality of such decisions in achieving one's own life plans. What prevented the use of such a neolibertarian rhetoric was much less its intellectual deficiency than its evocation of the earlier era of Lochner, based as that case was on a highly libertarian conception of the limits of government. Thus Holmes had reminded his colleagues that the “Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics” (p. 75); Spencer's book was one of the most libertarian tracts of the nineteenth century. Given the bad repute of such overtly libertarian rhetoric, the Court was attracted to the purportedly different rhetoric of privacy. Because of the way legal argument operates, “privacy” became the catchword for a host of cases that would be better understood had they been analyzed under a more frankly libertarian, autonomy‐oriented theory.

Regardless of this rhetorical point, it is fair to say that if the “right to privacy” had been confined to the circumstances of the Connecticut contraceptive ban, it is unlikely that the notion would have become particularly important, except among specialists in constitutional law: Connecticut was in fact the last state to ban contraceptives. Moreover, Griswold could have been fit within what were termed above the “invasion of privacy” cases designed to protect certain conduct, in this instance the use of contraceptives, from public gaze. The issue in Griswold could have been confined either to the prohibition of the “use” of contraceptives or to use plus the giving of relevant medical advice, in order to protect institutions like Planned Parenthood. Moreover, one could have maintained the emphasis on the particular circumstances under which contraceptives are in fact used, thus accounting for the power of Douglas's reference to the “sacred” marital bedroom.

It is worth noting, however, that no one seriously argues that the police are without power, assuming they have the probable cause required by the Fourth Amendment to obtain a search warrant, to search “sacred” bedrooms for evidence of ordinary crime. A thief would not purchase immunity from search, for example, by hiding the loot under the sacred marital mattress! The fact that most of Douglas's examples are open to this kind of attack has led many observers to criticize his opinion, at least insofar as he attempted to derive the “right of privacy” from what he called the “penumbras and emanations” of the text of the Bill of Rights.

Although Douglas's opinion was joined by a majority of the Court, two important separate concurring opinions, written by Justices Arthur Goldberg and John M. Harlan, attempted to sketch out other bases for the “right to privacy.” Harlan alluded to an opinion he had written in an earlier case, Poe v. Ullman (1961), in which the Court had refused to address the legitimacy of the Connecticut law it struck down in Griswold. In Poe, Harlan had emphasized that the Due Process Clause of the Fourteenth Amendment legitimizes the Court's attempt to discern “the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society” (p. 542). Examining the American (and, indeed, English‐speaking) past, Harlan concluded that the Connecticut law “involves what, by common understanding throughout the English‐speaking world, must be granted to a most fundamental aspect of [liberty,] the privacy of the home in its most basic sense” (p. 548). Goldberg focused attention on the Ninth Amendment, with its reminder that the specification of certain enumerated rights in the Bill of Rights should not be interpreted as “disparaging” the existence of additional, unenumerated rights. Privacy, Goldberg argued, was just such a right—one that should be understood as being protected by the Constitution even though unenumerated.

In any event, Griswold did not remain an isolated case, and its import soon extended far beyond Harlan's “privacy of the home” or the particularity of the “sacred” marital relationship. The Court, in Eisenstadt v. Baird (1972), struck down a variety of state prohibitions on the sale or distribution of contraceptives first to single adults and then, five years later, invalidated, in Carey v. Population Services International, a New York law prohibiting the sale of contraceptives to minors under sixteen and forbidding anyone not a licensed pharmacist from selling even nonprescription contraceptives to persons of any age. As suggested above in the discussion about “private property,” there is nothing secret about offering contraceptives for sale, much less advertising them. Once again, it is crucial that one separate the kind of privacy interest that is being protected in access‐to‐contraception cases—enhancement of individual autonomy—from the different aspect of privacy organized around the notion of secrecy. But even the liberation of contraceptives from state control would scarcely have caused significant public controversy, given the great changes that were taking place in sexual behavior and the use of contraceptives by a majority of the American public.

Abortion.

The case that brought “privacy” to the forefront of national consciousness was Roe v. Wade (1973), which struck down laws in all fifty states that prohibited most (and in some cases all) abortions. “The right of privacy,” Justice Harry Blackmun wrote in behalf of the Court, “whether it be founded in the Fourteenth Amendment's concept of personal liberty … or … in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy” (p. 153). To be sure, even this important “right of personal privacy” could be curbed by the state if it presented a “compelling interest,” but the import of Roe, with some exceptions, has been to limit such state power. Roe is surely on anyone's list of most important opinions, both in terms of the changes it brought to American life and the controversy it stirred up. Although it did not, as Dred Scott v. Sandford (1857) was alleged to have done, spark a civil war, it almost certainly contributed, because of the identification of the antiabortion position with right‐wing politics, to the defeat of many Democratic senators in 1976 and 1978, the capture of the presidency and the Senate by the Republican Party two years later, and to the ultimate defeat of the Equal Rights Amendment.

Once again, it should be clear that abortion is centrally linked with autonomy concerning the conditions of one's life—thus the adoption of the term “pro‐choice” by its adherents. Many persons read the sequence of cases from Griswold to Roe as supporting, under the rubric of “privacy,” a general right to what might be termed “sexual autonomy,” that is, freedom of choice in regard to one's sexual identity, including its reproductive aspects.

Homosexuality.

This claim of a right of sexual autonomy was most dramatically tested in the 1986 case Bowers v. Hardwick, which involved an attack by a gay Georgia man upon a state law that criminalized sodomy. A bitterly divided Court upheld, by a 5‐to‐4 vote, the constitutionality of the law. Justice Byron White, who wrote the majority opinion, declared that the right to privacy encompassed by the Constitution did not include a right to engage in “homosexual sodomy.” (His opinion ostentatiously refused to indicate whether the Constitution would tolerate the criminalization of heterosexual sodomy—with sodomy defined as including oral sex—which is apparently practiced by many Americans, including married couples.)

Although Bowers concerned bedroom conduct, what was ultimately at stake in the case was the integration of gays and lesbians into all aspects of American public life. Thus, had the decision gone the other way, it might have been increasingly difficult to maintain the prohibition of gay and lesbian marriage, for example, and other “public” acts that would signify the true emergence of gays and lesbians from the closets to which the American legal order has tended to condemn them. Justice Lewis Powell, who provided the fifth vote upholding the Georgia law, declared after his retirement that he regarded the decision as a mistake. Issues of gay rights continued to percolate in a variety of contexts and issues, however. These included debate over the ban by the armed forces on service by openly gay and lesbian members (“don't ask, don't tell”), civil unions (in Vermont), and most recently gay marriage. Bowers itself was overruled in 2003 by Lawrence v. Texas, when the Supreme Court held that government could not prohibit or punish private consensual sex engaged in by either same‐sex or heterosexual persons.

Moreover, it is certainly not unthinkable that Roe itself will be overruled, though there appears to be no serious support for overruling Griswold. As has already been suggested, however, limiting the constitutionally protected right to privacy (as autonomy) to the use of contraceptives would scarcely be of any great significance so far as the general public is concerned. In any event, in the early 2000s it is hard to imagine that there will be any great extensions of this branch of the right to privacy in the foreseeable future.

Information Control

In a highly influential 1968 article, Harvard professor (and later solicitor general) Charles Fried offered the definition of privacy as “the control we have over information about ourselves.” Fried related such control to central aspects of our lives as flourishing human beings, including “love and friendship.” Although a rich philosophical literature on privacy exists and not everyone accepts Fried's specific views, there is certainly general agreement—and not only among philosophers—that a central component of privacy is precisely the capacity to maintain aspects of one's life apart from public awareness.

Lack of Constitutional Foundation

Although there may be widespread agreement that a decent society is one in which individuals possess significant control over the release of information about themselves, it is difficult to find much protection for such a right in the Constitution, at least as it has been interpreted by the Supreme Court. As Lucas Powe has written, “Privacy has never done as well in the courts as in the legal journals.”

Consider in this context the constitutional tests most often cited by proponents of privacy, the Fourth and Fifth Amendments. Recall the Fourth Amendment's protection of the “right of the people to be secure in their persons, houses, papers, and effects,” and the Fifth Amendment's prohibition of any person's being “compelled in any criminal case to be a witness against himself,” both of which were quoted by Douglas in his Griswold opinion. As suggested above, though, these texts can as easily cut against proponents of privacy as work in their favor.

The Fourth Amendment, for all its evocation of the privacy of the home, nonetheless clearly allows searches of the home and the seizure of private papers so long as a search warrant has been issued, based on probable cause to believe that the search will provide evidence relevant to a criminal investigation. And warrants can serve as the predicate not only for invasions of marital bedrooms but also for tapping telephones or emplacing other hearing devices that allow the investigator to overhear the most intimate of conversations.

Limits on Privacy.

In a series of cases during the mid‐1960s, the most important of which, Hoffa v. United States (1966), involved a prosecution of Teamsters’ Union leader Jimmy Hoffa, the Court refused even to require a warrant for the infiltration of “private space” by undercover investigators (see Search Warrant Rules, Exceptions to). Thus it is perfectly constitutional for the state, without the slightest showing of probable cause, to use agents to insinuate themselves into the “private lives” of targets such as Hoffa. According to the Court, we are all at risk that those we choose to welcome into our private domain will later prove untrustworthy, and therefore we deserve no special protection against the possibility that a new “friend” might in fact be a member of the secret police. It should thus come as no surprise that the Court, in United States v. Miller (1976), refused to place any Fourth Amendment barriers in the way of state investigators who wished access to the “private” bank records of persons they were investigating.

Similarly, in Ullman v. United States (1956) and Kastigar v. United States (1972), the Court read the Fifth Amendment guarantee against self‐incrimination as being limited to the prohibition of compelled testimony that could later be used as evidence in a prosecution of the witness being compelled to testify. The Court ruled that this did not limit the right of a state to confer an often unwanted “immunity” on a witness—an immunity that promises that nothing said by the witness will later be used against him or her. A beneficiary of such immunity will receive no judicial support for the claim that this violation of his or her ability to control the release of information constitutes a violation of whatever “privacy” rights are implied in the Fifth Amendment. Thus witnesses can be asked the most embarrassing and intrusive questions, so long as they are relevant to the case at hand, and can be punished for contempt of court if they refuse to answer. (The best‐known examples of such immunity grants have arisen in congressional investigations, where refusal to testify has led to citation for contempt of Congress; see Congressional Power of Investigation.)

Many critics of “immunity baths” adopt Douglas's view that they violate the right to privacy ostensibly protected by the Fifth Amendment, but these critics have not prevailed. Instead, the Court has defined the purpose of the Fifth Amendment as safeguarding individual autonomy by limiting the state's incentive to “solve” crimes not through independent investigation but through the far easier means of forcing, through torture or other mistreatment, accused defendants to confess to crimes that they may not have committed. Since, by definition, testimony given under immunity cannot lead to convictions, the state must still pursue its own investigations and gather independent evidence in order to convict those who have received immunity.

Close associates of criminal defendants, including, on occasion, close family members, are common sources of independent evidence. Although the state often recognizes certain “testimonial privileges” by which specific confidential communications can be protected against disclosure, it is highly debatable whether these privileges are constitutionally required or are instead simply granted by the state (perhaps in recognition of the moral claims articulated by Fried). Probably the most common examples of such privileges are those between lawyer and client and between spouses. In most contexts, a client does control the release of information and can prohibit his or her attorney from disclosing even information crucial to the interests of third parties. Similarly, many states still allow a defendant to prevent the introduction of testimony offered by even a willing spouse (or, often, ex‐spouse) that refers to confidential communications made during the course of the marriage. But no such protection extends to close friends or other family members, although some judges have read Griswold as protecting a child who does not wish to testify against a parent, or vice versa.

News Media.

The examples above involve the state's attempts to elicit information, but what about the equally common circumstance in which a private party investigates someone or discloses conduct that that other person would wish to keep secret? Does the Constitution allow strong protection against such invasions of privacy?

Given the complexities of the American legal system, it is hard to offer any summary answer, but it can be said that the Supreme Court has offered scant comfort to those who have brought suit claiming such “invasions.” The most common cases have involved newspapers that have published truthful, albeit highly intrusive, information about the suing party. (The publication of false information would constitute not invasion of privacy but “defamation” and would be handled through the law of libel.)

Standard issues in cases involving claimed invasions of privacy include printing the names of victims of sexual assaults or of juvenile offenders who, some think, are more likely to reform if not publicly stigmatized as delinquents. No matter how much sympathy such claimants may elicit, they have consistently lost before the Supreme Court, which has repeatedly declared that the First Amendment prevents sanctioning newspapers who publish such information. Thus, in Florida Star v. B.J.F. (1989), the Court set aside an award of monetary damages for the publication of the name of a rape victim because the newspaper had obtained the information by looking at government records. (The Court has refused to accept the argument that there is a difference between making information available to members of the public who are able to travel to a specific locale—such as City Hall—and publishing identical information in a newspaper read by many thousands of readers.)

Newspapers have been awarded protection not simply because of the text of the First Amendment but, more importantly, because of the recognition that it is often impossible to draw any clear lines between those secrets that one should be entitled to keep and those that are of legitimate interest to the public. Consider in this context the Miami Herald’s trailing, in 1987, of then‐presidential candidate Gary Hart, a married man who had recently denied that he was a “womanizer,” to his Georgetown townhouse in the company of Donna Rice, a woman who was not his wife. Though debate raged concerning the ethics of the Herald’s conduct in placing one of its reporters in the bushes outside Hart's home, few people argued that the information gained thereby was irrelevant to the public interest, or that it spoke merely to the public's prurient interest, or that the newspaper had no right to publish it.

It is clear that the Constitution protects newspapers that publish truthful information, however “private,” about “public figures”—including candidates for office. Whether or not such figures entirely surrender any “right to privacy” they might otherwise have, as a practical matter newspapers and other media need not worry that they will face legal sanctions if they reveal indelicate truths. No Supreme Court decision supports privacy claims of public figures seeking political office who object to the disclosure of information that some voter might find relevant to their fitness to serve in office. Recognition of any such privacy rights would disserve the democratic process itself by depriving the public of salient information. “[T]he candidate who vaunts his spotless record and sterling integrity,” Chief Justice William H. Rehnquist has reiterated, “cannot convincingly cry ‘Foul’ when an opponent or an industrious reporter attempts to demonstrate the contrary,” even if the demonstration involves scrutiny of what might be regarded as one's “private” life (Hustler Magazine v. Falwell, 1988, pp. 46, 51, quoting from Monitor Patriot Co. v. Roy, 1971).

The practical loss of privacy rights by public officials turns out also to extend, by and large, to ordinary people, at least if one looks at most of the decided case law. A famous case from half a century ago is exemplary: The New Yorker profiled a former child prodigy in a manner described by a state court as “merciless in its dissection of intimate details of subject's personal life” and a “ruthless exposure of a once public character who has since sought … the seclusion of private life” (Sidis v. F‐R Publishing Co., 2d Circuit, 1940, pp. 806–807). It would be hard to imagine a more sympathetic setting for recognition of a right against invasion of privacy, but even here the magazine was protected because of the “newsworthiness” of the subject. “Newsworthiness” is largely a circular term, standing for public curiosity that may itself be provoked by the newspaper's dredging up material from the past. (It is unlikely, for example, that any of The New Yorker’s readers had been curious about Mr. Sidis, the ex‐prodigy, or had written demanding that the magazine find out what had happened to him.)

That there seems to be little constitutional protection of privacy‐as‐information‐control does not, obviously, negate the force of Fried's argument. It simply points out the Constitution's limited scope. Privacy could be protected in many ways through legislative enactments (though such laws might run into constitutional problems if they attempted to limit the power of the press), but the point is that such privacy rights have come to be viewed as matters for legislative decision making rather than judicial determination.

Privacy as a Public Matter

It is tempting to believe, and the discussion of property began by assuming, that there is a clear demarcation between the realms of “public” and “private.” But even the brief discussion of the constitutional revolution of 1937 should illustrate how much the two are intertwined. As pointed out by theorists identified with “legal realism” or “critical legal studies,” such as Morris R. Cohen and Robert Hale in the past or Gary Peller in the present, what is conceptualized as “private” is the result of an essentially public decision. Even to think of “private property,” for example, requires one to think at the same time of a completely public realm of law that recognizes (and some would say establishes) an assignment of legal rights, to be protected by public force if need be, to certain people who will be called the “owners” of private property. And one of the central meanings of “1937” as a crucial event in American constitutional law is that these assignments are subject to significant changes, as the owners of private businesses discover that they can legitimately be forced, under certain circumstances, to bargain with trade unions or to sell to customers they would prefer not to deal with. To put it mildly, contemporary expectations as to the meaning of private property differ radically from those likely to have been held by property owners a hundred years ago, and there is no reason to believe that private property will have the same social meaning a hundred years from now.

This point can perhaps be made most clearly by reference to a case that explicitly turns on the notion of “expectations.” In Katz v. United States (1967), the Court extended the Fourth Amendment's warrant requirement to wiretaps of telephone conversations; American citizens, the majority declared, had a “legitimate expectation” that their conversations would remain private, and violation of this expectation would require the demonstration of probable cause necessary to get a search warrant. As many commentators noted then and since, the Court was not entirely clear about the foundation of the “expectations” that were so important to its decision. Could the government, for example, defeat any such expectations by announcing that no one should, as a practical matter, expect a telephone conversation to be free of being overheard by third parties? Perhaps “expectation” refers instead to what most people believe ought to be the case about their privacy rights, so that the hypothetical government announcement could be defeated by showing that most people do have the expectation suggested and would be outraged if the government began promiscuously to listen to its citizen's telephone conversations. But what if public opinion changes? Consider the widespread calls for drug tests and tests for the HIV (AIDS) virus, which many view as significant invasions of privacy and presumptively unconstitutional without some showing of specific probable cause. The Court, in two 1989 cases (National Treasury Employees Union v. Von Raab, which dealt with customs agents, and Skinner v. Railway Labor Executives Association, which involved railroad engineers), upheld drug tests even without such probable cause. In both cases the Court focused on specific reasons to be especially concerned about the use of drugs by persons in such occupations.

If, however, the public in general comes to believe that the “war on drugs” requires, say, the frequent submission of urine samples, by America's more than fifteen million public employees, could one then speak of an “expectation” against such governmental intrusion? No one believes that an individual's idiosyncratic expectation should automatically be recognized. Inevitably, one discovers that the individual's right of privacy depends on a complex set of social interactions that defeat any easy separation of the public and the private. To the extent that “the public” continues to expect a strong recognition of a “private” realm cut off from ordinary public gaze, that realm will be protected; to the extent that, as with the “traditional” indices of private property, recognition of the claimed privacy right is thought to be too socially costly, then “privacy” will in all likelihood be redefined to exclude the too socially burdensome aspect.

American constitutional jurisprudence is deeply embedded in the liberal political tradition. This assures that the public‐private distinction will continue to be a central part of our constitutional schema. There will always be a constitutional “right to privacy,” whoever the members of the Supreme Court might be or whatever the particular intellectual trends of a given political moment. But its meaning and scope will always be in flux.

See also Fundamental Rights; Natural Law.

Bibliography

• Ruth Gavison, Privacy and the Limits of Law, Yale Law Journal 89 (1980): 421–471.
• Jennifer Nedelsky, Private Property and American Constitutionalism (1990). Ellen Frankel Paul and Howard Dickman, eds., Liberty, Property, and Government: Constitutional Interpretation Before the New Deal (1989). J. Roland Pennock and John W. Chapman, eds., Nomos XIII: Privacy (1971).
• Alan Ryan, Property and Political Theory (1984).
• Ferdinand Schoeman, ed., Philosophical Dimensions of Privacy (1984).
• William B. Scott, In Pursuit of Happiness: American Conceptions of Property from the Seventeenth to the Twentieth Century (1977).
• Alan Westin, Privacy and Freedom (1967)

— Sanford Levinson

(mind) One of the more obvious, yet baffling, features of the mind is that I alone am privy to my experiences and thoughts. I have them, whereas you must go through some process of interpreting my utterances and actions in order to know, or guess, what they are. Philosophers of mind have either celebrated this privacy or sought to downplay its importance. To downplay it one might argue that what I know about myself, and you do not, may be simply a question of what words I am about to use or what actions I feel like performing. But in that case there is then no deep metaphysical gulf between what I know about myself and what you know, for it is merely a matter of my reports more quickly and accurately registering the state of my own system. There is no special knowledge displayed on a special inner screen, but only the natural upshot of self-monitoring functions of the brain.

(social) In moral and political theory, private conduct is that which it is no business of the public, and particularly the public institution of law, to notice. Similarly, private information about a person would be that to which there can be no right of public access. The right to privacy is deeply connected with a person's self-respect, with invasions of privacy being connected with shame and indignity. Liberal political theory makes essential use of this category in assessing the permissible sphere of the law. The private is the sphere of family, home, personal taste, and affection; the public is the domain of other relations, including institutional and contractual relations, and those recognized in law. However, it is controversial whether an action such as consuming various kinds of pornography, even within one's own home, is properly regarded as private. The distinction between public and private is attacked by some feminist theorists, who believe that the sphere of the private acts as a fig-leaf for areas of unrestricted male domination of children and women. But dismantling the distinction altogether has too many associations with fascist and totalitarian ideology to commend itself widely.

The notion of a right to have certain parts of one's life, one's home, and one's property protected against invasion by other citizens or by government is as old as America itself. Four of the first five amendments to the Constitution of the United States protect some aspect of the privacy of Americans, including the First Amendment's right to association, the Third Amendment's prohibition against the government quartering soldiers in private homes, the Fourth Amendment's protection against unreasonable searches and seizures, and the Fifth Amendment's protection from self-incrimination.

The specific idea of what was later recognized as the "right to privacy" began with British common law notions, such as "a man's home is his castle" and the right "to be let (or left) alone." A number of early U.S. Supreme Court decisions recognized these traditional rights to be free of unwanted personal or governmental invasions. Responding to some of the invasive journalistic practices of the day, a future justice of the Supreme Court of the United States, Louis D. Brandeis, and his coauthor and law partner, Samuel D. Warren, are credited with coining the phrase "the right to privacy" in their 1890 article of that name in the Harvard Law Review. When Brandeis was elevated to the Supreme Court, he took the opportunity in that Court's first wiretapping case to reiterate his strongly held views on the right to privacy. That 1928 case, Olmstead v. United States, involved the attempt by the federal government to tap the phone of a person without first obtaining a warrant. The majority of the Court ruled that this was not a violation of the Constitution. In his dissenting opinion, however, Brandeis said those who wrote and ratified the Constitution and the Bill of Rights did recognize the existence of a right to privacy:

The makers of our Constitution … conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth [and Fifth] Amendment[s].

But Brandeis's view remained in the minority on the Supreme Court until the 1965 case of Griswold v. Connecticut. That case involved the constitutionality of an 1879 Connecticut law that banned the use of contraceptives, even by married couples. A seven to two majority opinion, vindicating Brandeis's view, held that the Constitution does contain a right to privacy and that the right is a fundamental one, even if that right does not appear in so many words anywhere in the text. While a majority of justices agreed that such a right was protected by the Constitution and its amendments, they disagreed over where in the text of the Constitution that right is found. Justice William O. Douglas's majority opinion claimed that various parts of the Bill of Rights have "penumbras" formed by "emanations" from specifically granted guarantees in the text. This kind of argument did not sit well with many other members of the Supreme Court then, and as the Court became more literal and conservative in subsequent years, more and more justices expressed their skepticism over the existence of such a right to privacy.

The announcement of the existence of a constitutional right to privacy resonated through American law, politics, and society in the years following the Supreme Court's 1965 decision in Griswold. This right to privacy was at the foundation of the Court's landmark Roe v. Wade decision in 1973, which brought a woman's right to have an abortion under the rubric of the right to privacy. William H. Rehnquist, then an associate justice of the Court, dissented from Roe v. Wade, arguing that abortion does not involve the issue of privacy. As chief justice Rehnquist has generally continued to argue against the existence of this constitutional right.

Other areas of American life have been impacted by this debate over the existence of the right to privacy. In 1967 in the case of Katz v. United States the Supreme Court overturned its 1928 ruling in Olmstead. In Katz the Court ruled that someone speaking on the phone, even on a public pay phone, has a reasonable expectation of privacy and that the government must secure a warrant prior to eavesdropping on that conversation. In 1969 the Supreme Court ruled in Stanley v. Georgia that the mere possession of obscene materials in the privacy of one's home could not be interfered with by government official. However, in the 1986 case of Bowers v. Hardwick a sharply divided Supreme Court ruled that the right to privacy did not include the right to engage in homosexual sodomy in the privacy of one's home.

Certain professional and personal relationships are considered private and thus protected from various kinds of intrusion. The relationships between doctor and patient and between attorney and client are examples of professional relationships given special privacy protections under the law. Student grades and recommendations are also protected by various federal and state laws. In addition the spousal relationship is considered by many jurisdictions to be a generally private relationship, and husbands and wives are of ten protected from being compelled to testify against each other.

The advent of computers brought with it a new range of privacy concerns. Prior to computers, to intercept a piece of mail from one person to another, an actual letter had to be seized and then opened. In the information age intercepting an electronic mail message requires no physical interference but merely the accessing of data files in which E-mail is sent and stored. Consequently privacy invasions became not only easier but also less detectable. Cell phone calls are less secure than wire-based phone communications and more easily intercepted. Other privacy issues include the privacy of what an employee does on a workplace computer, the proliferation of video surveillance cameras in public and private spaces, access to personal information contained in electronic databases, and the "identity theft" that sometimes results from the stealing of such electronically stored personal information.

As communication occurs less in face-to-face exchanges and more in technological data exchange mediums, the opportunities for individuals and governments to eavesdrop on those virtual conversations increase. For example, in response to the terrorist attacks of 11 September 2001, the federal government passed legislation that made it easier for law enforcement officials to have access to previously private data and communication, even between lawyer and client. Privacy in the information age promises to be an important and contentious topic.

Bibliography

Lessig, Lawrence. Code and Other Laws of Cyberspace. New York: Basic Books, 1999.

McLean, Deckle. Privacy and Its Invasion. Westport, Conn.: Praeger, 1995.

Rosen, Jeffrey. The Unwanted Gaze: The Destruction of Privacy in America. New York: Random House, 2000.

This entry contains information applicable to United States law only.

In constitutional law, the right of people to make personal decisions regarding intimate matters; under the common law, the right of people to lead their lives in a manner that is reasonably secluded from public scrutiny, whether such scrutiny comes from a neighbor's prying eyes, an investigator's eavesdropping ears, or a news photographer's intrusive camera; and in statutory law, the right of people to be free from unwarranted drug testing and electronic surveillance.

The origins of the right to privacy can be traced to the nineteenth century. In 1890 Samuel D. Warren and Louis D. Brandeis published "The Right to Privacy," an influential article that postulated a general common-law right of privacy. Before the publication of this article, no U.S. court had ever expressly recognized such a legal right. Since the publication of the article, courts have relied on it in hundreds of cases presenting a range of privacy issues.

In Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928), Brandeis, then a Supreme Court justice, articulated a general constitutional right "to be let alone," which he described as the most comprehensive and valued right of civilized people. For the next half century, the right to privacy gradually evolved. Today every jurisdiction in the country recognizes some form of constitutional, common-law, or statutory right to privacy.

Constitutional Law

The constitutional right to privacy protects the liberty of people to make certain crucial decisions regarding their well-being without government coercion, intimidation, or interference. Such crucial decisions may concern religious faith, moral values, political affiliation, marriage, procreation, or death. The federal Constitution guarantees the right of individuals to make these decisions according to their own conscience and beliefs. The government is not constitutionally permitted to regulate such deeply personal matters.

The right of privacy protected by the Constitution gained a foothold in Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), in which the Supreme Court struck down a state statute forbidding married adults from using birth control because the statute violated the sanctity of the marital bedroom. Acknowledging that the Constitution does not mention the word privacy anywhere in its text, the Court held that a general right to privacy may be inferred from the express language of the First, Third, Fourth, Fifth, and Fourteenth Amendments, as well as from the interests protected by them.

The Court said that the First Amendment guarantees the right to peaceably assemble, which includes the liberty of any group to associate in private. The Third Amendment prohibits the government from quartering soldiers in a private home without the consent of the owner. The Fourth Amendment forbids the government from performing warrantless and unreasonable searches of any area in which a person maintains a reasonable expectation of privacy. The Fifth Amendment safeguards the right of criminal suspects to keep secret any incriminating evidence that might help the government obtain a conviction against them. The Fourteenth Amendment prevents states from denying its citizens certain fundamental rights that are deemed essential to the concepts of equality or liberty, including the right to autonomy, dignity, and self-determination.

The holding in Griswold was later used to strike down a Massachusetts statute that made illegal the distribution of contraceptives to unmarried persons (Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 [1972]). In striking down this law, the Supreme Court articulated a broader view of privacy, stating that all individuals, married or single, enjoy the liberty to make certain intimate personal decisions free from government intrusion, including the decision whether to bear or sire a child. This rationale was extended in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), which established the right of women to terminate their pregnancy at any time before the fetus reaches the stage of viability. Roe has subsequently been interpreted to proscribe the government from passing regulations that unduly burden a woman's right to abortion.

In Cruzan v. Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990), the Supreme Court again enlarged the constitutional meaning of privacy by declaring that competent patients have a right to refuse life-sustaining medical treatment, including artificial nutrition and hydration. A 1997 Supreme Court case presented the issue of whether competent but terminally ill patients may hasten their death through physician-assisted suicide (Washington v. Glucksberg, 117 S. Ct. 2258). Representatives for the terminally ill patients argued that the right to physician-assisted suicide represents an essential liberty interest in controlling one of life's most significant decisions, whereas the state of Washington argued that this liberty interest is outweighed by the need to protect vulnerable individuals from irrational, ill-informed, and coerced decisions to end their lives. The Supreme Court held that the right to assistance in committing suicide is not a fundamental liberty interest protected by the due process clause of the Constitution, and a state's ban on assisted suicide is constitutional.

The constitutional right to privacy does not protect all forms of conduct that are pursued behind closed doors. Adults have no constitutional right to engage in homosexual sodomy, inject intravenous drugs, solicit prostitutes, or view child pornography. Nor do members of society have a right to be insulated from every potentially offensive activity. For example, the government may not forbid a movie theater from displaying nude scenes on a large outdoor screen that is visible to passing motorists. In Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S. Ct. 2268, 45 L. Ed. 2d 125 (1975), the Supreme Court said that the First Amendment right to show such films outweighs the privacy interests of offended passersby who can protect their sensitivity by averting their eyes.

Common Law

The common law of torts recognizes five discrete rights of privacy. First, the common law affords individuals the right to sue when their seclusion or solitude has been intruded upon in an unreasonable and highly offensive manner. Second, individuals have a common-law right to sue when information concerning their private life is disclosed to the public in a highly objectionable fashion. Third, tort liability may be imposed on individuals or entities that publicize information that places someone in a false light. Fourth, the common law forbids persons from appropriating someone's name or likeness without his or her consent. Fifth, the common law prevents business competitors from engaging in unfair competition through the theft of trade secrets.

Intrusion upon Seclusion

One who intentionally intrudes upon the solitude or seclusion of another is subject to liability for common-law invasion of privacy. An invasion may involve a physical intrusion into a place where a person has secluded herself, such as the nonconsensual entry into someone's home, office, apartment, or hotel room. Nonphysical intrusions may also give rise to liability when they involve the use of electronic surveillance equipment, including wiretaps, microphones, and video cameras. Alternatively, a person's seclusion may be impermissibly interrupted by persistent and unwelcome telephone calls, or by the occasional window peeper. By imposing liability in such instances, the law seeks to protect a person's tranquility and equilibrium.

Not every intrusion is actionable under this common-law tort. The intrusion must be considered highly offensive to a reasonable person. Creditors are allowed to take action to collect delinquent debts but must do so in a reasonable fashion. Landlords are permitted to demand late rental payments but must do so at reasonable times. A judge or jury determines what is reasonable according to the facts of each case. Individuals have no expectation of privacy in matters that are public. Thus, businesses may examine public criminal records of prospective employees without fear of liability, and photographers may take pictures of movie stars in public places.

Publicity That Discloses Private Information

The common law protects individuals from publicity that discloses information about their private lives. Unlike libel, slander, and defamation actions, this common-law tort may give rise to liability for truthful publicity, as long as the information is published in a manner that is highly objectionable to a reasonable person and the information is of no legitimate concern to the public. Disclosure of private sexual relations, disgraceful family quarrels, humiliating illnesses, and most other intimate personal matters will normally give rise to liability for invasion of privacy, even if such disclosures are completely accurate. By discouraging the publication of such private and personal matters, the common law places a high value on the right of individuals to control the dissemination of information about themselves, including the right to filter out embarrassing and harmful facts that might influence the opinion of others.

Liability is not usually imposed for alleged injuries relating to matters that are intended for public consumption. A person's date of birth and military record, for example, are both matters of public record that may be disclosed without invading his or her privacy. Commercial proprietors that regularly deal with the public receive little protection from disclosures that relate to the price of their products, the quality of their services, or the manner in which they conduct business. Under the First Amendment, business proprietors receive less protection of their privacy interests because the U.S. Constitution seeks to promote the free and robust exchange of accurate information to allow consumers to make informed decisions.

False-Light Publicity

The common-law tort of false-light publicity protects individuals from the public disclosure of false information about their reputation, beliefs, or activities. The information need not be of a private nature nor must it be defamatory, as must libelous and slanderous statements, before liability will be imposed. Instead, a misleading publication will give rise to liability for false-light publicity when it is placed before a large segment of the public in such a way that a reasonable person would find it highly offensive. However, publication of an inaccurate story to a single person, or a small group of people, is not considered sufficiently public to constitute publicity.

A newspaper photograph printed in close proximity to a caption suggesting criminal activity on the part of the person photographed is a classic example of false-light publicity. On the other hand, a misleading photograph, such as one that has been retouched, may not give rise to liability for false-light publicity if the photograph is accompanied by a caption that clearly explains how it has been distorted. An esteemed poet may successfully sue for false-light publicity when an inferior poem is published under her name. A war hero may assert a cognizable claim for false-light publicity if a story is aired that inaccurately portrays him as a coward.

Public officials, such as politicians, and public figures, such as professional athletes, rarely recover for false-light publicity. Before a public official or public figure can recover for false-light publicity, the First Amendment requires proof that a story or caption was published with knowledge of its falsity or in reckless disregard of its truth, a principle that has become known as the actual malice standard (New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 [1964]). In most instances, public officials and public figures have thrust themselves into the public spotlight. As a condition to accepting the benefits that accompany public recognition, the law requires that such persons accept a diminished level of protection of their privacy interests. Because the First Amendment confers less protection on public persons than it does on private individuals, the Constitution encourages the media to freely disseminate information about candidates for office, government officials, and other figures who influence or shape the course of society.

Appropriation of Name or Likeness

One who appropriates the name or likeness of another person is subject to liability for invasion of privacy. All individuals are vested with an exclusive property right in their identity. No person, business, or other entity may appropriate someone's name or likeness without permission. Nonconsensual commercial appropriation of a person's name or likeness for advertising purposes is the most common type of conduct giving rise to liability under this common-law tort. By forbidding the nonconsensual use of a person's name or likeness, the law allows an individual to license her face, body, reputation, prestige, and image for remuneration.

Not every appropriation gives rise to liability for invasion of privacy. Liability will attach only when a person's name or likeness has been appropriated to obtain an immediate and direct advantage. The advantage need not yield a financial gain. However, the mere incidental use of someone's name or likeness is not a compensable appropriation.

For example, the print and electronic media may publish photographs, drawings, and other depictions of a person's name or likeness as an incidental part of their legitimate news-gathering activities without violating the common-law right to privacy. However, if a nonprofit organization uses a person's name or likeness to promote its philanthropy, it may be liable for the appropriation. The right to sue for wrongful appropriation is a personal right. Parents cannot recover damages for breach of their children's privacy, and family members cannot sue after the death of the person whose name or likeness has been misappropriated.

Theft of Trade Secrets

Wrongful use, disclosure, or theft of a trade secret is actionable under the common law. Although the U.S. economy is generally governed by free-market principles, the common law requires businesses to compete fairly and forbids business rivals from improperly stealing one another's intellectual property for commercial advantage. Although it is difficult to formulate a comprehensive list of what constitutes the improper acquisition of a trade secret, the common law generally makes it unlawful to engage in fraud, misrepresentation, or other forms of deception for the purpose of obtaining confidential commercial information.

Independent analysis of publicly available products or information is not an improper means of acquisition. Through a process known as reverse engineering, a competitor may lawfully purchase a rival's product, disassemble it, and subject it to laboratory analysis for the purpose of unlocking valuable information, such as a secret formula or process. However, aerial photography of a competitor's plant constitutes tortious interference with commercial privacy. Courts have reasoned that the law should not force commercial entities to expend additional resources to conceal their interior from every possible form of exterior exposure. Conversely, commercial entities may patent many of their valuable trade secrets before placing a product on the market where it can be analyzed by a competitor.

Legislation

In addition to the constitutional and common-law principles that offer protection of privacy interests, a host of statutes and regulations have been passed to define privacy in a variety of contexts. State and federal legislation regulates the circumstances under which information from financial, educational, and government records can be revealed. State and federal legislation also prescribes the conditions under which employers may subject their employees to drug testing. Federal laws strictly limit the use of electronic surveillance in both the public and private sectors.

Congress passed the Fair Credit Reporting Act of 1970 (15 U.S.C.A. § 1681 et seq.) to prevent unreasonable and careless invasions of consumer privacy. The law permits employers, lenders, and other persons to obtain a copy of an individual's credit report for a legitimate business purpose. However, businesses may not request a credit report unless it is related to a transaction initiated by the consumer, such as a job interview or bank loan.

Commercial entities may not use credit reports for the purpose of marketing. Nor may a person or entity obtain a credit report through the use of false pretenses, fraud, or misrepresentation. The statute authorizes consumers to review the information contained in their own credit reports and challenge inaccuracies. Credit bureaus have an obligation to correct any inaccuracies within a reasonable amount of time after learning of them.

The Privacy Act of 1974 (5 U.S.C.A. § 522a) requires the federal government to use fair practices in the collection and use of information about U.S. citizens and is designed to prevent federal agencies from disclosing certain personal information contained in their records. In general, federal agencies may not release government records without first obtaining consent from the persons who are referenced in the records. Every individual maintains the right to inspect federal agency records, correct mistakes, and add important details. In the event that an individual's right is infringed under this law, he or she can sue the federal government for money damages or a court order directing the agency to obey the law.

Similarly, the Freedom of Information Act (5 U.S.C.A. § 552 [1996]) contains limitations on the disclosure of agency information when such disclosure would constitute a "clearly unwarranted invasion of personal privacy." In most other instances, the Freedom of Information Act guarantees the right of Americans to request a copy of any reasonably identifiable record kept by a federal agency. However, the U.S. government may refuse to disclose certain sensitive information that relates to national security, foreign policy, or other classified areas. Persons whose requests for information have been denied may challenge the decision in court. The Freedom of Information Act serves the twin purposes of protecting private and classified documents from disclosure while requiring the uninhibited exchange of all other information that is consistent with an open society and a democratic government.

In 1974 Congress enacted the Family Educational Rights and Privacy Act (20 U.S.C.A. § 1232g), which gives parents the right to examine the scholastic records of their children. The act broadly defines scholastic records to include all records, files, documents, and other materials containing information directly related to a student that are maintained by an educational agency or institution. The act permits only certain individuals to have access to student records, including other institution officials who have a legitimate scholastic interest in the records, such as teachers, principals, and student loan officers. Otherwise, a school must obtain consent from the student or parent before disclosing any information contained in an educational record. The Family Educational Rights and Privacy Act applies to all public schools, including colleges and universities, and to private schools that receive federal funding.

The Right to Financial Privacy Act of 1978 (12 U.S.C.A. § 3401 et seq.) entitles bank customers to a limited expectation of privacy in their financial records by requiring that law enforcement officials follow certain procedures before information can be disclosed. Unless a customer consents in writing to the disclosure of his financial records, a bank may not produce such records for government inspection unless ordered to do so by an administrative or judicial subpoena or a lawfully executed search warrant. Other formal written requests for bank records may be granted if they are made for a legitimate law enforcement purpose. The Right to Financial Privacy Act applies to credit unions, trust companies, and savings and loan institutions.

The Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.A. § 2510 et seq.) governs the use of electronic surveillance in both the public and private sectors. In the public sector the act outlines detailed procedures the federal government must follow before conducting any form of electronic surveillance. Pursuant to authorization by the U.S. attorney general or a specially designated assistant, federal law enforcement agents must make a sworn written application to a federal judge that specifically describes the location where the communications will be intercepted, the reasons for the interception, the expected duration of the surveillance, and the identity of any persons whose conversations will be monitored. The judge must then review the surveillance application to ensure that it satisfies each of the statutory requirements and establishes probable cause to justify electronic eavesdropping.

The Omnibus Crime Control and Safe Streets Act governs the use of electronic surveillance in the private sector as well. The act prohibits any person from intentionally using or disclosing information that has been knowingly intercepted by electronic or mechanical means without the consent of the interested person. Nearly 70 percent of all reported wiretapping involves divorce cases and custody battles. Often, divorcing spouses, attempting to obtain embarrassing or discrediting information against one another, plant recording and listening devices throughout the marital home. Although most federal courts have ruled that the Omnibus Crime Control and Safe Streets Act applies to interspousal electronic surveillance, some courts have created a spousal immunity from civil liability under the act in an effort to preserve any remaining remnants of marital harmony.

The Omnibus Crime Control and Safe Streets Act also governs the use of electronic surveillance in the area of employment. A number of employers videotape employee movement throughout the workplace, search employees' computer files, monitor their telephone calls, and read their electronic mail. Courts have generally permitted employers to engage in such surreptitious snooping so long as it serves a legitimate and significant business purpose.

In the rest of the private sector, the Omnibus Crime Control and Safe Streets Act applies to information intercepted from telephone satellite unscrambling devices, cellular telephones, and pagers, as well as from traditional forms of electronic surveillance, such as telephone taps, microphones, and other bugging devices. However, the act does not cover information intercepted from pen registers, which record the telephone numbers of outgoing calls, or caller identification devices, which display the telephone numbers of incoming calls, because neither captures conversations of any sort. In addition, the act does not apply to information intercepted by videotape.

Drug and alcohol testing is another form of employee surveillance that raises privacy questions in both the public and private sectors. Many legislators consider drug testing by urinalysis to be intrusive, and the practice has been regulated in at least eighteen states. Three states require employers to demonstrate probable cause of illegal drug use before they can compel an employee to submit to urinalysis. Six states specify that employers can instigate drug testing only if they have reason to suspect an employee of illegal drug use. In general, however, no pervasive public policy against mandatory employee drug testing exists in either the public or private sector.

Drug testing in the workplace gained momentum in 1986 following a presidential commission report on drug abuse (America's Habit: Drug Abuse, Drug Trafficking, and Organized Crime). The commission recommended drug testing in both the public and private employment sectors. Based on this recommendation, President Ronald Reagan ordered drug testing for federal employees in positions that require a high degree of trust and confidence (Exec. Order No. 12,564, 3 C.F.R. 224 [1986]). Guidelines promulgated by the Department of Health and Human Services established scientific and technical requirements concerning specimen collection, laboratory analysis, and interpretation of test results for the federal drug-testing program.

In response to this federal impetus, employers have dramatically increased drug testing of employees. Many state laws now encourage private employers to periodically test their employees for illegal drug use, and many private employers have asked their state legislatures to pass drug-testing laws. In the public sector, however, the U.S. Supreme Court has ruled that random drug testing of government employees constitutes a "search" that must comply with the requirements of the Fourth Amendment before it may be deemed legal (National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 [1989]).

The meaning of the term privacy changes according to its legal context. In constitutional law, privacy means the right to make certain fundamental decisions concerning deeply personal matters free from government coercion, intimidation, or regulation. In this sense, privacy is associated with interests in autonomy, dignity, and self-determination. Under the common law, privacy generally means the right to be let alone. In this sense, privacy is associated with seclusion. Under statutory law, privacy often means the right to prevent the nonconsensual disclosure of sensitive, confidential, or discrediting information. In this sense, privacy is associated with secrecy.

See: patents; Acquired Immune Deficiency Syndrome; Consumer Credit; Death and Dying; Drugs and Narcotics; E-mail; Employment Law; Griswold v. Connecticut; Libel and Slander; New York Times v. Sullivan; Olmstead v. United States; Parent and Child; Penumbra; Privileged Communication; Roe v. Wade; Search and Seizure.

Observing the need for privacy helps preserve peace
It may seem strange to talk about privacy on a small yacht where people necessarily live in each other’s pockets, but if you go to sea for a week or more, privacy deserves serious consideration. All crew members need to define their private places and (if necessary) the times they will occupy them.Professor Michael Stadler, a German sailor and expert in experimental psychology, asserts in The Psychology of Sailing that there must be “a place for each member of the crew on board which guarantees this privacy and to which they can retreat as and when they feel like it. A sailor’s bunk is naturally the most suitable spot.” Stadler goes so far as to recommend that the number of crew members on a long cruise should be determined by the number of fixed berths available. He believes that no one should be expected to share a bunk on a shift basis. It is also vitally important to the success of the voyage that all private areas should be respected by everyone on board, he says.Territorial behavior defines areas of influence, power, and responsibility. “Traditionally, the captain of the ship is given a cabin to himself, provided, of course, there is such a thing as a single cabin on board. This is generally considered his due, regardless of his actual needs. Other members of the crew seek to stake out their territory in different ways. Individuals claim, more or less overtly, the galley, the fo’c’s’le, sail bags, anchor system, radio system, etc., for their own personal areas of responsibility . . . generally speaking, it is an expression of undefined or unstructured power and authority relations on board.”A skipper contemplating an ocean voyage is advised to consider this subject because territorial behavior can lead to serious conflicts of authority and questions of competence. “A skipper who silently demonstrates in all his actions how capable he is himself, and how incapable the others are, only succeeds in promoting the slow but systematic growth of dissatisfaction on board,” Stadler maintains.

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The doctrine, advanced by the Supreme Court most notably in Roe versus Wade, that the Constitution implicitly guarantees protection against activities that invade citizens' privacy. The Constitution does not explicitly mention a right of privacy, but the First Amendment's protection of free speech, the Fourth Amendment's guarantee against “unreasonable searches and seizures,” the Ninth Amendment's reference to “other” rights, the Court has ruled, imply a right of privacy. This doctrine exemplifies broad construction. (See Griswold versus Connecticut.)

Quotes:

"Privacy is not something that I'm merely entitled to, it's an absolute prerequisite." - Marlon Brando

"There is no private life which has not been determined by a wider public life." - George Eliot

"I've always been very zealous about not invading other people's private spaces." - Peter Jennings

"Who could deny that privacy is a jewel? It has always been the mark of privilege, the distinguishing feature of a truly urbane culture. Out of the cave, the tribal teepee, the pueblo, the community fortress, man emerged to build himself a house of his own with a shelter in it for himself and his diversions. Every age has seen it so. The poor might have to huddle together in cities for need's sake, and the frontiersman cling to his neighbors for the sake of protection. But in each civilization, as it advanced, those who could afford it chose the luxury of a withdrawing-place." - Phyllis Mcginley

"Isn't privacy about keeping taboos in their place?" - Kate Millet

"Today, the degradation of the inner life is symbolized by the fact that the only place sacred from interruption is the private toilet." - Lewis Mumford

See more famous quotes about Privacy

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Dansk (Danish)
n. - uforstyrrethed, privatliv, hemmelighed

Nederlands (Dutch)
privacy, beslotenheid, privé-sfeer, geheimhouding

Français (French)
n. - vie privée, intimité

Deutsch (German)
n. - Privatsphäre, Geheimhaltung

Ελληνική (Greek)
n. - μοναξιά, (απο)μόνωση, μυστικότητα, ιδιωτικό άβατο ή άσυλο

Italiano (Italian)
intimità, il privato, segretezza

Português (Portuguese)
n. - privacidade (f)

Русский (Russian)
личная жизнь, уединение

Español (Spanish)
n. - intimidad, privacidad, secreto, reserva

Svenska (Swedish)
n. - ostördhet, avskildhet, förtegenhet, privat(liv)

中文（简体）(Chinese (Simplified))
隐私, 秘密, 隐居

中文（繁體）(Chinese (Traditional))
n. - 隱私, 秘密, 隱居

한국어 (Korean)
n. - 사적[개인적인] 자유

日本語 (Japanese)
n. - プライバシー, 秘密, 内密, 私生活, 隠遁

العربيه (Arabic)
‏(الاسم) عزله, سريه‏

עברית (Hebrew)
n. - ‮פרטיות, צנעה, חשאיות‬

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