The Right of Privacy uses theory of natural rights which had its roots historically from Aristotle’s distinction1, and has started to respond rapidly in the latter half of Nineteenth century. The response started by the 1890 Warren and Brandeis article “The Right To Privacy”2, which is cited implicitly as the first document advocating Privacy in United Sates. The telephonic conversations and the printing press created a sense of privacy being breached. New forms of breaching privacy evolved with the advancement of technology. The Black’s Law dictionary defines Privacy as “The right that determines the nonintervention of secret surveillances and the protection of an individual’s information.
It is split into 4 categories (1) physical, (2) decisional, (3) informational, and (4) dispositional”3. The right of Privacy being an independent and distinct legal concept has two main aspect (1) the general law of privacy, which affords a tortious action; and (2) the constitutional right of privacy which protects from unlawful governmental invasion.4 Origin of Privacy Right of privacy can be described as the time travelled constitutional law paradox, as it is in some respects, the oldest Constitutional right, even though it only came as a doctrine in Constitution by 1961 and did not came on a Supreme Court ruling until 1964. The United States Constitution does * Ajmal Ali, Student of 10th Semester B.A. Criminology LLB (Hons.), Govt.
Law College, Ernakulam. Aristotle’s distinction between two spheres of life: the public sphere of Polis and the private sphere associated with the Oikos. Samuel Warren and Louis Brandeis, “The Right to Privacy”, 4 Harvard Law Review 193 (1890). Black’s Law Dictionary (9th ed. 2009). Cox Broadcasting Corp.
v. Cohn, 420 U.S. 469. not states about right to privacy expressly, but the Bill of Rights, explicitly provides the concerns of James Madison and other constitution framers regarding protection of certain privacy aspects. The 1st Amendment allows the privacy of belief, the 3rd Amendment protects the privacy of home,the 4th Amendment protects the privacy of a person and possession from unreasonable searches, and the 5th Amendment protects from self-incrimination.
The 9th Amendment stated that “the enumeration of the constitution, of certain rights shall not be construed to deny or disparage others retained by the people,” but refrained specifically stating a right to privacy. The 14th Amendment can be read as elusive but Justice Goldberg in his Griswold6 concurrence has interpreted as justification for broadly reading the Bill of Rights. The concern of privacy evolved between 1850 and 1890 when the newspaper circulation reached to an 8 million plus readers and also the sensationalized newspaper journalism later termed as Yellow Journalism. The introduction of the small hand camera mainly the Kodak Brownie in 1884, which was budget friendly created a wider concern as this allowed candid pictures in public places.
It was sat this time the article “The Right to Privacy” was published by Warren and Brandeis, which was recently referred to by the U.S Supreme Court in Kyllo case. With the article it stated to evolve a conscience of right to privacy where by the doctrine was much discussed. In the beginning of Twentieth century the U.
S Supreme Court in Meyer v. Nebraska repealed a state law that prohibited teaching foreign languages till ninth grade. The privacy doctrine of 1920 regained its life when the Court struck down a state law prohibiting distribution of contraceptives to the married couples. The case of Griswold v. Connecticut provide for the evolution of the doctrine of “Right to Privacy”. The Court unanimously stood for the Doctrine of Privacy as an individual right in Stanley v. Georgia where the court observed that the possession and viewing pornography was his right to privacy. The Congress enacted the Privacy Act of 1974 by taking the view of privacy as a fundamental right.
The Supreme Court later has stated the right to privacy as “the right to be left alone”. Scope of Privacy, and Limitations The Supreme Court and other Courts have recognized the right of privacy as a doctrine of Federal Constitution and has also stated as the right to be left alone. The court in Griswold and roe have stated that the state must put forth the reason compelling for the restriction when the right of privacy is burned upon by the state. Through the recent decisions of the Court of law the following areas of privacy was also evolved as, political privacy, privacy of communications, and personal financial matters. The matters of criminal and police records, arrest and conviction information are not considered to be private information but public record. The right to make mind regarding the medical treatment, marriage, abortion, raising children are all part of privacy. The court even upheld the bodily integrity as right of privacy in the case of female guards strip searching male prisoners. Social security Number is also not considered to be privacy of the person, and the same is to the publication of arrest warrant.
The witness before grand jury ordinarily has no constitutional right of privacy. As to summarize the scope of privacy the court has evolved the doctrine to a wider spheres and expressed the doctrine of privacy from the penumbra of various constitutional provisions which have created the “Zone of Privacy”. Present Position of Privacy In 2003, the Court, in Lawrence v. Texas, overturned an earlier ruling by finding that the law of Texas had violated the rights of two gay men’s when it prohibited Sodomy by law. Justice Anthony Kennedy observed while rendering the judgment that the state cannot intervene in the sexual lives of the person as the intervention creates the violation of the right of privacy, as the sexual choice is a right of privacy. The access to personal information has quite some legislations namely, Privacy Act of 1974 prevent unauthorized disclosure of personal information, the Financial Monetization Act of 1999, provides safeguard in the information collected by financial institutions from customers and the Fair Credit Act protects the personal financial information rendered to credit rating agencies.
The Children Online Privacy Protection Act enforces a parent’s right to know what information a website collects about their children and the filtering process. By these and various other enactments the current situation of privacy law is to a developed state compared to other countries. The Edward Snowmen leaking the National Security Agency’s surveillance of the American’s online line and telephonic communication on June 2013 created a fiasco of right to privacy. The post-Snowden America has turned out to be vigilant and the senate and the congress have put a limit to the uncontrolled surveillance process. The resent study made by the Pew Research Center showed that the American’s are divided among the doctrine of privacy and its scope and limitations.
Various civil liberty organizations have even led campaign seeking pardon for Snowden. The debates over the United States v Carpenter case would determine the whether the warrant is required by the police authorities to access the individuals historical cell phone location, and if so made without a warrant violates the fourth Amendment of United states Constitution. The future of Privacy protection remains an open Question. Like a paradox, the public wants a constitution that fills the gap and prevent the overreaching Congress which compels upon them on their private matters. The best prediction that can be put forth is that the court will move on with upholding the Privacy as a general accepted right.