Aug 18 2013

The Right to Privacy

The right to privacy existed before the U.S. Constitution was written. But the Constitution and the Bill of Rights reinforce protections against privacy that were established in common law previously.

  • The First Amendment establishes a right to freedom of speech.

    The First Amendment to the US Constitution reads:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    We consider that our government is participatory in it’s democracy and that every citizen has not only a right but an obligation to take part. Free speech is a necessary condition of this participation and when every part of our speech and listening to the speech of others is being scrutinized, there is enough pressure of public opinion to preclude the desired freedom. Protecting our freedom of speech also demands a certain level of protection of our privacy.

    It is obvious that any protection of privacy fades in importance when criminal activity is involved. However, there must be a balancing between issues where the general public has a concern and some invasion of privacy is warranted and those issues where there is no concern of the public community and privacy must be protected.

  • The Third Amendment establishes a right to freedom from the trespass, intrusion, and theft caused by housing of soldiers in private homes.

    The Third Amendment to the U.S. Constitution reads:

    No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

    At first blush, this seems to simply address the issue of assigning private homes to meet the need of sheltering soldiers. But at the time, the driving concern was about an unwarranted intrusion into the lives of private citizens by a tyrannical government. The American colonists suffered many abuses at the hands of British soldiers who were quartered in their homes. This describes an intrusion into personal privacy.

    Quartering of soldiers without consent is the same thing as trespassing on private property. Quartering of soldiers promotes confiscation of private property by demanding the use of home space for room and the use of food and other supplies for board. When there is no following compensation for the room and board consumed by the soldiers, this becomes outright theft.

    Restraint of movement is legally considered to be a form of trespass known as “false imprisonment”. It’s not a stretch to apply this to restraint of movement and the liberty of free action in a cyber sense. As we spend more and more time “moving about” in the world of information networks, any action that unreasonably threatens our free movement or limits it through fear should be considered an infringement upon our basic personal liberty.

  • The Fourth Amendment establishes a right to be secure in our persons, houses, papers, and effects.

    The Fourth Amendment to the U.S. Constitution reads:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    We expect that we have a right to security and privacy in our home. Throughout history, common law has developed various protections against intrusion into our homes and property.

  • The Fifth Amendment establishes a right of protection from being deprived of liberty, or property, without due process of law; or the public use of private property without compensation.

    The Fifth Amendment to the U.S. Constitution reads:

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    The “Miranda” right to remain silent and to not self incriminate is essentially a right to privacy.

  • The Ninth Amendment protects other rights that are assumed to exist but were not specifically mentioned in the Constitution

    The Ninth Amendment reads:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    The right to privacy is a basic human right assumed to be universal and not specifically “enumerated” in the Constitution.

  • The Fourteenth Amendment establishes the same right of protection regarding due process as the Fifth Amendment but applies it to the states, whereas the Fifth Amendment applies to the Federal Government.

    The first section of the Fourteenth Amendment to the U.S. Constitution reads:

    Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

All of these Constitutional protections do not specifically mention privacy, but they do establish the base of rights found in common law that they protect. The right to privacy is fundamental among them.

The U.S. Constitution Does Not Create New Rights