The Constitutional Right of Privacy in the Internet Society: Curtailing Government and Private Intrusion Through Regulation of Data Brokers
The Constitutional Right of Privacy in the Internet Society: Curtailing Government and Private Intrusion Through Regulation of Data Brokers
[Note: I wrote this piece back in 2006, but it seems just as timely given all the privacy issues with Facebook and other social networking sites, among others.]
“Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society.”
Technological advancements have always impacted how we live. It’s been true of every major “revolution” in our history -- from the industrial to the digital, and will continue to be so. As Americans, we embrace such progress. Indeed, spurring such progress in the sciences and useful arts is a value embedded in our Constitution. Other values, of course, are also embedded in our Constitution, values that in large measure define who we are -- especially with respect to our relationship with our agents of government (e.g., the Bill of Rights). Some of these explicit culture-defining values include the freedom of speech, the right of due process of law and equal protection of the laws. Still other values, just as important to the collective American identity, yet unenumerated in the landmark document, have long been recognized. Perhaps the most important of these rights, often referred to as penumbral rights, is the definition-eluding right of privacy. From one perspective, it is the coexistence of the pursuit of technological progress as a cultural value (which has led to remarkable capabilities in information and communication technologies and the attendant economic benefits and pitfalls) and the desire of the citizens to live autonomous lives free from unwarranted governmental intrusion (the realm of the penumbral right of privacy) that has led to much tension in outlining the contours of citizens’ privacy rights in the Internet Society. Here I attempt to briefly synthesize the U.S. Supreme Court’s jurisprudence in the privacy arena and how such doctrine should evolve in the Information Age, given the reality of our surveillance society.
The Right of Privacy: From Griswold to Lawrence
The right of privacy, as a constitutional right, was expounded in Griswold v. Connecticut. Griswold involved a challenge to a Connecticut statute barring physicians from giving instruction or means of contraception to married persons. The real question, as the Court articulated it, was whether states could abridge individual citizens’ rights deemed fundamental, although not specified in the federal constitution, but understood to be derived from the explicit guarantees in the constitution. The Court found the statute unconstitutional. Justice Douglas, writing for the majority, noted that “specific guarantees in the Bill or Rights have penumbras, formed by emanations from those guarantees that help give them life and substance ... [and those] various guarantees create zones of privacy.” In a concurring opinion, Justice Goldberg, quoting from Powell v. Alabama , reiterated that “[t]he inquiry is whether a right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions ...” (internal quotations omitted).
Since Griswold the Court has continued to recognize the right of privacy in what might be deemed “decisional” or “physical space-specific” contexts (e.g., Roe v. Wade , Whalen v. Roe , Planned Parenthood v. Casey , Chandler v. Miller , and Lawrence v. Texas , which overruled the only case in the Griswold progeny to significantly deviate from the “right of privacy doctrine,” Bowers v. Hardwick ). What it has not done, however, is provide a workable framework for protecting citizens from what has been referred to as “intangible invasions” in the Internet Society – that is, freedom extending beyond spatial bounds.
So, Does Freedom Extend Beyond Spatial Bounds: What to Make of Intangible Invasions Where Private Affairs Are Exploited by Others?
It is worth noting, as Justice Black did in his dissent in Griswold, that the notion of a “right to privacy” was first developed in a law review article co-authored by Louis D. Brandeis as a means of providing a basis of “tort relief to persons whose private affairs were exploited by others.” The powerful idea expressed in this inconspicuous footnote embodies the progressive value that must be embraced if we are to curtail the intrusions made possible by the merger of data aggregators, analysts and government.
Recall Justice Stewart’s memorable assertion in Katz v. United States, “For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected” (emphasis added). In Katz, federal agents attached an eavesdropping device to the outside of a public phone booth used by Katz. Based on recordings of his end of the conversations, Katz was convicted under an eight-count indictment for the illegal transmission of wagering information from Los Angeles to Boston and Miami. The Court ruled that Katz was entitled to Fourth Amendment protection for his conversations and that a physical intrusion into the area he occupied was unnecessary to bring the Amendment into play.
A thorough reading of the Griswold line of cases, and Katz, reveals that it is the intent of the person subject to a privacy intrusion that matters most – not the interests of the government or private data brokers. The question then becomes whether Americans are “knowingly” exposing profiling data to the public (including government) when engaging in arms length transactions with private sector entities, or “seeking to preserve” such information as private and only disclosed to the party in privity. When viewed through the lens of privacy, “knowingly” has to be construed to mean actual, not merely constructive, knowledge. And in the Internet society, actual knowledge must go beyond inconspicuous and largely unread privacy policies written in legal jargon. Moreover, “seeking to preserve” should be the rebuttable presumption afforded citizens, undermined only by acquiescence to a clear and conspicuous policy to the contrary.
In the words of Professor Tribe, “[s]cience and technology open options ... [t]hey do not alter what is right or what is wrong ... The Constitution’s norms, at their deepest level, must be invariant under merely technological transformations.”
[Note: I wrote this piece back in 2006, but it seems just as timely given all the privacy issues with Facebook and other social networking sites, among others.]
“Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society.”
Technological advancements have always impacted how we live. It’s been true of every major “revolution” in our history -- from the industrial to the digital, and will continue to be so. As Americans, we embrace such progress. Indeed, spurring such progress in the sciences and useful arts is a value embedded in our Constitution. Other values, of course, are also embedded in our Constitution, values that in large measure define who we are -- especially with respect to our relationship with our agents of government (e.g., the Bill of Rights). Some of these explicit culture-defining values include the freedom of speech, the right of due process of law and equal protection of the laws. Still other values, just as important to the collective American identity, yet unenumerated in the landmark document, have long been recognized. Perhaps the most important of these rights, often referred to as penumbral rights, is the definition-eluding right of privacy. From one perspective, it is the coexistence of the pursuit of technological progress as a cultural value (which has led to remarkable capabilities in information and communication technologies and the attendant economic benefits and pitfalls) and the desire of the citizens to live autonomous lives free from unwarranted governmental intrusion (the realm of the penumbral right of privacy) that has led to much tension in outlining the contours of citizens’ privacy rights in the Internet Society. Here I attempt to briefly synthesize the U.S. Supreme Court’s jurisprudence in the privacy arena and how such doctrine should evolve in the Information Age, given the reality of our surveillance society.
The Right of Privacy: From Griswold to Lawrence
The right of privacy, as a constitutional right, was expounded in Griswold v. Connecticut. Griswold involved a challenge to a Connecticut statute barring physicians from giving instruction or means of contraception to married persons. The real question, as the Court articulated it, was whether states could abridge individual citizens’ rights deemed fundamental, although not specified in the federal constitution, but understood to be derived from the explicit guarantees in the constitution. The Court found the statute unconstitutional. Justice Douglas, writing for the majority, noted that “specific guarantees in the Bill or Rights have penumbras, formed by emanations from those guarantees that help give them life and substance ... [and those] various guarantees create zones of privacy.” In a concurring opinion, Justice Goldberg, quoting from Powell v. Alabama , reiterated that “[t]he inquiry is whether a right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions ...” (internal quotations omitted).
Since Griswold the Court has continued to recognize the right of privacy in what might be deemed “decisional” or “physical space-specific” contexts (e.g., Roe v. Wade , Whalen v. Roe , Planned Parenthood v. Casey , Chandler v. Miller , and Lawrence v. Texas , which overruled the only case in the Griswold progeny to significantly deviate from the “right of privacy doctrine,” Bowers v. Hardwick ). What it has not done, however, is provide a workable framework for protecting citizens from what has been referred to as “intangible invasions” in the Internet Society – that is, freedom extending beyond spatial bounds.
So, Does Freedom Extend Beyond Spatial Bounds: What to Make of Intangible Invasions Where Private Affairs Are Exploited by Others?
It is worth noting, as Justice Black did in his dissent in Griswold, that the notion of a “right to privacy” was first developed in a law review article co-authored by Louis D. Brandeis as a means of providing a basis of “tort relief to persons whose private affairs were exploited by others.” The powerful idea expressed in this inconspicuous footnote embodies the progressive value that must be embraced if we are to curtail the intrusions made possible by the merger of data aggregators, analysts and government.
Recall Justice Stewart’s memorable assertion in Katz v. United States, “For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected” (emphasis added). In Katz, federal agents attached an eavesdropping device to the outside of a public phone booth used by Katz. Based on recordings of his end of the conversations, Katz was convicted under an eight-count indictment for the illegal transmission of wagering information from Los Angeles to Boston and Miami. The Court ruled that Katz was entitled to Fourth Amendment protection for his conversations and that a physical intrusion into the area he occupied was unnecessary to bring the Amendment into play.
A thorough reading of the Griswold line of cases, and Katz, reveals that it is the intent of the person subject to a privacy intrusion that matters most – not the interests of the government or private data brokers. The question then becomes whether Americans are “knowingly” exposing profiling data to the public (including government) when engaging in arms length transactions with private sector entities, or “seeking to preserve” such information as private and only disclosed to the party in privity. When viewed through the lens of privacy, “knowingly” has to be construed to mean actual, not merely constructive, knowledge. And in the Internet society, actual knowledge must go beyond inconspicuous and largely unread privacy policies written in legal jargon. Moreover, “seeking to preserve” should be the rebuttable presumption afforded citizens, undermined only by acquiescence to a clear and conspicuous policy to the contrary.
In the words of Professor Tribe, “[s]cience and technology open options ... [t]hey do not alter what is right or what is wrong ... The Constitution’s norms, at their deepest level, must be invariant under merely technological transformations.”
posted by Bryan A. Brooks at 3:20 PM
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