Right to privacy
The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 185 national constitutions mention the right to privacy.
Since the global surveillance disclosures of 2013, the right to privacy has been a subject of international debate. Government agencies, such as the NSA, FBI, CIA, R&AW, and GCHQ, have engaged in mass, global surveillance. Some current debates around the right to privacy include whether privacy can co-exist with the current capabilities of intelligence agencies to access and analyze many details of an individual's life; whether or not the right to privacy is forfeited as part of the social contract to bolster defense against supposed terrorist threats; and whether threats of terrorism are a valid excuse to spy on the general population. Private sector actors can also threaten the right to privacyparticularly technology companies, such as Amazon, Apple, Meta, Google, Microsoft, and Yahoo that use and collect personal data.
International
The right to privacy is a fundamental human right firmly grounded in international law. On10 December 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights ; while the right to privacy does not appear in the document, Article 12 mentions privacy:Privacy is later codified in successive international human human rights treaties, including the International Covenant on Civil and Political Rights:
- No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
- Everyone has the right to the protection of the law against such interference or attacks.
History
In the United States, an article in the 15 December 1890, issue of the Harvard Law Review entitled "The Right to Privacy," written by attorney Samuel D. Warren II and future U.S. Supreme Court Justice Louis Brandeis, is often cited as the first explicit finding of a U.S. right to privacy. Warren II and Brandeis wrote that privacy is the "right to be let alone," and focused on protecting individuals. This approach was a response to recent technological developments of the time, such as photography and sensationalist journalism, also known as "yellow journalism."
Privacy rights are inherently intertwined with information technology. In his widely cited dissenting opinion in Olmstead v. United States, Brandeis relied on thoughts he developed in the article "The Right to Privacy." In that dissent, he urged that personal privacy matters were more relevant to constitutional law, going so far as to say that "the government was identified as a potential privacy invader." He writes, "Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet." At that time, telephones were often community assets, with shared party lines and potentially eavesdropping switchboard operators. By the time of Katz, in 1967, telephones had become personal devices with lines not shared across homes and switching was electro-mechanical. In the 1970s, new computing and recording technologies raised more concerns about privacy, resulting in the Fair Information Practice Principles.
In recent years, there have been few attempts to clearly and precisely define the "right to privacy."
As an individual right
believes that new technologies alter the balance between privacy and disclosure and that privacy rights may limit government surveillance to protect democratic processes. Westin defines privacy as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others". Westin describes 4 states of privacy: solitude, intimacy, anonymity, and reserve. These states must balance participation against norms:Each individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of themself to others, in light of the environmental conditions and social norms set by the society in which they live.
Under liberal democratic systems, privacy creates a space separate from political life, and allows personal autonomy, while ensuring democratic freedoms of association and expression. Privacy to individuals is the ability to behave, think, speak, and express ideas without the monitoring or surveillance of someone else. Individuals exercise their freedom of expression through attending political rallies and choosing to hide their identities online by using pseudonyms.
David Flaherty believes networked computer databases pose threats to privacy. He develops 'data protection' as an aspect of privacy, which involves "the collection, use, and dissemination of personal information". This concept forms the foundation for fair information practices used by governments globally. Flaherty forwards an idea of privacy as information control, "individuals want to be left alone and to exercise some control over how information about them is used".
Marc Rotenberg has described the modern right to privacy as Fair Information Practices: "the rights and responsibilities associated with the collection and use of personal information." Rotenberg emphasizes that the allocation of rights are to the data subject and the responsibilities are assigned to the data collectors because of the transfer of the data and the asymmetry of information concerning data practices.
Richard Posner and Lawrence Lessig focus on the economic aspects of personal information control. Posner criticizes privacy for concealing information, which reduces market efficiency. For Posner, employment is selling oneself in the labor market, which he believes is like selling a product. Any 'defect' in the 'product' that is not reported is fraud. For Lessig, privacy breaches online can be regulated through code and law. Lessig claims that "the protection of privacy would be stronger if people conceived of the right as a property right," and that "individuals should be able to control information about themselves". Economic approaches to privacy make communal conceptions of privacy difficult to maintain.
Adam D. Moore has argued that privacy, the right to control access to and use of personal information is closely connected to human well-being. He notes that "having the ability and authority to regulate access to and uses of locations, bodies, and personal information, is an essential part of human flourishing" and while "the forms of privacy may be culturally relative... the need for privacy is not."As a collective value and a human right
There have been attempts to reframe privacy as a fundamental human right, whose social value is an essential component for the functioning of democratic societies.
Priscilla Regan believes that individual concepts of privacy have failed philosophically and in policy. She supports a social value of privacy with three dimensions: shared perceptions, public values, and collective components. Shared ideas about privacy allow freedom of conscience and diversity in thought. Public values guarantee democratic participation, including freedoms of speech and association, and limit government power. Collective elements describe privacy as a collective good that cannot be divided. Regan's goal is to strengthen privacy claims in policy making: "if we did recognize the collective or public-good value of privacy, as well as the common and public value of privacy, those advocating privacy protections would have a stronger basis upon which to argue for its protection".
Leslie Regan Shade argues that the human right to privacy is necessary for meaningful democratic participation, and ensures human dignity and autonomy. Privacy depends on norms for how information is distributed, and if this is appropriate. Violations of privacy depend on context. The human right to privacy has precedent in the United Nations Declaration of Human Rights. Shade believes that privacy must be approached from a people-centered perspective, and not through the marketplace.Privacy laws in different jurisdictions
Privacy laws apply to both public and private sector actors.Australia
Australia does not have a constitutional right to privacy. However, the Privacy Act 1988 provides a degree of protection over an individual's personally identifiable information and its usage by the government and large companies. The Privacy Act also outlines the 13 Australian Privacy Principles.
Australia also lacks a tort against invasions of privacy. In the 2001 case of, the High Court of Australia explained that there stood the possibility of "a tort identified as unjustified invasion of privacy", but that this case lacked the facts to establish it. Since 2001, there have been some state-based casesnamely the 2003 case ; and the 2007 case that attempted to establish a tortious invasion of privacy, but these cases were settled before decisions could be made. Further, they have received conflicting analyses in later cases.Canada
Canadian privacy law is derived from the common law, statutes of the Parliament of Canada and the various provincial legislatures, and the Canadian Charter of Rights and Freedoms. Perhaps ironically, Canada's legal conceptualization of privacy, along with most modern legal Western conceptions of privacy, can be traced back to Warren and Brandeis's "The Right to Privacy" published in the Harvard Law Review in 1890, Holvast states "Almost all authors on privacy start the discussion with the famous article 'The Right to Privacy' of Samuel Warren and Louis Brandeis".