Long before the advent of social media, digital marketing, and drones hovering in your backyard, privacy was still discussed, tested, and outright violated by those in power.
This begs the question, how could the right to privacy be violated if it hadn’t been established in the first place?
Excellent point. World War II saw the highest level of atrocity committed on the world stage to date with the Holocaust. Out of the many human rights violated during the Nazi regime, the right to privacy was the first. Only after persecuted Jewish people had their personal information seized by a government with intent to harm did the global community initiate an official discussion about the right to privacy.
Starting with the Universal Declaration of Human Rights in 1948, an official discussion over the right to privacy began—and it hasn’t stopped since. With origins in the Holocaust and more recent legislation over contraception, the right to privacy is a constantly evolving topic.
Right to Privacy Definition
While the right to privacy initially covered physical invasions of privacy (i.e. home intrusion) and personal attacks on character, the United Nations could not have anticipated the social and technological changes of the 20th and 21st centuries.
When the the Universal Declaration of Human Rights came out in 1948, Article 12 summarized the right to privacy in only two lines:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. (United Nations)
The “arbitrary interference with his privacy, family, home or correspondence” refers to random invasions of a person’s home, personal privacy, family privacy, and communication with the world. At the time, that communication or “correspondence” was limited. Today, there are seemingly unlimited virtual platforms for people to correspond, hence the need to adapt this right in modern terms.
Speaking of modern terms, the phrase “attacks upon his honour and reputation” takes on a whole new meaning with today’s media platforms. Everyone reserves the right to basic protection of their “honour” or character, though this looks different in an age where many news stories and social media posts have the intent of attacking someone’s character. Depending on the nature of these “attacks,” the law can determine and enforce consequences.
As far as more modern definitions of the right to privacy, Nolo’s Free Dictionary of Law Terms and Legal Definitions is a widely used resource by businesses and lawyers alike. After making its entrance in the legal realm in the 1970s, Nolo expanded to make legal language more accessible, including an updated definition of the right to privacy:
1) The right not to have one’s personal matters disclosed or publicized; the right to be left alone. 2) The right against undue government intrusion into fundamental personal issues and decisions. Although the US Constitution does not explicitly state that there is a right to privacy, Supreme Court decisions have found an implicit constitutional right to privacy in cases involving the right to contraception (Griswold v. Connecticut), gay intimacy (Lawrence v. Texas), and same-sex marriage (Obergefell v. Hodges).
Thanks to this source’s dedication to laying out legal terms in “plain English,” the first two points of the definition are straightforward. With the “right to be left alone,” everyone has the right to keep their private lives private and not made accessible to the public. With “undue government intrusion,” this definition clarifies that the government cannot interfere in “personal issues and decisions.” Everyone has the right to make their own choices without fearing that their government will make a decision on their behalf.
In the latter portion of this definition, Nolo’s Free Dictionary expands the discussion of privacy into the sphere of private sexual conduct with Supreme Court cases about the right to contraception, gay intimacy, and same-sex marriage. Though the Constitution of the United States doesn’t technically state that the right to privacy covers private sexual conduct, Supreme Court rulings have interpreted the right to privacy to extend to this topic (see the next section).
The “right to be left alone” portion of Nolo’s definition has origins in the opinions of Supreme Court Justice Louis Brandeis, who co-authored “The Right to Privacy” in the Harvard Law Review. As early as 1890, Brandeis’ piece establishes that the right to privacy was quickly broadening. At that time, it included “the right to be let alone.” This peculiar phrase obviously left its mark—and rightfully so. At its core, regardless of the derivatives and caveats, the right to privacy is the right to be left alone without fearing random outside interference.
The History of the Right to Privacy
The history of the right to privacy is long and convoluted.
As the “world’s longest surviving written charter of government” (according to the United States Senate), the US Constitution’s words from 1787 are still being discussed on an international stage. However, the original wording of the Fourth Amendment stands as a precursor to future monumental documents like the Universal Declaration of Human Rights:
The Constitution, through the Fourth Amendment, protects people from unreasonable searches and seizures by the government. The Fourth Amendment, however, is not a guarantee against all searches and seizures, but only those that are deemed unreasonable under the law.
The US Courts clarify that the criteria for an “unreasonable” search or seizure by the government depend on two factors: “intrusion on an individual’s Fourth Amendment rights” and “legitimate government concerns, such as public safety.” In other words, the government isn’t allowed to randomly bust down someone’s door—that is, until the “not a guarantee against all searches and seizures” part comes into play. If the government has reason to believe that a person will harm others, then they can proceed to search and seize that person or their property.
Though the idea dated back to 1787, the US Supreme Court has made a number of decisions related to “searches and seizures” in the time since. In cases such as Minnesota v. Carter (1998), Payton v. New York (1980), Minnesota v. Dickerson (1993), New Jersey v. TLO (1985), and Arizona v. Gant (2009), the Supreme Court has more clearly defined the rules around searches and seizures in relation to homes, people, schools, and cars (as detailed by the US Courts).
These cases have gradually broadened the right to privacy into both private and public spheres, making it possible for a right that originated in physical searches and seizures (Fourth Amendment) to extend to government surveillance, unreasonable publicity, and private sexual conduct.
According to the director of the European Legal Studies Center at Columbia Law School, the need for a universally established right to privacy is rooted in World War II, specifically the Holocaust. This source claims that the Nazi regime “systematically abused private data to identify Jews and other minority groups.”
The United States Holocaust Memorial Museum provides further insight into this disturbing history. The Nazis would use census data gathered by punch card machines and membership data from religious and community organizations to identify Jewish citizens. The first legislation discriminating against Jewish government employees was passed in 1933. By 1941, Jewish people in Germany were required to wear a yellow star as an identifying mark, which would now be in direct violation of a person’s right to not disclose personal matters.
Evidently, government officials violated their people’s fundamental rights on many levels during the Holocaust. But the first, more subtle step toward violating personal liberty was the Nazi regime’s invasion of privacy with a device as simple as a punch card machine. Under the Nazis, there was no such thing as private facts or privacy protections. Before the Jewish people of Germany were subjected to physical violations of human rights, government agencies did away with their right to keep key personal information private.
After the atrocities of the Holocaust and massive loss of life seen during World War II, global leaders met to discuss and define international human rights. While every country had their own form of government, the years following World War II marked the first time in history that a universal list of human rights was drawn up.
During the United Nations General Assembly in 1948, representatives from all over the world met in Paris to establish “a common standard of achievements for all peoples and all nations.” The end result? The Universal Declaration of Human Rights, complete with 30 Articles. Each Article describes a fundamental human right, including the right to privacy in Article 12 (referenced in the Definition section).
But that wasn’t the only significant document to be drafted in the years following World War II. The International Covenant on Civil and Political Rights (ICCPR) came out 17 years after the Universal Declaration of Human Rights with a section on that right to privacy that reputable sources claim is “worded almost identically to Article 12 of the UDHR.”
The ICCPR addresses the right to privacy under Article 17:
1. 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.
2. Everyone has the right to the protection of the law against such interference or attacks.
Yet again, the United Nations claims that governmental intrusion in a person’s home or against their reputation is prohibited. But the ICCPR throws in “unlawful” when describing interference and attacks on “honour and reputation.” According to scholars at the University of Zurich and Basel, the ICCPR was actually based on a precursor to the Universal Declaration of Human Rights, the International Bill of Rights, which was drafted by a representative from the United Kingdom on the Commission on Human Rights.
The “British Draft International Bill of Rights” came before the UDHR and did not have anything about protecting privacy. At the time, nations from around the world were debating and juggling other topics of great importance that would eventually make an appearance in the UDHR. The most controversial issues like “economic and social rights” were higher on the totem pole (Human Rights Law Review).
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. (Council of Europe)
During this convention, players on the world stage finally wrote a provision to protect “private life.” That is, the European Convention on Human Rights is the first meeting to explicitly state that everyone has personal autonomy in their private lives. While this wording is still vague, it’s meant to be an umbrella term that helps expand the right to privacy into new spheres. Coupling “private and family life” was a stepping stone on the path to more progressive legislation concerning the right to privacy in areas surrounding sexual intimacy.
In short, the history of the right to privacy is rooted in the US Constitution, which focuses on the limits of government power under the Fourth Amendment. During the Holocaust, the Nazi regime failed to recognize basic civil rights by abusing census data and other sources of personal information to identify and target Jewish people under their rule. With the public disclosure of private facts, those in power disregarded fundamental human rights, privacy protection, and eventually common law with seizure of Jewish people and their possessions.
The atrocities of the Holocaust directly resulted in several national conventions. Decade by decade, these conventions addressed the right to privacy in nuanced terms with no strict boundaries. Thus, their terms would apply to anything related to “private lives” in the years to come, from physical government intrusions of a person’s household to government regulation of contraception.
The Right to Privacy Violations and Solutions
Invasion of Privacy
To understand the context of the following section, one must consider what a violation of the right to privacy entails. In law practices around the world, there are “four distinct types of invasion”:
- unreasonable intrusion upon the seclusion of another
- appropriation of the other’s name or likeness
- unreasonable publicity given to the other’s private life
- publicity which unreasonably places the other in a false light before the public
The first type of invasion reinforces the previously mentioned emphasis on the “right to be let alone.” Intruding upon someone’s “seclusion” is inherently an invasion of their privacy. The second type refers to using a person’s name, portrait, or picture for advertising or trade purposes without prior written consent. Third, one’s “private life” should not be disclosed to the public without their consent. Finally, the last type of invasion refers to “false light” or unreasonable publicity. For example, if a company tries to use a person’s photo to falsely endorse a product, that person could file a lawsuit.
Supreme Court Cases
While the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights addressed government invasion of privacy and personal autonomy in general terms, the United States Supreme Court would hash out the details of privacy interests in a series of rulings. These Supreme Court cases used the first eight amendments of the US Constitution to support its decisions, occasionally throwing in the Fourteenth Amendment’s Due Process Clause.
Each of the following Supreme Court rulings addresses a specific part of the right to privacy. With every newly appointed Supreme Court Justice, there’s another interpretation of what a certain amendment means or how it should be applied. On the legal subject of privacy, court rulings must be made on a case-by-case basis to account for evolving social atmospheres, Supreme Court Justices’ viewpoints and experiences, and unforeseen technological developments.
Throughout the next few Supreme Court rulings, the debate becomes a matter of an implied right versus a strictly constitutional right. While civil rights are an essential component of democracy, historical language over the right to privacy left this particular topic up to interpretation.
Griswold v. Connecticut
In the 1965 Supreme Court case Griswold v. Connecticut, debate centered around Connecticut’s ban against contraception for married couples. In a 7–2 decision, the Supreme Court overruled the Connecticut law with the explanation that it was an invasion of the marital right to privacy. Those seven justices used most of the first eight amendments to justify the decision, stating that contraception was an “inexplicit protected right of privacy” (Cornell Law School).
According to Justice Arthur Goldberg, the Ninth Amendment allowed the court to protect “unenumerated rights,” like unlisted rights to privacy. As a reminder, the Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
While Justice Goldberg referenced the Ninth Amendment, Justice Marshall Harlan II claimed that the Fourteenth Amendment’s Due Process Clause protected the right to privacy:
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.
Lawrence v. Texas
In 2003, the Supreme Court delivered a ruling on Lawrence v. Texas, which originated in police officers entering Lawrence’s apartment while he was “engaging in private, consensual sexual act” (Cornell Law School). At the time, Texas law prohibited two members of the same sex from engaging in sexual acts. Over the course of this case, the Supreme Court determined that the Texas law could not hold out against the Fourteenth Amendment’s Due Process Clause.
They drew upon a previous ruling (Bowers) to conclude that people have personal autonomy over their romantic and sexual relationships. Those privacy laws would extend to both heterosexual and homosexual interactions. Basically, this case established that people should be able to conduct their own sexual activities within their own homes without fear of being charged as criminals, regardless of sexual orientation.
Obergefell v. Hodges
Under Obergefell v. Hodges of 2015, fourteen same-sex couples from Michigan, Kentucky, Ohio, and Tennessee contested state laws defining marriage as between a man and a woman (Cornell Law School). Their argument was that the Fourteenth Amendment protected their right to marry by the State.
Similar to the ruling in Griswold v. Connecticut, Obergefell v. Hodges uses the Due Process Clause to argue for personal autonomy in the case of one’s private life, particularly in the area of intimacy. The Fourteenth Amendment’s guarantee of equal protection also contributed to this ruling in that same-sex couples should not be denied the right to marry based on their sexual orientation. In other words, they should receive the same treatment before the law as heterosexual couples.
Since this ruling, all states now recognize same-sex marriage before the law. Since marriage is a fundamental right, a state’s refusal to wed two people of the same sex would be in direct violation of their constitutional rights.
Stanley v. Georgia
In this 1969 case, the Georgia Supreme Court ruled it “not essential to an indictment charging one with possession of obscene matter that it be alleged that such possession was ‘with intent to sell, expose or circulate the same’” (Justia). Basically, they upheld Georgia law that people couldn’t have obscene materials.
For context, the appellant was found with “obscene” films being projected in his bedroom, which he was shortly thereafter arrested for possessing. After the Georgia Supreme Court’s ruling, the appellant contested that materials under his private possession were protected as a constitutional right.
In this case, both the First Amendment and the Fourteenth Amendment were applied to reverse the original ruling. Under the First Amendment, information and ideas “regardless of their social worth” were constitutionally protected. That included obscene materials. The Fourteenth Amendment would make that principle applicable to the States.
Roe v. Wade
Perhaps one of the most controversial Supreme Court decisions in recent years was the overturning of Roe v. Wade in 2022. The original case (1973) involved a single pregnant woman who contested abortion laws in Texas (Cornell Law School). Texas abortion laws prescribed criminal punishment for anyone who sought an abortion if the pregnancy didn’t threaten their life.
Roe, on the other hand, claimed that the Texas law violated her constitutional right to privacy, citing Amendments One, Four, Nine, and Fourteen. Her physician, James Hubert Hallford, supported his patient with the claim that Texas statutes violated the doctor-patient relationship and subsequent right to privacy. After much debate, the Supreme Court ruled that such restrictive abortion laws were unconstitutional.
But that was several decades ago. In 2022, Dobbs v. Jackson Women’s Health Organization overturned both Roe v. Wade and Planned Parenthood v. Casey. The ruling was based on the fact that, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” as stated by Justice Samuel Alito. In other words, the Fourteenth Amendment’s Due Process Clause did not actually protect the right to an abortion.
Once more, social and political discourse over the right to privacy is in the spotlight. Those against the newest decision argue that cases like Griswold and Obergefell are in the same vein as the right to abortion. Justice Alito announced the reasoning behind Dobbs, which disregards the claim that all cases related to sexual intimacy should fall in the same category.
With Dobbs, the Supreme Court states that the right to abortion is “out of the scope of the Constitution,” showing that what is considered protected by the “right to privacy” continues to fluctuate today.
Personal Data Protection
In the days of the Universal Declaration of Human Rights, an invasion of privacy may have looked like physical intrusion into a person’s home or gathering census data from punch card machines (in the case of the Nazi regime). Today, in the era of big data, people’s information is bought and sold on a daily basis. With endless invisible sources of data trading, how can anyone know that their personal data is being protected?
As technology, social media, and marketing methods have grown exponentially in the last couple of decades, this very question has been center stage for major tech companies that have taken advantage of the chaos. Only within the last ten years have legal measures been put in place to protect people’s right to privacy in the world of data.
General Data Protection Regulation
The General Data Protection Regulation was put into place in May of 2018. This privacy law was created by the European Union to set a standardized approach for data protection laws across the continent. Under the GDPR, companies that process data have to only collect as much data as necessary (not an excessive amount). They must be transparent with whoever they’re collecting data from, process data for “legitimate purposes,” and process data with “integrity and confidentiality.”
There are a number of policies in place to hold data collectors and processors accountable under the GDPR. For example, they must appoint a Data Protection Officer, have Data Processing Agreement contracts, and consistently update documentation on data they are collecting. These measures all hinge on consent by the data contributor, who must freely grant “unambiguous” consent that is thoroughly documented.
All of this is to say that the European Union strives to protect its people’s privacy rights in cyberspace as well as in physical space. Their enumerated privacy rights include the right to be informed of data processing as well as accessing, restricting, and withdrawing consent from data processing at any time.
Finally, the GDPR is careful to state that its rules and regulations apply to those who are not a part of the European Union. Also, any business or person found in violation of the GDPR will be heavily fined.
California Consumer Privacy Act
As for the United States, the California Consumer Privacy Act of 2018 also aimed to give “consumers more control over the personal information that businesses collect about them.” Under this law, consumers have the right to opt out of practices that would otherwise allow businesses to sell their information.
Additionally, the law ensures that California consumers can delete personal information collected about them, know about what information businesses are collecting about them and how it’s being used, and exercise their rights under this law.
Though this law covers only the inhabitants of California, it was a landmark piece of legislation in enforcing the constitutionally protected right to privacy. This state law empowers consumers in the face of data brokers and other businesses.
Health Insurance Portability and Accountability Act
In a discussion about the right to privacy, the Health Insurance Portability and Accountability Act cannot be overlooked. Created in 1996, HIPAA is a federal law that protects “sensitive patient health information from being disclosed without the patient’s consent.” That is, anyone who works in health care cannot disclose identifying information about the people they’re treating. They must protect their patients’ health information in all forms, electronic or otherwise.
In regards to the need for HIPPA, it emerged at a time that the Administrative Simplification Act required the health-care industry to use electronic platforms for patient data (National Library of Medicine). When people were (rightfully) nervous about the shift and possible vulnerability of sensitive data, HIPAA emerged with rules and regulations to protect people’s private medical information.
The right to privacy is universally recognized as a fundamental human right under several national conventions, though the oldest documentation of the subject is the US Constitution. Under all these declarations and documents, a few key components of the right to privacy hold true. First, there could be no random intrusions in one’s home, family, or private life. Second, that everyone has equal protection under the law against attacks on their character.
After the Holocaust, the need to universally declare the right to privacy was met in 1948. Over the next decades, similar declarations would be made, though the terms would continue to be nonspecific. An invasion of privacy could only be justified if the government has legitimate public concern over the person in question. Aside from this stipulation, the right to privacy was left open to interpretation.
While having the right to privacy in writing was necessary, the general language led to decades of national and international debate over what issues fell under the umbrella term of “private life.” In the United States, the Supreme Court applied the right to privacy to same-sex marriage, possession of obscene materials, and abortion, though the last is still hotly contested. With the emergence of big data, federal and state legislation has been put in place to protect privacy in the cyber realm with electronic transfers of data and data selling.
Overall, privacy is one fundamental human right that continues to be redefined.