Privacy rights

Before the 1960s, the right to privacy was not articulated in US law. It was generally understood that US citizens had a right to privacy that protected their persons and property, but it was unclear what was involved in that right. In 1965, in part as the result of widespread cultural changes, the Supreme Court acknowledged the right to privacy for the first time in Griswold v. Connecticut, which gave married couples the right to make their own decisions about obtaining birth control. Eight years later, in Roe v. Wade, the Supreme Court based its support for the right to obtain an abortion on the right to privacy, though that decision was ultimately overturned in 2022. Over the years, the concept of the right of privacy has been expanded to encompass everything from protection from illegal searches to sexual orientation. Following the 9/11 terrorist attacks on the United States by members of al-Qaeda, the war on terror stood the right to privacy on its head and initiated a lengthy battle between civil libertarians and those who believed privacy should take a back seat to national security.

Overview

Following acceptance of the right to privacy by state and federal courts, privacy debates erupted over such diverse issues as the right of gay men to engage in consensual sex within the privacy of their own homes, which was in violation of many state sodomy laws (Bowers v. Hardwick), and the right of high school students to be free from drug testing without cause for suspicion (Board of Education v. Earls). The Supreme Court did not uphold the privacy right in either case. However, in the 2003 decision Lawrence v. Texas the Supreme Court overturned Bowers v. Hardwick, holding that state sodomy laws were unconstitutional.

The privacy right of individuals versus the need of law enforcement to build tight cases against suspected offenders creates an ongoing dilemma. New technologies have made it easier to gather information, but privacy advocates contend that they have also made it easier to infringe on the rights of innocent individuals. In the early twenty-first century, one ongoing battle concerned the use of Automatic License Plate Readers (LPRs), which randomly read and analyze data on all vehicles, not just those of suspected criminals. Another battle involved routine collection of DNA of individuals arrested but not convicted of any crime.

Privacy rights of celebrities versus the freedom of the press guaranteed in the First Amendment has also created heated debate in the United States and abroad. When paparazzi were suspected of causing the death of Diana, Princess of Wales, in France in August 1997, there was a global backlash against intrusive press tactics. In 2009, California passed the Paparazzi Reform Initiative, establishing fines for paparazzi that crossed the line into offensiveness. Similar laws were already in effect in Europe.

Two years later, another international scandal over privacy rights erupted when it was reported that British media mogul Rupert Murdoch, owner of Fox News, the New York Post and the Wall Street Journal, was encouraging his reporters for the Sunand News of the World to tap the telephones of celebrities such as Prince William, actor Hugh Grant, Harry Potter author J. K. Rowling, and noncelebrity individuals and families involved in news stories. The resulting scandal brought down News of the World and toppled careers of top executives in the Murdoch empire while strengthening support for privacy rights in the United Kingdom and elsewhere.

In the United States, passage of the Privacy Act of 1974 restricted the right of government agencies to collect and disseminate information. However, the terrorist attacks of 9/11 ripped away privacy rights as well as the sense of security that many Americans took for granted. The post–9/11 era was defined by George W. Bush’s war on terror, in which Congress complied with the president’s request for unprecedented authority by passing the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, better known as the USA PATRIOT Act. Amid accusations of bypassing established rules of due process, the act contained more than a thousand provisions that gave the government the right to tap telephones, carry out surveillance of electronic media, track library activity, and collect DNA samples indiscriminately. In 2015, the passage of the USA Freedom Act expanded provisions of the PATRIOT Act that were expiring while also making more restrictive adjustments to others, such as Section 215.

The ongoing battle over privacy took on added heat in the summer of 2013, when Edward Snowden, a former contractor with the National Security Agency (NSA), fled the country after leaking classified information about the government’s gathering information on private telephone calls and emails. Snowden’s actions led to national outrage concerning the secret Foreign Intelligence Surveillance Court, which was established in 1978 and was being used to allow the NSA to collect information on a variety of activities. Privacy groups ranging from church groups to human rights activists responded by filing suits designed to halt government spying without just cause.

The FBI and the technology company Apple got into a dispute in 2016 over privacy rights on Apple products. On December 2, 2015, Syed Rizwan Farook and Tashfeen Malik killed fourteen people and injured twenty-two at an office holiday party in San Bernardino, California. Both shooters were later killed by police. The FBI was unable to access the data on Farook's iPhone because of the security features on the phone. The federal agency requested that Apple help them hack into the phone, which the company refused on the grounds of maintaining customer privacy and concerns over setting precedents. The FBI eventually dropped the request to Apple and bypassed the company completely by hiring outside coders to write a program to hack the phone. The case continued to explore the gray area of citizens' rights to privacy with new technology in the face of potential threats to national security.

Privacy rights, particularly in the context of society's increased dependence upon and access to the internet, were prominently discussed once more following the high-profile reveal of the large-scale personal data abuse involving Facebook, the largest platform worldwide for modern communication, and the data firm Cambridge Analytica. Details released by the media in early 2018 indicated that the firm had been able to deceptively harvest millions of Facebook users' digital profile information without their authorization. Though Cambridge Analytica and the Trump campaign denied the allegations, accusations were made that the data had been part of psychological profiling employed by the campaign during the 2016 presidential election. Regardless, the scandal raised bigger questions and criticism regarding digital companies' protection and use of people's personal data and overall privacy. Between 2018 and the beginning of the 2020s, several congressional legislators as well as members of the public advocated for an overarching federal regulation aimed at specifically protecting digital privacy, but the complexity of the issue, including lingering uncertainty about navigating internet regulation in general, and the increasingly divisive nature of politics in the country had made legislative resolutions difficult to pass. Still, as the COVID-19 pandemic declared in early 2020 made the internet even more of a necessity, including for education, due to lockdowns and restrictions put in place for public safety, many argued that the need for digital privacy protection was even more urgent. As federal legislation had not occurred by late 2024, including a failure to pass varied versions of the American Data Privacy and Protection Act, Bloomberg Law reported that twenty states had comprehensive data privacy laws on the books while several others were considering or had introduced such a law in an attempt to establish some level of protection. In many cases, new laws focused on privacy rights rather than harm mitigation. The rights-based approach is predicated on an individual's legal right to own and control their own personal information and its use.

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