Privacy rights and criminal justice
Privacy rights in the context of criminal justice refer to the protections citizens have against governmental intrusion into their personal lives, particularly during police surveillance and searches. Although the U.S. Constitution does not explicitly mention privacy as a protected right, numerous court interpretations suggest that the Framers intended for individuals to possess fundamental privacy rights. Landmark Supreme Court cases, such as *Griswold v. Connecticut*, established the concept of a "zone of privacy," while subsequent rulings introduced the "expectation of privacy" doctrine, which safeguards citizens from unwarranted government surveillance.
As police increasingly utilize electronic surveillance technologies, privacy concerns are heightened, particularly regarding the balance between law enforcement objectives and individual rights. Individuals within the criminal justice system face a complex landscape; they may relinquish certain privacy protections upon arrest but still retain a limited expectation of privacy. Moreover, practices such as electronic monitoring for parolees and the collection of DNA samples in correctional facilities raise ethical questions about personal privacy. The advent of laws like the Patriot Act has expanded law enforcement powers, often at the expense of individual privacy rights, as seen with widespread surveillance practices revealed by whistleblowers. Overall, the interplay between privacy rights and criminal justice continues to evolve, necessitating ongoing discussion and evaluation.
Privacy rights and criminal justice
SIGNIFICANCE: The increasing dependency of modern police forces and investigative agencies on electronic surveillance and search techniques presents new challenges to constitutionally protected privacy rights.
Privacy rights involve the protection of citizens against government intrusion into their personal affairs. In the criminal justice system, privacy issues arise when the police engage in surveillance of individuals and search and seizure of people and their personal effects. Nowhere in the US Constitution is privacy expressly mentioned as a protected right. However, most legal scholars conclude that the Framers of the Constitution intended citizens to have fundamental privacy rights, whose scope has been left to interpretations by the courts. This issue is an important one, as modern police often become involved in surveillance and search and seizure activities, during which they may violate the privacy of citizens.
References in several amendments to the Constitution, court decisions, and legal writings have instilled the privacy concept in American law. One famous legal commentary declared that citizens have a right to be left alone by government. In its landmark decision in Griswold v. Connecticut in 1965, the US Supreme Court stated that citizens have a constitutional right to a certain “zone of privacy” which is free from government intrusion. In fact, during the very next year, in Schmerber v. California (1966), the Court added that the “overriding function” of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.
In 1967, in Katz v. United States , the Supreme Court established the “expectation of privacy” doctrine. This principle stated that citizens are entitled to a reasonable expectation of privacy as long as they demonstrate that expectation through words or actions. In the Katz case, federal police electronically eavesdropped on Katz’s public telephone booth conversation, even after he had purposefully closed the door behind him. The Court ruled that Katz’s actions established a reasonable expectation of privacy, thus protecting him from government surveillance, and therefore the police in his case acted illegally.
Following the creation of the expectation of privacy rule, the courts established a “balancing of competing interests” test to weigh the needs of police to gather evidence for criminal prosecution against the right of citizens to be protected from government agents who may violate their personal privacy. Privacy protection took on a new dimension when the courts established additional exceptions to the warrant requirement of the Fourth Amendment. In 1985, the Supreme Court expanded the scope of the “special needs” exception by allowing school officials to search students and their personal effects on school premises. Any illegal contraband discovered, such as drugs or weapons, could be given to the police for possible prosecution.
Privacy in the Criminal Justice Process
Persons entering the criminal justice system forfeit some privacy protection, but courts have declared that arrested, convicted, and incarcerated persons do have a limited expectation of privacy within the system. Many courts use electronic monitoring of pretrial detainees who have been released from custody awaiting their criminal trials. These individuals consent to have electronic devices (bracelets or anklets) attached to them during their release to ensure that they comply with the court requirements restricting their movement. Also, the courts allow probation and parole officers to search, without a warrant, the homes and personal effects of individuals who are subject to community supervision. Although probationers and parolees must consent to specific conditions of their release, many requirements include drug urinalysis, warrantless searches, and electronic monitoring of their movements. Persons found through monitoring or testing to have violated their conditions of release may have their privileges revoked.
Incarcerated persons can be subject to more extensive search and confiscation of personal property in jails and prisons. One personal identification method in use within correctional institutions is obtaining and cataloging individual DNA samples from inmates. Obtaining body fluids and tissue specimens for DNA purposes is more intrusive than traditional fingerprinting because officials remove specimens directly from bodies. Correctional institutions may also monitor inmate telephone conversations and use surveillance cameras for safety purposes.
Electronic Surveillance and Privacy
Police increasingly rely on electronic technology to combat crime. As such practices become more common, they raise privacy issues. Technological applications in criminal justice cover a broad spectrum of activities. The use of surveillance cameras is increasing in an effort to identify known offenders, prevent crime, and gather information in public places. These devices have been used to monitor traffic and to cite drivers running red lights. Courts have ruled that the police can electronically monitor citizen activities in public places but cannot intrude into homes without a warrant or other legal justification.
Other devices such as pen registers, which record dialed telephone numbers, and “trap and trace” devices, which document the electronic signatures of computer transmissions, can be used by police to gather information without a warrant. However, federal law governs much of the interception of electronic telephone transmissions. These laws require the police to obtain either a warrant or consent from the one of the parties to intercept telephone wire communications. Although users of landline telephones have a lesser expectation of privacy and transmissions may be intercepted, federal laws require the police to obtain a warrant and follow guidelines in acquiring information from cellular phone service providers. the limits of these rules were tested in 2016 when, after a mass shooting in San Bernardino, California, the FBI ordered Apple to unlock the iPhone of one of the deceased gunmen. Apple refused on the grounds of protecting the privacy of all of their customers. The FBI found an alternate method of unlocking the phone, which raised many questions about privacy on private electric devices and the government's reach.
In 2001, Congress passed the Patriot Act to give law enforcement greater counterterrorism powers. The law is extensive and redefines several traditional police search procedures. It allows police to search homes and businesses without the notice typically required in conventional search warrants. It also allows the use of computer and telephone tracking devices as well as roving wiretap warrants if the investigation at hand involves counterterrorism or foreign intelligence investigations. The Patriot Act was written as a temporary measure and was intended to expire, but it was extended by Congress several times. In 2020, Congress chose not to vote on funding for continuation of the act, technically bringing the measure to an end; however, many of its practices had already been ingrained into federal law enforcement procedures and continued to be used into the 2020s.
In 2013 the full extent of the US government's surveillance under the Patriot Act was revealed when former employee of the National Security Agency (NSA), Edward Snowden, leaked a cache of documents to journalists that revealed a number of surveillance programs that gleaned and stored information from private citizens through phone calls, e-mails, and Internet use. The NSA defended its actions, but had to do so for a congressional hearing amid public outrage at what many viewed as a violation of the privacy of the American people.
Bibliography
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"PATRIOT Act." Electronic Privacy Information Center, 2024, epic.org/issues/surveillance-oversight/patriot-act/. Accessed 9 July 2024.