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Has America Finally Rejected Our Civil Liberty Legacy?

Electronic Privacy is the New 21st Century Battleground: Why We Must Fight Back

By —— Bio and Archives--December 5, 2012

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With the advent of the Electronic Age mankind has seen increasing breakthroughs of communications and entertainment utterly unthinkable a century ago. Along with these advances though comes the ability of government to increasingly track the emails, cell calls, and online activities of countless Americans with increasing ease.

In fact, we are being spied on routinely—a fact which is occasionally noted but hardly ever protested in our increasingly complacent, civil-rights illiterate and government-trusting populace. But is our reaction wise? Could not these new government “duties” backfire upon us? And whatever happened to America’s rich history of civil liberties advocacy which routinely aimed the gimlet eye at government power grabs and was not afraid to call out usurpation of protections under the Bill of Rights?

What are the actual rights to privacy Americans hear of, especially regarding such topics as medical records or to abortion? Outside of procreative activities, where else is the doctrine of a constitutional Right to Privacy detailed? Or are such rights, as Alasdair MacIntyre states in After Virtue, just like witches and unicorns—all a mirage? If so, how can Americans hope to fight back against such entities as Homeland Security, Echelon surveillance network, drones, constant Google and Gmail scans, and other privations of privacy? In fact, we must now demand our rights to privacy against the burgeoning government intrusions before our society becomes mirror of Brave New World meets Nineteen-Eighty-Four, if it is not already too late.

The “lives, liberties and estates” of individuals were, as a matter of fundamental natural law, a private preserve, almost literally walled off from public interference.’John Locke

I. General Privacy—Or Stealing Kisses From Petraeus’ Email

When former head of the CIA, General David Petraeus’ girlfriend got territorial, she started sending out emails meant to frighten off suspected romantic rivals. This backfired when the FBI got word of the messages, as they began to investigate these emails. ABC news describes the investigation:

The FBI probe began in May or June of this year, sources told ABC News, when Jill Kelley, a Florida socialite and friend of the Petraeus family, began receiving anonymous harassing emails that she believed were referring to the CIA director. She feared his account had been compromised. Those emails, as the world now knows, turned out to be not-so-anonymous after all. With the FBI suspicions that Petraeus’ email had been compromised, investigators were able to begin a probe into the source of the emails, which ultimately led to the inbox of Paula Broadwell, the retired general’s biographer.

The FBI was able to use a 30-year-old law to hack the emails of America’s top spy. Why David Petraeus’ Email Troubles Should Make You Nervous describes Petraeus’ case:

The law meant to protect online privacy, the Electronic Communications Privacy Act, was passed in 1986. Back then, email providers only kept emails for a few months because Web storage was expensive. Today, emails are cheaply stored in the cloud, and Web companies can keep those messages indefinitely. But the privacy law hasn’t kept up. Law enforcement officials need a warrant from a judge to obtain emails within the past six months. But they only need to ask Web companies to get older emails. The Senate Judiciary Committee is considering legislation to modernize the law.

But what is the history of the American Right to Privacy? And what is at risk as the government’s powers to spy on private citizens grows in might daily?

II. History of Right to Privacy

A. Constitutional Foundations of the Right of Privacy

The idea of a Right to Privacy is a relatively late-bloomer in the history of civil liberties. The Constitution itself does not expressly defend such a right, although advocates argue it is implied in the Bill of Rights. A brief history of the Right to privacy is detailed in American Privacy: The 400-Year History of Our Most Contested Right, by Frederick S. Lane.

Lane argues that much of what the colonists were protesting before the Revolutionary War was the usurpation of rights, including Privacy, stating:

The word “privacy” does not appear in the Declaration of Independence, the Constitution, or the Bill of Rights, nor in any of the seventeen amendments added to the Constitution since. But each of those texts must be read and understood in the context of the times that produced it. Consider, for instance, the preamble to the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” And certainly each of the rights listed by Jefferson—life, liberty, and the pursuit of happiness—are objectives that are both personal and private to each individual.

Lane points out the fact that the 1st Amendment, with its protection of the Rights of Free Speech and Religious Expression, makes little sense without assuming a Right of Privacy making them possible.

Amendment 1

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

And the 4th Amendment’s prohibition against Unreasonable Searches and Seizures is a mandate on government against taking liberties with citizen’s confidential documents and other guarded possessions.

Amendment 4

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Lane then argues an official emergence of the Right of Privacy:

The official birth date of the “right to privacy” in the United States, then, is December 15, 1791, the day on which the eleventh of thirteen states—Virginia—ratified the Bill of Rights. But its conception was decades earlier, when the British government began ignoring the basic rights and privileges of its citizens. The founding of the American republic gave the former British colonists an opportunity to reaffirm basic human rights, including privacy. The question, to paraphrase Franklin’s memorable line, was whether they could keep it.

B. Modern Privacy: Brandeis & Warren’s Common Law Essay “The Right to Privacy”

Lane then explains how the development of the US postal system, the photograph, and the telegraph all led to various developments in the history of privacy. But currents ideas on Privacy would wait the publication of a highly influential law review article. The modern concept of the Right to Privacy came in the late 19th century. Samuel Warren and law partner, Louis D. Brandeis, published their highly influential article “The Right to Privacy” in the December 1890 issue of the Harvard Law Review. This famous article begins thus:

That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. 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.

The article further develops the basis for a Right of Privacy;

The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others. Under our system of government, he can never be compelled to express them (except when upon the witness stand)...

These considerations lead to the conclusion that the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone…The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality.

C. Current Developments in Privacy Law: “Substantive Due Process”

Current Privacy law can be traced to cases arising from the 1960s on from eavesdropping, reproductive rights, abortion, homosexuality, etc. Communications law regarding emails was last updated in 1986 by the Electronic Communications Privacy Act. The following cases had a large impact on the modern law of Privacy: Mapp v. Ohio (1961); Griswold v. Connecticut (1965); Katz v. US (1967); and Roe v. Wade (1973).

Mapp v. Ohio (1961)

Brief Fact Summary. Police officers sought a bombing suspect and evidence of the bombing at the petitioner, Miss Mapp’s (petitioner) house. After failing to gain entry on an initial visit, the officers returned with what purported to be a search warrant, forcibly entered the residence, and conducted a search in which obscene materials were discovered. The petitioner was tried and convicted for these materials.

Synopsis of Rule of Law. All evidence discovered as a result of a search and seizure conducted in violation of the Fourth Amendment of the US Constitution shall be inadmissible in State court proceedings.

Griswold v. Connecticut (1965)

Brief Fact Summary. Appellants were charged with violating a statute preventing the distribution of advice to married couples regarding the prevention of conception. Appellants claimed that the statute violated the 14th Amendment to the United States Constitution.

Synopsis of Rule of Law. The right of a married couple to privacy is protected by the Constitution.

Katz v. US (1967)

Brief Fact Summary. The petitioner, Katz (the “petitioner”), was convicted of transmitting wagering information over telephone lines in violation of federal law. The government had entered into evidence the petitioner’s end of telephone conversations that the government had obtained by placing a listening device to the phone booth that the petitioner used. The Court of Appeals rejected the petitioner’s contention that the evidence should be suppressed.

Synopsis of Rule of Law. The protection of the Fourth Amendment of the United States Constitution (“Constitution”), against unreasonable searches and seizures, follows the person and not the place.

Roe v. Wade (1973)

Brief Fact Summary. Appellant Jane Roe, a pregnant mother who wished to obtain an abortion, sued on behalf of all woman similarly situated in an effort to prevent the enforcement of Texas statutes criminalizing all abortions except those performed to save the life of the mother.

Synopsis of Rule of Law. Statutes that make criminal all abortions except when medically advised for the purpose of saving the life of the mother are an unconstitutional invasion of privacy.

What all these cases have in common can be summed up in the modern doctrine of Substantive Due Process:

“Substantive Due Process” is the fundamental constitutional legal theory upon which the Griswold/Roe/Casey privacy right is based. The doctrine of Substantive Due Process holds that the Due Process Clause not only requires “due process,” that is, basic procedural rights, but that it also protects basic substantive rights. “Substantive” rights are those general rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary. These are rights like freedom of speech and religion. “Procedural” rights are special rights that, instead, dictate how the government can lawfully go about taking away a person’s freedom or property or life, when the law otherwise gives them the power to do so.

III. Overview of American Privacy Law

Constitutional expert Bill Prosser lists four types of Privacy rights:

Not claiming to be providing an exact definition, and admitting that there had been confusion and inconsistencies in the development of privacy protection in the law, Prosser nevertheless described the four “rather definite” privacy rights as follows:

  1. Intrusion upon a person’s seclusion or solitude, or into his private affairs.
  2. Public disclosure of embarrassing private facts about an individual.
  3. Publicity placing one in a false light in the public eye.
  4. Appropriation of one’s likeness for the advantage of another.

IV. Refuse to “Trade Privacy for Security” Before We Lose Both

Recent developments highlight the extreme danger that America risks for losing our civil rights traditions, including the Right to Privacy. With the Homeland Security Act as a backdrop, many Americans assume they have no Right to Privacy given the War on Terror. But to simply assume that the government knows best and will always protect us and never misuse any personal data is a silly assumption. Further, it does not follow that simply because a people are willing to make the trade of rights for security that such a swap will result in safety at the cost of liberty. In fact, history reveals that any group naïve, lazy and fearful enough to try and trade liberties for a fortress will typically lose both, eventually. Ben Franklin commented upon this: “They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety.”

Was the FBI justified in trolling through Gen. Petraeus’ emails simply because the search yielded an illicit lover? How many different email accounts are being searched at any given time? The presumption here is the loss of liberty is a fair trade for safety. But is it? Is not liberty an inherently risky state, and yet the only way to achieve a reasonable life, all things considered? If so, then we must put liberty before any other value if we are to live lives worthy of free men.

Kelly OConnell -- Bio and Archives | Comments

Kelly O’Connell is an author and attorney. He was born on the West Coast, raised in Las Vegas, and matriculated from the University of Oregon. After laboring for the Reformed Church in Galway, Ireland, he returned to America and attended law school in Virginia, where he earned a JD and a Master’s degree in Government. He spent a stint working as a researcher and writer of academic articles at a Miami law school, focusing on ancient law and society. He has also been employed as a university Speech & Debate professor. He then returned West and worked as an assistant district attorney. Kelly is now is a private practitioner with a small law practice in New Mexico.

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