An Ethico-Philosophical
Introduction to Privacy
• Case Study Discussion
• Privacy and the Constitution
• Definitions
• Case Study Discussion
• The Privacy Paradox
“The Right to Privacy”
Samuel D.Warren and Louis D. Brandeis
Harvard Law Review
Vol. IV December 15, 1890 No. 5
• The right of the individual to be
left alone.
• The right to personality.
Supreme Court Rulings within
“Zones of Privacy”
• Child rearing
• Procreation
• Marriage
• Privacy in the home
• Right to refuse medical treatment
Meyer v. Nebraska (1923)
(Child Rearing)
“The Court has never attempted to define, with
exactness, the liberty guaranteed by the
Fourteenth Amendment. Without doubt, it
denotes not merely freedom from bodily restraint
but also the right of the individual to contract, to
engage in any of the common occupations of life,
to acquire useful knowledge, to marry, establish
a home and bring up children, to worship God
according to the dictates of his own conscience,
and generally to enjoy those privileges long
recognized at common law as essential to the
orderly pursuit of happiness by free men.”
--Justice James Clark McReynolds
Skinner v. Oklahoma (1942)
(Procreation)
“We are dealing here with legislation which
involves one of the basic civil rights of man.
Marriage and procreation are fundamental to the
very existence and survival of the race. The power
to sterilize, if exercised, may have subtle, far
reaching and devastating effects. In evil or
reckless hands it can cause races or types which
are inimical to the dominant group to wither and
disappear. There is no redemption for the
individual whom the law touches. Any experiment
which the State conducts is to his irreparable
injury. He is forever deprived of a basic liberty.”
Griswold v. Connecticut, (1965)
(Procreation/Marrage)
“Would we allow the police to search
the sacred precincts of marital
bedrooms for telltale signs of the use of
contraceptives? The very idea is
repulsive to the notions of privacy
surrounding the marriage relationship.”
Roe, Et Al. v. Wade, (1973)
(Procreation)
“State criminal abortion laws, like those
involved here, that except from
criminality only a life-saving procedure
on the mother's behalf without regard to
the stage of her pregnancy and other
interests involved violate the Due Process
Clause of the Fourteenth Amendment,
which protects against state action the
right to privacy, including a woman's
qualified right to terminate her
pregnancy.”
Stanley v. Georgia, (1969)
(Privacy in the Home)
This right to receive information and
ideas, regardless of their social worth...is
fundamental to our free society.
Moreover, in the context of this case--a
prosecution for mere possession of
printed or filmed matter in the privacy of
a person's own home--that right takes on
an added dimension. For also
fundamental is the right to be free,
except in very limited circumstances,
from unwanted governmental intrusions
into one's privacy.
Cruzen v. Director, Missouri Dept. of
Health (1990)
(Right to Refuse Medical Treatment)
“Although many state courts have held that a right
to refuse treatment is encompassed by a
generalized constitutional right of privacy, we
have never so held. We believe this issue is more
properly analyzed in terms of a Fourteenth
Amendment liberty interest.”
Katz v. U.S. (1967)
Reasonable Expectation Test
“My understanding of the rule that has emerged
from prior decisions is that there is a twofold
requirement, first that a person have exhibited an
actual (subjective) expectation of privacy and,
second, that the expectation be one that society is
prepared to recognize as "reasonable." Thus a
man's home is, for most purposes, a place where
he expects privacy, but objects, activities, or
statements that he exposes to the "plain view" of
outsiders are not "protected" because no
intention to keep them to himself has been
exhibited.”
-- Justice Harlan
Aspects of Privacy
Privacy can be divided into the following
separate but related concepts:
•
•
•
•
Bodily privacy
Privacy of communications
Territorial privacy
Information privacy
A (very) Short History of Privacy
•
“There is recognition of privacy in the Qur'an and in the sayings of
Mohammed. The Bible has numerous references to privacy. Jewish law has
long recognized the concept of being free from being watched. There were
also protections in classical Greece and ancient China.
•
Legal protections have existed in Western countries for hundreds of years. In
1361, the Justices of the Peace Act in England provided for the arrest of
peeping toms and eavesdroppers. In 1765, British Lord Camden, striking down
a warrant to enter a house and seize papers wrote, "We can safely say there is
no law in this country to justify the defendants in what they have done; if there
was, it would destroy all the comforts of society, for papers are often the
dearest property any man can have."
•
Parliamentarian William Pitt wrote, "The poorest man may in his cottage bid
defiance to all the force of the Crown. It may be frail; its roof may shake; the
wind may blow through it; the storms may enter; the rain may enter - but the
King of England cannot enter; all his forces dare not cross the threshold of the
ruined tenement.”
“What I may see or hear in the course of
the treatment or even outside of the
treatment in regard to the life of men, which
on no account one must spread abroad, I
will keep to myself, holding such things
shameful to be spoken about.”
-- From The Hippocratic Oath