Privacy

"I am grateful that I have rights in the proverbial public square--but, as a practical matter, my most cherished rights are those that I possess in my bedroom and hospital room and death chamber."

"It is easy to let men alone when they do things our way. The test of a truly enlightened civilization is one that lets people alone, to pursue their own predilections, even when the majority of us prefer to live our lives very differently from theirs."

"The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S. at 484-485; in the Ninth Amendment, id. at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453-454; id. at 460, 463-465 [p153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and childrearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra. The right of privacy, whether it be founded in the 14th Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy."

"The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization). We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation."

"Ginsburg cautioned against the idea of thinking that the 1973 Roe v Wade ruling, which declared abortion was a constitutional right, was enough to guarantee women's reproductive freedom. Ginsburg was a lifelong staunch advocate for abortion rights and gender equality, but from her early days she had criticised the Supreme Court's handling of the abortion issue. She believed that the Roe v Wade case had based the right to abortion on the wrong argument, a violation of a woman's privacy rather than on gender equality. This, she thought, left the ruling vulnerable to targeted legal attacks by anti-abortion activists."

"It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

"[B]etween one and the other, black or white, is a vast area of gray where up or down, yes or no, fades to questions about circumstance: Why, what month, etc.? Whatever the case, the very basis of the Roe v. Wade decision -- the one that grounds abortion rights in the Constitution -- strikes many people now as faintly ridiculous. Whatever abortion may be, it cannot simply be a matter of privacy. That right of privacy, first enunciated in 1965 in Griswold v. Connecticut, once made sense. It overturned a state law forbidding the use of contraceptives by married couples. The average person could easily understand that a right of privacy was at issue here. If the government telling you what you can and cannot do in your own bedroom is not about privacy, then what is?"

"No doubt, the central conceptual foundation of the decision, namely, the right to privacy, was solidly grounded in constitutional adjudication prior to Roe. For a long time the twentieth century Court had been protecting personal rights of a non-economic nature by applying the expansive reading of “liberty” as used by the 14th Amendment. The majority did not fail to mention this line of cases based-explicitly or implicitly-on the privacy rationale. Meyer v. Nebraska (1923) is one of the early examples of this trend. Here the Court reversed the conviction of a teacher for teaching German and thus violating a state law prohibiting the teaching of a foreign language to young children, declaring that the “liberty” protected by the 14th Amendment included “freedom from bodily restraint as well as the right to contract, to engage in any of the common occupations of life,…and, generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” The Court found the Nebraska law “materially” interfered “with the power of parents to control the education of their own [children]” (p.401). Two years later, in Pierce v. Society of Sisters (1925), the Court invalidated an Oregon law, requiring all children to attend public schools, because it interfered with the liberty to raise and educate children as their parents and guardians wished. Next came Skinner v. Oklahoma (1942), which invalidated the Habitual Criminal Sterilization Act, providing for compulsory sterilization after a third conviction for a felony “involving moral turpitude” but excluding such felonies as embezzlement.” “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,” said Justice Douglas (p. 541). Skinner was, indeed, an extraordinary decision because the Court acknowledged the existence of a “basic liberty” not tied to a specific constitutional guarantee (Gunther, p. 503)."

"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. We deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred."

"We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government."

"The saint and poet seek privacy to ends the most public and universal: and it is the secret of culture, to interest the man more in his public, than in his private quality."

"In the 1980s, when Roe's privacy analysis became central to constitutional arguments for gay rights, Blackmun's reactions were puzzling. In a New York case, he initially voted with the four most conservative justices to hear arguments, but shifted sides and helped dismiss the case because he wanted to wait for one that directly addressed the "deviant sex issue." In 1986, Bowers v. Hardwick did just that. Michael Hardwick had been arrested under Georgia's antisodomy law for having oral sex in his bedroom with another man. At first the justices seemed ready to strike down the statute by a vote of 5 to 4, with Powell among the majority. But Powell, a consistent supporter of Roe, changed his vote after deciding that the constitutional right to privacy should not cover gay sex. Powell's switch meant that the court would uphold the statute, turning what would have been a majority opinion by Blackmun into a dissent. Clerk Pamela Karlan, now a professor at Stanford Law School, took the lead in preparing the dissent, which argued that "the right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution's protection of privacy.""

"Thus it seems to me entirely proper to infer a general right of privacy, so long as some care is taken in defining the sort of right the inference will support. Those aspects of the First, Fourth and Fifth Amendments to which the Court refers all limit the ways in which, and the circumstances under which, the government can go about gathering information about a person he would rather it did not have. Katz v. United States, limiting governmental tapping of telephones, may not involve what the framers would have called a “search,” but it plainly involves this general concern with privacy. Griswold is a long step, even a leap, beyond this, but at least the connection is discernible. Had it been a case that purported to discover in the Constitution a “right to contraception,” it would have been Roe’s strongest precedent. But the Court in Roe gives no evidence of so regarding it, and rightly not. Commentators tend to forget, though the Court plainly has not, that the Court in Griswold stressed that it was invalidating only that portion of the Connecticut law that proscribed the use, as opposed to the manufacture, sale, or other distribution of contraceptives. That distinction (which would be silly were the right to contraception being constitutionally enshrined) makes sense if the case is rationalized on the ground that the section of the law whose constitutionality was in issue was such that its enforcement would have been virtually impossible without the most outrageous sort of governmental prying into the privacy of the home."

"There is a sacred realm of privacy for every man and woman where he makes his choices and decisions—a realm of his own essential rights and liberties into which the law, generally speaking, must not intrude."

"The proliferation of abortion bans in the US has decimated reproductive autonomy — the power to control all aspects of one’s reproductive health — which is “at the very core of [individuals’] fundamental right[s] to equality and privacy.” The right to privacy of individuals (irrespective of whether or not they are pregnant) and the rights of medical professionals are also threatened by states’ use of digital surveillance to track the identities of people who seek or provide reproductive healthcare."

"BIPOC women, particularly Black women, are more likely to suffer miscarriages, which are generally indistinguishable from medically induced abortions. Combined with existing higher law enforcement surveillance rates of these communities, these factors mean that BIPOC women will face higher rates of privacy infringement. Additionally, low-income women face surveillance and privacy intrusions not only from the government as a result of receiving government benefits, but also from employers monitoring workplace conduct and performance. They also face financial barriers to protecting their privacy. As a result, the privacy of BIPOC, low-income, and otherwise marginalized women will be violated disproportionately."

"Private parties including anti-abortion activists also use technology to gather data on both providers and pregnant people. For instance, anti-abortion groups have used mobile geo-fencing technology to target patients at abortion clinics with anti-abortion advertisements. Anti-abortion centers known as “crisis pregnancy centers” and “abortion alternatives” hotlines also collect data on pregnant individuals. In states such as Texas, which offer a bounty for citizens to bring civil lawsuits against anyone aiding and abetting an abortion, private parties may have a particular incentive to purchase abortion-related data. In May 2022, journalists revealed that they were able to purchase location data of individuals who visited Planned Parenthood centers for just $160 from a data broker — in the context of possible $10,000 bounties under the Texas law. The purchased data are purportedly “anonymized,” but due to the small number of devices visiting these locations, it is often possible to de-anonymize the data (i.e. link to specific individuals). These practices are emerging and evolving in a landscape without protections, as “the U.S. lack[s] a comprehensive set of federal digital privacy laws.”"

"Before considering abortion, the Justices had faced the issue of contraception. They eliminated state restrictions on contraceptives in two major cases in 1965 and 1972, an action that provoked little public opposition in the midst of the sexual revolution. The ease with which they were able to eliminate those laws likely gave some of the Justices a sense that the abortion laws were simply another set of laws that could be eliminated as an “invasion of privacy.” They saw contraception and abortion laws as one and the same intrusion on “privacy.” The Justices first seriously addressed the issue of contraception in 1961 in a case called Poe v. Ullman, but in a very limited way. The Connecticut statute in Poe was unique, the only one of its kind in the country to “criminally prohibit” the marital use of contraception. Although a majority of the Justices dismissed the Poe case-Justice Brennan complained about “this skimpy record”-two influential dissents by Justices William O. Douglas (a “liberal”) and John Harlan (a “conservative”) kept the issue alive. Both dissents emphasized marital privacy as the reason for striking the Connecticut law. Harlan made clear in Poe that “[t]he right to privacy most manifestly is not an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however privately practiced. So much has been explicitly recognized in acknowledging the State’s rightful concern for its people’s moral welfare.” The same Connecticut statute came back to the Court in 1965 in a similar test case, then called Griswold v. Connecticut. The Justices struck down the Connecticut criminal prohibition on the marital use of contraception and announced, for the first time, a general constitutional right of privacy. Griswold quickly became the Supreme Court precedent that spurred the litigation campaign against state abortion statutes, led in large part by Attorney Roy Lucas, who authored one of the first major law review articles attacking state abortion laws on constitutional grounds in 1969."

"The attorney for Griswold, Yale Law School Professor Thomas Emerson, told the Justices at oral argument on march 29-30, 1965, that the right to privacy would not include abortion, because abortions were not done in the bedroom. In response to a question by Justice Black, Emerson told the Justices-repeatedly-that “the right to privacy” would not touch the state prohibitions on abortion: JUSTICE BLACK: Would your argument concerning these things you’ve been talking about relating to privacy, invalidate all laws that punish people for bringing about abortions? MR. EMERSON: No, I think it would not cover the abortion laws or the sterilization laws, Your Honor. Those-that conduct does not occur in the privacy of the home. [. . . .] JUSTICE BRENNAN: Well, apart from that, Mr. Emerson, I take it abortion involves killing a life in being [or “killing the life of a being”], doesn’t it? Isn’t that a rather different problem from conception? MR. EMERSON: Oh, yes, of course. Nevertheless, Emerson was soon forecasting that the Griswold decision could be use dagainst abortion laws. By the end of 1965, Emerson had even given a paper at a Michigan Law School symposium that described how Griswold could be used against abortion laws."

"Strategically, the emphasis on choice and privacy served to split social conservatives, but ultimately backfired against larger feminist goals. As Catharine MacKinnon (1987) explains, “privacy doctrine reaffirms and reinforces what the feminist critique of sexuality criticizes: the public/private split” (93). Rosalind Petchesky (1990) concurs: “What is lost in the language of liberal privacy is the concept of social rights...that the society has a responsibility to ameliorate the conditions that make either abortion or childbearing a hard, painful choice for some women; and that the bearers of this right are not so much isolated individuals as they are members of social groups with distinct needs” (xxv). In sum, there are several short-comings to the framework of privacy and choice, as Marilyn Fried (2005) observes: first, privacy rights undercut demands for public funding of abortion; second, the rhetoric of “choice” appeals only to those who have options, but is meaningless to those who do not, and thus it politically divides women by race and economic class, since these factors circumscribe women’s choices. No wonder that middle-class white women have tended to be the champions of abortion rights, while low income women and women of color have faced numerous restrictions on their fertility under the rhetoric of population/poverty control. As radical feminists (Corea 1985) and ecofeminists (Diamond 1994) have observed, choice rhetoric and the privacy framework together fit into a larger constellation of male-centered liberal perspectives that rely on separation rather than interconnectedness for definitions of selfhood, science (Merchant 1980), and social relations."

"Further support for the idea that nineteenth century America was concerned with preserving the life of the fetus is ironically found in Botsford v. Union Pacific Railroad, the very case which the Supreme Court cited in Roe as its landmark right to privacy case. Although the Botsford Court acknowledged a common law right to privacy which precluded a court without statutory authority from ordering a medical examination of a female plaintiff in a personal injury case, it pointed out that one of two exceptions to this common law right of privacy was the writ de ventre inspiciendo. With this writ, the state was empowered to examine whether a woman convicted of a capital crime and sentenced to be executed was quick with child, thus overcoming her right to privacy. If she was, execution would be stayed until after the birth of the child. Here, the common law not only acknowledged a right to life in the fetus but also recognized precedence of this right over the common law right of privacy."

"Every man should know that his conversations, his correspondence, and his personal life are private. I have urged Congress—except when the Nation's security is at stake—to take action to that end."

"Dellapenna also noted the radical nature of the reasoning in Roe-that a right to abortion is found in a right to privacy, which itself is nowhere mentioned in the Constitution."

"The better argument for the result reached in Roe v. Wade is that it's necessary for the equality of women, rather than grounding it in the privacy right."

"In 1973 the U.S. Supreme Court made its landmark decision in Roe v. Wade which prohibited states from imposing restrictions on abortion even though the Constitution is silent on such matters. To justify their decision the Court made up a new “right” not found in the Constitution: the right to privacy. The founders of course never intended for such rights to exist as we know privacy is limited in many ways."

"Who could deny that privacy is a jewel? It has always been the mark of privilege, the distinguishing feature of a truly urbane culture. Out of the cave, the tribal tepee, the pueblo, the community fortress, man emerged to build himself a house of his own with a shelter in it for himself and his diversions. Every age has seen it so. The poor might have to huddle together in cities for need’s sake, and the frontiersman cling to his neighbors for the sake of protection. But in each civilization, as it advanced, those who could afford it chose the luxury of a withdrawing-place."

"Privacy is the space bad people need to do bad things in."

"Indeed, with this invention of privacy, this creation of domesticity, and this construction of the public, politically active citizen, adultery became first and foremost something that women could do anywhere, but that men could do only in their own homes. Where as women were adulterers, men kept concubines in the next room. It was therefore above all women's political activity that was conflated with their sexual activity-above all the public space surrounding the woman citizen that was saturated with the sexual and the biological. Male polical actors were, if anything, detached from their sexuality. If they had a sexual identity as all, it was only in the small, contained domestic space that in their case was confined to the home and conjugal relationship. The result was thus an unexpected inversion of the public/private distinction so fundamental to liberal notions of appropriate governance. Women-idealized as the overseers of private, domestic space-ceased to have any but a public role, with every private, sexual, and biologicl aspect of their lives displayed and regulated for the sake of the common good. Men-idealized as public actors-were reduced to a private role, their sexuality politically non-existent except in specifically defined and extreme circumstances."

"Like the right to consent, the search warrant exists to protect United States citizens' rights, particularly their right to privacy-a right which by the 1990s had become inextricably entangled with the right to bodily integrity. The issuance of a search warrant, however- like consent-waives this right even as it it reinforces it. It is precisely the protected nature of Rodriques privacy and bodily integrity-the existence of her rights-that make possible a legal search of her vagina. Neither the virginity examination nor the vaginal search is thus a rape. Neither is torture. Each is instead nothing more nor less thana reinforcement of a woman's right and duty to protect her bodily orders and to protect her political subjectivity via the violation of each."

"[ Gay rights, contraceptives, certain fertility treatments and even interracial marriage ] are imperiled because they’re all rooted in that right to privacy. All of this has been implied because they’re understood to be core, basic human rights. You don’t need the state to recognize them because they are vested in you by virtue of being a human."

"You have zero privacy anyway. Get over it."

"Because a man or woman more gifted than the common multitude bestows upon the world some poem or romance, some picture, statue, or musical composition, of excellence and beauty, by what possible right can the world pry into his or her privacy and discuss his or her fortunes and character? The work belongs to the public, the creator of the work does not. The invasion of private life and character never was so great or so general as it is in the last years of this century. It is born of two despicable parents, curiosity and malignity. Beneath all the flattery, which too frequently covers with flowers the snake of inquisitiveness, the snake's hiss of envy may be plainly heard by those who have ears to hear."

"Civilization is the progress toward a society of privacy. The savage's whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men."

"[I]n 2004, Attorney General John Ashcroft revived the tactics that nearly fifty years ago had shocked physicians and much of the public and propelled abortion law reform forward. Ashcroft subpoenaed thousands of patient records from hospitals and Planned Parenthood clinics in New York, Philadelphia, Chicago, Michigan, Missouri, California, Nebraska, and elsewhere in search of evidence that physicians had performed “medically unnecessary” abortions in violation of the new “partial-birth” abortion ban passed by Congress the year before. Hospitals refused to provide the records, citing a violation of patient privacy and the privacy of medical records (privacy that President George W. Bush had declared a “fundamental right” and written into law only the year before as part of HIPAA, the Health Insurance Portability and Accountability Act). Individual physicians and reproductive rights organizations sued; Democrats in Congress protested Ashcroft’s actions. Courts gave conflicting opinions on the privacy of patients’ medical records, though eventually the federal government withdrew the demand for records."

"I have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967)."

"Stevens says he thinks if Roe v. Wade had been written more narrowly, the court might have avoided some of the criticism that ensued. “In all candor,” he told me, “I think Harry [Blackmun] could have written a better opinion. I think if the opinion had said what Potter Stewart said very briefly” — namely that the right to marital and family privacy previously recognized by the court included a right to choose abortion — “it might have been much more acceptable, instead of trying to create a new doctrine that really didn’t make sense.”"

"We felt that there is too much phone tapping going on in this country. Everyone has a right to their privacy."

"Gentlemen do not read each other's mail."

"Privacy is a luxury; to buy it you need to be able to buy space and fit locks, to switch off the phone and live without fear of dependency on others. Privacy is a peculiarly twentieth-century concept, an artefact of the Western urban middle classes: Before then, only the super rich could afford it, and since the invention of e-mail and the mobile phone, it has largely slipped away."

"Are people aware of the extent of the intrusion? Are people aware of what is happening? And is it necessary? Is it something they consented to? And I think for the vast majority of people, the answer is no.... Z"

"When Facebook is sort of grinding down your privacy, you don't see it. And although you will feel it, you won't feel it for years.... these companies have quietly created perfect records of everything you've done, everywhere you've gone, everything you've clicked, everything you've liked, how long you've stayed on a page, you know, when you had to scroll up to reread a section. All of that is captured, and they use this to model ways to influence your behavior to actually shape and manipulate the decisions you make as a human being."

"And then they sell... or... rent this capability. Facebook says they don't sell data, which is absurd because...they're collecting all of the data and then they're selling... to the highest bidder... what they're selling is access to your eyeballs...access to your mind.... It's you being exploited, and you don't see it happening...."

"For example, AT&T has been storing all of our movements... cell-site location information - for every handset [customers & non-customers]... that happens to be connected to one of their towers...."

"Going back to 2009, they're storing this. They have the last 10 years of your movements, and everyone you know, more or less..."

"Here's the thing - they sell that as a service to law enforcement agencies without a warrant. They don't have to go to court and say, you know, we need a warrant... They can do it on much lower authorities, like subpoenas and things like that... that's just this location information... What about your actual calling records? ...calling records are a proxy for what's called a person's social graph... that's the state of play today."

"These technical services are intentionally designed to be monopolies, to exploit...the network effect, particularly in secure messengers, things like Whatsapp or Facebook itself, which is not secure at all, so that the only way you can talk to someone or the only way you can read this is that you must use this service..."

"Eric Schmidt, former head of Google, argued that, you know, privacy is dead, that culture's changed, that we don't care about this anymore, that it's not right."

"The political argument that we get here all the time is if you have nothing to hide, you have nothing to fear."

"And for us to hear that today, to begin with, should just, you know, raise the hairs on the back of our neck a little bit and go, why do we have any rights? What are rights for? If we're in a democracy - right?"

"Privacy is not about something to hide. Privacy is about something to protect."

"The United States is probably the only advanced democracy in the world that does not have a basic privacy law."

"The Fourth Amendment... Is not a basic privacy law. That's a specific prohibition against the government to engage in particular kinds of searches, but it does nothing to protect you from sort of the predatory activities of companies."

"We have to raise our expectations for the centers of power in society if we want to have a fairer society."

"What led the Supreme Court in 1973 to legalize abortion during the first trimester of a pregnancy was the privacy doctrine articulated in Griswold v. Connecticut (1965) and its extension via the equal-protection clause in Eisenstadt v. Baird (1972). Griswold v. Connecticut (1965) was a birth control case in which contraceptive use was declared to be a privacy right inferred from various provisions of the Bill of Rights and the language of the Ninth Amendment, which reads: “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Neither privacy nor abortion is mentioned anywhere in the constitution or the Bill of Rights, so Justice Douglas in Griswold v. Connecticut (1965) resorted to finding “penumbras” and “emanations” from the First, Third, Fourth, Fifth, and Ninth Amendments. As he declared: [Prior] cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations form those guarantees that help give them life and substance. . . . various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”"

"For what reason have I this vast range and circuit, some square miles of unfrequented forest, for my privacy, abandoned to me by men? My nearest neighbor is a mile distant, and no house is visible from any place but the hill-tops within half a mile of my own. I have my horizon bounded by woods all to myself; a distant view of the railroad where it touches the pond on the one hand, and of the fence which skirts the woodland road on the other. But for the most part it is as solitary where I live as on the prairies. It is as much Asia or Africa as New England. I have, as it were, my own sun and moon and stars, and a little world all to myself."

"While the administration understands the importance of individuals’ privacy... this bill would be the very first of its kind that I’m aware of, in Virginia or anywhere, that would set a limit on what search warrants can do"

"In the view of influential feminist legal scholars, Roe v. Wade weakened the ability of both movements to campaign effectively for the rights of the poor and women of color for whom Jackson spoke. Scholars and advocates such as Catherine MacKinnon, Rhonda Copelon, and Martha Minow have suggested that Roe’s privacy framework paved the way for laws and judicial decisions denying access to public facilities or funding for abortions, constraining “the emerging jurisprudence of privacy within a framework that produced inequalities.” Viewed in this way, Roe is supposed to have “undercut . . . arguments . . . for the rights of caretakers” and served “to siphon off deeper challenges to our scientistic, capitalist society.”"

"There are several reasons why privacy takes on particular significance now. First, the effect of technology in providing challenges to the relationship between privacy and criminal law is not restricted to dealing with new mechanisms for surveillance. In the areas of genetic and information technology, the questions which have arisen are whether the classical doctrines of the criminal law (homicide and assault law in the case of genetic technology, criminal property law in the case of computer crime) are sufficient, or whether a new “corpus” of law is appropriate to either case. In either event, there are significant privacy implications. Developments in information technology make it far easier to obtain and disseminate information about peoples' pasts. Moreover, the Internet has radically altered the force of “the public” by allowing the collection and dissemination of materials that, while formally public, were not widely available. It has given rise to claims to privacy of information. It has now also generated claims from law enforcement agencies to encryption keys to decode encrypted emails and prohibitions upon anonymous and pseudonymous Internet use. The second important precipitation has arisen from concern for the “legality of police behaviour” in combination with a “move from reactive to proactive policing”, striking most specifically at drugs but more generally, increasingly, at “organised crime”. Reactive policing takes place in response to reports of crime. It involves the traditional policing techniques of interrogation, searches, seizures and so on of which the suspect is immediately aware, and by police officers whose status and identity the suspect knows. In a system of reactive policing the traditional guarantees of rights to the suspect may or may not in fact be available, but it fairly clear what they would involve. In adversarial systems, due process provides an argument for the right to be informed of one's rights, for access to legal advice, some knowledge of the prosecution case, the right to have interviews recorded and the right to know when an interview is taking place and when it is being recorded. In inquisitorial systems too, the suspect has the right to remain silent, although legal aid may not be immediately available (in the Netherlands, for example, a suspect has no automatic right to have a lawyer present during police interrogation)."

"“Roberts” argues for a moral right to privacy that is, in essence, an individual right to personal autonomy and that, in principle, precludes interference by the state for the purpose of sustaining the common good. While he concedes that there are justifiable reasons for state intervention that derive from the rights of others, his primary interest is in establishing the value of privacy, its nature and significance as a moral right of autonomy, and the necessity of privacy rights entrenched in law that will allow the development of specifically recognised areas of autonomous space where the state cannot interfere."

"Suffice it here to say that, while both concern the right to one's own uninhibited self (in the words of the Dutch Supreme Court, privacy perhaps refers primarily to an “introvert self” and autonomy to an “extrovert self”. The European Court does not make that distinction and regards a right of autonomy (to develop and express all of the aspects of one's personality) as part of the right to privacy (or “vice versa” - which only goes to illustrate the extent of the lack of conceptual clarity). For the purpose of this introduction, it is however possible to bring some order to the many decisions on Article 8, most of which are concerned with the impact of interference by the state in the private sphere for reasons of criminal investigation. As the use of technological and electronic methods of surveillance and investigation gathers momentum, privacy has become an ever greater issue in the European Court. At the same time, however, there is a growing body of European case law concerning privacy in the sense of autonomy."

"The first and foremost harmonising influence emanating from the European Convention on Human Rights and Fundamental Freedoms is, in any event, the requirement that any invasion of privacy for a legitimate reason (for purposes of criminal investigation, usually the prevention of crime) must have a basis in law, and that law – be it case law or statue – must be of a certain quality: foreseeable (sufficiently detailed) and accessible and providing remedies for the citizen. While in civil legal systems and culture it is regarded as self-evident that interference with the individual citizen by the state requires an explicit basis in law, common law systems take the opposite view: everything is allowed unless forbidden. It will be seen, therefore, that the European Convention requires of the United Kingdom a substantial cultural “volte face”,19 at least as far as the rules governing police powers are concerned. But the states of continental Europe too, have been required to bring their procedural rules up to the quality standards that the European Court demands. But what if the restrictions on the right of privacy are to be found in substantive law, so that criminalisation is the obstacle to the exercise of the right to privacy and therefore not procedure but the moral basis of criminal law is the contentious issue. If interference by the state is justified by a commonly agreed criminal policy, such as exists in the shadow of the third pillar of the European Union with regard to organised crime, money laundering, migration and a number of other matters, there will be few problems with the legitimacy of far-reaching police powers (provided they meet procedural norms) or the provisions fo substantive law needed in order to realise that policy. It is where a right to respect for private life is equated with an individual right of autonomy that intractable questions arise. Here, Article 8 (2) of the Convention appears to make allowances for what the European Court of Human Rights calls the “moral climate” of a given society, for it cintemplayes the justification of regulation by a nation state of “morals”. Now, whatever “morals” may mean in this context (and it is an exceedingly hazy concept), the protection of morals as a legitimate aim of state intervention appears not only in Article 8(2), but also in Articles 9(2), 10(2) and 11(2). In any event, it is clear that we are not only talking about sexual morality, although most such cases with which the European Court deals concern sex in some way or another (and many involve the United Kingdom - “no sex please, we're British”).20 Taken together with the toher requirement, that however legitimate the aim “in abstracto”, intervention must also be necessary in a given democratic society, we must surmise that this has something to do with holding together the (moral) fabric of society, if necessary by criminalising autonomous individual behaviour that threatens it. There are any number of exceedingly problematic issues here."

"Where criminal law interferes with the private lives of autonomous individuals, a certain paradox arises when we look at the legal systems and culture of civil law states and common law states. In the latter, we find on the one hand, greater hostility to the state and scepticism of its right to interfere in the lives of individuals. Yet, on the other hand, it is in the “arm length” state that greater intervention through the use of criminal law in the private sphere is usually to be found. Can it be that the “arm's length” state relies upon criminal law not only because of a different conception of (the relationship between the individual and) the state and the resulting absence of legal-theoretical barriers to state interference, but because it lacks, for precisely that reason, other, more subtle, mechanisms of intervention? And can it also be that, as the nation state declines (albeit slowly) in importance, as individuals redefine their relationship to state and society and demand greater autonomy in their own lives and yet more intervention by the state in the autonomous lives of others, the significance of those other mechanisms of intervention will also decline?"

"[W]e must turn to another issue that runs through the contributions to this volume: in cases of conflicting rights and interests, it is the right of privacy that almost always gives way. It has become trite to announce that the problem with the right to privacy is not so much in locating it (which is not without difficulty), but in its lack of purchase. When it comes into conflict with other widely recognised claims, whether based on individual rights (such as those deriving from freedom of speech), or dealing with a claim on behalf of the collectivity (typically criminal justice enforcement) privacy seldom prevails. The explanation for the apparent weakness of privacy rights is to be found in three areas- the equation of privacy with autonomy; the sorts of harm which are done by the violations of privacy which attract most attention and the sorts of reasons which are held to be sufficient countervailing reasons to overcome a claim of privacy. Where privacy in “substantive' criminal law (the law of criminal prohibitions) is under consideration, the question is whether the citizen has a “liberty” to behave in the manner proposed or a duty not so to behave. If s/he is prohibited from doing something which s/he wants to do there is a diminution in his/her freedom. The classical liberal position of J.S. Mill is that, so long as others are not affected, there is no right for the state to interfere. The private is frequently adopted as the model of the space where none but the willing participant is affected. Interference by the state in the private impacts upon self-fulfillment, and has undesirable long-term effects, whether or not its injunctions are obeyed. When, on the other hand, we talk of privacy in “procedural” criminal law what is generally in issue is an “immunity” - the asserted right of the accused person not to have particular things done to him/her as against a claimed power for representatives of the state to do them. There is an overlap between these cases and those dealing with the exclusion of evidence in order to discipline the police, or to preserve the rights of the citizen. The immunity is almost always qualified, so that privacy claims during criminal investigation are seldom indefeasible (the lawyer-client privilege providing an interesting exception)."

"A question that will legitimately arise is as to the relationship between the two types of invasions of privacy (invasion by prohibition and invasion by enforcement mechanism) and the strength of their respective justifications. With arguments about evidence-gathering techniques, the question is to do with process-values, and the usual approach is to say that the more serious the invasion of the privacy, autonomy or dignity of the defendant, the higher the degree of formal scrutiny which is required before it can be invaded. There are some invasions which be undertaken by anyone, some only by police officers, some which can be authorised only by senior police officers, and some invasions which require orders from magistrates, or by more senior judges. There are some invasions that cannot be made under compulsion, but from the defendant's refusal to be invaded can be drawn adverse inferences. Whether or not the additional constraints provide substantial checks or easily surmounted formal obstacles is not here in point: what is of concern is the value expressed by having such a body of rules."

"One of the reasons why privacy might be considered a weak(ish) right is that the focus of the literature on the right to privacy in criminal justice contexts has been largely on the second and third cases. The effect of a single search – even an intimate search – may not be too serious when compared with an interfeence with lifestyle that lasts far longer. Successive stops, searches or arrests may amount to a campaign of harassment, but that simply raises issues about their legality and legitimacy. Targeted surveillance that is unknown to the suspect, causes no direct interference with his/herif. Even the knowledge that at any given time the police might be engaged in targeted surveillance is not something which need impact tremendously upon the suspect's enjoyment of life. It is the endurance of the invasion that bears upon the seriousness of the invasion far more than any transient indignity. However strong the claim is that the kinds of police powers which would be necessary to enforce a policy of criminalisation of drugs are intrusive and unpleasant, even in this area it is the lifestyle impact which the legislation has upon the people both who obey and who do not that is the more significant issue. It is therefore critically important that the European Convention on Human Rights should generate examination of substantive as well as procedural law. Similarly emphasis in the US federal courts upon the notion of privacy in the procedural cases compared with its slight and probably diminishing influence in the substantive law cases is difficult to defend."

"[A] distinction between information and autonomy rights generates different strengths in the claims of privacy which are made. The claim made by a person agreived in a system protecting a right of privacy focused upon information is “Mind your own business”, “Don't be so nosey” or somesuch. The claim from autonomy is of a different moral order altogether. It is “Do not interfere with my exercise of my liberty”. Surveillance of which the subject is aware is an inhibitor of action: but it is only an inhibitor, not a prohibitor. Again the argument is that by concentrating upon invasions of privacy which only indirectly impinge upon personal freedoms, the violation can be made to seem less serious."

"Indeed, in those cases of claims of privacy are rooted in autonomy, the very notion of autonomy is ambiguous, for in considering privacy in terms of autonomy we immediately run up against a preliminary question: what is the nature of the self to which autonomy is granted? It is to be a socialised or an unsocialised self? The Europea Court of Human Rights is mot definite: protection of autonomy rights is restricted to the socialised self. The debate surrounding the anonymity of Internet use is of particular interest to this issue, precisely because it is partly a debate about autonomy and freedom to escape"

"There is something uncomfortable – perhaps even sordid – about covert surveillance, which is not necessarily expiated simply because a particular operation is instrumentally effective. The feeling seems at least in part to be connected with the loss of privacy suffered by targets of surveillance, and by those with whom they associate. Discomfit is further compounded by the worry that the informational fruits of surveillance could be misinterpreted (the camera never lies?), misappropriated or otherwise abused."

"This section argues that the value of privacy is best understood as a component of the liberal ideal of individual or personal autonomy. It must be stressed at the outset that the argument from autonomy to be developed here does not preclude the possibility that privacy rights cold be grounded in other values instead of, or in addition to, autonomy."

"A person in a deep coma after an accident has no autonomy-based right to privacy, because her current condition precludes autonomous action. At least for the time being, she has no interest in acting autonomously, because, quite simply, autonomous action is impossible for her. However, “this does not prove that she has no right to privacy”, only that her right to privacy – if she has one – must be derived from some other source. Two candidates that spring readily to mind are, first, respect for human dignity and, secondly, the pragmatic imperative of limiting potential abuses of official power by placing restrictions on what people like doctors can do to those unfortunate enough to be afflicted in the manner contemplated. A particular right to privacy might be justified on all three grounds, where it contributes to promoting autonomy, respecting human dignity “and” controlling official power."

"Indeed, anyone who recognises personal autonomy as an important moral and political ideal could accommodate this argument within their ethical universe. Most communitarians, for example, agree with liberals that individual autonomy is valuable and worth promoting, but part company with them when it comes to ranking autonomy against other, especially communal, values and ideal (“the common good”). Communitarians might readily endorse the central argument advanced here, that privacy rights serve individual autonomy, though they would tend to value privacy rights less highly than liberals typically do, in accordance with their broader philosophical commitments. On the other hand, there is nothing in this argument for philosophies such as Utilitarianism or National Socialism which, in rejecting individual autonomy as an appropriate focus of moral concern, radically undermine any autonomy-based vindication of privacy rights *and so much the worse for Utilitarianism and National Socialism)."

"The power of general rights analysis can be focused and harnessed to serve our present inquiry. Privacy claims qualify as rights under the Interest Theory if interests in privacy can be delimited with sufficient clarity and precision to give them a similar structure to an interest in negative liberty. Privacy rights must not, on the other hand, assume the structure of an intolerably burdensome right to autonomy. In fact, this condition is quite easily satisfied to the extent that privacy interests converge with negative liberty on a shared core idea of being left alone, free from unwarranted interference.31 It is no great imposition on your autonomy to be told to leave me alone, while at the same time you, in your turn, benefit from being left alone by me and everybody else to get on with your life. Essentially the same considerations explain the criminal law's preference for operating primarily through negative prohibitions (“don't do x, y or z, but you are free to do everything else”), and its general aversion to omissions liability."

"Thus, Warren and Brandeis derived their common law right to privacy by generalising from specific instances of the right to be “let alone” already registered at common law: “[T]he 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”. Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy” (1890) 4 Harvard Law Review 193 at 205. They added that the underlying ratinale was “in reality not the principle of private property, but that of an inviolate personality”."

"The challenge now confronting the search for a right to privacy is to be able to delineate privacy interests with greater clarity and precision. Some guidance might be found in international human rights norms, especially Article 8 of the European Convention on Human Rights 32 and Article 17 of the International Covenant on Civil and Political Rights, and their associated jurisprudence. One might also undertake comparative analysis of privacy protection in national laws and constitutions A significant drawback of these strategies, however, is that conceptions of privacy rights in positive law tend to be parceled up with a certain degree of institutional legal baggage. Allied to the effect of encountering multiple and inconsistent legal definitions, this may serve to confuse in many respects, at the same time as clarifying other matters, which in the aggregate does not necessarily advance the cause of enlightenment. Fortunately help is at hand, in the shape of some excellent academic philosophy and legal writing on privacy interests and rights. In particular Ruth Gavison has explained the interests protected by a right to privacy in terms of limiting a person's accessibility to others. This seems to me to encapsulate the kernel of the idea we require: Our interest in privacy . . . is related to our concern over our accessibility to others: the extent to which we are known to others, the extent to which others have physical access to us, and the extent to which we are the subject of others' attention. This concept of privacy as a concern for limited accessibility enables us to identify when losses of privacy occur. Gavison breaks down the interest in limited accessibility into three further “irreducible elements” of privacy, “which she calls “secrecy, anonymity, and solitude”: As a methodological starting point, I suggest that an individual enjoys “perfect” privacy when he is completely inaccessible to others. This may be broken down into three independent components: in perfect privacy no one has any information about X, no one pays any attention to X, and no one has physical access to X. . . . A loss of privacy occurs asothers obtain information about an individual, pay attention to him, or gain"

"Gavison's approach to privacy is criticised as “arbitrary” by David Feldman, “Secrecy, Dignity or Autonomy? Views of Privacy as a Civil Liberty” (1994) 47 Current Legal Problems 41, esp. at 52 and n 49. I do not agree that Gavison's normative argument for a particular conception of privacy interests is arbitrary, except in the trivial sense that a different argument might have been made. The real issue, I suggest, is whether Gavison – and this partial adoption of her argument – is right or wrong. Feldman prefers to give privacy rights a more communitarian or collectivist twist: also see his “Privacy-related Rights and their Social Value” in Peter Birks (ed.), “Privacy and Loyalty” (Oxford: Oxford University Press, 1997). However, he does not give any example of privacy interests that cannot be acomodated within Gavison's scheme, while his own preferred approach, according to which “[p]rivacy is largely a matter of being able to choose where, when, and with whom to cooperate or to withold co-operation” (“Secrecy, Dignity or Autonomy?” supra, at 51), suffers from the standard objection to “control” or “choice” accounts of privacy: i.e. that privacy interests may be set back by one's own careless or even deliberately self-injuring autonomous conduct, even while one remains fully “in control.” if privacy interests are underpinned by an objective conception of welfare, no entirely subjectivity criterion – such as choice or control – will ever successfully capture their essence, though choice might be important in an argument about privacy “rights”. And see n 41 “infra”."

"Someone might accept both the connection between privacy and autonomy asserted in Section I, and the Interest Theory of rights developed and applied here, and yet still be unwilling to concede the existence of a right to privacy. One objection might be that privacy interests can be recognised without being elevated into the subject-matter of a right. The “de facto” enjoyment of freedom from interference with one's privacy is not, assuredly, the same as a right to privacy. Why, it might be asked, is “de facto” freedom not enough? Why must moral rights and duties come into the picture? The case for a right to privacy has so far rested on: (I) the crucial importance of privacy for personal autonomy; and (ii) the relatively undemanding nature of privacy-related duties: we have seen that this ensures the compatibility of privacy rights with human autonomy and with other important individual and social values, some of which (including, for example, human dignity, family ties, and particapatory democracy) derive positive reinforcement from the security of private life. The missing link in the chain of argument, on which this first objection fastens, is the affirmative case for elevating privacy interests into privacy rights."

"In the space available, and without becoming embroiled in complex – and anyways inconclusive – questions of moral epistemology, the affirmative case for a right to privacy rests on the following considerations. First, let it be said, there is no grand mystery about the general relations between interests, liberties and right. From the perspective of the Interest Theory, the question is simply whether an interest is sufficient to place another person under a duty to respect it. As reflected in international human rights treaties like the ECHR and the ICCPR, I suggest that privacy interests are important enough to be grounds of duties, both for government officials and private individuals."

"Privacy interests are highly vulnerable in a world of CCTV, vast and growing data banks of personal information and spy satalites in the sky. The seriousness of the threat posed to privacy interests in modern society, in conjunction with a proper understanding of privacy's key contribution to human flourishing, justifies mutual duties of respect for privacy. These duties extend, with appropriate modifications in their detailed specification, to a wide range of formal and informal roles and relationships. Professionals such as doctors and lawyers owe privacy-based duties to their patients and clients; employers and employees respectively bear whatever duties of privacy are implied by their particular employment relationship. Officials of all kinds have important privacy-based duties. In the criminal justice context, police officers are not only the most obvious example of state officials with duties to respect privacy, but also demonstrate in their day-to-day activities the manifold ways in which privacy is imperiled by the exercise of official state power. A less familiar but no less important second example is that legislators have duties to enact laws that provide an appropriate measure of protection for privacy interests, and further laws to secure appropriate redress when privacy rights are infringed, as they inevitably will be on occasion."

"Privacy's contribution to advancing a broad range of social and political values in stressed by David Feldman, “Privacy-Related Rights and their Social Value,” in Peter Birks, op. Cit. n 34. Feldman asserts that: “Privacy in its sociable form helps us the define and then to defend the social spheres in which we work or play with others. These spheres are more important than those fields in which we operate without others, and are very significantly more valuable than those areas in which we work selfishly against others” (at 22). Nonetheless, when it comes to identifying criteria to determine the scope and limitations on privacy rights Feldman adumbrates a list of distinctly liberal autonomy/harm principle considerations *at 24-5). Since my argument for an autonomy-”based” right to privacy leaves room for social, communal and collective aspects of privacy, there is perhaps little material distance between Feldman's position and mine, though I remain doubtful of aspects of his theoretical analysis."

"A different objection to conceding a right to privacy is that privacy is open to abuse, and has in fact been repeatedly abused in the past. Its chequered record has given the right to privacy a bad reputation in some circles. For, it is charged, does privacy not provide a cloak for tyranny and a licence to victimise the vulnerable and defenceless? Is the right to privacy not the reflex defence of choice for sweat-shop factor owners, men who beat their wives and girlfriends, and parents who abuse their children? The work done in recent decades by feminist criminologists and others in beginning to expose the almost unimaginable nature and extent of (mostly) men's violence against women and children in the home gives these questions itresistable force and urgency. Furthermore – as if that were not enough – in these times of “flexibilisation”, de-regulation, privatisation and increasing casualisation of the workforce, we are again confronting questions about working conditions and labour exploitation that by now ought to have been consigned to histories of the rabid first phase of nineteenth century capitalism. The feminist-leftist critique of the public-private divide has become (though radicals bristle at the thought of contributing t a new orthodoxy) a received part of the philosophical canon."

"It is tempting to try to explain (away) rights conflict by pointing to the fact that very few rights are absolute. The right to privacy certainly is not absolute, as my proposed definition makes clear: “reasonable” demands for information, “justifiable” surveillance, and “non-arbitrary” interference with person, home or property all fall outside its protection. Perhaps, then, it can be shown that the right to privacy is circumscribed by the boundaries of more weighty interests, such as interests in bodily integrity and security, so that rights protecting these interests are not in conflict with the right to privacy after all? The suggestion is a helpful reminder that few – if any – rights are absolute, and that apparent conflicts between rights can sometimes be resolved by paying more careful attention to the proper scope of particular rights. On reflection it may be found that one right actually circumscribes or delimits another, as opposed to there being any genuine conflict between them. But this is not enough to salvage the objection presently under examination, as a simple example demonstrates. It is reasonable to postulate that the right to privacy ends at the point where there is “reasonable suspicion” or “probable cause” to suspect that a vulnerable child is in grave danger of harm."

"Some readers might now be thinking that their scepticism about the existence of a right to privacy has been more than vindicated – and by an opponent! - but this is to forget the lesson of the first section, and so to fall victim to the second misconception I promised to dispel. Privacy, to repeat, is essential for an autonomous life. It is therefore self-defeating for anybody who embraces the liberal ideal of personal autonomy to deny that there is a right to privacy in order to defend a competing right to bodily integrity. For why is bodily integrity valuable? In large part precisely because it is anothr prerequisite for living autonomously. The implication of finding a common root both for privacy rights and rights to bodily integrity in a liberal conception of well-being, it should be evident, is that bodily integrity would be worth much less (though certainly not worthless) if privacy interests lacked adequate protection. (The reverse relation also holds, of course: a surfeit of privacy would be inadequate compensation for a substantial loss of bodily autonomy). It is certainly much to be regretted that rights always over-extend to situations in which the protection they afford is unwarranted or abused, as well as to situations in which the right-holder's interest in privacy is trivial or non-existent. But this over-extension is an attribute that the right to privacy shares with every other species of right; and while it is possible to reduce the are of over-extension through careful drafting and interpretation, at some point further refinements can only be bought at the cost of excluding meritorious cases from the ambit of the right. No amount of handwringing or denial will alter that conceptual reality, or falsify the moral truth about rights. Unless one is prepared to reject the liberal ideal of autonomy itself, therefore, the right to privacy seems secure, its faults and limitations notwithstanding."

"Recent technological advances have greatly enhanced the capacity to monitor and record our movements and activities, to collect, collate and disseminate personal information about us quickly and cheaply, and to probe our minds and our genes in order to discover our physical and psychological strengths and vulnerabilities. As Justice Michael Kirby has noted, the information technology revolution poses a significant challenge to our ability to safeguard personal information: [The] quantity of personal information about individuals as likely to increase rather than decrease. Access to this this information is what occasions the contemporary fragility of privacy – a human attribute that has been steadily eroded over the past century. To the extent that the individual has no control over, and perhaps no knowledge about, the mass of identifiable data which may be accumulated concerning him or her and to the extent that national law-makers, despite their best endeavors, enjoy only limited power effectively to protect the individual in the global web, privacy as a human right, is steadily undermined.1"

"It is not surprising that these developments have elicited mixed responses. While the enormous actual and potential benefits of information and surveillance technology, genetic science and biometrics are generally acknowledged, many commentators are concerned about the cost which may have to be paid for these benefits in terms of personal privacy and autonomy. Over the past decade, this anxiety has been expressed in numerous articles, both in the academic journals and the mainstream press. These theme hass also been explored in a number of rescent successful Hollywood films. This anxiety is by no means universal. Those who dispute the view that privacy today is facing threats of unprecedented magnitude point out that in many ways citizens of affluent Western countries have more of some kinds of privacy than at any other time in history. The novelist Jonathan Frazen writes: In 1890, an American typically lived in a small town under conditions of near-panoptical surveillance. Not only did his every purchase “register”, but it registered in the eyes and the memory of shopkeepers who knew him, his parents, his wife, and his children. He couldn't so much as walk to the post office without having his movements tracked and analyzed by neighbors. Probably he grew up sleeping in the same bed with his siblings and possibly with his parents, too. Unless he was well off, his transportation – a train, a horse, his own two feet- either was communal or exposed him to the public eye. In the suburbs and exurbs where the typical American lives today, tiny nuclear families inhabit enormous houses, in which each person has his or her own bedroom and, sometimes, bathroom … It's no longer the rule that you know your neighbors. Communities tend to be virtual, the participants either faceless or firmly in control of the face they present. Transportation is largly private; the latest SUVs are the size of living rooms and come with onboard telephones, CD players and TV screens; behind the tinted windows of one of these high-riding I-see-you-but you-can't-see-me mobile PrivacyGuard units, a person can be wearing pyjamas or a licorice bikini, for all anybody knows or cares. The “right to be left alone”? Far from disappearing it's exploding. It's the essence of modern Americana architecture, landscape, transportation, communication and mainstream political philosophy.4"

"This description is equally applicable to contemporary conditions in other developed Western societies, including Australia. The contrast Franzen draws between social conditions in the late 19th century and the early 21st century illustrates another important feature of privacy: what privacy means and the degree to which privacy is a part of social practices is contingent on the social norms and standards of living prevailing in particular societies at particular times. Social and technological changes alter perceptions of what privacy entails in different social contexts. Perhaps the most striking example of this is the one given by Franzen: the enormous expansion in the amount of “private space” available to families and individuals in Western societies. The meaning and significance of privacy is also culturally specific. Privacy of personal space is far more highly valued in the liberal democracies of the Western world in which the nuclar family is the basic unit of social organisation and strong emphasis is place on the self-realisation and autonomy of the individual, than in more communitarian societies. Social and technological changes alter perceptions of what privacy entails in different social contexts.5 Perhaps the most striking example of this is the one given by Franzen: the enormous expansion in the amount of “private space” available to families and individuals in Western societies. The meaning and significance of privacy is also culturally specifc.. Privacy of personal space is far more highly valued in the liberal democracies of the Western world in which the nuclear family is the basic unit of social organisation and strong emphasis is placed on the self-realisation and autonomy of the individual, than in more communitaran societies.6"

"Franzen also makes the point that the fire warnings of the privacy Cassandras do not appear to have generated genuine alarm in the American public: “Americans care about privacy Cassandras do not appear to have generated genuine alarm in the American public: “Americans care about privacy mainly in the abstract”.7 Professor David Anderson describes the attitude of Americans to privacy as “ambivalent”. 8 On the one hand, Americans cherish privacy: they want privacy in their living conditions and are prepared to spend significant amounts of money to secure it; it is considered impolite to question a person about her income, political views of academic results; and individuals expect to be protected from the curiosity of others. On the other hand, Americans also cherish other values which often conflict with privacy; “information, candour and free speech”. The public appetite for drama, tragedy, gossip and scandal is seemingly insatiable: We claim to respect privacy, but in fact we devoure the private secrets of hundreds of people every day. We do value privacy, but not as much as we hunger to know – to know the shocking details of scandal, to see the drama or terror or grief or humiliation, to understand the strangeness of our neighbours … Theprincipal raw material consumed in the production of news and entertainment is people's lives, both public and private. From journalism school onwards, reporters and editors are reminded again and again that news is about people. Television ratings and newspaper readership surveys, as well as journalist's own instincts, tell them that readers and viewers want to know about people.9"

"As will be evident from the foregoing discussion, even a cursory consideration of privacy raises a number of conceptual difficulties. What is privacy? What interests are affected and protected by privacy? What is the justification for recognising a legally enforceable “right” to privacy? How is the balance to be struck between the right to privacy and other competing rights and interests, identified by the Australian Law Reform Commission in 1983 as: Freedom of expression; freedom of information; protection of the revenue; prevention and detection of crime and apprehension of offenders; protection of economic, trade and state secrets; respect for confidential relationships; protection of financial, property and staff management interests; maintenance of national security and an effective defence capability; protection of diplomatic relations; and protection of significant managerial interests, for example the need for effective conduct of audits, examinations; and protection of significant managerial interests, for example the need for effective conduct of audits, examinations and efficiency reviews."

"The above issues have not been satisfactorily resolved at the conceptual level and it is largely because of this that law-makers have been unable to develop a coherent regulatory framework within which to place the right to privacy. The right to privacy is at present so vague and unstable that its scope seems to be almost boundless. Indeed, there is a tendency to reclassify a number of distinct types of legal wrong as invasions of privacy. For example, violations of one's bodily integrity have traditionally been protected by specific criminal offences or civil actions such as assault, battery and negligence. The justification for such offences or actions was traditionally found in the universally accepted principle that people have a right not to have their bodily integrity violated. However, the same interests that are protected by such offences and actions are being relabeled by some as “bodily privacy”. In relation to information privacy, one commentator has warned that: If we treat privacy as a catch all term and invoke it to rectify every offensive use of personal, or intimate information as an invasion of privacy, privacy will gradually expand to colonise the existing rights of action, such as unfair dismissal, discrimintion, even taxation appeals in appropriate cases. We will end up with remedies: but our capacity to distil the problem will be reduced and our ability to balance our individual claims, either against the needs of our society or against each other will be impaired."

"It is not feasible to draft coherent and informed laws prtecting a right or to fully understand existing laws, unless the parameters of the right and its importance have been established. A uniform and well-grounded approach to privacy will not be developed until law-makers understand the essential nature of the right and where it ranks in relation to other interests which privacy has the potential to encroach upon or curtail. At the outset it is important to emphasise that there is a cost attached to entrenching a legal right to privacy. If there were no legal protection for privacy, criminals and terrorists would find it harder to plot harmful acts; we would know more about the “real” agendas that drive our politicians; we would all know our neighbours better and the fear caused by not knowing what others are doing would alrgely dissipate. In the business setting, people would be better placed to make rational and informed investment and spending decisions. More generally, the world would be a far more open and less pretentious place. It is true that I order to reap these benefits we would have to give something up: a little (or perhaps even a lot of) information about us. But is this too high aprice to pay? As we shall see in Chapter 2, it could be claimed that the right to privacy is no more than a “polite” way of entrenching the concept of secrecy, which is normally antithetic to an open and free society."

"Posner argues that a legal right to privacy absed on economic efficiecy would: (a) protect trade and business secrets by which businessmen exploit their superior knowledge or skills; (b) generally not protect for facts about people; and (c) limit, so far as possible, eavesdropping and other forms of intrusive surveillance to surveillance of illegal activities."

"In any event, if privacy is not adequately conceptualised it risks becoming a transient 21st century phenomenon. In 1972 the English Law Reform Committee, the Younger Committee, made the following observations regarding the soundness of an xpansive or formless deifnition of, and approach to, privacy: An unqualified right [to privacy[ .. would .. be an unrealistic concept, incompatible with the concept o society, implying a willingness not to be let entirely alone and a recognition that other people may be interested and subsequently concerned about us. If the concept were to be embodied into a right, its adaptation to the dominant pressures of society would require so many exceptions that it would lose all coherence and hence any valid meaning."

"It follows that a purely black letter, descriptive approach to privacy law would be of limited utility. There are many gaps in privacy regulation and there is considerable scope for debate regarding the manner in which exiisting privacy laws should be interpreted and applied. Moreover, the law in this area is in a state offlux. A conceptual understanding of privacy is necessary in order to make a judgment on the policy questions in this area. Questions such as: to what extent should the law commit itself to protection of privacy?; what is the proper balance to be struck between privacy and other rights?; how should the existing law be interpreted and developed in the future? In light of this, a significant portion of this book will analyse the philosophical foundations of the right to privacy."

"Interest in the “right” to privacy has blossomed in recent decades at both the international and domestic levels. At the international level, the right to privacy is expressly recognised in Article 12 of the Universal Declaration of Human Rights, Article 17 of the “International Covenant on Civil and Political Rights and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In the past two decades, the legal recognition of privacy has been the subject of major inquiries by the Australian Law Reform Commission and the United Kingdom Home Office. In the United Kingdom, the passage of the Human Rights Act 1998 has prompted a fresh examination of the status of privacy interests in the common law in the context of the legal treatment of privacy in other European member states."

"Despite the large number of statutes dealing with privacy, legal regulation of privacy is at best patchy and varies markedly across the jurisdictions in Australia. While there is no common law action for breach of privacy in Australia, privacy interests are protected indicentally by other common law principles, such as tresspass, nuisance, defamation and passing off. The equitable doctrine of confidence is perhaps the most promising potential source of protection for privacy om the unwritten law. Indeed, the House of Lords in Campbell v MGN Ltd has recently transformed the breach of confidence action into a privacy tort in all but name. In doing so, the Law Lords drew explicitly upon the privacy values enshrined in Article 8 of the European Convention on Human Rights, now incorporated into the United Kingdom domestic law, along with the other rights guaranteed under the Convention, by the Human Rights Act 1998 (UK). The Court of Appeal in New Zealand recently took the bold step of recognising a new privacy tort, along the same lines as th United States “privacy facts” tort. It appears likely that Australian courts will also develop the breach of confidence action in order to make it a more effective behicle for obtaioning redress against unauthorised disclosure of private facts by the media. How far the courts will go in this direciton will depend on judicial olicy, and the constraints imposed by the doctrine of precedent."

"Despite widespread acceptance in the community and an increasing level of legal recognition, at the post-philosophical level the basis for the right to privacy is unclear. Central questions relating to the right to privacy remain unanswered. Do humans actually have a right to privacy? If so, where does it come from? What is its scope? How does it rank in comparison to other rights? Legal discourse has not sufficiently addressed these issues. Most privacy advocates simpy assume that the right to privacy has a souind foundation. However, if one looks just a little below the surface the foundation starts to look decidedly wobbly. One way of testing for the importance, if not the exstence, of a right is to imagine a world in which it is absent. There is no “clear” reason why the present state of affairs that we find ourselves in is better off than a world which is identical in all respects except for the fact that there is no right to privacy. It is not immediately apparent that the makeup of the human psyche demands such a right. Now if one undertakes this mental exercise in the context of indisputable rights, such as the right to life or the right to liberty, a wholly different picture emerges. All rights are subject to the recognition of a right to life and historyhas shown us that communities or individuals deprived of the right to liberty (for example, slaves) tend to be, to be put it mildly, miserable – his is shown by the elngths to which people wil go to assert a degree of freedom and autonomy. Not so in the case of the right to privacy."

"The fact that there seems to be widespread support for the right to privacy says little regading the validiy of this right. It is not difficult to drump up support for a partcular interest. This stems from the nature of “rights”. As we shall see in this chapter, rights are individualisinginterests and promise to confer benefits on people – and people like that which is advantageous to them. Hence, simply labelling an interest as a “right” is likely to generate enthusiasm for the interest. Thus, if people are polled on whether they supported “a right to unrestricted paid maternity leave”, “a right to the best possible health care”, “a right to free-to-air sport”, or “a right to go fishing”, they would be likely to say “yes”. Yet we enjoy none of these rights; at least not in an unrestricted or absolute sense. This is because, ultimately, rights come at a cost. The costs are not always immediately apparent. Such is the case with privacy."

"Privacy proponents have been incapable of explaining the foundation for such a right and why it should enjoy a high level of legal protection. It follows that the right to privacy is at risk of being classified as a late 20th/early 21st century first-world invention, indicative of a highly individualistic society fearful of the capabilities of the technology it has developed. Moreover, the alarmist rhetoric of privacy advocates who proclaim the imminent demise of privacy does not seem to match reality; in fact, it is arguable that citizens in Western societies enjoy a level of de facto privacy unprecedented in history. As to the threats posed by the minoitoring capabilities of the new information technologies, t is now becoming apparent that the technology itself can provide the means to counter them. Arguably, the current legal focus and level of discussion concerning the right to privacy is an illustration of the human propensity for losing perspective. Ultimately, we conclude that the right to privacy does have a concrete foundation. The strongest arguments in recognition of such a right are that a degree of privacy is necessary for autonomous action and that individuals should have an opportunity to comment on potentially adverse information that is held about them, where this can affect their tangible interests. The latter rationale gains expression in the broader notion of natural justice. Nevertheless, the right to privacy is not a strong right and few interests should be subjugated to this right."

"The common law has not defined privacy. And there is no clearly accepted meaning of the term, despite the formidable body of literature devoted to the subject. A popular view is that the privacy is so open-ended that it is not capable of definition. The United States Supreme Court in “Griswold v Connecticut”, noted: [P]rivacy is a broad, abstract and ambiguous concept which can be easily shrunken in meaning but which can also, on the toher hand, easily be interpreted as a constitutional ban against many things."

"American privacy scholar Robert Post has lamented that “privacy is a value so complex, so entangled in competing and contradictory dimensions, so enforged with various and distint meanings that I sometimes despair whether it can be usefully addressed at all”.6 Recently the Victorian Law Reform Commision has noted the “difficulties of arriving at an overarching definition of privacy”.7"

"In ascribing a definition to privacy, we agree with WA Parent, who stated: What is needed is a definition which is by and alrge consistent with ordinary language .. [and] which also enables us to talk consistently, clearly, and precisely about the family of concepts to which privacy belongs. Moreover, the definition must not usurp or encroach upon basic meanings and functions of other concepts within this family.8"

"In its recent issues paper on workplace privacy, the Victorian Law Reform Commision9 stated: The term [privacy] has different meanings indifferent contexts. One thing “is clear”, however: most people use the term in a way that suggests that “privacy” is a meaningful and valuable thing. It then went on to state: [P]rivacy always includes and refers to autonomy and dignity. This means that the protection of privacy will always encompass the following rights: *not to be turned into an object or thing, that is not to be treated as anything other than an autonomous human being; and *not to be deprived of the capacity to form and develop relationships. Thus, according the Victorian Law Reform Commission, “privacy is understood as a right underpinned by autonomy and dignity”. This analysis is conceptually flawed. It confuses the notion of “definition” and “justification”. To define a term or concept is to set out the necessary and sufficient conditions which demarcate the correct usage of the term or concept. This isa “descriptive” process. The process of justification, on the other hand, is generally “normative” in character, in that it provides reasons in support of a practice. The inclusion of normative concepts in the definition of privacy skews the parameters of the discussion making it logically impossible t evaluate the desirability of the practice or interest against the full catalogue of moral principles and theories. The incorporation of moral virtues *such as autonomy) into the deifnition begs the question of why we should value privacy. It is almost universally agreed that autonomy and dignity are desirable virtues. Hence, any interest that is derived from them will obviously also be morally desirable. Quite simply, the definition assumes too much. The definition advanced by the Victorian Law Reform Commission is especially unhelpful for an even more basic reason. It runs foul of the most basic “rule of deifning”: to clarify the term or interest at hand. The distinction between being treated as an object and an autonomous person, and the freedoms that are necessary to form meaningful relationships, are inherently grey and use of such concepts introduces more confusion than clarity."

"“Privacy” can be viewed as a term with referential meaning; it is typically used to refer to or denote something. But “privacy” has been used to denote many quite different things and has varied connotations. As Edward Shils observed 20 years ago: Numerous meaning crowd in the mind that tries to analyze privacy: the privacy of private property; privacy as a proprietary interest in name and image; privacy as the keeping of one's affairs to oneself; the privacy of the internal affairs of a voluntary association or of a business; privacy as the physical absence of others who are unqualified by kinship, affection or other attributes to be present; respect for privacy as the respect for the desire of another perosn not to disclose or to have disclosed information about what he is doing or has done; the privacy of sexual and familial affairs; the desire for privacy as the desire not to be observed by another person or persons; the privacy of the private citizen as opposed to the public official; and these are only a few. Definitions of privacy maybe narrow or extremely broad. One of the best known definitions of privacy is that set forth by Samuel Warren and Louis Brandeis in a 1890 article that first enunciated the concept of privacy as a legal interest deserving an independent remedy. Privacy was described as “the right to belet alone”. In spite of its breadt, this view has been influential for nearly a century. In the 1960s, 1970s, and 1980s, the proliferation of information technology (and concurrent developments in the law of reproductive and sexual liberties) has inspired further and more sophisticated inquiry into the meaning of privacy. In hs work “Privacy and Freedom”, Alan Westin conceived of privacy as “an instrument for ahcieving individual goals of self realization” and defined it as “the claim of inndividuals, groups or institutions to determine for themselves when, how and to what extent informatio about them is communicated to others,” approaching the concept in term sof informational privacy. WA Parent defined privacy in ters of information as “conditio of not having undocumented personal information about onself known by others”. In contrast, Ruth Gavison defines privacy broadly as “limited access in the senses of solitude, secrecy and anonymity”. In her view, “privacy” is a measure of the extent to which an individual is known, the extent to which an individual is the subject of attention, and the extent to which others are in physical proximity to an individual. Her deifnition of privacy was to include: such “typical” invasions of privacy as the collection, storage, and computerization of information; the dissemination of information about individuals; peeping, following, watching, and photographing individuals intruding or entering “private” places; eavesdropping, wiretapping, reading of leters, drawing attention to individuals, required testing of individuals; and forces disclosure of information [emphasis added]."

"Defining privacy in terms of access to personal information is popular among legal schlars; when lawyers refer to the legal protection of privacy, they are often referring to the protection of an individual's information privacy, theability of people to control the flow of information about themselves. While a definition of privacy focusing only on information privacy interests has the advtange of simplicity, it excludes two other situations that are commonly regarded as losses of privacy: intrusions upon seclusion and deprivation of anonymity. Of all the many attempts at definition, Gavison's descriptive, neutral concept of privacy – centered around the notion of the degree to which an individual is assessible to others – seems to us to be the most satisfactory."

"[A]n individual enjoys perfect privacy when he is completely inaccessible to others. This may be broken into three independent components: in perfect privacy no one has any information about X, no one pays any attention to X, and no one has physical access to X. Perfect privacy is, of course, impossible in any society. The possession ro enjoyment of privacy is not an all or nothing concept, however, and the total loss of privacy is as impossible as perfect privacy. A more important concept, then, is loss of privacy. A loss of privacy occurs as others obtain information about an individual, pay attention to him, or gain access to him.17 Gavison uses the term “physical access” to mean “physical proximity – that Y is close enough to touch or observe X through normal use of his senses”.18 Thus, a person suffers a loss of privacy in this sense when others enter into a space where that person has previously enjoyed solitude. A person becomes the subject of attention in a way that involves loss of privacy when he or she is followed, listened to or observed in any other way, for example, when others are able to listen to or observe her or him through the use of surveillance devices. This third element of accessability is information known about an individual. For Gavison, the acquisition of any information at all about an individual involves a loss of privacy in the neutral sense. While the three elements of accessibility are often interrelated, they need not be: Each -element- is independent in the sense htat a loss of privacy may occur througha change in any one of the three, without a necessary loss in the other two. The concept is nevertheless coherent because the three elements are all part of the notion of accessability, and are related in important ways.19"

"Some writers, such as Westin, introduce the element of “control”, defining privacy in terms of the extent to which individuals have “control” over, for example, the flow of information about themselves. Gavison however argues convincingly against introducing the element of “control” at the definitional stage, where the aim should be to formulate a neutral “descriptive” definition that does not pre-empt questns about the “value” of privacy, such as the question of when society, and the law, should respect and enforce an individual's privacy choices. Of course, as Gibbs points out, the notion of “control” is not always applicable, even in the context of discussing a “right” to privacy, since it is not possible for individuals to have control over all thhe ways in which they may suffer a loss of privacy against their wishes. The next quesiton is whether society hould recognise an individal “right” to privacy, by which we mean that a person should be able to choose the degree to hich he or she is assessible to tohers; that as far as possible, a person should have “control” over their accessibility to others and where control is not possible, that others should refrain from gaining access to that person against their wishes."

"[P]roponents of the right can simply assert the existence of a right to privacy and, equally validly, opponents can assert a “right to know”. An impasse is then reached because there is no underlying principle that can be invoked to provide guidance on the issue. As with many rights, the victor may unfortunately be the side which simply yells the loudest. This may seem to be unduly dismissive of rights-based theories and pay inadequate regard to the considerable moral reforms that have occurred against the backdrop of rights talk over the past half-century. There is no doubt that rights claims have proved to be an effective lever in bringing about social change. As Campbell correctly notes, rights have provided “a constant source of inspiration for the protection of individual liberty”. For example, reoognition of the (universal) right of liberty resulted in the abolition of slavery; more recently the right of equaliy has been used as an effective weapon by women and other disenfranchised groups. For this reason, it is accepted that there is an ongoing need for moral discourse in the form of rights. For this reason, it is accepted that there is an ongoing need for moral discourse in the form of rghts. There is so even in deontological rights-based moral theories (with their absolutist overtones) are incapable of providing answers to questions such as the existence and content of proposed rights, and even if rights are difficult to defend intellectually or are seen to be culturally biased. There is a need for rights-talk, at least at the “edges of civilisation and in the tangle of international politics”. Still the significant changes to the moral landscape for which non-consequentialist rights have provided the catalyst must be accounted for."

"How then does one justify (as opposing to merely asserting) a right to privacy within a rights-based theoretical framework. Logically the only way to do this is to reference it back to more fundamental values which are advanced by the recognition of the right to privacy. This is the exact methedology employed by most adherents of a right to privacy. To this end, as we have seen, there are typically two values from which the right to privacy is said to be derivative: dignity and autonomy. We now consider these values separately to derermine if in fact they are capable of providing a foundation for the right to privacy."

"In recent privacy cases, here and in the United Kingdom, the courts have identified autonomy as the value underpinning the legal recognition of a right to privacy at common law. Some writers have asserted that privacy (characterised as “freedom from intrusion”) is a necessary condition for the exercise of autonomy (characterised as “freedom to act”). Others have claimed that: [A]t its core privacy is concerned with ensuring that an individual may develop and maintain an integrated personal structure and identity, and practise an individual autonomy. Before considering the plausibility of such an approach two issues must be addressed: the meaning of autonomy and its foundation."

"Personal or physical space is an important aspect of privacy. While there is a widespread cultural norm that individuals have a small zone of “personal space” into which others ought not intrude and people often feel uncomfortable when this area is encroached upon, there is no legally enforceable right protecting such a zone."