Privacy

"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."

"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."