Civil Rights And Liberties

"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'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 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"

"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."

"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."

"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."

"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."

"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?"

"[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."

"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.”"

"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"

"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)."

"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.”"

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

"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."

"“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."

"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"

"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."

"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."

"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?"

"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)."

"[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?"

"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."

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