The Right to Privacy: hard to define but necessary to protect.

Privacy is an idea that many people can support in principle but few can define in practice.  It is an important issue that is intertwined with so much of our daily lives (see: the recent stand-off between Apple, Inc. and the Feds).[1] [2]  The question is, from what fount does the power of the right to privacy flow, and why is that important? A thorough reading of the United States Constitution, something that every citizen should do regularly, will reveal a peculiarity:  there is no mention in that document of an explicit right to privacy. In fact, it wasn’t until the early 1920s that the issue was even loosely adjudicated.[3]  Justice McReynolds wrote that ‘liberty’, of which privacy is a component, “…denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”[4]

Perhaps the pinnacle judicial determination of the right to privacy, and certainly one of the most famous SCOTUS cases, was found in Roe v. Wade.[5]  There, a woman’s right to an abortion was found to be protected by the First, Fourth, Fifth, Ninth and Fourteenth Amendments. Importantly, while the Court was reading an implicit right to privacy into the Constitution, they also read into those rights a reservation that the right to privacy is not unqualified and most be considered against important state interests.

How far does the Constitution go to protect us from prying eyes and intrusions, and what is an important state interest? The answer is still being defined. The court order against Apple, Inc., employer’s questionable policies regarding the use of social media[6], and the Supreme Court case regarding abortion clinics in Louisiana[7] illustrate that this issue is evolving and amorphous.

To best protect yourself you must know your rights and be proactive. You are the front line sheild of your own privacy. Assume that anything you post online is public knowledge. If your privacy rights have been infringed, seek experienced legal counsel that focuses on adjudicating these rights.

— by Derek A. Jordan, Esq., Barnes Law

Derek A. Jordan is an associate attorney with Barnes Law, licensed to practice law in Tennessee.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] http://www.wired.com/2016/02/judge-says-apple-doesnt-have-to-unlock-iphone-in-case-similar-san-bernardino/

[2] http://blogs.wsj.com/law/2016/02/18/from-the-telegraph-to-the-iphone-a-short-history-of-corporate-defiance/?mod=WSJBlog

[3] See: Meyer v. Nebraska http://law2.umkc.edu/faculty/projects/ftrials/conlaw/Meyer%20v%20Nebraska%20%281923%29.html

[4] http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html

[5] https://en.wikipedia.org/wiki/Roe_v._Wade

[6] http://www.usatoday.com/story/news/nation/2014/03/08/data-online-behavior-research/5781447/

[7] http://www.scotusblog.com/2016/02/new-plea-to-protect-louisiana-abortion-clinics/#more-238900