In all the brew-ha-ha about our “right to bear arms” under the second amendment to the Constitution we hear very little at all about our right to privacy. Strictly speaking, that right is not mentioned in the Constitution, but it is a basic human right and it has been regarded as implicit in the Constitution in a number of Supreme Court cases — specifically Pierce v Society of Sisters, Roe v Wade, and Griswold v Connecticut. In defending the right to privacy Louis Brandeis, the great constitutional scholar, noted in an article in the Harvard Review that “the government [is] identified as a potential privacy invader.” This view has been echoed in the decisions mentioned above and reflects the attitude of the majority of the founders of this nation who all worried about the abuses of power. The right to privacy is universally regarded as a basic human right. Indeed, in the Universal Declaration of Human Rights endorsed by the United Nations it couldn’t be more explicit:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Having said that, it is interesting to note the ways in which our right to privacy has been gradually invaded in a variety of ways. Moreover, it has been done so slowly and almost imperceptibly — usually in the name of “national security — or for purposes of commercial profit. I have blogged in the past about the way we are quite willing to trade our freedom for greater security and the fear that is fostered by the media that makes it easier for the government, or indeed any public agency, to simply collect information about us that we may not be pleased to give up. But it’s not just the government that is collecting information about us and thereby invading our privacy: it’s the data collecting companies that collect and sell information about virtually everyone in this country who has ever bought anything. As a recent article on the subject mentions:
Other than certain kinds of protected data — including medical records and data used for credit reports — consumers have no legal right to control or even monitor how information about them is bought and sold. As the FTC notes, “There are no current laws requiring data brokers to maintain the privacy of consumer data unless they use that data for credit, employment, insurance, housing, or other similar purposes.
What this means, of course, is that these data are collected, sold, and employed for marketing purposes; the data are collected from previous sales, credit card applications, and also the social media we use, including the internet sources we connect to. It’s all “out there” and someone is taking it in and using it to find out as much as possible about the buying public in order to sell that information to anyone who wants to profit from it. So it is not just the government that is a “potential privacy invader” as Brandeis suggested. It is also commercial data collectors. The problem Brandeis explored is simply compounded in an economic system in which profit trumps privacy, though in many ways the invasion of privacy in the name of “national security”may be most disturbing.
We know, for example, that in the name of “homeland security” our computers and even our phone lines are subject to prying if there is any reason to suspect that we are up to no good. And we are told the day will soon come when drones fly about collecting information about us and storing it for future use, should we give the government any reason to suspect anything. This smacks of the presumption of guilt: a violation of the fundamental principle of law going back to Rome that declares a person is presumed innocent until proven guilty. It is a brave new world that we are experiencing, and it is one in which the notion of privacy and even individual liberty, are increasingly on hold.