Right to privacy

The Right to Privacy: A Fundamental Human Right

Imagine a world where your personal information is safe from prying eyes, both public and private. That’s the essence of the right to privacy—a fundamental human right that has been recognized in over 185 national constitutions. But what exactly does this right entail? And how has it evolved with the advent of technology?

The Historical Context

Let’s go back to the 12th century, when the Latin word ‘ius’ first began to encompass the idea of a “right” or an entitlement. This concept expanded over time to include the right to control and claim personal information. In the United States, it was Samuel D. Warren II and Louis Brandeis who first explicitly defined privacy as the ‘right to be let alone’ in their 1890 Harvard Law Review article.

The Impact of Technology

With the rise of information technology, the right to privacy has taken on new dimensions. Cases like Olmstead v. United States (1928) and Katz v. United States (1967) highlighted the importance of protecting personal information from both government and private entities. Today, debates around this right center on its relationship with intelligence agencies, technological advancements, and social contract responsibilities.

Defining Privacy

Alan Westin defines privacy as ‘the claim of individuals or groups to determine when, how, and to what extent information about them is communicated to others.’ He describes four states of privacy: solitude, intimacy, anonymity, and reserve. These states balance participation against norms.

Data Protection

David Flaherty believes that networked computer databases pose significant threats to privacy. He develops the concept of ‘data protection,’ which involves the collection, use, and dissemination of personal information. Marc Rotenberg emphasizes Fair Information Practices as a modern understanding of the right to privacy, allocating rights to data subjects and responsibilities to data collectors.

Legal Perspectives

Richard Posner criticizes privacy for concealing information, which he argues reduces market efficiency. Lawrence Lessig argues that online privacy breaches can be regulated through code and law. Adam D. Moore connects privacy to human well-being, stating that regulating access to personal information is essential for human flourishing.

Global Perspectives on Privacy

The right to privacy varies across different regions. In the European Union, it is protected by Article 8 of the European Convention on Human Rights, which guarantees respect for private and family life, home, and correspondence. The General Data Protection Regulation (GDPR) is a crucial component of EU privacy law, requiring data controllers to keep records, adopt data protection policies, be transparent with data subjects, appoint a Data Protection Officer, and implement technical safeguards.

Other Jurisdictions

In Australia, the Privacy Act 1988 (Cth) outlines the 13 Australian Privacy Principles. In Canada, privacy can be traced back to Warren and Brandeis’s ‘The Right to Privacy’ published in the Harvard Law Review in 1890. China has a new standard, the Civil Code, which provides direction for all states and protects civil rights such as personal dignity and confidentiality of correspondence.

United States

In the United States, there is no federal law that takes a holistic approach to privacy regulation. Privacy protections are established through court cases, providing a reasonable expectation of privacy. The Supreme Court found that the Constitution guarantees a right to privacy against governmental intrusion. However, outside recognized private locations, American law grants next to no privacy for those in public areas.

Privacy Laws and Regulations

The Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA) was passed in 1996 to safeguard medical data of patients and give individuals rights over their health information. In healthcare, connecting patients’ data to the internet makes them vulnerable to cyber attacks.

California’s CCPA

In 2018, California created the California Consumer Privacy Act (CCPA) as a critical juncture in the legal definition of privacy. The CCPA provides six intentional acts to protect residents of California and their personal identifying information, including:

• Knowing what personal data is being collected about them
• Knowing whether their personal data is sold or disclosed and to whom
• Saying no to the sale of personal data
• Accessing their personal data
• Requesting a business to delete any personal information about a consumer collected from that consumer
• Not being discriminated against for exercising their privacy rights

Mass Surveillance and Privacy Violations

In the United States, mass surveillance is conducted by governmental organizations such as the National Security Agency (NSA), CIA, and GCHQ. These agencies are authorized to collect metadata, internet history, and actual recordings of phone calls from various countries. The US Government’s own Privacy and Civil Liberties Oversight Board found that the PRISM program did not have a single instance involving a threat to the United States in which the program made a concrete difference.

China’s Approach

In China, mass surveillance is being conducted in Xinjiang province for detention of Muslims as part of its ‘Strike Hard Campaign against Violent Terrorism’ policy. During the COVID-19 pandemic, Chinese authorities documented individuals’ contact information and travel history, issuing badges/codes for transportation and entering stores. These codes were also used to freeze bank accounts and pressure protesters.

Media and Privacy

The right to privacy is often claimed to be violated when private lives are reported in the press. However, the media argue that public figures have a right to know personal information about them due to their status as public figures. Publication of private facts is protected by law under freedom of speech if the fact has significant newsworthiness.

Private Sector Threats

Private sector actors like technology companies can threaten this right by collecting and using personal data. The US is behind EU countries in protecting online privacy, with laws such as California’s ‘online erasure’ law and the General Data Protection Regulation (GDPR) offering more comprehensive protection.

The Future of Privacy

As technology continues to evolve, so too must our understanding and implementation of the right to privacy. Whether it’s through legal frameworks, technological safeguards, or societal norms, ensuring that individuals have control over their personal information is crucial for maintaining a free and just society.

The right to privacy is not just a legal concept; it’s a fundamental human right that ensures our dignity and autonomy. As we navigate the complexities of modern life, protecting this right becomes more critical than ever.