What is Right to Privacy?

The United States of America’s constitution offers certain fundamental rights. These rights, when denied to an individual, violate equal protection. If an entity violates the right to privacy, it must show that its actions were necessary to protect a compelling interest.

The right to privacy is an element of various legal traditions to restrain governmental and private actions that threaten individuals' privacy. Over 150 national constitutions mention the right to privacy.

In the digital age, data plays a huge role in our everyday lives. It is present in many distinct ways, such as when we are shopping online, sharing files with others, updating our social feeds, and much more. In 2013, Edward Snowden opened a vast regime of mass government surveillance programs opening a global conversation which is still unfolding today.

Among many other rights given to individuals, the first right is the right to privacy. Therefore, the Ninth Amendment and Fourteenth Amendment precisely note that rights, if not clearly mentioned in the Constitution, does not mean that the people don't have them. Hence, the courts in the U.S. have followed that reasoning.

Privacy rights are considered fundamental rights. Certain fundamental rights are protected under the Constitution. Therefore, if they are given to some people but not to others, then it's a violation of the Constitution.

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Why is Right to Privacy Important?

Right to Privacy is a fundamental right of each individual irrespective of who they are or where they come from. Without privacy, there’s no security, and when there’s no safety, we’re all living in a world with chaos and constant threat.

Privacy is a lot more than what commentators and court rule out. Privacy puts a limit on power, gives respect to others around you, maintains appropriate social boundaries, gives freedom of thought and speech, and most importantly, a trust that yes, you’re safe.

Constitutional Right to Privacy

Privacy rights are naturally linked with information technology as we live in an era where processes have shifted online. Former Associate Justice of the Supreme Court, Louis Brandeis, writes,

"Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet."

—Former Associate Justice of the Supreme Court, Louis Brandeis Right to Privacy - Wikipedia

While the U.S. Constitution does not explicitly include the right to privacy, the Supreme Court has found that the Constitution indirectly awards a right to privacy against governmental intrusion from the First Amendment, Third Amendment, Fourth Amendment, and the Fifth Amendment.

The right to privacy is alluded to in the Fourth Amendment to the US Constitution, which states,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

—Fourth Amendment to the US ConstitutionRight to Privacy - Wikipedia

Personal Data Protection

The Personal Data Protection Act, passed in the UK in 2018 is the UK’s implementation of the General Data Protection Regulation (GDPR) and a step towards controlling how your personal information is used by organizations, businesses or the government.

While it’s a significant step towards protecting your online privacy, it’s essential to realize that as a user, it’s your responsibility to make sure of what you upload on the web. If you keep updating key details of your everyday life online, the concept of privacy rules out of the question.

Online Privacy and GDPR

Online privacy and GDPR have a lot in common. Without online privacy in place, GDPR would fail to achieve its objective. As an entity that’s accountable for gathering and using personal data of users, there are strict rules called ‘data protection principles’ that have to be followed:

  • Data must be used fairly, legally and transparently
  • Data must be used for stated, expresses purposes
  • Data must be used for its intended purpose only
  • Data must be accurate and up to date
  • Most importantly, data must be handled in a way that ensures appropriate security, including protection against unlawful or unauthorized processing, access, loss, destruction or damage

Civil Law of Privacy Protection

In the United States, there isn’t any single underlying data privacy legislation. Instead, the U.S. follows a state by state approach towards data privacy. As a matter of fact, the U.S. depends on a “combination of legislation, regulation and self-regulation” rather than government intervention alone.

In the United States, the most prominent national laws include the Privacy Act 1974, the Privacy Protection Act 1980, Children’s Online Privacy Protection Act, Electronic Communications Privacy Act, and the Cyber Intelligence Sharing and Protection Act.

Right of Publicity

The “right of publicity” is a form of intellectual property right that guards against the misuse/fraud of an individual’s name, likeness and possibly other impressions of personal identity for personal gains.

In the United States, sadly, the right of publicity has still not been recognized at the federal level by a ruling or case law. However, the right of publicity has been recognized by regulation and/or case law in the majority of the 50 individual states.

The right of publicity can outspread to several personal traits such as name, nicknames, pseudonyms, voice, signature, likeness, photograph or other indicators of identity or persona. However, there is a discrepancy among the states on the following issues:

  1. Whether the right survives posthumously and, if so, for how long.
  2. Whether the right of publicity is descendible (inheritable) and assignable.
—Fourth Amendment to the US ConstitutionRight to Privacy - Wikipedia

While the right of publicity isn’t fully exercised, it’s important to understand that privacy is in your hands. The more you exhibit, the less private you become.