WILMINGTON, DELAWARE – JANUARY 07: Federal Judge Merrick Garland makes remarks after … [+]
The concept of privacy is an absolutely fundamental pillar of American society. At least this feels there. For example, what could matter more to a teenager than the privacy of her bedroom? It is reasonable for employees to expect restrictions on any tracking by their employers or security for social media users who have carefully adjusted their privacy settings. And at its most basic level, privacy is about “the right to be left alone by the government,” according to U.S. Supreme Court Justice Louis Brandeis.
The reality is quite different. Parental authority almost always takes precedence over the minor’s right to privacy. Recent The newspaper “New York Times The article sheds some disturbing light on the prevalence of employee monitoring. Similarly, your social media privacy cannot be securely protected.
Even so, many Americans believe that we have an inalienable right to privacy. Why is this? What is the basis of this belief?
The starting point is the last paragraph of the Fifth Amendment, which states that your private property may not be used for public purposes without your consent and/or reasonable compensation. This is the sum total of the explicit statement of “confidentiality” in the US Constitution. So, are we just relying on our assumptions?
The purpose of asking these questions is not to deprive us of our right to privacy. On the contrary, we need to understand the basis for its inclusion in the Constitution in order to preserve it. In other words, you need to know what you are entitled to in order to be aware of your privacy rights.
A review of the emergence of this concept in the Constitution can help us better understand the field of privacy in the hope that we will stop making false assumptions and rightfully demand the privacy we deserve.
Constitution
There are some who reject any form of constitutional interpretation. But if you don’t think the Fifth Amendment’s protection of private property is sufficient for all your privacy needs, you need to go beyond the written word.
Let’s start with three sections of the Bill of Rights that can be interpreted as granting the right to privacy. It can be argued that it goes beyond three, but the original US Congress considered these passages to be fundamental and therefore worth studying.
The First Amendment can be interpreted as a right to “confidentiality of opinions”. Basically, you have the right to speak and practice your beliefs. But for this you need your own beliefs and opinions that are not imposed on you by the government. In this sense, we understand “private” as akin to “personal”. For literal First Amendment ideologies to be valid, you must first be entitled to the privacy of your conscience.
The Third Amendment protects your home from forced military “cantonment” without your consent. This protection is more literal about privacy than the one above, but there is still some interpretation needed to prevent soldiers from sleeping in your bed. Everyone should be safe in their home from any intrusion, including military or law enforcement. Here we understand “confidentiality” as “security”.
So far, the Constitution protects our right to personal opinion and home security, and we’re starting to get a clearer picture of why Americans feel so strongly about privacy.
The last area of the Bill of Rights that appears to provide for a right to privacy is the Fourth Amendment. This protects our homes and ourselves from unreasonable searches and seizures. How does this relate to privacy?
The key word here is unreasonable. As we have recently seen, even a court-sanctioned search and seizure warrant may be regarded by some as unfounded and open to challenge. In other words, there is a gap in trust. Without confidence in the rule of law, any government action can be seen as an invasion of privacy.
What is central to this amendment, and to the Constitution as a whole and in substance, is confidence.
Connection
We now have a basic understanding of what confidentiality means in the Constitution. These are twofold trusting relationships: between citizens themselves and between citizens and the state.
It should be noted here that privacy under the Constitution is not just individual protection. On the contrary, it is for the benefit of civil society.
Privacy is understood through relationships, so multiple parties need to be supported. Until now, we have understood privacy as an independent concept, that is, it does not depend on anyone else. Now we see that privacy is actually a dependent concept. Without trust, there can be no privacy between citizens and their state. Individual privacy depends on everything.
The founding fathers were well aware of this.