Discussion essay
To what degree does an individual have a right to privacy?
by Cindy Petterson
October 24, 2001

Since September 11, 2001, the right to privacy issue has again surfaced to the media forefront. Concerns about loss of privacy at airports, increased surveillance of e-mail, wiretapped phones and other such measures are balanced, especially in this time of war, against the need of causes such as fighting terrorism and solving crimes. The need for personal privacy appears to be on a teetering scale opposed by an aim for the greater good.

What exactly is the right to privacy? It’s not an explicitly stated constitutional right in the United States. Is this a basic human right? Or a civil right? Whatever the right, the obsession with privacy continues and lawmakers are forced to grapple with the balance between the need to protect and the right to privacy.

Avishai Margalit argues that privacy concerns the fundamental component of human life as well as how well humans live (2001). He further argues that The Universal Declaration of Human Rights does not make a distinction between fundamental human rights and the civil right to lead a good life. Article 12 of this declaration which specifically mentions privacy, states, "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." Margalit believes article 12 addresses only human rights and not the civil component of living a good life (2001).

Although the United States Constitution does not specifically include a privacy provision like the aforementioned human rights declaration, the Fourth Amendment does address a component of privacy. The Amendment reads, "The right of the people to be secure in their persons, houses, papers, and against unreasonable searches and seizures, shall not be violated." Justice Louis Brandeis called this "The right to be left alone."

According to Anita Allen (2001), Louis Brandeis and Samuel Warren devised the right of privacy based on the family secret. Warren and Brandeis believed that the family secret "is just another commodity, an eventual disclosure awaiting a lucrative media contract (Allen, 2001). Allen said, however that the privacy obsession didn’t catch on until the 1960’s.

The Supreme Court ruled on several cases in the 1960s and 1970s that were pivotal to the privacy cause in the United States (Allen, 2001). Allen (2001) points out those Supreme Court decisions and federal laws shaped the popular notion of a right to privacy:

1967 – Lawful search and seizure standards were written based on Supreme Court ruling Katz v. United States

1967 – Loving v. Virginia addressed the right to interracial marriage at the Supreme Court level

1968 – Omnibus Crime Control and Safe Streets Act allowed limited use of the wiretap and surveillance

1969 – The right to home pornography use was decided by the Supreme Court in Stanley v. Georgia

1972 – Abortion rights law overturned in Roe v. Wade Supreme Court decision

1974 – The Privacy Act of 1974 and the Family Educational Rights and Privacy Act of 1974 addressed the use of personal information in commercial and government data banks

1978 – The Right to Financial Privacy Act of 1978 addressed aggregation and use of personal data (Allen, 2001).

Since the 1960s, new issues with privacy have also surfaced surrounding the healthcare industry. Allen (2001) contends that decisions about life and death have complicated the privacy issue since advances in medicine have enabled increased life span. HIV has given rise to concern about the use of medical records and limits to privacy when the public’s health is concerned. DNA evidence has been so useful in solving crime that the Assistant Chief constable Graeme Person suggests that the practice of collecting DNA samples from suspected criminals should be extended to all citizens (Southan, 2001). In fact, Southan (2001) says that there are 600,000 DNA samples in a national database in the United States.

Simpson (2001) said that while the former method of paper medical records was cumbersome, the move to electronic records, especially intensified by Internet access, created confidentiality issues. Simpson (2001) contends that Nurses have the opportunity to help keep data secure. Also, the Health Insurance Portability and Accountability Act of 1996 addressed the information security problem by a mandate for chief information officers to implement policies and procedures to limit access.

IS Managers have an opportunity and perhaps a responsibility to protect privacy rights with concern database information. Because of the progression of technology, personal information collected in government and other databases is enormous and perhaps out of control. According to Henderson and Snyder, protection of privacy rights will depend on proper training of the IS Managers who are responsible for database maintenance (1999).

Human resources managers are also grappling with the privacy issue. Surveys have found that employees are receiving sexually harassing e-mail at work and that users are more likely to track stocks at the office than at home (Stiefer, 2000). Employers state that computers are for company use only, but where do they draw the line in blocking e-mail and monitoring Internet use?

In Canada, interception of e-mail tested the court’s interpretation of privacy law. Section 8 of the Canadian Charter of Rights and Freedoms affords privacy rights protecting against arbitrary search and seizure. Eddie (2000) argues that the current laws of privacy failed the test to protect against intercept by police wiretap and concludes courts should focus on the act of privacy invasion rather than the medium invaded.

While one might accept an invasion of privacy at work or in public, there is something about home that is innately private. Margalit (2001) contends privacy is a tradition that dates to the Jewish Talmud from fifth century CE—the right to privacy from an unwanted gaze. A violation of this privacy can force the offending neighbor to share the cost of the fence to block future unwanted gazes. This old tradition is protected under Article 12 of the Universal Declaration of Human Rights in the protection from interference in family and home. Margalit (2001) asserts that privacy in the home is at the core of our freedom, a violation of that privacy leads to humiliation and harms a human being’s status.

According to Allen (2001), a change in journalism after the Watergate scandal led to a broader scope of reporting. The marketing aspect of journalism has lead to "…made-for-prime-time undercover efforts to reveal corporate and professional wrongdoing" (Allen, 2001). Public officials are no longer safe from invasion of their private lives.

Margalit, (2001) believes that family privacy is at the core of human rights. He argues, "Privacy, family, and home are intimately connected," and privacy is, "an enabling condition for forming intimacy" (Margalit, 2001). And this privacy, reasons Margalit, applies to all humans, including public officials and celebrities (2001). However, the media have exploited public lives.

Allen argues that exposes of corporation wrongdoings, daytime programs that feature women revealing family problems, real life programs with 24 hour cameras, and the broadcast of trials like the O.J. Simpson murder trial and Clinton’s impeachment, serve to lower the threshold of privacy expectations (2001). If the public is willing to forgo their privacy and the media invade the privacy of public figures for profit, are there reasonable limits to privacy rights for the betterment of society when no profit motive exists?

Opposing viewpoints

There is a school of thought to favor limiting privacy rights for the greater good and to protect those who are unable to assert themselves. "…One must wish that privacy were less possible, accountability more exacting," said Allen, "Those who injure and abuse should be exposed and brought to justice. We need to reexamine institutions and practices that encourage inhumane isolations" (2001).

Amitai Etzioni, in his book The Limits of Privacy, indicates that society has disregard for the public good in matters of health and safety and such cases are cause for limits on privacy (1999). Etzioni feels that the privilege of privacy should not be extended to pedophiles, pilots, police officers and school bus drivers. And he feels that broad problems such as the spread of HIV in Africa and sexual abuse of children are a reason to favor the common good over personal privacy.

Etzioni has four criterion to determine if privacy rights should be limited: is there a clear and present danger to societal health and safety, will a limit to privacy improve the potential for danger, how can limits to privacy rights be the least intrusive, and can we prescribe a cure for side effects? He uses this criterion to conclude that privacy should be limited with regard to tighter gun controls, federally limited access to encryption software, and HIV testing for infants.

James A. Morone agreed with many points surfaced in Amitai Etzioni’s book in a commentary of The Limits of Privacy, but cautions that these privacy limits depend on the trustworthiness of community leaders and government (2001). Morone (2001) quotes a warning from James Madison, "enlightened statesmen will not always be at the helm."

Etzioni and Morone agree that we need more privacy in health care coverage. Morone (2001) agrees that health insurance companies use your medical history and past procedures to deny future coverage. Corporate "privacy merchants," says Etzioni, collect and misuse our medical records (1999).

Morone (2001) argues that crime rates are down so we don’t have a clear and present danger to safety. Yet, Etzioni’s response to Morone’s book review is that crime is higher than other civilized nations and the victims are the poor and disadvantaged. Etzioni holds firm that certain limits to privacy must pervade.

Morone further argues that we should not overemphasize school bus driver urine testing and child abuse so as to raise the level of public panic (2001). Etzioni’s retort is that children’s rights should be highest on our list of priorities, even if employees like school bus drivers are under appreciated and abused by capitalism (2001). Etzioni concluded that we should not wait for social reforms to protect victims like children.

Should the privacy of pedophiles and sexual offenders be compromised to warn the public when criminals are released from prison?

If basic human rights include being left alone in our home, are satellite photos a violation of this right? Are search and seizure laws adequate to protect e-mail privacy?

We may or may not knowingly give up privacy by providing personal information to credit card companies, Web sites, and other marketing organizations. What level of responsibility should companies have to ensure that innocent consumers are aware that they are providing personal information for possible monetary gain?

The rise in numbers of DNA samples maintained in the United States is cause for concern about the proper use and misuse of this information. Who will be the governing body to decide when this information is used? What controls are or should be in place to ensure no misuse? Should there be a national database of DNA from all citizens as was proposed in Scotland?

If IS Managers are the watchdogs of database information and computer code, who is watching them?

Regarding computer use at the office, one would not expect calls to be monitored while at work, perhaps only tracking of phone numbers called. However, companies routinely track the full contents of e-mail. Does the medium create the level of privacy?

Allen, A. L. (2001). Is privacy now possible? A brief history of an obsession. Social Research, 68, 301 – 306.

Eddie, G. (2000). E-mail, the police, and the Canadian Charter of Rights and Freedoms: Retooling our understanding of a reasonable expectation of privacy in the cyber age. International Review of Law, Computers & Technology, 14 (1), 63 – 78.

Etzioni, A. (1999). The Limits of Privacy. New York:Basic Books.

Etzioni, A. (2001). Response to Professor James A. Morone. Journal of Health Politics, Policy and Law, 26, 453 – 455.

Henderson, S. C., & Snyder, C. A. (1999). Personal information privacy: Implications for MIS managers. Information & Management, 36 (4), 213 – 220.

Margalit, A. (2001). Privacy in the decent society. Social Research, 68, 255 – 268.

Morone, J. A. (2001). Too much privacy? Or not enough? An exchange on The Limits of Privacy. Journal of Health Politics, Policy and Law, 26, 447 – 452.

Simpson, R. L. (2001). How can we keep private data private? Nursing Management 32 (5), 12 – 13.

Southan, R. (2001). DNA on demand. Reason, 33 (5), 16.