Here’s a quickie quiz on the U.S. Constitution: Where, exactly, in the document does the right to privacy appear?
The answer is “nowhere.” That’s right; one of the assumed cornerstones of American freedom is not inscribed by any express language in the country’s supreme legal document. It may well be that the Founders thought the right was so obvious that it didn’t need to be specifically stated, but it is more likely that they never thought about it at all. Their main concern, after all, was to fashion a way for the thirteen states (the original colonies that formed the union in 1776 and ultimately ratified the Constitution) to agree to be bound by a set of basic rules for how they would be governed.
It was only in the immediate aftermath of drafting the basic document that it occurred to those wise men (sadly, women weren’t in on the action), to put together a list of individual rights that the government would be required to recognize. Those rights quickly took the form of the first ten amendments to the Constitution. The Bill of Rights identified specific rights (especially in the First Amendment) that were a reaction to the English rule from which the colonists had sought to be freed. And the right to be free from unreasonable searches and seizures was written into the fourth of the amendments.
You’d think that the Founders would have stated clearly and unequivocally that being free from general searches (the old right of the monarch to search his or her subjects at will) was a subset of a specific right to privacy in one’s personal affairs, but they didn’t think to specifically so state. In fact, a specific right to privacy didn’t become a major concern for the Supreme Court until well into the second century of the nation’s existence.
It wasn’t until the 1960s, the era of the Warren Court, that the idea of a specific right to privacy was seriously considered by the Court. Until then, most opinions dealing with the Fourth Amendment had turned on whether the searches of personal property were reasonable, as the Amendment’s express wording required. That wording, “The right of the people to be secure … against unreasonable searches and seizures,” precedes a second clause that reads, “no warrants shall issue, but upon probable cause …”
Taking the two clauses together, the Court in a series of cases, determined that the language identified an implicit right to privacy. The years since have been a struggle, however, as Court opinions have wavered between extending the right in favor of individuals and restricting it in favor of police investigations of criminal activity.
At the same time, what may need to be recognized as private has changed as technological advances have occurred. Fifty years ago, the question was whether telephone calls could be intercepted without a warrant. The answer was a definitive no.
On the other hand, one exception allowed the contents of a briefcase to be searched if it was seized during a lawful arrest. That kind of warrantless search was permitted under a Court-created exception that allowed arresting police officers to search a circumscribed area incident to an arrest.
But technology kept putting new issues before the Court. Two years ago, it decided that placing a GPS tracking device on a car violated the car owner’s right to privacy because it would then allow the police to track wherever the driver of the car went 24/7. Too invasive of personal privacy, the Court declared.
The most recent technological advance has to be smart phones, those devices that almost everyone in modern American society has that store all kinds of personal information. So what if an arrested suspect is found (through a lawful search incident to the arrest) to be carrying a smart phone? Can the phone be searched without a warrant, as could a briefcase? Both could well contain personal information that would be private to the individual.
The Court considered such a case this year, and just last week it issued its decision. In a unanimous ruling (9-0), it held that such a search, revealing as it could all the information and personal history of the arrestee, would be in violation of the Fourth Amendment. Instead, the police would have to seek a warrant (from a neutral magistrate) by showing that they had probable cause to justify the search.
And so the Court now recognizes that a right never clearly stated to even exist in the Constitution does indeed exist as to items of personal property in this technologically advanced new millennium in which we live. Privacy in your smart phone is now constitutionally protected.
Ah, but don’t feel entirely secure with that last sentence, because if the Court’s “evolution” on the subject of privacy rights and what items are and are not protected by those rights proves anything, it is that the definition of individual privacy is subject to what the society reasonably accepts and expects to be private.
So, with that in mind, think about the advances in social media and how they might affect a future Court decision. What if, for example, Twitter and Facebook postings become so ubiquitous (if they aren’t already) that society’s reasonable expectation is that they are not private? And what, then, if not only what one posts but what one reads of other’s posts is not considered to be private? And what of Google searches that are already understood to be available to any company with a Google contract? Are they private? Should they be?
Are your Amazon purchases private? What about your Netflix orders? What about your e-mails and your texts? Yes, the Court has determined that the contents of a smart phone are constitutionally protected, but what if the specific contents themselves are understood to be unprotected?
What if, in other words, we, as a society, accept the loss of privacy in our personal interactions to such an extent that we no longer reasonably expect them to be private?
If it’s a little late for 1984, a dystopian new world may still be in our future.