By Nadav Morag, Ph.D.
Every democratic society has grappled with the dilemma of giving its citizens as much security as possible while also providing them with as much personal privacy as possible. This is somewhat of a zero sum game because many of the things that enhance security reduce or limit personal privacy and many of the things that enhance privacy weaken security. Let us look briefly at the issue of privacy rights, what the Constitution has to say about them, and what the implications are from the security perspective. The Constitution itself does not say anything about the right to privacy, but that right is enshrined in several of the twelve amendments to the Constitution, known collectively as the Bill of Rights.
The Right To Privacy
The 1st Amendment in the Bill of Rights provides people with the right to maintain religious beliefs of any kind and the right to keep those private. The 3rd Amendment provides for the privacy of the home by not allowing federal troops to be billeted in citizens’ homes. The 4th Amendment guarantees citizens protection against “unreasonable searches and seizures” of their person and property. The 5th Amendment protects people from “self-incrimination” (i.e., allows them to keep certain personal information private so as not to incriminate themselves if charged with a crime). Finally, the 9th Amendment, which states, among other things, that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people,” although rather vague, has been interpreted by some Supreme Court Justices and constitutional scholars as further protecting privacy rights in ways not spelled out in the previous amendments.1 Finally, the 14th Amendment states, among other things, that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” and this has been interpreted to guarantee civil liberties, including privacy rights, to all Americans even if state laws impinge upon this.
There have also been a number of Supreme Court rulings in which the Court helped further shape and define the concept of the constitutional right to privacy. One of the most famous cases in this context is Griswold v. Connecticut. In that case, a birth control clinic established in 1961 was shut down by the state authorities on the basis of an 1879 state law that prohibited the use of any drug or medical procedure designed to be a contraceptive. Essentially, the case was about whether people had the right to choose to engage in sex without having to worry about pregnancy (since access to modern contraceptive means, which was becoming increasingly widespread in the United States at this time, was changing behavior patterns and would help lead to the so-called “sexual revolution” of the 1960s). In this context, it should be borne in mind that privacy is not just a concept that holds with respect to one’s property, but also with respect to one’s conduct. The owners of the clinic eventually appealed the case to the Supreme Court, which found that the Connecticut statute was a violation of the 14th Amendment. According to the majority opinion of the court, written by Justice Douglas, “such a law [the Connecticut statute] cannot stand in light of the familiar principle, so often applied by this Court, that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."2
From a privacy perspective, all of this makes perfect sense. In a democracy, people should feel that they and their property cannot just be searched at whim by the government and they have a right to keep things private if they so choose. Of course, there have always been exceptions to this. One cannot decide not to inform the government of how much they earn, for example, because, among other things, their earnings are subject to federal (and in most of the country, state) income tax. But, by and large, the principle gives Americans the ability to keep many personal issues private and out of government hands.
However, completely adhering to this Constitutional right would mean that the government would have no ability to gather intelligence and/or evidence against persons engaging in criminal activities or terrorism. If surveillance, phone tapping, social media-monitoring, etc. were completely illegal (which they are not, despite the fact that they impinge upon the right to privacy), then the government would have no way of trying to prevent criminal activity or terrorism, or to use that information as evidence to convict criminals or terrorists, and this would mean that the population would be less secure as it would be more easily preyed upon by criminals and terrorists.
If the privacy protections in the Bill of Rights did not exist, then there would be no Constitutional barrier to the government snooping on whomever it wanted to (it would not be able to snoop on everyone since it does not have those kinds of resources) and that could potentially help the authorities prevent more acts of criminality or terrorism, but it would also mean unfettered power for government and the absence of one of the most fundamental democratic rights.
Clearly, the argument is not over whether Americans should have a right to privacy or whether the government should have the power, in specific situations defined by law, to infringe upon that right, but what the minimum types of infringements on the right to privacy should be….that is the essence of the debate and it touches on a wide variety of issues that have been in the news recently such as: the use of unmanned aerial vehicles with high-powered cameras (UAVs – more commonly known as Drones), domestic intelligence gathering (phone intercepts, email intercepts, etc.) by the National Security Agency (NSA), under what circumstances phone companies are expected to provide information to law enforcement agencies on customers’ calls, the search of one’s body and personal effects by the
Transportation Security Administration (TSA) at airports, and a range of other issues.
In sum, the tug-of-war between privacy and security is likely to continue. People want maximum privacy and maximum security, but both goals cannot be achieved simultaneously since each negatively impacts the other. Americans will simply have to learn to live with this tension and American policy makers, legislators, and judges, will have to continue to work towards finding the balance between these two needs that best suits the national mood.
1. University of Missouri – Kansas City, webpage: Exploring Constitutional Conflicts, available at: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html.
2. Cornell University Law School, Legal Information Institute, webage: Griswold v. Connecticut, available at: https://www.law.cornell.edu/supremecourt/text/381/479#writing-USSC_CR_0381_0479_ZO.