History of Privacy -- Take a right on privacy and go straight till you get to the OBGYN

Before any thorough examination of privacy can begin, one must understand where it has been. Specifically, looking at the evolution of the right to privacy in the United States legal system, since “the word private is enunciated in the U.S. Constitution as part of the phrase “private property,” [but] the term privacy is not specifically found in the Bill of Rights or in the body of the Constitution itself” (Johnson, 2005, p. 54-55).

Early in United States history, specifically in the pre-Civil War era, the understanding of privacy, at least from a legal perspective, “was as a personal one, related more to the circumstances of a person’s immediate physical environment (essentially the home) than to an assertion of a generalized legal, moral, or natural right” (Johnson, 2005, p. 57). The beginnings of the idea of a right to privacy in the more generalized sense have been traced back to an essay that appeared in the Harvard Law Review in 1890. The authors of that essay, Louis D. Brandeis, the future Supreme Court justice, and Samuel D. Warren, his former law partner, asserted that “the common law secures to each individual the right of determining, ordinarily, to what extend his thoughts, sentiments, and emotions shall be communicated to others” (Rosen, 2000, p. 5). The two also explained that the same legal principle that barred prosecutors from examining letters, books, diaries and other private papers should also be applied to gossip columnists, preventing them from publicly ruminating about the sex lives of private citizens. “They called that principle the right to an “inviolate personality” and said that it was part of the more general “right to be let alone” (Rosen, 2000, p. 5) [the concept of the right to be let alone coming from an 1879 volume on tort law by Thomas Cooley (Johnson, 2005, p. 57)].

Arguably, the major impetus behind the writing of the essay was Brandeis and Warren’s concern over “the press’s intrusion into one’s private life that could lead to loss of reputation or the divulgence of embarrassing personal facts. … [and] the unauthorized publication of pictures of individuals (Johnson, 2005, p. 60). Take a moment and examine the last sentence, especially the concepts of “loss of reputation” and “the divulgence of embarrassing personal facts.” Those are nearly identical to the concern being raised today in the era of YouTube and Facebook. The idea of how you are viewed online and the risks of personal facts becoming public knowledge were just as crucial then as they are now in the time of online overshare. This new direction of privacy will be revisited later in this paper.

A case can be made that the first legal decision involving a right to privacy was the 1905 case of Pavesich v. New England Life Insurance Co. (Johnson, 2005, p. 61). Paolo Pavesich successfully sued over the unauthorized use of his photo in an advertisement for New England Mutual Life Insurance Company. It was here that the right to privacy began to move beyond the property-based definition into the realm of a personal right under the auspices of personal liberty.

In the years preceding and following Pavesich, several cases skirted around the issue of privacy without necessarily specifically defining it or applying it as a personal right (some feel that the groundwork for the “penumbra analysis” that would appear in Griswold v. Connecticut was laid here):
  • Boyd v. U.S. (1886)
  • Weeks v. U.S. (1914)
  • Silverthorne Lumber Company v. U.S. (1920)
  • Meyer v. Nebraska (1923)
  • Pierce v. Society of Sisters (1925)
  • Buck v. Bell (1927)
  • Olmstead v. U.S. (1928) (Johnson, 2005, p. 63-66)

The case that would take privacy across the “constitutional threshold” (Johnson, 2005, p. 76) wouldn’t come until 1961 with Mapp v. Ohio. The case involved the warrantless search of Dollree Mapp’s house, looking for a suspected bombing fugitive. While carrying out the search for the fugitive, Cleveland Police found a suitcase with pornographic drawings. Mapp claimed the suitcase was not hers and she was unaware of its contents. Mapp was arrested and convicted for possessing obscene material. The Supreme Court eventually overturned Mapp’s conviction, essentially applying via the Fourteenth Amendment the Fourth Amendment protection against unreasonable search and seizure to state as well as federal courts. Some viewed this as a legitimization of the right to privacy that had been inferred from interpretations of the Fourth Amendment since it was being expanded by means of the due process clause of the Fourteenth Amendment (Johnson, 2005, p. 76). In the majority opinion of Mapp v. Ohio, Justice Tom Clark “made explicit, albeit confusing, mention of a right of privacy: “The right to privacy, when conceded operatively enforceable against the States, was not susceptible of destruction by avulsion of the sanction upon which its protection and enjoyment has always been deemed dependent under the Boyd, Weeks and Silverthorne cases,” stating later ‘privacy [is] no less important than any other right carefully and particularly reserved to the people”” (Johnson, 2005, p. 75-76).

So, there it was, constitutional evidence of a right of privacy, right? Not exactly -- privacy cases had primarily dealt with law enforcement procedure and case-by-case problems. There still wasn’t a definitive case that would make the personal right of privacy explicit. Enter Griswold v. Connecticut.

In Griswold, a Connecticut law prohibiting the use of any pharmaceutical or device to prevent contraception was under the microscope. Estelle Griswold, Executive Director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton were found guilty of violating the statute when they opened a birth control clinic in New Haven, CT. In the appeal to the United States Supreme Court, it was argued that the Connecticut statute violated the Fourteenth Amendment’s ‘due process’ protection. The conviction was overturned and the constitutional right of privacy was born. Justice William O. Douglas outlined his rationale for the right in his Griswold opinion:

The First Amendment has a penumbra where privacy is protected from governmental intrusion … Specific guarantees in the Bill of Rights have penumbras, formed by emanations from the guarantees that help give them life and substance …. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one … The Third Amendment in is prohibition against the quartering of soldiers “in any house” in any time of peace without consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people. (Bartee, 2006, p. 203)

So, the right to what was dubbed “marital privacy” had been explicitly defined. That begged the question, what about contraceptive access to the unmarried or minors? In Eisenstadt v. Baird, “… the High court upheld the appellate court ruling and vindicated Baird’s right to distribute contraceptives to unmarried persons. … Justice William Brennan, writing the majority opinion in Baird, ruled that the Massachusetts law prohibiting the dissemination of contraceptives to unmarried persons violated the equal protection clause of the Fourteenth Amendment” (Johnson, 2005, p. 198-199). Cary v. Population Services Int’l (1977) extended the same argument in regards to minors (Bartee, 2006, p. 207).

This train of reproductive privacy thought continued, encompassing the abortion issue crystallized by Roe v. Wade. “The privacy right to sexual activity for pleasure, not procreation, became settled law. The succession of reproductive privacy cases moved to encompass abortion rights as well as those of birth control. Roe v. Wade (1973) as reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) established this right …” (Bartee, 2006, p. 207). “What needs to be stressed is how Roe stretched the constitutional right of privacy enunciated in Griswold and modified in Baird. In [Justice Harry Blackmun’s] majority opinion … the Court ruled that the Constitution protected a woman’s right to an abortion in the first three months of her pregnancy but allowed the state to regulate abortion during the remaining two-thirds of her term” (Johnson, 2005, p. 202). This decision was grounded in the right of privacy. “Blackmun made reference to a long chain of Court decisions and individual justices’ opinions involving privacy going back to 1891. “[T]he Court has recognized,” Blackmun wrote, “that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution”” (Johnson, 2005, p. 202).

Before we travel any further into the morass of privacy, let’s step back and review. Essentially, the right of privacy that was explicitly spelled out in Griswold (and refined in subsequent cases) was born out of reading between the lines of the amendments in the United States Constitution:

  • First -- “one’s ideas are one’s own and may not be dictated by governmental power or censured if expressed. Logically, this reading of the First Amendment may entail that one possesses the liberty not to share one’s thoughts with others, especially with the government.” Also “right to assemble … petition the government … rights not to associate with certain people and not to have the identity of one’s affiliations or associates made public.”
  • Third – “prohibition of quartering of soldiers in private homes during times of peace stems directly from the fear of such violations of private space that concerned the writers …”
  • Fourth – “unreasonable searches and seizures” – “safeguards the private papers and personal possessions of individuals, unless proper warrants are issued or probable cause is demonstrated …”
  • Fifth – “it affords individuals the right not to be compelled to give evidence that might be used against them in criminal proceedings. Privacy is thus implied by language in selected portions of these several amendments.”
  • Ninth (the “people’s rights clause”) and the Fourteenth (the “due process clause”)

What is outlined above is essentially it when it comes to any concrete privacy protections – stuck over two decades in the past. Privacy isn’t what it used to be, and the legal protections have not updated with the times. Even “Brandeis and Warren worried that changes in technology as well as law were altering the nature of privacy” (Rosen, 2000, p. 6-7) back in their essay for the Harvard Law Review in 1890 -- “instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life, and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the housetops’” (Rosen, 2000, p. 6-7). Technological developments and changes in social norms are happening at breakneck speed, opening “new and intensified challenges to the scope of privacy rights. In each area, new questions and issues arose to challenge these privacy rights” (Bartee, 2006, p. 265). These challenges have to be met, either proactively or at the very least reactively, as cases come before the courts.