Friday, November 20, 2009

A Right To Privacy

Recently, both Withywindle and Christine questioned the constitutional right to privacy. FLG has always thought that the Fourth Amendment articulates what is a de facto right to privacy when seen in light of the circumstances in the 18th century:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

He'll have to read more on the thoughts of the people at the time, but he always assumed that they were creating a right to privacy even if that's not precisely what they were calling it. FLG finds the process of determining how we apply these protections to new technology fascinating.

On the other hand, he thinks the idea that abortion was justified on the basis of a right to privacy is pretty damn weak. If a wife murders her husband in her own house, then nobody is going to say she has a right to privacy that protects her from prosecution. And therein lies the rub with the privacy justification. It assumes that the fetus isn't a person, which is an argument I'm at least willing to hear out, but that's the crucial issue. Not privacy.


Withywindle said...

A right to property isn't a right to privacy.

Withywindle said...

I should say that a friend of mine is working on privacy rights stuff, and I probably shouldn't say anything more, for fear of giving away stuff he's planning to publish.

FLG said...

Withywindle, if it were "against unreasonable seizures" then I'd entertain a mere property rights argument, but searches aren't really an offense to property.

I understand a kind of trespass argument, but being secure papers and effects to the point of even search seems to me to speak to something different than simply property rights.

arethusa said...

Your last paragraph seems to hint at how I would take the text: it guarantees privacy from interference by the government without undue cause in the private sphere, among your own property and possessions. WW was initially posting about library patrons and privacy. Library books aren't private property; they're public property, usually bought and paid for by government at some level (local, state, national). If you're using government resources - library books, national parks, welfare checks, the 00th Congressional District, whatever - do you have a right to privacy?

Withywindle said...

Searches are harassment. Thesis: it's a defense against the government making your life miserable by groundless, constant searching, not a defense of your privacy.

FLG said...


It depends on who we deem to own the records. For example, the phone numbers you dial are considered part of the phone service, but the content of the conversations are considered your property. So, the government needs a warrant to listen in on the calls, but not to get a list of whom you called.

Where and how we make that distinction in regards to library records or whathaveyou is open to debate and interpretation. However, I'm of the mind that there is a right to privacy and that we should err on the side of privacy unless there is some directly related reason that it must be overridden.

So, in the case of my library card, I could see how the existence of my library card wouldn't be private, but what I've checked out would be considered my records. However, I can also see how what I checked out could be considered part of the service offered by the library. Either way, I'm not terribly concerned if the FBI is investigating me and then asks the library what I checked out.

My real concern is the FBI walks in and asks for the list of people who checked out book X.

Christine said...

FLG--Are you at Georgetown Law?

The 4th Amd protects against government search of *things*, whether they are on one's person, in one's car, or on one's estate.

The right to privacy protects against criminalization of *conduct*, e.g., use of contraception, decision to procure abortion, or private consensual sex.

FLG said...


"Are you at Georgetown Law?"

No, otherwise, I would have presumably known that distinction.

Christine said...

Well, I may have oversimplified. The 4th Amd also protects against gov't monitoring of conduct over which one has a "reasonable expectation of privacy", e.g., phone conversations or private conduct in the home. This is why it prohibits wiretapping or surveillance without a search warrant.

Withywindle said...

Also: protection against search protects against government fishing expeditions, where they find that something or another you have done is criminal. It also protects against the government planting evidence. It's meant to restrict the power of the government vis-a-vis the individual, where, again, no right of privacy need enter into the matter.

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