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The Right to Privacy*

Published online by Cambridge University Press:  13 January 2009

Lloyd L. Weinreb
Lloyd L. Weinreb
Affiliation:
Law, Harvard University
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Extract

The question that I address in this paper is whether there is a right to privacy. It is not the question whether in the United States there is a legal right to privacy or, more particularly, a constitutional right to privacy. There are any number of ordinary legal rights and specific constitutional rights that might be so described, and the U.S. Supreme Court has referred also to a generic “right to privacy” that is implicit in the U.S. Constitution. Nor is the question that I address whether persons have a moral claim to privacy that others ought to respect. I assume that in many circumstances, respecting a person's claim to privacy is productive of the good and, if so, that the claim ought to be respected. Rather, my question is whether persons have a right to privacy not dependent on positive law, such that it ought ordinarily to be respected without regard to the consequences, good or bad, simply because it is right.

Type
Research Article
Information
Social Philosophy and Policy , Volume 17 , Issue 2 , Summer 2000 , pp. 25 - 44
Copyright
Copyright © Social Philosophy and Policy Foundation 2000

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References

1 Griswold v. Connecticut, 381 U.S. 479, 486 (1965).Google Scholar

2 See Weinreb, Lloyd L., Oedipus at Fenway Park: What Rights Are and Why There Are Any (Cambridge, MA: Harvard University Press, 1994).Google Scholar

3 Griswold, 381 U.S. at 486Google Scholar. The reference in the opinion to “the sacred precincts of marital bedrooms” (ibid., at 485) has been taken to be a reference to the Fourth Amendment. But the passage refers explicitly to “the notions of privacy surrounding the marriage relationship” (ibid., at 486).

4 Weinreb, Lloyd L., “What Are Civil Rights?” in Paul, Ellen Frankel, Miller, Fred D. Jr., and Paul, Jeffrey, eds., Reassessing Civil Rights (Cambridge, MA: Blackwell, 1991), 2.Google Scholar

5 Mill, John Stuart, On LibertyGoogle Scholar, in Mill, , Utilitarianism, Liberty, and Representative Government (New York: E. P. Dutton, 1951), 81–229Google Scholar. See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)Google Scholar: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In the wake of the decision in Griswold, a number of scholars objected to the inclusion of liberty from regulation within the ambit of privacy. See, e.g., Henkin, Louis, “Privacy and Autonomy,” Columbia Law Review 74, no. 8 (12 1974): 1410–33CrossRefGoogle Scholar. As a matter of constitutional law, I agree. The due process clause of the Fifth and Fourteenth Amendments is the constitutional locus of protection of liberty. As a nonconstitutional matter, however, the abstract notion of privacy incorporates liberty without difficulty. Cf. DeCew, Judith Wagner, In Pursuit of Privacy: Law, Ethics, and the Rise of Technology (Ithaca, NY: Cornell University Press, 1997), 34–45.Google Scholar

6 In the 1930s the Federal Bureau of Investigation promoted a campaign for universal fingerprinting, which was finally defeated, in part by the efforts of the American Civil Liberties Union, which published a pamphlet called “Thumbs Down” in 1938. The debate about fingerprinting is being replayed for higher stakes in the controversy about the collection and filing of DNA samples from sex offenders, or all serious criminals, or all of us. See The New York Times, 10 12, 1998, p. A1Google Scholar; December 13, 1998, sec. 1, p. 51; and March 2, 1999, p. A15.

7 Judith DeCew identifies three broad categories of privacy: informational privacy; accessibility privacy, having to do with what I have referred to as shelter; and expressive privacy, corresponding roughly to liberty. See DeCew, , In Pursuit of Privacy, 75–78.Google Scholar

8 See Thomson, Judith Jarvis, “The Right to Privacy,” Philosophy and Public Affairs 4, no. 4 (Summer 1975): 295–314Google Scholar, reprinted in Schoeman, Ferdinand David, ed., Philosophical Dimensions of Privacy: An Anthology (Cambridge: Cambridge University Press, 1984), 272–89.CrossRefGoogle Scholar

9 See, for example, the discussion of the basis for an expectation of privacy that the Fourth Amendment will protect, in Rakas v. Illinois, 439 U.S. 128, 144 n. 12 (1978)Google Scholar: “Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others… and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.”

10 Warren, Samuel D. and Brandeis, Louis D., “The Right to Privacy,” Harvard Law Review 4, no. 5 (12 1890): 193–220CrossRefGoogle Scholar, reprinted in Schoeman, , ed., Philosophical Dimensions of Privacy, 75–103.Google Scholar

11 See Griswold, 381 U.S. at 484Google Scholar. The four Amendments are the First (right of association), Third (prohibition against quartering of soldiers), Fourth (prohibition against unreasonable searches and seizures), and Fifth (privilege against compulsory self-incrimination).

12 See note 9 above. See also Minnesota v. Carter, 525 U.S. 83 (1998).Google Scholar

13 See, e.g., Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992)Google Scholar; and Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).Google Scholar

14 See the opinion of Justice Stewart, concurring in Roe v. Wade, 410 U.S. 113, 167 (1973)Google Scholar. In the wake of the furor over the Supreme Court's decisions striking down New Deal social and economic legislation, e.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936)Google Scholar (declaring un constitutional federal legislation regulating wages and conditions of work in the coalmining industry), the Court retreated from using the due process clause to limit the objectives of legislation and for many years regarded the clause as limited to matters of procedure. So-called “substantive due process” was revived, albeit in a different context, starting in the 1970s. E.g., Roe (declaring unconstitutional state criminal law prohibiting abortion).

15 The complete statement is: “[T]he state is a creation of nature, and… man is by nature a political animal.” Aristotle, , Politics, 1253a1Google Scholar, trans. Jowett, B., in Barnes, Jonathan, ed., The Complete Works of Aristotle (Princeton, NJ: Princeton University Press, 1984), 2:1987.Google Scholar

16 Hobbes, Thomas, Leviathan, ed. Oakeshott, Michael (Oxford: Basil Blackwell, 1957), 82.Google Scholar

17 Without such company, a being might become aware of its causal agency and the causal agency of other beings and, taking itself as a model, might even conceptualize differential causal agencies as a contest of wills; but without communication with another being like itself, it is difficult to see how any normative understanding sufficient to sustain notions of freedom, responsibility, and desert—autonomy, in short—could arise. See , Weinreb, Oedipus at Fenway Park, 142–46.Google Scholar

18 See Locke, John, Second Treatise of GovernmentGoogle Scholar, in Locke, , Two Treatises of Government, ed. Laslett, Peter (Cambridge: Cambridge University Press, 1960), 283–446.Google Scholar

19 There have been cases, for example, of Japanese soldiers who remained alone and in hiding for years after the Japanese military forces retreated from islands in the Pacific.

20 See Mill, , On Liberty, 95–96.Google Scholar

21 See Moore, Barrington Jr., Privacy: Studies in Social and Cultural History (Armonk, NY: M.E. Sharpe, 1984), 82Google Scholar; and Saxenhouse, Arlene W., “Classical Greek Conceptions of Public and Private,” in Benn, S. I. and Gaus, G. F., eds., Public and Private in Social Life (London: Croom Helm, 1983), 365Google Scholar. For an insightful, more concrete discussion of the public and the private, see Weinstein, W. L., “The Private and the Free: A Conceptual Inquiry,” in Pennock, J. Roland and Chapman, John W., eds., NOMOS XIII: Privacy (New York: Atherton Press, 1971), 27–55Google Scholar. There are helpful essays discussing many aspects of the distinction between public and private in Benn and Gaus, above.

22 Orwell, George, 1984, in The Complete Works of George Orwell (London: Seeker & Warburg, 1986–1987), 9:296.Google Scholar

23 See Plato, , Laws, trans. Taylor, A. E., in Hamilton, Edith and Cairns, Huntington, eds., The Collected Dialogues of Plato (Princeton, NJ: Princeton University Press, 1961), 1225–513Google Scholar; and Rousseau, Jean-Jacques, Considerations on the Government of PolandGoogle Scholar, in Rousseau, , Political Writings, ed. and trans. Watkins, Frederick (Edinburgh, NY: Nelson, 1953), 157–274.Google Scholar

24 See, e.g., Xenophon, , Constitution of the LacedaemoniansGoogle Scholar, in Xenophon, , Scripta Minora, ed. and trans. Marchant, E. C. (Cambridge, MA: Harvard University Press, 1968).Google Scholar

25 The effort to gather information may violate the proscription of regulation, but that is not inevitable.

26 See Mill, , On Liberty, 96, 177–87.Google Scholar

27 See Moore, , Privacy, 59–71.Google Scholar

28 Katz v. United States, 389 U.S. 347 (1967)Google Scholar. Katz is the source of the phrase “legitimate expectation of privacy,” although not the precise words. See Rakas, 439 U.S. at 143.Google Scholar

29 The usual, almost always the only, remedy for violation of a Fourth Amendment right is the suppression of incriminating evidence obtained by the violation. Only someone whose own right was violated has standing to obtain a remedy, however; and he may not move to suppress evidence against someone else. Accordingly, if the police violate Jones's right and thereby obtain evidence against Smith, there is typically no remedy. See, e.g., Wong Sun v. United States, 371 U.S. 471 (1963).Google Scholar

30 See Rachels, James, “Why Privacy Is Important,” Philosophy and Public Affairs 4, no. 4 (Summer 1975): 323–33Google Scholar, reprinted in Schoeman, , ed., Philosophical Dimensions of Privacy, 290–99.Google Scholar

31 Fried, Charles, “Privacy,” Yale Law Journal 77, no. 3 (01 1968): 475–93CrossRefGoogle Scholar, reprinted in Schoeman, , ed., Philosophical Dimensions of Privacy, 203–22.Google Scholar

32 Ibid., 484.

33 Ibid.

34 Reiman, Jeffrey H., “Privacy, Intimacy, and Personhood,” Philosophy and Public Affairs 6, no. 1 (Fall 1976): 32Google Scholar, reprinted in Schoeman, , ed., Philosophical Dimensions of Privacy, 304.Google Scholar

35 The title of Rachels's article is “Why Privacy Is Important,” and he was mostly concerned to describe the interests that lead persons to want privacy. His thesis might, therefore, be regarded not as a defense of the right to privacy but as an argument that privacy is a particularly weighty element in the calculation of the good. He spoke also, however, of a right to privacy that is distinct from other rights to one's person and property (ibid., 331–33). Fried appears clearly to have regarded privacy as a right. He rejected an instrumental analysis of privacy and stated that it has “intrinsic value” (Fried, , “Privacy,” 477)Google Scholar. He observed that because privacy is a necessary context for intimate relationships, “a threat to privacy seems to threaten our very integrity as persons” (ibid.).

36 In Camus's play Caligula, the emperor tests the limits of freedom by acting without any constraints. See Camus, Albert, CaligulaGoogle Scholar, in Camus, , Caligula and Three Other Plays, trans. Gilbert, Stuart (New York: Vintage, 1958), 1–74.Google Scholar

37 Benn, Stanley I., “Privacy, Freedom, and Respect for Persons,”Google Scholar in Pennock, and Chapman, , eds., Privacy, 12Google Scholar, reprinted in Schoeman, , ed., Philosophical Dimensions of Privacy, 232.Google Scholar

38 Ibid., 9.

39 Reiman, , “Privacy, Intimacy, and Personhood,” 37–38.Google Scholar

40 Ibid., 39 (footnote omitted).

41 Ibid., 42.

42 Ibid., 41.

43 Ibid., 42–44.

44 One might posit a case in which a person's awareness that others had acquired certain information about him operated so forcefully on him that it affected him, as it were, directly and not through the intermediary of his own will and reason. That kind of psychological determinism would go much further than, and would be different in kind from, the not so unusual case of someone who is very much affected by some disclosure about himself and takes an otherwise unlikely action in response.

45 Elsewhere, I have identified five conditions of autonomy that qualify as human rights: “[t]he right not to be subjected to constraints on autonomous action too great to be resisted,” “[t]he right to physical and mental well-being,” “[t]he right to education,” “[t]he right to moral consciousness,” and “[t]he right to moral opportunities” (Weinreb, , Oedipus at Fenway Park, 117–21Google Scholar [italics omitted]). See generally Weinreb, Lloyd L., Natural Law and Justice (Cambridge, MA: Harvard University Press, 1987).Google Scholar

46 Benn, , “Privacy, Freedom, and Respect for Persons,” 12.Google Scholar

47 Imagine the man saying to his fiancée, “Of course, your question violates my right to privacy, but I do love you and I hereby waive my right.” Or imagine the candidate for office saying to his constituency, “In truth, it is none of your business, but I shall sacrifice my right to privacy and tell you whatever you want to know.” In all likelihood, the former would find himself unattached and the latter would be looking for a job in the private sector.