Your “Right to Privacy”: What Do the Constitution and the Law Say?

You’ve probably heard the phrase “Life, Liberty and the pursuit of Happiness” from the U.S. Declaration of Independence. While not legally binding, this motto is the cornerstone of the United States government and the Constitution.

This, of course, isn’t the only such motto.

The French have “Liberte, Egalite, Fraternite” (Liberty, Equality, Fraternity), the British
“Peace, Order and Good Government”, the Germans “Eingkeit, und Recht und Freiheit” (Unity, Justice, Liberty).

Now, if you’re reading these mottos carefully, you’re probably noticing one thing.

None of them really mention the right to privacy excplicitly.

So what does the law and, specifically, the U.S. Constitution say about it?

What is the Right to Privacy?

Before we get into the right to privacy in the Constitution and different laws, it’s important to define it first to have a concept.

The right to privacy is an individual’s right to be left alone and for his or her private information to be free from public inspection.

This right is typically protected by statutory law such as the Federal Trade Commission (FTC) or the Health Information Portability and Accountability Act (HIPAA), however, it is nowhere explicitly mentioned in the U.S. Constitution.

The Right to Privacy in the Constitution and the Supreme Court Interpretation

That said, while there is no right to privacy Amendment per se, different parts of the Constitution still offer privacy protection to varying degrees.

In particular:

1. The First Amendment – Privacy of beliefs;
2. The Third Amendment – Privacy of one’s home against its use for housing soldiers in times of peace;
3. The Fourth Amendment – Privacy against unreasonable searches;
4. The Fifth Amendment – Privacy of personal information through protection against self-incrimination;
5. The Ninth Amendment – Interpreted to justify a broad reading of the Bill of Rights to protect an individual’s right to privacy in ways that Amendments 1-8 do not;
6. The Fourteenth Amendment – Prevents any state from making a law that contravenes with Amendments 1-13 regarding the protection of personal autonomy. I.E. state laws that in any way violate the person’s freedom of speech, religion, or other parts of their private lives.

Of particular interest, when we talk about the right to privacy in the Constitution is the Due Process Clause.

The Due Process Clause is mentioned in both the Fifth and Fourteenth Amendment and it states:

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.

In short, the Supreme Court interprets that the Due Process Clause offers constitutional protection in three ways:

1. Procedural due proces;
2. Substantive due process and;
3. Prohibition against vague laws.

How Different Laws Protect the Person’s Private Life and the Access to Private Information?

Several laws and acts enable an individual to determine what information about them can be collected and how it can be used.

These laws include:

• Fair Credit Reporting Act – The Fair Credit Reporting Act protects the individual’s personal information collected by consumer reporting agencies (credit bureaus, medical information companies and tenant screening services) by prohibiting such information from being disclosed to those who do not have a purpose specified in the Act;
• Financial Services Modernization Act – Also known as the Gramm-Leach-Bliley Act, this law was established and enacted in 1999 and serves to deregulate the financial industry. In particular, when it comes to privacy protections, The Financial Services Modernization Act instructs financial institutions to protect their customer’s personal financial information from unauthorized disclosure, as well as explain to the consumers how their information is collected and shared;
• Health Information Portability and Accountability Act – The HIPAA is a set of standards that serve to make sure that an individual’s health information is safeguarded against public disclosure;
• Children’s Online Privacy Protection Act – Under COPPA, online services, such as websites, that knowingly collect information from children under 13, must provide certain parental controls, as well as an opt out option and they must have a privacy policy clearly posted on their website;
• Privacy Act of 1974 – The Privacy Act of 1974, according to the U.S. Department of Justice, “establishes a code of fair information practices that governs the collection, maintenance, use and dissemination of information about individuals that is maintained in systems of records under the control of an agency from which information is retrieved by the name of the individual or by some identifier assigned to the individual.”;
• Computer Fraud and Abuse Act – This law prevents the unauthorized access and use of protected computers and computer systems, including devices connected to the Internet and mobile devices without prior authorization.

In addition, it’s also important to know the email privacy laws in the workplace and if your boss can read your emails, so be sure to read our article on that as well.

Conclusion

While the right to privacy is never explicitly mentioned as guaranteed in the U.S. Constitution, the legal system recognizes it and the Supreme Court finds that it can be implied from the different amendments including the 1st, 3rd, 4th, 5th, 9th and 14th.

In addition, the civil and the different state laws also work to protect the individual’s privacy against government surveillance and governmental intrusion, including unreasonable searches and seizures and against public scrutiny.

Of course, since the right to privacy is, again, not explicitly stated in the constitutional rights, these should be viewed with reasonable expectation.

In the end, the best way to protect privacy is to do it yourself through encryption and privacy services such as CTemplar. We believe that privacy and anonymity are fundamental rights of any individual and we aim to help you protect that right through our end-to-end encrypted email service.