Do You Have a Right to Privacy?


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Frequently, we hear people refer to a right to privacy, and many surveys even show that most Americans even believe that it is a specific right under the Constitution (though they cannot agree as to which amendment it is). In reality, there is no amendment that specifically protects privacy, though it has been recognized in several U.S. Supreme Court cases.

While the Constitution does not specifically mention a right to privacy, the U.S. Supreme Court has noted in several decisions that it believes this right exists in the “penumbra” of several other, specifically enumerated rights, such as the Third, Fourth, Fifth, and Fourteenth Amendments, and as such the citizens are entitled to it under the catch-all provision of the Ninth Amendment.

Privacy cases have existed for decades, and have dealt with issues like contraception, interracial marriage, and even abortion, as in the well-known Roe v. Wade case. In the modern digital age, privacy rights have become a matter of increasing concern. With revelations about both online businesses and the federal government tracking individuals' use of the Internet, many have asked where the right to privacy extends and what it protects? But, while many Americans believe they have a reasonable expectation of privacy online, the very opposite is often true. Many sites have “terms of use” that very few actually read, but that usually allow sites to track the user's use of the site and where they go on the Internet through the use of “cookies.”

Similarly, post 9/11 changes to the law, like the USA Patriot Act eroded many privacy rights, allowing for things such as wire taps, Internet monitoring, and other forms of domestic intelligence gathering. This led to the adoption of a number of programs, such as those which came to light in late 2013 in which organizations like the NSA had been observing the online behavior of American citizens. While these actions have been challenged, it is not yet clear whether the public interest in protecting national security will be considered a more important concern than the privacy interests of individual citizens.

So, the short answer to the question is “maybe.” In some instances, the U.S. Supreme Court has held that we do have a right to privacy. But, that right has been strongly challenged and eroded and may not last much longer. Indeed, the “right” has already been so greatly modified that it may soon be difficult to consider it a right at all. Consequently, this is an area that can lead to considerable legal disputes, both criminal and civil.

Websites and other retailers should be careful to protect themselves from claims regarding invasions of privacy. Doctors and medical practitioners must be careful to comply with HIPPA's privacy protections. Everyone must avoid criminal invasions of privacy, like looking through someone's windows at night, opening another's mail, or videotaping people in private situations. But, it is just as easy for one to give away any right to privacy, such as by doing something otherwise private in public, publishing personal information, or agreeing to allow others to disclose or track personal information.

If you have questions about how best to protect yourself in these confusing situations, your best option is to speak to a local attorney about the laws in your area and specific to your situation. It may be surprising just how fickle these provisions can be, so a legal professional who stays abreast of these issues is likely the best way to ensure that you are protected. For a list of attorneys in your area, check the Law Firms page on our website.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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