Your Right Of Privacy

Where Is It Written?

Citizens of the United States are afforded a number of rights. These rights have evolved and developed over the centuries and have been added to the permanent record in the form of amendments to the Constitution of the United States.

As it stands right now, there are a total of 27 amendments. A couple of them cancel each other out like the 21st amendment which repeals the 18th amendment prohibition on the manufacture, sale or transportation of alcoholic beverages.

Most United States citizens are probably not aware of what is written in those amendments. They may have memorized it long enough to pass a high school government or civics class, but that data has long since been purged to make room for more important things. Many Americans are probably unaware that it was not legal for the United States government to collect income taxes until they passed the 16th amendment or that a person could be President indefinitely until the two term limit was imposed by the 20th amendment.

Not casting stones, I myself could not tell you what most of them are. Most people are familiar with “taking the fifth” which implies using one’s 5th amendment right to not “be compelled in any criminal case to be a witness against himself”. Amendments such as the 1st amendment right that essentially defines the separation of church and state, the 2nd amendment right to bear arms, or the 4th amendment protecting you from unlawful search and seizure of your property are fairly common knowledge and are mentioned frequently in the media in support of various causes.

Having read through the amendments on the Findlaw.com web site though, I can’t find any amendment that explicitly protects a United States citizen’s right of privacy. The 14th amendment is often cited as the amendment which protects what Justice Louis Brandeis called the “right to be left alone”, but upon reading it, it appears that a fair amount of interpretation has to be allowed for in order to come to the conclusion that it inherently protects our privacy.

The 1st, 4th and 5th amendments are also occasionally referred to in discussions of a right of privacy.

Of course, the 10th amendment explicitly grants authority to the individual states for any power not delegated to the United States Congress or prohibited explicitly in the Constitution of the United States. So, there may very well be provisions protecting privacy in state constitutions or state laws. There are also a number of statutes and regulations at both the federal and state levels which are based at least in part on the inferred right of privacy.

Unfortunately, privacy, and the protection of sensitive or personal information, seems to be legislated on an industry by industry basis. The Privacy Act of 1974 prevents the unauthorized disclosure of personal information held by the federal government. The Fair Credit Reporting Act protects information gathered by credit reporting agencies. The Children’s Online Privacy Protection Act grants parents authority over what information about their children (age 13 and under) can be collected by web sites.

As it relates to securing computer networks or data, the Sarbanes-Oxley Act, HIPAA and GLBA all contain at least some guarantee of an individual’s right not to have their personal or confidential information exposed.

These regulations mandate that companies take steps to ensure their customer’s data is secure and impose fines and penalties on companies that fail to do so.

California’s SB-1386 places a responsibility on companies operating in that state to inform customers when their data has been exposed or compromised in any way. If it weren’t for that California law, the recent debacle at ChoicePoint might never have been disclosed.

As technology marches forth and new innovations come along that make life simpler, more efficient or more convenient, these benefits often come with a trade-off of some privacy.

When I call to order a pizza I am typically asked for my phone number. I could refuse to share that information if I feel that it is none of their business and I want to protect that personal information. But, by sharing my phone number with the pizza place, they are able to access my address in the blink of an eye so they know where to deliver the pizza without me having to tell them each time.

Some pizza places are even sophisticated enough to keep track of what I have ordered so I can just order “the usual” without having to specify the details of the order every time I call.

When I go to the Amazon.com web site, I am greeted with a home page that says “Hello, Tony Bradley” with a tab at the top of the screen called “Tony’s Store” which displays items I have shown an interest in or related items that Amazon recommends I take a look at based on my past shopping habits and known preferences.

But, this convenience and technical efficiency means compromising my privacy at least a little. If I want to save the time and hassle ordering pizza, the pizza place has to store my name, phone number and home address, and possibly even my ordering history, in a database somewhere. To receive my personalized Amazon.com treatment and customized recommendations I have to allow Amazon.com to store some of my personal information including my shopping habits and items I have searched for in the past, as well as allowing them to place a cookie on my computer that identifies who I am to their servers.

In doing so, I trust that the companies I choose to do business with and share my personal information with will treat that information with the appropriate level of discretion and security. I trust that they won’t turn around and sell my personal data to a junk-mail marketing firm or store it in a text file on an insecure computer that anyone can access from the Internet.

If you don’t have confidence in the intentions or abilities of the company you are working with, you should think twice about sharing your personal information.

Whether written explicitly in concrete terms or implied through statutes, regulations and precedent-setting case law, it appears that people are generally in agreement that there exists a right to privacy and that the government and law enforcement must act on our behalf to guarantee it. While most Americans may not be able to recite the amendments to the Constitution, and may not even know much about the Constitution itself, there is an underlying trust from most people that the government will operate within the bounds of the Constitution and that every effort will be made to protect the rights granted to us by the Constitution, even if we don’t know what they are.

Unfortunately, security and privacy are often in conflict. To provide better security, law enforcement agencies could keep detailed profiles of every citizen and constantly track and monitor your every move. By doing so, would-be thieves, terrorists and or other bad guys could be thwarted before they attack or at least be more easily apprehended. Of course, as citizens, we are not generally willing to sacrifice the security of all just so that the infinitesimally small percentage of the population that are bad guys can be caught.

Instead, our society has come up with various trade-offs that seem reasonable enough to allow for the privacy of the general population while also enabling law enforcement to track bad guys. The 4th amendment of the Constitution protects citizens from unlawful search and seizure of personal property, but it also grants law enforcement the ability to obtain a search warrant if there is enough evidence to suggest that there is probably cause to suspect someone of doing something wrong.

However, in the wake of the terrorist attacks on September 11, 2001, the USA-PATRIOT Act removes many of those safeguards in the interest of national security. Gripped by fear, people accepted the PATRIOT Act as “necessary” without stopping to think of the impact it could have on law-abiding citizens or whether or not the rights they were forfeiting would actually result in a more secure nation.

Essentially, the government or law enforcement can simply dub an individual a “person of interest” and the rights afforded by the Constitution are virtually null and void. Changes have been made to reduce the red tape necessary for law enforcement to wire tap or search a suspect and “persons of interest” may be detained indefinitely without being charged and without the benefit of legal counsel.

The government is in favor of protecting your privacy, but only as it relates to other companies or individuals acquiring it. For the most part, they would prefer to have your complete details recorded and reserve the ability to access any part of your life or personal data that suits them.

The NSA (National Security Agency) and the United States government got very testy and even threatened to charge Phil Zimmerman with treason when he created the PGP encryption algorithm and allowed it to be exported internationally via the Internet. They were primarily upset because they couldn’t break the encryption either and they did not want people to be able to encrypt things so well that the government themselves could not access it. There have been bills introduced repeatedly in the past decade trying to mandate some sort of secret back door that grants the government the omnipotent key to bypass any security measures in computer hardware or software.

One of this country’s Founding Fathers and an all-around source of wisdom, Benjamin Franklin, is credited with having said “They who would give up an essential liberty for temporary security, deserve neither liberty or security”.

The problem is that, once a line is drawn, it is never completely erased. The line may be moved left or right depending on societal pressures or who the dominant party in power is, but the danger is in allowing a line to be drawn in the first place. The United States income tax, which began as a temporary means of raising money to support a war-effort, persists over a hundred years later and has morphed into its own bureaucratic juggernaut and spawned an entire industry of lawyers, books, software, and services.

The PATRIOT Act was created as a temporary measure, but almost as soon as it was passed the lobbying began for extending the expiration dates of some of the provisions or just implementing the legislation on an indefinite basis. Now that the power has been granted, it is very difficult to take back. Ostensibly, if you are an upstanding, moral citizen, the removal of basic rights granted by the PATRIOT Act should not affect you. But, who is to say who decides what makes you moral or upstanding? You may be on the right side of the line now, but what happens when the line gets moved and you suddenly find yourself a “person of interest”?

Ultimately, it is up to you to choose a balance that works for you. How much privacy are you willing to trade in order for more convenience and efficiency as a consumer? How much privacy are you willing to surrender with the hope that it will help the government secure and protect the nation?

Simson Garfinkel, in his book Database Nation, describes how data technology has evolved to the point where almost everything has some meaning and combining seemingly innocuous data can yield a pretty good picture of someone’s life.

In Beyond Fear, Bruce Schneier provides a compelling look at the tradeoffs between security and freedom and illustrates how security is often a game of smoke and mirrors to dissuade perceived fears while true dangers are left unprotected.

I recommend that you read the books cited above as well as Myth of Homeland Security by Marcus Ranum. There is also a wealth of information available from the non-profit consumer information and advocacy organization Privacy Rights Clearinghouse.

You can choose to not share your personal information with companies you don’t trust. However, whether it is with the state or federal government, your employer, or your local grocery store’s customer loyalty card, your personal information is out there and you need to try to stay informed and educated about how it is used and how it is protected and if it gets compromised in any way.

When it comes to the rights that have been stripped away by the PATRIOT Act and the broad powers that have been granted to law enforcement agencies in apparent conflict with the Constitution, it is your responsibility to be an informed citizen and voice your opinion with your votes.

If you are concerned, you should write or call your United States Representative or Senator and express that.

Do your homework up front to make sure you make informed choices, and then be sure to periodically check data such as your bank statements and credit record to ensure they are accurate and have not been compromised in any way.

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