Even as an inventor, Ben Franklin could not have conceived of an SLR camera to record images on film let alone an HD video camera mounted on a red light on a city street to take photographs of car license plates for the purpose of issuing tickets to those that run them. Our founding fathers could not have possibly imagined how modern technology would affect the right to privacy granted to Americans by the fourth amendment to the Constitution. Technology has come a long way since 1791 and the means used by the American Government to surveil its citizens ether openly, as in body scanners recently installed in airports or inconspicuously through such means as wire tapping, etc., have become more abundant. Through the decades, our right to privacy has been gradually eroding. Are we the frog in the pot not noticing the water warming up? To understand individual privacy rights in America we must examine the Constitution and ask what the founders of our country intended it to mean. We must also look at how it has been and is currently interpreted today.
It was the intention of the colonists to live as free men. They wished to practice the religion of their choice without persecution and preside over their real estate without the impeding hand of the crown and the regulation of the Monarchy. Thomas Paine's "Common Sense" published in January of 1776 reaffirmed this notion with its incredible popularity and helped to start a revolution in which the dreams of common Englishmen would be realized (Davis). They desired to self govern but were leery of instituting a system by which all the power was in the hands of an individual. They felt that power could not be trusted to the good intentioned benevolence of one. James Madison wrote, "If angels were to govern men, neither external nor internal controls on government would be necessary" (Madison). In drafting our founding documents Madison and Jefferson referred to the philosophy of John Locke, a 1600's English Philosopher who held that all people had certain inalienable rights including life, liberty and property which should not be tread upon by the formation of governance (Patterson). The influence of John Locke weighed heavy on Thomas Jefferson, James Madison and others. They insisted upon the addition of ten amendments to the Constitution safeguarding these freedoms. Our Constitutionals Bill of Rights was ratified on December 15, 1791. Included in the collection of rights is the implied right of individual privacy which has evolved in its interpretation over the years pursuant to the subsequent evolution of technology.
The Fourth Amendment reads: "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." (Fathers). The word privacy is not specifically written in the Bill of Rights it is merely implied. James Madison included language in the Ninth Amendment clarifying that even though some rights were implicit, that did not mean people had forfeited those rights (U.S. Department of state).
The right to personal privacy as an individual in this country began in its modern capacity by the debate over birth control and abortion, a hotly contested issue in America still today. A law in the state of Connecticut prohibited persons either married or not from obtaining and using any form of birth control. Additionally, it provided that any persons educating, distributing or aiding in the distribution of information or devices used to prevent pregnancy could be fined $100.00 and jailed. In 1965, the U.S. Supreme Court heard Griswold v. Connecticut, in which appelant Estelle Griswold, a director of the Planned Parenthood League of Connecticut and appelant Buxton, a licensed physician and professor of medecine at Yale had been accused, tried and found guilty under Connecticut law and fined each $100.00 for distribution of contraband.
Chief Justice Story, Justice Goldberg and Justice Brennan unanimously concluded that connecticut statute was unlawful because the government had no right to interfere with a married couple's choice on family planning, it violated their privacy as a married couple (Griswold v. Connecticut). This case paved the way for the famous Roe v. Wade ruling in 1973 concerning a woman's decision to choose abortion during the first trimester of pregnancy.
The Supreme Court however, does occasionally rule against a person's individual freedoms as demonstrated in physician assisted suicide cases in the 1990's. In New York and Washington States, laws were upheld by the Supreme Court that make it criminal to medically assist suicide. The Court left the legislation up to the states though and the states may decide to ammend or repeal those laws at any time as Oregon has done. Of this decision, Justice Sandra Day O'Connor wrote the following statement concerning physician assisted suicided as it affects individual and family privacy: "Every one of us at some point may be affected by our own or a family member's terminal illness. There is no reason to think that the democratic process will not strike the proper balance between the interests of the terminally ill, mentally competant individuals who seek to end their suffering and the state's interest in protecting those who might to seek to end life mistakenly or under pressure."(Biskupic).
With respect to most rights of a medical nature, when challenged, the Supreme Court does a very good job of interpreting and defending our right.
In recent years, where national security has been challenged in the age of information, one can clearly see evidence of Orwellian nature seeping into society. The September 11th 2001 terrorist attacks on American soil changed our nation dramatically. It stripped us of our sense of security. This event has opened the door to a whole host of arguable privacy violations like racial profiling, red light cameras, facial recognition cameras at public beaches and stadiums during sporting events like the Super Bowl and roving wire taps. The government is eager to spoil potential terrorist attacks with up-to-the-minute technologies that watch, listen and people's movements. Do these constitute reasonable search and seizure as stated in the fourth ammendment? Some Americans are terrified into believing so, welcoming technology found detrimentally invasive in the months leading up to September 11th. Our obsession with privacy has gone into rapid haitus. Previously inflammatory issues including medical data mining and other avenues used for amassing personal data seemed to have been forgotten. This greatly worries civil liberty interest groups like the ACLU who fight diligently to protect our rights from encumberances by new legislation.
On October 6th, 2001, President George W. Bush signed a bill into law that has become know as The U.S.A. Patriot act. The purpose of the act is to "Deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes." (US Congress).
The Patriot act was designed to give the government more freedom to survail and gather information through phone, e-mail, medical, financial and other records under the guise of rooting out terrorism. It eases restrictions on FISA in the US; gives law enforcement a wider wake in which to detain immigrants; expands the authority of the Treasury office to regulate financial transactions involving foreigners and their accounts and also redefines terrorism adding the act of domestic terrorism. The expanded definition of terrorism gave license for law enforcement to legally perform some acts which they had not previously been able to do. An example of this is the "sneak and Peek" searches in whereby law enforcement agents can search and individual's home, car or business without the owner's knowledge or consent. The act also provides for intercepting phone calls as well as electronic communications,financial, business and library records to name a few.
The Patriot Act passed both House and Senate votes with Senator Russ Feingold (D. Wisconsin) the sole opponent of the act. He found the antiterrorism bill to be "troubling"and in his address to congress as to why he opposed the bill he made it clear that he was not oblivious to the great danger we face as a nation and acknowledged the enormous responsibility of keeping the country safe but perhaps he said it best when stating "Preserving our freedom is one of the main reasons that we are now engaged in this new war on terrorism. We will lose that war without firing a shot if we sacrifice the liberties of the American people." (Feingold).
The Patriot Act was supposed to have had a "Sunset" clause in which it would have expired on December 31, 2005. With that date rapidly approaching, the law's supporters pressed to have it made permanent and its opposers wanted very much to to have the language changed so as to improve civil liberty safeguards. Substantial edits were made in the Senate and it approved a reauthorization bill in July of 2005. The House however reauthorized it keeping it mostly original. The Act was sent to a reconcilliation committee who promptly removed most of the Senate's added language and was passed through congress on March 2nd, 2006. President George W. Bush again signed the Act into law on March 10th, 2006.
Through the Act's metamorphasis, privacy matters continue to be a hotly contested and debated law in America. The Constitutionality of the Patriot Act has come into question quite frequently in recent years. In 2007, a federal court heard a case (Mayfield v.United States of America) arguing that some parts of the Patriot Act were unconstitutional namely the ammendment of the FIS Act of 1978 for directly violating the Fourth Ammendment. The Claimant, Mr. Brandon Mayfield, an attorney practicing in Oregon,was accused and arrested for alleged involvement in the Madrid train bombing in 2004 based on the match of a latent fingerprint. The FBI broke into Mayfield's offices and pulled a 'sneak and peak'search. They searched his client files, copied his business and personal computer hard drives and waretapped his work phones and bugged his home. Judge Ann Aiken acknowledged that the Fourth Ammendment requires that the individual being searched is required to be notified and that the governing authority also demonstrate probable cause meaning that before a search warrant can be issued, authorities must say where they are looking and what they are looking for. Based on this fact, she opressed the two provisions of the Patriot Act used to defend this case saying that they were in violation of the Fourth Ammendment and therefore unconstitutional. In her decision she wrote "The Constitution contains bedrock principles that the framers believed essential. Those principles should not be easily altered by the expediencies of the moment. It is critical that we, as a democratic nation, pay close attention the the traditional fourth ammendment principles. TheFourth Ammendment has served this nation well for 220 years, through many other perils." (Aiken) All too often Americans have been too quick to cast their civil liberties to to the wayside in favor of invasive practices executed by the government under the guise of keeping us safe.
The most life altering invention of the twentieth century and possibly one that will go into the history books rivaling the importance of the cotton gin is the internet. The internet was conceptualized during the cold war by Paul Baran of RAND to act as a means of redundant information exchange to be used in time of emergency by the military. It was supposed to be an indestructible means of communication. It was ultimately developed by ARPA, a division of the United States Department of Defense, using the design of British physicist Donald Davies. ARPANET augmented military communications and eventually discarded its military trajectory, developing into today's version of the internet (Campbell).
The evolution of the internet has brought up many opportunities for debate about privacy. Internet privacy and security is a very controversial issue and is being debated and ruled upon all the time. John Ashcroft said in his article entitled 'Keep Big Brother's Hands Off the Internet' "The protections of the Fourth Amendment are clear. The right to protection from unlawful searches is an indivisible American value. Two hundred years of court decisions have stood in defense of this fundamental right. The state's interest in effective crime-fighting should never vitiate the citizens' Bill of Rights." (Ashcroft). The internet is a whole new frontier. Not only does it provide the vehicle for one to be able to connect with millions of others on the planet willfully with social networking sites, it also allows unwanted millions into our homes. The internet is a portal directly into our living rooms. Any time you make a purchase online or check your bank account, you are at risk of a privacy breach.
At a pivotal point in history, it is easy to understand how we want to depend upon our government to protect us as individuals. It is also impossible to understand how anyone might think that that should be accomplished by readily giving up our civil liberties which are a fundamental and unifying doctrine of what this great, free country was founded on. When I started this project, I felt that we were definitely loosing our freedoms. In doing my research, I have faith in the Constitution and the folks that uphold it. Although at first glance it may seem that we are rapidly loosing our privacy, it is the opinion of this author that some privacies are occassionally encroached upon but, Americans will not ever completely lose their guranteed right to privacy as long as we uphold the United States Constitution in its intended governance. It would seem that just about everywhere where some portion of government has tried to take bits and pieces of our right to privacy away, the Judicial branch has done a good job of disallowing any act that removes our right to privacy without probable cause.
Works Cited
Aiken, Justice Ann. "Mayfield v. United States of America Ruling." Decision. 2007.
Ashcroft, John. "USIA Electronic Journal, Vol. 2, No. 4, October 1997 ." 1997. Northern Kentucky University http://www.nku.edu/~longa/clippings/gj-7.htm.
Biskupic, Joan. "Unanimous Decision Points to Tradition of Valuing Life." The Washington Post 27 June 1997: A01.
Campbell, Virginia. "How RAND Invented the Post War World." American Heritage Summer Volume 20 Issue 1 2004.
Davis, Kenneth C. Don't Know Much About History (Revised Edition). New York: Harper Collins, 2004.
Fathers, Founding. "The United States Constitution." The Bill of Rights. USA, 1791.
Feingold, Russell. "On the Anti-Terrorism Bill ." Speech from the Senate Floor. Washington, DC: http://feingold.senate.gov/speeches/01/10/102501at.html, 25 October 2001.
Griswold v. Connecticut. No. 479. US Supreme Court 381. 7 June 1965.
Madison, James. "Federalist Paper." #51.
Mayfield v.United States of America. No. 72 F. 186. 26 9 2007.
Patterson, Thomas E. We The People. New York: McGraw-Hill, 2009.
U.S. Department of state. America.Gov; Engaging the World. 24 2 2010 http://www.america.gov/st/democracy-english/2008/June/20080630222008eaifas0.9629573.html
US Congress. "USA PATRIOT Act." Washington, DC, 26 October 2001.
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