Personal Injury

Debating the “Mighty Constitutional Opposites”

Debating the Right to Privacy

Many people are surprised to find out that the U. S. Constitution doesn’t have a provision specifically guaranteeing a right to privacy. We want to be protected from the government’s bothering us without proper justification. And we want the government to protect us from other individuals who wish to invade our private business in order to make money or satisfy their curiosity. It’s hard to imagine what our society would be like if we didn’t have the right to be left alone.

And we do, according to the Supreme Court. In Katz v. U.S., 389 U. S. 347 (1967), the Court found that the right to privacy is implied in three amendments:

  • The Fourth Amendment protects us from “unreasonable” search and seizure of our “persons, houses, and effects.”
  • The Ninth Amendment tells us that the rights listed in the Constitution are not the only rights we have.
  • The Tenth Amendment says that we, the people, keep powers we haven’t given to the government.

In addition, state constitutions protect us from having our privacy invaded unreasonably by government, and state and federal laws prohibit invasion of privacy by individuals. In civil court, we can sue someone who publicly discloses private information about us or who intrudes on our privacy without our permission. These types of suits usually seek damages to compensate the victim and ask the judge to order the defendant to stop invading the victim’s privacy.

Government vs. Privacy
The right to privacy cannot be absolute. Sometimes, people do things that endanger others. Government agents, such as police, have an interest in “invading” these people’s privacy. That’s why the Fourth Amendment protects us only from “unreasonable searches and seizures.”

We need rules that define when people’s actions justify searching their possessions and perhaps arresting them based on the evidence so gathered. The Fourth Amendment says that search or arrest is reasonable if the officials doing it have gotten a warrant from a judge. The Supreme Court has ruled that some searches are reasonable even without a warrant, such as when circumstances make it very difficult for the officials to stop what they are doing to get a warrant before continuing. These situations are called “exigent circumstances.”

Officials have to show the judge that there is probable cause before a warrant can be given. That means they have to convince the judge that a reasonable person would believe a crime has taken place and that the warrant is needed. To prove probable cause, the officials need to gather evidence, which can’t be obtained through unreasonable invasions of privacy.

In less technologically advanced times, it was easier to draw the line between acceptable means of gathering evidence and unreasonable invasions of privacy. If police officers sneaked onto a suspect’s property without a warrant to listen to a conversation at an open window, they were trespassing and the search was unreasonable. All evidence gathered was illegal and inadmissible in court. If the conversation was overheard through an open window just off a public sidewalk, without entering private property, a warrant wasn’t needed because the information was available to anyone passing by at the time.

Modern technology has made it difficult for the courts to decide exactly what government officials can do to gather evidence in a way that does not unreasonably invade an individual’s privacy. People no longer have to trespass in order to hear conversations going on inside buildings, for example, nor do they have to wiretap. Remote listening technology has made “virtual trespass” possible—for example, just pointing a microphone at a building to hear a conversation going on inside. If the police do so while investigating a suspect, is it an unreasonable invasion of the individual’s privacy?

The Supreme Court has said it is, with its new standard focusing not on how the official obtains the information, but rather on whether the person has a reasonable expectation of privacy. For example, expecting privacy while chatting with friends in a movie line isn’t reasonable, since such conversation is easily overheard by anyone. However, it’s reasonable to expect a conversation behind a closed and locked door to be private, no matter what surveillance technology exists.

Press vs. Privacy
Our right to be protected from other people’s curiosity is not absolute. It must be balanced with another constitutionally protected right: freedom of the press, which is historically linked to political democracy.

Democracy can’t function without the free flow of information. The First Amendment prohibits the government from making any law that abridges this freedom. However, freedom of the press can conflict with the individual’s right to privacy. Civilized society requires that we each respect one another’s privacy to some level. The courts have the difficult job of deciding cases that arise when freedom of the press and the right to privacy come into conflict.

As with government cases, the courts use the reasonable-expectation-of-privacy test to draw the line between the press’s right to gather information and the individual’s right to be left alone. Decisions depend on what the victim was doing and who the victim is.

For example, when people conduct private business in a place that they can’t reasonably expect to be private—like negotiating a contract in a restaurant—they can’t sue others for divulging overheard information. Who the individual is becomes important if the person seeks public attention. Stories abound about famous people being pursued by media hounds who are bent on scooping the latest celebrity news. Perhaps the most famous, and tragic, such story is about the death of Lady Diana Spencer, Princess of Wales, who was killed in an automobile accident while fleeing reporters.

Whoever works hard to become famous, such as a politician or movie star, voluntarily gives up some expectation of privacy. Ordinary people have a greater expectation of privacy because they have not sought to draw the public’s attention to themselves. That doesn’t mean the press can do anything to get private information about celebrities, but it does mean that the press may legally disclose information about them that it can’t about people who are not famous. It’s the court’s job to decide what is a celebrity’s reasonable expectation of privacy and how it might differ from that of the average person.


Activities related to the Privacy Debate.

Student Central | Students in Action | Debating the "Mighty Constitutional Opposites"
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