At no time in American history has the "right of privacy" generated such heated controversy and been the focus of so much attention as at present. The Watergate scandal in the 1970s focused public attention for the first time on the damaging effects of sophisticated electronic technology on privacy. Watergate provided the impetus for the landmark Privacy Act of 1974, which limits the federal government's ability to disclose information about a citizen. This law was itself based on the Fair Information Standards (FIS) adopted by the U.S. Department of Health, Education, and Welfare in 1973, which stipulated that there shall be no personal record system whose existence is secret; individuals have rights of access, inspection, review, and amendment to systems containing information about them." In 1978 Congress strengthened the law on illegal government wiretapping. States have followed the federal government's lead in passing laws protecting the privacy of their residents. Nevertheless, the computerization of business and government since the 1970s has made relentless onslaughts on the individual's privacy, most often without his or her knowledge or consent.
In American history, "privacy" traditionally has meant the right to be left alone. The Bill of Rights guarantees freedom of speech, press, and religion; prohibits the government from conducting "unreasonable searches and seizures"; and protects the individual from self-incrimination and "cruel and unusual punishment." These constitutional guarantees, while not defining privacy outright, implicitly uphold the sanctity and autonomy of the individual.
For the first hundred years of this country's history, constitutional guarantees respecting privacy adequately protected it. Information files were few, and the proximity of the frontier made surveillance virtually impossible. Late 19th-century technology, in the form of telegraphs and telephones, however, began to make inroads into privacy, and drew the attention of future Supreme Court Justice Louis D. Brandeis (1856 1941) and his law-firm colleague Samuel D. Warren (1852-1910). In 1890 their article, "The Right to Privacy," appeared in the Harvard Law Review, focusing primarily on the invasion of the individual's "right to be left alone" by the popular press. The ensuing legal debate over privacy contributed to the evolution of the concept of privacy in American law. In 1923 the Supreme Court struck down a Nebraska law that prohibited the teaching of any language other than English on the grounds that it violated personal autonomy, which was recognized for the first time as a legal principle. In 1965 the Supreme Court, in the case of Griswold v. Connecticut, held that the Constitution implicitly guaranteed the right of sexual privacy. The Griswold case as well as the 1973 Roe v. Wade decision, recognizing a woman's right to an abortion, personified for many the individual's right to personal privacy. Although individual privacy has generally received increased protection under the law, in all such cases there exists a tension between the right of society to intervene to stop or prevent illegal activity and the right of individuals to personal autonomy.
The clash between society—usually government and business interests—and the individual's right to personal autonomy has heightened since Roe v. Wade, thanks in large part to the "information revolution." The sophistication of surveillance technology and the invasion of computers into all realms of life, including churches and schools, have heightened the assault on individual autonomy to a degree undreamed of when the Constitution was written. The government's abuse of electronic surveillance to spy on its citizens during the Nixon administration drew national attention to the misuse of technology and the need for legal curbs. The result was the Privacy Act of 1974. This law was meant to empower the individual by giving him or her access on demand to any personal records held by a federal agency; the law also limited the power of any federal agency to "swap" records with another agency, as well as to disclose information on an individual.
Critics of the law since its passage cite its lax enforcement, loopholes, and exceptions, as well as the near absence of committed oversight and enforcement. Following on the heels of this law was the 1976 Supreme Court case, United States v. Miller, in which the court ruled that an individual's bank records belong to the bank, and not to the individual, who "surrenders" his or her right to privacy upon becoming a bank customer. This ruling also meant that individuals "surrendered" their right of privacy to insurance and credit card companies, and many other businesses and government agencies that provide services. Computerization of business and government has also invaded the workplace, in which millions of Americans may be monitored by computers, telephone tapping, and closed-circuit cameras.
Advancements in surveillance technology and the proliferation of computerization has undermined the authority of the Privacy Act of 1974. The FIS standards from which the law was derived were drafted in response to the technological reality of the late 1960s, and are proving inadequate to prevent misuse of surveillance techniques available today. Furthermore, recent rulings by the Supreme Court have undermined privacy protection, stating in one case that "You have little privacy from government snooping in an open field, in a telephone booth, or from technologically remote electronic eavesdropping; if you are homeless, your effects may be searched without a warrant." Such rulings have implied that an individual is safe from public scrutiny only in the privacy of his or her own home. Lower courts seem to be taking a more mixed view, with a 1997 ruling finding federal protection of state driver's license information unconstitutional, but a 1998 ruling finding that employers cannot maintain a list of employees with AIDS and HIV. Despite such advancements, further erosion of the individual's right to privacy seems inevitable. Beginning in October 1997, for instance, employers were required to report the name, address, and social security number of all new hires to facilitate the establishment of a National Directory of New Hires as a support to welfare reform and an aid to law enforcement agencies pursuing parents failing to meet their child support obligations.
Developments in medical science have also raised privacy issues. Computerization of health records enable physicians to track an individual's health in minute detail throughout his or her life. This information could easily be misused by insurance and health-care providers to exclude otherwise eligible individuals from coverage or treatment. The ability of physicians to identify potential health risks by examining an individual's genetic makeup could also enable insurance and health care providers to exclude individuals based on the probability of future ailments, something that has heretofore been impossible. In response to these new threats to privacy, Congress passed the Health Insurance Portability and Accountability Act (HIPAA) in 1996, although this measure was viewed as temporary in nature. Since the passage of HIPAA, however, Congress has been unable to agree on permanent guidelines for the protection of an individual's health records but has blocked, at least for the near future, a plan to issue every American a medical identification number and establish a national medical database. If Congress proves unable to act before August 1999, the U.S. Department of Health and Human Services is authorized to issue health-privacy regulations no later than February 2000.
New aspects of the right to privacy continue to capture public attention. In the late 1990s the legality of assisted suicide was widely debated in the political arena and tried in the courts. Although this legal and political dispute is far from concluded, initial federal court rulings imply that the 14th Amendment as currently worded does not allow assisted suicide, and that each state must decide its own law on the subject through passage of referenda.
The "right to privacy," guaranteed by the Constitution and buttressed by state and federal law, has required constant vigilance as it is increasingly being identified with the essence of democracy itself. Hence the issue of privacy will not diminish, but will loom larger in the future.
[ Sina Dubovoy ,
updated by Grant Eldridge ]
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