I read once that every era of American history has its own defining frontier of constitutional law, the battlefield on which many of its most contentious issues gets fought. Arguably say, in the post-Civil War era it was the meaning of citizenship. In the 1920s freedom of speech. The post-War civil rights era defined the meaning of the equal protection clause. Maybe our current era’s biggest fight is over the limits of govt regulation of business. And so on.
Okay, this “one-era, one-constitutional right fight” idea is overstated. Americans fight over every constitutional right all of the time. Still, that same book made a very interesting prediction: That the 21st century’s main constitutional battlefield will be the right to privacy. Hence this topic idea of mine.
Privacy is a huge, multifaceted issue. We old timers think of it mainly in terms of Roe v. Wade and reproductive rights, since an implied right of privacy was the controversial basis for deciding Roe. But, there are a half dozen or so major types of privacy that have some protections under the law, such as personal (bodily) privacy, privacy of behavior, privacy of thoughts and feelings, privacy of communications, data privacy, and privacy of association. Here is a list of “issues in privacy” that concern just one of these realms, according to one digital privacy advocacy group:
Anonymity, Biometrics, CALEA, Cell Tracking, Cyber Security Legislation, Digital Books, Do Not Track, Encrypting the Web, International Privacy Standards, Locational Privacy, Mandatory Data Retention, Mass Surveillance Technologies, Medical Privacy, National Security Letters, NSA Spying, Online Behavioral Tracking, Open Wireless, PATRIOT Act, Pen Trap, Printers, Real ID, RFID, Search Engines, Search Incident to Arrest, Social Networks, Student Privacy, Surveillance Drones, Travel Screening.
I don’t even know what some of those are. Fortunately, as we covered when we discussed natural rights recently, not every concern people have is a constitutional issue. Something can be protected by positive law without it being a constitutional right. Still, most Americans probably believe they have a constitutional right to privacy, and so do I. I think debating the meaning and limits of this right will make an interesting evening – and a useful one too, since the Supreme Court is going to decide a major abortion case this term.
My short introduction on Monday will be a festive review of the do we have a right to privacy issue and of the major frontiers of the privacy debate.
Discussion Questions –
- What are the major “types” of privacy? Privacy about what and from whom?
- What are the arguments that the Constitution does/does not contain an implied right to privacy?
- Who cares? Why is a constitutional right to privacy so important?
- What are the frontier issues of privacy in a digital world? What major laws are in play?
- Discuss specific privacy issues; e.g., NSA/surveillance state, reproductive freedom, corporate data mining and info sharing, etc.
SUGGESTED BACKGROUND READING –
- Privacy means different things to different Americans, and their privacy worries reflect that.
- Does the Constitution guarantee a right to privacy
- Some libertarians believe in a right to privacy and say it reinforces limited govt.
- Law, Shmaw – Privacy is disappearing so fast that if you’re not paranoid these days, you’re crazy! Recommended.
- [UPDATE: It’s late on Sunday, but here is a very useful discussion of the many aspects of privacy – legal, philosophical, practical, technological.]
Next Week – What was the Cold War all about?