Is There a Right to Privacy in America?

In December last year, 14 people were murdered and 22 were seriously injured in a terrorist attack in San Bernardino, California. One of the murderers, Syed Farook, was an American-born U.S. citizen of Pakistani descent. After the attack, Farook fled the scene but police pursued and killed him. The FBI then wanted to break into Farook’s iPhone but did not have the technology, so Apple, the iPhone’s manufacturer, was asked to assist. It refused.

It’s a no-brainer. Farook was a bad guy and the FBI, wearing white hats, wanted information to better protect the public. Why would an American corporation not want to assist the government in its pursuit of terrorists?  But Apple refuse for cause. “This is not about one phone,” said Apple CEO, Tim Cook. “This case is about the future. Can the government compel Apple to write software that we believe would make hundreds of millions of customers vulnerable around the world?”

The Farook case is not the only one that Apple is contesting. According to The Washington Post, the government has already fought Apple at least 70 times over granting assistance in by-passing Apple’s passcode security. For example, last October Jun Feng pleaded guilty to drug charges. The government sought a Court order to force Apple to extract data from Feng’s locked iPhone. The FBI argued that an arcane statute, the All Writs Act of 1789, would compel Apple to perform work for the American government against its will. However, the Court ruled that the Act did no such thing because Congress never enacted such an obligation. Further, the judge ruled that “the implications of the government’s position are so-far reaching…as to produce impermissibly absurd results.”

Undoubtedly, the FBI’s actions against Apple will continue, probably all the way to the Supreme Court. I am no expert on US law, especially constitutional law, and would not offer a view here about how any case might be determined. However, I have asked myself the following question: Is there a right to privacy in America?

The Bill of Rights sets out the rights enjoyed by American citizens. There is no express, clear mention of a right to privacy. Whether privacy can be interpreted is not for me to answer. However, I understand that the American legal position is that if a right is neither expressed nor implied by law, it does not exist.

The Fourth Amendment entitles the people “to be secure in their persons…against unreasonable searches…” Although the Bill of Rights does not explicitly mention "privacy", a Supreme Court justice has suggested “there is legal opinion to suggest that the privacy right is to be found in the penumbras and emanations of other constitutional protections, such as the self-incrimination clause of the Fifth Amendment.”

Of course, privacy is not limited to the government’s demand for information from a private citizen. If a person’s sexuality is “outed,” his privacy has been exposed but unless the outing is prohibited by statute, there is no action available in law to the outed person. If an individual is accused by a newspaper or on television of breaking a law or a moral code, he or she cannot sue on the grounds of breach of right to privacy. Instead, he or she must resort to a defamation action.

The Supreme Court has acknowledged that citizens have a right to privacy under given circumstances. In the 1960s, the State of Connecticut legislature, dominated by Roman Catholics, passed a "Comstock law" that prohibited any person from using "any drug, medicinal article or instrument for the purpose of preventing conception." In Griswold v. Connecticut, the Court ruled that the Constitution did indeed protect a right to privacy. The Court invalidated the Connecticut statute on grounds that it violated the "right to marital privacy", establishing the basis for the right. One justice stated that “the law ends behind the bedroom door.”

This case fascinates me. Did the Connecticut state police have all the state’s condom dispensing machines brought to squares outside the state’s City Halls and have them sledge hammered? If someone carrying condoms crossed the state line into Connecticut, would he be up on racketeering charges? Did the state form a House Un-Connecticut Activities Committee? Would witnesses be asked, “Are you now using or have you ever used a condom?” My mind is beyond boggling.

We Brits don’t have this privacy conundrum. Article 8 of the European Convention on Human Rights entitles us to “the right to respect for private life and family life, balanced against factors, such as what may be necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country.”

Privacy is a tricky issue. In a modern, open, liberal society, can the public enjoy absolute privacy, especially as terrorist threats abound almost daily? Can the government demandd disclosures as of right in cases like that of Farook or Feng and, if so, what precedent is created?

I don’t have the answer. I’d be happy to be enlightened by any reader.

Finally, I confirm that no Human Rights lawyer and no US Constitutional lawyer was harmed in the preparation and publication of this article.