Chapter 6
You Can Leave Me Alone:
The Right to Privacy
On a Saturday morning, have you ever found yourself with nothing to do? Maybe you decided to take a trip to New York City and spend time with your best friend from college. Together you visit the South Street Seaport and take in the views of Brooklyn while grabbing lunch. Once you finish your meal, the two of you decide to stroll by the Stock Exchange in the Financial District and then pay your respects at Ground Zero. After an exhausting day, you return to your friend’s apartment and realize you left your cell phone on the couch. Your phone shows five missed calls, all from your mother, who has been in a “tizzy” all day because she could not reach you. You tell her to calm down and not to worry. The government watched you all day.
That’s right. The government watched your every move while you were in downtown Manhattan. In response to the September 11th 2001 terrorist attacks, the New York Police Department (NYPD) implemented the Lower Manhattan Security Initiative (LMSI). Starting in 2007 (if it was so imperative why did they wait six years?), the NYPD installed more than three thousand public cameras and one hundred license-plate-reading devices. These publicly owned cameras, cameras of private landowners, and the publicly owned license-plate-reading devices are fed into an operations center manned by uniformed police. And while you may try to avoid these cameras by staying north of Canal Street, you’re out of luck.
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Currently, cameras are being installed throughout Midtown Manhattan. In response to the attempted Times Square bombing by Faisal Shahzad on May 1st 2010, New York Mayor Michael Bloomberg flew to London to take a look at its surveillance camera system, or the “Ring of Steel.” The “Ring of Steel” is composed of five hundred thousand cameras capturing an individual’s identity (within London) an average of three hundred times a day. Mayor Bloomberg is now hoping to duplicate this Orwellian system in New York and install thousands of cameras in Midtown Manhattan by the end of 2011.1 However, Mayor Bloomberg appears unsure as to whether this gross invasion of your privacy would work. He stated, “It’s not clear that they would have helped in Times Square. Other than if the perpetrator knew there were cameras, he might not have tried to come into Times Square.” Despite his uncertainty of success, Mayor Bloomberg and other government officials continuously attempt to convince you these cameras and license-plate readers are there to combat terrorism and protect your safety. Unfortunately, the reality is the cameras act as a government-sanctioned intrusion on your natural right to privacy: Your right to be left alone.
But do these cameras make us safer, or do they only make us feel safer, and lead us to believe that at least the government is doing something; or are they just another sacrifice of a fundamental liberty at the altar of government expansion? And if we feel safer, but are not actually safer, won’t that false sense of security (thinking that the government is protecting us when it is not) make us less safe? As previously described, when the crackpot Faisal Shahzad parked a bomb-filled SUV in the midst of Times Square, in the heart of New York City on Saturday evening, May 1st 2010, he unwittingly illustrated what little effect these cameras have. Not only did the local cameras fail to deter Shahzad from attempting to murder thousands of individuals; they also failed to identify him. In fact, Shahzad was on a plane at JFK Airport, an hour travel time from Times Square, before the police caught him. Clearly, the cameras in place played no role in preventing an attack. It is impossible for the police to monitor these thousands of cameras in real time and thereby thwart crime. The best they can hope to do is to review a tape after a crime has occurred and maybe get a lead on a suspect. That is not prevention or safety.
Fortunately, other governors in our nation are opening their eyes to individuals’ calls for privacy. On July 15th 2010, Governor Jan Brewer of Arizona let state contracts expire for thirty-six fixed cameras and forty vans installed with cameras. The dismantling of the cameras and vans began the next day. Brewer’s predecessor and the current Secretary of Homeland Security, Janet Napolitano, instituted these devices in September 2008. Behind the guise of advocating road safety, then Governor Napolitano believed the fixed and mobile cameras could generate up to $90 million in revenues to the state in the first year. In order to achieve such revenues, the cameras snapped photos of individuals traveling more than eleven miles per hour over the speed limit and then issued tickets for $181.2 However, $90 million of revenue was never reached because the payment rate on the tickets was only 26 percent.3 The refusal of folks in Arizona to pay the tickets issued by the government, and the subsequent dismantling and removal of the cameras and vans, is a testament to the power of individuals standing up for their rights—specifically, the right to privacy.
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Constitutional Guarantees
The United States Constitution does not expressly state a right to privacy. While numerous historians speculate and propose reasons as to why the Founders did not articulate this right in the text, the most telling reason may be the use of the word privacy in eighteenth-century America. In fact, a search of Thomas Jefferson’s sixteen thousand writings and letters produces not a single usage of the word privacy,4 because in the eighteenth century privacy referred to the bathroom or outhouse. Rather, the Founders used the term security, which meant to them essentially the same thing as our contemporary understanding of privacy. For example, the Fourth Amendment states, “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.”5
Moreover, additional amendments in the Bill of Rights address the issue of what we call privacy. The Third Amendment, which holds, “No Soldier shall . . . be quartered in any house, without the consent of the Owner,” was directed at the British quartering of troops in the colonists’ homes; an egregious violation of security for an eighteenth-century mind and privacy to a twenty-first-century mind. The Founders were determined not to repeat history. They assured the colonists their homes would no longer be invaded on a whim by the agents of the government, and their privacy there would be secure.
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The Ninth Amendment then clearly states, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”6 The rights retained by the people are the unalienable natural rights, with which you are born. Natural rights can be compared to a sphere within which “individuals must remain free from [government] interference.”7 Privacy is essential to this sphere, and relates to the right or the ability of individuals to determine how much and what information about themselves is to be revealed to others. Additionally, privacy relates to the idea of autonomy, the freedom of individuals to perform or not perform certain acts, or subject themselves to certain experiences.8
For example, the German physicist Werner Heisenberg discovered the principle of uncertainty, or the Heisenberg Effect. The Heisenberg Effect stands for the principle that no individual can repeat the same performance unobserved as he can while being observed. In other words, we change or conform our behaviors when we know we are being watched. Take, for example, your daily job. When the boss is known to be in the office, most individuals are much more diligent than when they know no one is watching their daily actions. The same can be said for cameras on every street corner. If you know you are being filmed and want to whisper “sweet nothings” into your partner’s ears, you may refrain from doing so because you know a uniformed policeman may be watching and listening on the other end. Thus, observation alone changes individuals’ actions and strips them of their natural right to be left alone.
You’re Safe Nowhere: From Polaroids to Street Cameras
While today the natural right of privacy is widely recognized (and widely ignored), the right to be left alone was not always easily conceptualized. While our forefathers inherently valued their privacy, it was not until 1890 that the right to privacy ent
ered the United States as a rational legal theory. In 1890, Justice Louis Brandeis recognized individuals’ desire to remain anonymous.9 In his now famous Harvard Law Review article, “The Right to Privacy,” Justice Brandeis introduced the concept of a right to privacy when he stated, “The right to life has come to mean the right to enjoy life,—the right to be le[f]t alone.”10 Moreover, the article reveals that Justice Brandeis was influenced to write on the right to be left alone in large measure by the then growing trend in technological advances.
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Justice Brandeis would be horrified today if he observed the erosion of our right to privacy. In 1890, Brandeis expressed concern over the growing trend in technological advances because he worried that “instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”11 This was in 1890! One can only imagine what Justice Brandeis would think of the countless cameras, license-plate readers, Web sites with personal profiles and picture-sharing applications, digital cameras, cell phones with cameras and recording devices, wiretapping, face-recognition technology, fingerprinting devices, Google maps displaying aerial views of your home, and similar technologies ripe for government abuse today.
Yet, it would be thirty-eight years before Brandeis advanced this theory in the Supreme Court. In the famous case of Olmstead v. United States (1928), the majority of the Supreme Court held the government’s wiretapping of private telephone conversations to be constitutional under the Fourth and Fifth Amendments. Justice Brandeis’s dissenting opinion, which set the precedent for future cases, gave us the phrase, “the right to be left alone.” Justice Brandeis wrote,
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be le[f]t alone—the most comprehensive of rights and the right most valued by civilized men.12 (Emphases added)
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Brandeis was correct in his analysis of the Constitution. Nowhere in the Constitution is the government granted the power to monitor or regulate our daily conduct. Remember, the Constitution grants power to the federal government and retains for the states and people that which is not granted. It keeps the government off our backs. (Well, it is intended to do that.) We retain all unalienable rights, and the right of privacy—the right to be left alone—is certainly one of them. By simply being human, all persons have a right to privacy existing far before the founding of the United States. As the majority of the Supreme Court wrote in the case of Griswold v. Connecticut (1965), “We deal with a right to privacy older than the Bill of Rights [and] older than our political parties.” That sentence alone acknowledges privacy as a natural, or if you prefer the secular term, fundamental, right, which cannot be taken away without due process of the law.
For example, suppose you have a collection of rare coins. You’ve spent years acquiring these coins and have searched all over the world for them. In doing so, you’ve catalogued each and every detail of the individual coins and placed them in a special cabinet. Does the government have the right to observe and copy your catalogue and publish its own catalogue of your coins? Most certainly not! This is your private collection of coins, which you choose to keep for yourself. The government cannot view these coins without violating your natural right to privacy.
The Government’s Intrusion on This Right: Marriage
The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever; their position or station, from having matters which they may properly prefer to keep private, made public against their will. It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented.
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—JUSTICE LOUIS D. BRANDEIS
Why must we seek the approval of the government to enter into marriages? For centuries, governments never interfered with marriages, but rather they were based on religion, parental choice, culture, tradition, and the mutual love of two persons. It certainly is not the government’s role to meddle in your most personal of affairs. If the decision-making process that leads to the free choice to marry another person is not considered private, then what can be considered private? Again, our right to privacy stems from our desire to keep certain matters out of the public eye and between another and ourselves. There are few decisions more personal than deciding with whom you want to spend the rest of your life.
Why is the government involved at all with the institution of marriage? The government should not be in the business of determining who receives the contractual benefits of marriage, such as medical visitation and decision-making rights, inheritance rights, property co-ownership, and so on. You and your soon-to-be partner should determine who shares in the benefits of that marriage. Marriage should not be an institution of the state, but rather a contract recognized by the contracting parties and solemnized by either a cultural or a religious procedure or no procedure at all. When you buy a house, who solemnizes the contract?
Despite the relatively simple concept of excluding the government from your most personal affairs, our government’s history includes frequent meddling with this tradition. Before the Founders signed the Constitution, before colonial leaders signed the Declaration of Independence, they sought to prohibit interracial marriages. The first documented interracial marriage in our nation’s history was that of Pocahontas to John Rolfe. The story of these two individuals was passed down for ages and culminated in a Disney movie dramatizing the love between these two. While they were fortunate enough to marry almost forty-five years before the first anti-miscegenation law passed in 1661, the fairy tale was not happy for many other individuals. The anti-miscegenation laws prohibited mixed-race marriages in Virginia and numerous other states for more than three hundred years until the U.S. Supreme Court heard the case of Loving v. Virginia in 1967.13 Unfortunately, the period between 1661 and 1967 was fraught with additional government intrusions on the natural right to privacy.
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At first, the laws were not so restrictive. For example, in the early years, the colonial governments required colonists formally to register their marriages, but it soon became common practice to accept cohabitation as a form of registration. Yet, by the late nineteenth century, state governments began to nullify common-law marriages and exert more control over who could marry whom.14 By the early 1920s, thirty-eight states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians” “Malays,” or Filipinos.15 And, as if things couldn’t get worse, in 1924, Virginia passed a law prohibiting whites from marrying any individual with a “single drop of Negro Blood.”16 The Virginia legislature went as far as to prohibit marriages between a white individual and another individual who was 99-plus percent “white” and one drop “Negro.” Perhaps even more astounding is that this occurred within the last century. The government clearly felt no shame in meddling in the most intimate of affairs.
Congress, which has the power under the Fourteenth Amendment to nullify state laws that take life, liberty, or property away without due process, did nothing about these horrific laws. Congress allowed one law after another to pass without exerting any effort to protect natural rights. Fortunately, the Founders were wise beyond their years and created a government of checks and balances. In this case, the Supreme Court provided the “check.”
In the case of Loving v. Virginia (1967), the Supreme Court found Virginia’s anti-misce
genation laws unconstitutional and recognized our natural right of privacy. The case involved Perry Loving, a white man, who married his African American and Native American wife, Mildred Jeter. The couple married in Washington, D.C., which had no racial restrictions on marriage. After their ceremony, they returned to Virginia in the hopes of living in matrimonial bliss; yet, the bliss quickly faded. One morning, police officers broke into their home and barged into their bedroom to ask them what they were doing in bed together. Mr. Loving pointed to the marriage certificate on the wall, which the officers informed him Virginia did not recognize. The two were then arrested and jailed. And the case only gets worse.
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At trial, the judge gave the Lovings two options: Either move out of Virginia for twenty-five years or spend one to three years in jail. The Lovings chose the former. Subsequently, the judge delivered an opinion, which can only be characterized as profound fundamentalist ignorance. He stated,
Almighty God created the races, white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.17
It is unfathomable that a judge entrusted with the protection of our constitutional rights could write such a statement. Fortunately, on appeal the Supreme Court displayed far superior intellect and respect for natural rights and formally recognized the natural right to privacy in regards to marriage. Chief Justice Earl Warren stated, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”18 In other words, a natural right.
While decades ago the Supreme Court formally settled the issue of interracial marriages, the nation is currently engulfed in the battle over same-sex marriages. For the same reasons the government should not interfere with marriages between individuals of various races, the government should not interfere with marriages between individuals of the same sex. What effect do same-sex marriages have on other individuals? As Jefferson might have said, they neither pick your pocket nor break your leg. They do not harm anyone or violate your natural rights.
It Is Dangerous to Be Right When the Government Is Wrong Page 13
