• Law, Policy -- and IT?

    Tracy Mitrano explores the intersection where higher education, the Internet and the world meet (and sometimes collide).


One More Time ...

Okay, I was over the top in some sections of my previous blog.

January 20, 2011

Okay, I was over the top in some sections of my previous blog.

From a narrow legal standpoint I know that "privacy" does not usually get into the mix of paying federal income tax or being boxed in a corner by administrative law to have to buy insurance. I still believe that there are identifiable legal principles associated with the freedom of movement in public, however, and not to think so is to confuse the constructed notions of "public" and "private" with real life. While it is true that once in public, one gives up some aspects of privacy, for example to prevail in a suit against a photographer and newspaper for invasion of privacy for posting a photograph of you at a gay pride pride, that aspect should not be confused with ones that attend to the freedom to go where you want and to expect to be safe in return. After all, privacy, we all might recall, is not a term specifically mentioned in the Constitution but emerges out of case law in family planning cases. That articulation is worth a long quote from the foundational case Griswold v. Conn., a case essentially about the right of married couples to legally possess birth control.

"The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497,516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'"

"Griswold v. Connecticut -- Douglas, J., Opinion of the Court" (1965) Legal Information Institute (LII) -- Supreme Court Collection http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZO.html

As is noted here, the right to privacy is bound up with a number of other amendments, including the First Amendment, which protects the freedom of association, movement and travel. (See Shapiro v. Thompson for the right to travel specifically.)

What continues to trouble my analysis of this notion of privacy with the Tucson events? The fact that the Constitution protects individuals from government action, not from the action of individuals (corporations or people), and of course that is the fact pattern here. Not to put too fine a point on my argument, that trouble goes directly to the idea that while we must remain vigilant about government encroachment into our freedoms, we must also take whatever actions are necessary to protect people from the actions of other individuals (corporate or personal) that unfairly interfere with our own individual (or groups, for example suspect classes such as racial or gender categories) freedoms. Sometimes near mindless exultation of the "market" sets the promise of a more balanced public policy off kilter. That pattern can be observed in everything from the reluctance to regulate whole sectors of the economy that by any objective measure is out of control (witness: health care) to ones where indisputable need cries out in the wilderness (broadband deployment) or even, as I stated in the last blog, gun control.

Allow me now to switch a gear and introduce to those readers who don't know of him Dan Solove. You can read all about him here: http://docs.law.gwu.edu/facweb/dsolove/ For my money he is the clearest voice on privacy and all of its complicated and yet sometimes very simple issues that percolate in our society today.

And for right now, I want to highlight two specific features his work. The first is a new site that he has developed entitled Teach Privacy at http://teachprivacy.com/ The second is to invite everyone to a video stream of a talk that Dan will privacy with a focus on the reputation on the Internet at 8:00 p.m. Eastern February 3. As we get closer to date I will publish the url for the stream. And for the moment, allow me to step aside and let Dan's materials speak for themselves.


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