How would an individual right be defined? What would encompass this right? Currently the U.S. Constitution does not have an express right to privacy. There are laws that protect rights of belief as in the 1st Amendment. There is a right to privacy of the home against demands in the 3rd Amendment. There is also a privacy of possession of persons against unreasonable search as stated in the 4th Amendment. There is also the 5th Amendment that provides the right not to self-incriminate. The 9th Amendment is very difficult to interpret. It’s supposed to protect implicit rights but not explicitly described in the constitution. The implicit rights are described in Griswald vs. Connecticut (1965). It also has in it the right to travel and the right to the presumption of innocence.
For privacy to be declared a right, it has to be defined. There is so much ambiguity surrounding privacy as it relates to current laws such as HIPAA, COPA and Electronic Communications Privacy Act of 1986. California also passed the SB 1386 law in 2002 which requires all institutions and organizations that collect personal data to protect it from identity theft. The Gramm-Leach-Bliley Act in which this law actually gives ine the freedom to choose what businesses can access personal information and finally the Fair Credit Reporting Act.
If privacy was easily defined and understand by pundits and scholars alike then we would’ve had an Individual Right of Privacy as declared in the U.S. Constitution already. There are a number of laws, regulations and proposals surrounding privacy and the protection thereof that it’s clear that privacy will not be defined as a right anytime soon or for that matter in the future.
Moreover, as stated in the Constitution, individual rights can only be delegated by the States and not by the Federal Government. Over the years the Justices of the Supreme Court have had very little agreement concerning the right of privacy. As a result of this ambiguity, the as stated in the above paragraph this will remain uncertain (Shaman, n.d.).
This debate will continue and whatever theory is used as a means of debate, the right of privacy has to be connected to a constitutional condition. Some states have said that the right of individual privacy is centered on liberty as a result of due process. In fact the terms liberty and privacy have been interchanged many times within courts. In conclusion, it seems unrealistic that privacy will ever be an individual right.
Cline, A. (2001). Why Protecting Privacy is Difficult. Retrieved from
McBride, A. (2006). Griswold vs. Connecticut. Retrieved from http://www.pbs.org/wnet/supremecourt/rights/landmark_griswold.html
Banisar, D. (n.d.). Privacy and Human Rights. Retrieved from http://gilc.org/privacy/survey/intro.html
Shaman, J. (n.d.). The Right of Privacy in State Constitutional Law. Retrieved from http://org.law.rutgers.edu/publications/lawjournal/issues/37_4/Shaman.pdf
Solove, D. (2008). Understanding Privacy. Boston, MA: Harvard University Press.