AuthorJeffrey Lehman, Shirelle Phelps

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In CONSTITUTIONAL LAW, the right of people to make personal decisions regarding intimate matters; under the COMMON LAW, the right of people to lead their lives in a manner that is reasonably secluded from public scrutiny, whether such scrutiny comes from a neighbor's prying eyes, an investigator's eavesdropping ears, or a news photographer's intrusive camera; and in statutory law, the right of people to be free from unwarranted drug testing and ELECTRONIC SURVEILLANCE .

The origins of the right to privacy can be traced to the nineteenth century. In 1890, Samuel D. Warren and LOUIS D. BRANDEIS published "The Right to Privacy," an influential article that postulated a general common-law right of privacy. Before the publication of this article, no U.S. court had expressly recognized such a legal right. Since the publication of the article, courts have relied on it in hundreds of cases presenting a range of privacy issues.

In OLMSTEAD V. UNITED STATES, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928), Brandeis, then a Supreme Court justice, articulated a general constitutional right "to be let alone," which he described as the most comprehensive and

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valued right of civilized people. For the next half century, the right to privacy gradually evolved. Today, every jurisdiction in the country recognizes some form of constitutional, common-law, or statutory right to privacy.

Constitutional Law

The constitutional right to privacy protects the liberty of people to make certain crucial decisions regarding their well-being without government coercion, intimidation, or interference. Such crucial decisions may concern religious faith, moral values, political affiliation, marriage, procreation, or death. The federal Constitution guarantees the right of individuals to make these decisions according to their own conscience and beliefs. The government is not constitutionally permitted to regulate such deeply personal matters.

The right of privacy protected by the Constitution gained a foothold in GRISWOLD V. CONNECTICUT, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), in which the Supreme Court struck down a state statute forbidding married adults from using BIRTH CONTROL because the statute violated the sanctity of the marital bedroom. Acknowledging that the Constitution does not mention the word privacy anywhere in its text, the Court held that a general right to privacy may be inferred from the express language of the First, Third, Fourth, Fifth, and Fourteenth Amendments, as well as from the interests protected by them.

The Court said that the FIRST AMENDMENT guarantees the right to peaceably assemble, which includes the liberty of any group to associate in private. The THIRD AMENDMENT prohibits the government from quartering soldiers in a private home without the consent of the owner. The FOURTH AMENDMENT forbids the government from performing warrantless and unreasonable searches of any area in which a person maintains a reasonable expectation of privacy. The FIFTH AMENDMENT safeguards the right of criminal suspects to keep secret any incriminating evidence that might help the government obtain a conviction against them. The FOURTEENTH AMENDMENT prevents states from denying its citizens certain fundamental rights that are deemed essential to the concepts of equality or liberty, including the right to autonomy, dignity, and self-determination.

The holding in Griswold was later used to strike down a Massachusetts statute that made illegal the distribution of contraceptives to unmarried persons (Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 [1972]). In striking down this law, the Supreme Court articulated a broader view of privacy, stating that all individuals, married or single, enjoy the liberty to make certain intimate personal decisions free from government intrusion, including the decision whether to bear or sire a child. This rationale was extended in ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), which established the right of women to terminate their pregnancy at any time before the fetus reaches the stage of viability. Roe has subsequently been interpreted to proscribe the government from passing regulations that unduly burden a woman's right to ABORTION.

In Cruzan v. Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990), the Supreme Court again enlarged the constitutional meaning of privacy by declaring that competent patients have a right to refuse life-sustaining medical treatment, including artificial nutrition and hydration. A 1997 Supreme Court case presented the issue of whether competent but terminally ill patients may hasten their death through physician-assisted suicide (WASHINGTON V. GLUCKSBERG, 117 S. Ct. 2258). Representatives for the terminally ill patients argued that the right to physician-assisted suicide represents an essential liberty interest in controlling one of life's most significant decisions, whereas the state of Washington argued that this liberty interest is outweighed by the need to protect vulnerable individuals from irrational, ill-informed, and coerced decisions to end their lives. The Supreme Court held that the right to assistance in committing suicide is not a fundamental liberty interest protected by the DUE PROCESS CLAUSE of the Constitution, and a state's ban on assisted suicide is constitutional.

The constitutional right to privacy does not protect all forms of conduct that are pursued behind closed doors. Adults have no constitutional right to inject intravenous drugs, solicit prostitutes, or view CHILD PORNOGRAPHY. Nor do members of society have a right to be insulated from every potentially offensive activity. For example, the government may not forbid a movie theater from displaying nude scenes on a large outdoor screen that is visible to passing motorists. In Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S. Ct. 2268, 45 L. Ed. 2d 125 (1975),

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Protecting Your Privacy

By using computer technology, companies can legally collect information about consumers, including what they buy, what medications they take, what sites on the INTERNET they have visited, and what their credit history is. Computer software can organize this data and prepare it for sale and use by direct marketing companies, lending institutions, insurance companies, and credit bureaus.

Although it may be legal to collect this information, individuals may legitimately take steps to protect their privacy. Here are some common ways that companies collect information and some steps consumers can take to prevent this from happening:

Shopper's cards. Some grocery stores and other retail businesses offer discounts or premiums when consumers use their shopper's cards. All purchases are scanned into a computer, allowing the store to compile a list of each individual's buying habits. The store may use this information to target certain customers or may sell it to companies seeking specific types of potential customers. Consumers can protect their privacy either by not using such cards or by persuading the company to limit the distribution of the information.

Financial data. Credit bureaus compile credit histories filled with personal information, which are sold to anyone without restriction. Although these credit reports are supposed to be sold only to those companies with a legitimate business interest, this is not always the case. Consumers are entitled to review their credit reports and correct any errors. If someone the consumer does not know has requested a report, the consumer can ask the credit bureau to investigate the legitimacy of the request.

Motor vehicle data. An individual's motor vehicle registration is public information in most states. In many states, driver's license data (weight, age, address, driver's license number) are also public information. Automobile dealers and insurance companies collect such information. An individual can request the state motor vehicle department not to release his or her name and address to individuals or companies.

The FEDERAL COMMUNICATIONS COMMISSION has issued regulations restricting companies from certain forms of telephone solicitation, which has developed into a common annoyance in U.S. households. Under these regulations (47 C.F.R. § 64.1200), a company may not initiate a telephone call by using an automatic dialing system or an artificial or prerecorded voice without prior consent of the party called. Likewise, a company may not make such a call to a service for which the called party may be charged, such as a paging service or a cellular telephone service. A company is also restricted from sending an unsolicited advertisement to a telephone facsimile machine without prior permission.

A telemarketer is restricted from calling a residential telephone subscriber before 8 A.M. or after 9 P.M. local time of the party being called. Telemarketers must institute procedures for maintaining a do-not-call list in order to conduct telemarketing. If an individual requests that the telemarketer place him or her on the do-not-call list, the telemarketer must comply. The telemarketer must satisfy a number of minimum requirements, including the development of a written policy detailing the procedures that must be followed if a person asks to be placed on the do-not-call list; training of personnel to place persons on the do-not-call list; and ensuring that the person who requests to have his or her name on the list is placed on the list. If a telemarketer fails to honor the do-not-call list, it is liable to a party on the list that is contacted by a telephone solicitor employed by that telemarketer.


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