The concept of a right to privacy is deeply rooted in our culture. It is the simple idea that individuals in American society have the right to keep their government from snooping around their stuff.
There is no specific law defining privacy and its parameters. Instead, we infer the right to privacy from our history, our Bill of Rights and the United States Constitution.
One of my favorite legal opinions was issued by the Supreme Court in 1886. (That was a time when the court saw good or bad, and the opinions were simple. In more recent history, the Supreme Court positions are more complicated because it has taken many self-indulgent positions that sound like, “okay, maybe it’s wrong, but I really want it to be right, sooo…” This is why Justice Neil Gorsuch was such an essential addition to that bench.)
Back to 1886. The Supreme Court zealously defended the right to privacy, calling it “the very essence of constitutional liberty and security.” The case was about the government’s demand that a man incriminates himself by producing private papers to be used against him. The Court dubbed this an invasion of the man’s “indefeasible right of personal security, personal liberty, and private property.” This was a time when judges still remembered oppressive British invasions of privacy and the resulting prophylactic protections that our Founding Fathers set up to protect us from government invasions, so they were very privacy-friendly. “The Fourth and Fifth Amendments run almost into each other,” the Court declared while explaining how strongly our Constitutional rights protect the “the privacies of life.”
When I was in law school reading those words, the “Fourth and Fifth Amendments run almost into each other,” I imagined a mom and a dad running towards their child from opposite sides, and then running into each other and banging their foreheads. That imagery is probably what the Court was trying to project. We are the kids, and our enumerated rights are our parents. The job of the parents is to protect the children. That’s what our rights do for us. Vigorously defend us as a unit.
Later cases by the Supreme Court discuss the idea of privacy as something a bit more loosely connected —imagine sprinkles of protection around our Bill of Rights. The Court no longer seems to fawn over privacy in the 20th century like it did in the 19th century.
- The First Amendment imposes limitations upon governmental abridgment of freedom to associate and privacy in one's associations. (1958)
- The Second Amendment protects individuals’ privacy in their home security decisions. (2010)
- The Third Amendment protects privacy in the home from physical governmental intrusion through quartering of soldiers. (1967)
- The Fourth Amendment protects our reasonable expectations of privacy, even in public areas, when the government does not have probable cause to pierce through our privacy. (1967)
- The Fifth Amendment privilege against self-incrimination reflects "our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life.” (1966)
- The Ninth Amendment encompasses “penumbral rights of privacy and repose” and recognizes “zone of privacy.”(1965)
But never has the Court said that you could claim an expectation of privacy in someone else’s life, body, or property. To the contrary, you have no standing to claim a privacy violation on behalf of someone else. Privacy rights are personal rights; courts do not permit personal rights to be vicariously asserted.
Privacy concerns have been blown up this week by the media, with many outlets dubbing individuals who test and share their DNA on genetic testing sites as “informants” and outlining how dangerous it is to share your DNA. But this is nothing new. There have been privacy concerns with genetic data testing and sharing since these companies became mainstream. It’s something to certainly consider.
In the case of the Golden State Killer, law enforcement didn’t obtain the DNA from a testing company sharing site like 23andMe. Instead, they used a DNA sharing database called GEDmatch.com, a free open-source website that allows people to upload their genetic raw data retrieved from genetic testing companies in order to find other relatives or to find out more about their ancestry. GEDmatch also allows people to delete their samples from their database.
Of course, sharing your private DNA with others exposes you to potential dangers, most of which we cannot fathom today. Should you not choose to engage in the unique opportunity of finding long-lost relatives or explore your history just in case your cousin is a serial rapist? No —that’s ridiculous.
We need to be honest with ourselves: all of the new technologies that let us do more and know more, from the iPhone to Amazon’s Alexa to 23andMe, will have privacy implications. That has always been the trade-off when using these technologies.
We need to remember that our legal system continues to protect reasonable privacy rights as technology continues to evolve. Don’t forget that in 2014, the Supreme Court protected our smartphone privacy, noting that, “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’” (quoting my favorite 1886 Supreme Court decision).
Friends and relatives were never meant to protect you from the government. Your privacy rights do not extend into their personal life, body, or property. You don’t have a privacy right in their DNA. Friends and relatives can and will share all kinds of things about themselves which may later be linked to you, including their DNA. These are all realities of life that are not part of “privacy” in the sense of the law.
Privacy needs to be understood for what it is: the right for you to choose not to share. That’s it. Privacy does not extend into the realm of protecting you from the things that others can share about you.