Friday, October 15, 2010

Does the Constitution guarantee a "right to privacy?"

The announcement last week that the FBI wants to be able to 'wiretap the internet' has brought a lot of discussion about privacy rights, and whether they are granted by the Constitution. I thought that, although I'm not a lawyer, Constitutional or otherwise, I'd take a take a look. A quick scan of the Bill of Rights gives me the impression that most of the first 10 amendments to the Constitution deal with either freedom or security:

The 4th Amendment is the one associated with the right to privacy. It says, specifically:

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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That seems to speak more to security than freedom. But privacy is implied - you can't have privacy without having security - it's kind of a byproduct. So there is an implication of privacy in the 4th Amendment. But is the implication enough to say that privacy is a right protected by the Constitution? Maybe if we look a little more we can find something a little more persuasive.

Amendment 1 - Freedom of Religion, Press, Expression. Ratified 12/15/1791.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Deals with both freedom and security. Freedom of speech, security to assemble and petition the Government.

Amendment 2 - Right to Bear Arms. Ratified 12/15/1791.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

To me this is straight up security. And at least one founding father believed it applied to private citizens, not just military personnel:

"No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government" Thomas Jefferson

If you'd like some food for thought, chew on this a little. Security and privacy cannot be separated. One of our assurances that we will continue to have both is the 2nd Amendment guarantee that all citizens have the right to "keep and bear arms."

Amendment 3 - Quartering of Soldiers. Ratified 12/15/1791.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

This is a guarantee of both security and freedom. Even in time of war soldiers can't just be thrust into the homes of private citizens. There there may even be the implication that even in time of war citizens should be able to refuse to house soldiers

We looked at the 4th Amendment above, so on to the 5th:

Amendment 5 - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

A strong defense of our security in our persons. And no small protection of privacy. The protection against self-incrimination is the ultimate protection of privacy. Even if the government is certain we are guilty, they have to prove it without forcing us to tell our secrets.

Amendment 6 - Right to Speedy Trial, Confrontation of Witnesses. Ratified 12/15/1791.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The 6th Amendment is all about securing the rights of the accused. It is the core of "innocent until proven guilty" and the right to a fair trial.

Amendment 7 - Trial by Jury in Civil Cases. Ratified 12/15/1791.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

This secures the right to jury trial for civil suits where a significant amount of money is involved. $20 was a lot more significant in the 18th century than it is now.

Amendment 8 - Cruel and Unusual Punishment. Ratified 12/15/1791.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Another that protects both security and freedom. It secures our persons and our rights against cruel and vindictive actions by representatives of government.

Amendment 9 - Construction of Constitution. Ratified 12/15/1791.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This is all about security and freedom. It says that the the U.S. Constitution is an inclusive document, not an exclusive one. That means that it does not list all of the rights belonging to the people, and the fact that it doesn't does not mean the rights not listed are less important than the rights that are. So the fact that a right to privacy is not mentioned specifically means nothing. The fact that it is implied in several places means a lot.

Amendment 10 - Powers of the States and People. Ratified 12/15/1791.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This amendment protects the rights and freedoms of the States and the People by stating explicitly that if the the Constitution does not specifically state that a power is given to the Federal government, it belongs to either the States, or the people. Unfortunately phrases such as "common good" are so vague that they can, and have, been used to greatly expand the powers of Federal government.

Looking at the Bill of Rights, I see 1, 2, 4 and 5 dealing directly with personal security, and by implication, personal privacy. The 9th Amendment explicitly states that the rights listed in the Constitution are not the only rights we enjoy as citizens, which bolsters the case that we have a right to privacy and should quiet the people who say "There is no right to privacy in the Constitution. Whether it's there or not is irrelevant because the Constitution is not exclusive.

I'm not a lawyer, but it looks like someone with some (a lot of) money, time and a sharp lawyer could carefully pick a company or two that make use of internet data mining and sue them for violating our Constitutional right to privacy. Any takers?

U.S. Bill of Rights quoted from