Right to Privacy

[TimCallahan]

The late and unlamented Robert Bork was among many conservative thinkers who asserted that there is no right to privacy. Leaving aside for the moment that such a stance is an odd one for people who claim they want to get government off our backs, if seems to me that the Fourth Amendment to the Constitution does embody a very specific right to privacy, as indicated in the hilited sectins in the text of the Fourth Amendment, below:

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.

Unless I'm mistaken, a warrant has to be issued for a wiretap, just as it does for any other search. The right of people to be secure in their persons, papers and effects, as well as in their houses, would also mean that the right to be free from unreasonable searches isn't limited to one's home, but applies to one's person and belongings wherever they might be.

However, I remember a case many years ago, in which two gay guys were busted in an unreasonable search. Their arrest and conviction (of having sex with each other) was upheld by the Supreme Court because they were in a motel room, rather than in a home owned or rented by either one of them. This seems absurd to me.

It also seems absurd to me that anyone reading the Fourth Amendment can argue that we do not have a very specific right to privacy. Does anyone care to weigh in on this argument?

 

[Puppycow]

However, I remember a case many years ago, in which two gay guys were busted in an unreasonable search. Their arrest and conviction (of having sex with each other) was upheld by the Supreme Court because they were in a motel room, rather than in a home owned or rented by either one of them. This seems absurd to me.

Bowers v. Hardwick

Bowers v. Hardwick, 478 U.S. 186 (1986), is a United States Supreme Court decision, overturned in 2003, that upheld, in a 5-4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals.[1]
The majority opinion, written by Justice Byron White, argued that the Constitution did not confer "a fundamental right to engage in homosexual sodomy."[1] A concurring opinion by Chief Justice Warren E. Burger cited the "ancient roots" of prohibitions against homosexual sex, quoting William Blackstone's description of homosexual sex as an "infamous crime against nature", worse than rape, and "a crime not fit to be named." Burger concluded: "To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching."[2]
The dissent, authored by Harry Blackmun, framed the issue as revolving around the right to privacy. Blackmun's dissent accused the Court of an "almost obsessive focus on homosexual activity" and an "overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases." In response to invocations of religious taboos against homosexuality, Blackmun wrote: "That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine."[3]
Seventeen years after Bowers v. Hardwick, the Supreme Court directly overruled its decision in Lawrence v. Texas, 539 U.S. 558 (2003), and held that anti-sodomy laws are unconstitutional. In overruling Bowers v. Hardwick, the Court stated that "Bowers was not correct when it was decided, and it is not correct today."

But overruled in 2003:
Lawrence v. Texas

Lawrence v. Texas, 539 U.S. 558 (2003),[1] is a landmark decision by the United States Supreme Court. In the 6–3 ruling, the Court struck down the sodomy law in Texas and, by extension, invalidated sodomy laws in thirteen other states, making same-sex sexual activity legal in every U.S. state and territory. The Court overturned its previous ruling on the same issue in the 1986 case Bowers v. Hardwick, where it upheld a challenged Georgia statute and did not find a constitutional protection of sexual privacy.
Lawrence explicitly overruled Bowers, holding that it had viewed the liberty interest too narrowly. The Court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Lawrence invalidated similar laws throughout the United States that criminalized sodomy between consenting adults acting in private, whatever the sex of the participants.[2]
The case attracted much public attention, and a large number of amici curiae ("friends of the court") briefs were filed. Its outcome was celebrated by gay rights advocates, who hoped that further legal advances might result as a consequence.

 

[Beerina]

One might argue the right to privacy doesn't give you the right to commit a crime just because it is behind closed doors.

This issue with conservatives just shows they, too, pick and choose philosophies based on which laws they want to jam down everyone's throat.

They, too, ignore the fundamental American principle that government, correctly constructed, is given, by the people, only a small set of narrowly-defined powers to pass laws, and none others.

...when it suits them.

 

[Joey McGee]

Some people are just really against the right to privacy. I can't find the clip but during the phone hacking scandal in Britain one of the guys giving testimony blatantly said that the only people that complain or care about privacy are the ones with something to hide. Just a really brazen, arrogant prick that guy was. Can't begin to understand how a mind can become that warped.

 

[TimCallahan]

Some people are just really against the right to privacy. I can't find the clip but during the phone hacking scandal in Britain one of the guys giving testimony blatantly said that the only people that complain or care about privacy are the ones with something to hide. Just a really brazen, arrogant prick that guy was. Can't begin to understand how a mind can become that warped.

One experiment one can use to demolish this argument is to have the proponent sit in a chair reading a newspaper. Then look over his / her shoulder. The person reading the paper will soon get agitated at this intrusive violation of their privacy. You can ask them then if this means they're doing something they want to hide.

Of course, one doesn't even have to do such an experiment to debunk this nonsensical assertion. A married couple would certainly want privacy while having sex. Does this mean that sex in the sanctity of marriage is something shameful that the married couple wants to hide?

 

[RandFan]

...during the phone hacking scandal in Britain one of the guys giving testimony blatantly said that the only people that complain or care about privacy are the ones with something to hide.

Power corrupts. People who have the power to invade your privacy have the power to make your life hell.

Two Women Cavity Searched by Texas Police After Being Pulled Over for Littering

 

[Morrigan]

One experiment one can use to demolish this argument is to have the proponent sit in a chair reading a newspaper. Then look over his / her shoulder. The person reading the paper will soon get agitated at this intrusive violation of their privacy. You can ask them then if this means they're doing something they want to hide.

A funnier experiment: ask them to go to the bathroom doing a #2 while someone is watching them.

 

[BobTheCoward]

It also seems absurd to me that anyone reading the Fourth Amendment can argue that we do not have a very specific right to privacy. Does anyone care to weigh in on this argument?

A specific right, yes. The argument is that these rights are specific and that it is wrong to try and link them to form a "broader right of privacy".

The best quote I found of the opposite is from here

http://legal-dictionary.thefreedictionary.com/penumbra

The Supreme Court held that the statute was unconstitutional

because it was a violation of a person's right to privacy. In his opinion, Douglas stated that the specific guarantees of the Bill of Rights have penumbras "formed by emanations from those guarantees that help give them life and sub-stance," and that the right to privacy exists within this area.

 

[RandFan]

A specific right, yes. The argument is that these rights are specific and that it is wrong to try and link them to form a "broader right of privacy".

The best quote I found of the opposite is from here

http://legal-dictionary.thefreedictionary.com/penumbra

The Supreme Court held that the statute was unconstitutional

because it was a violation of a person's right to privacy. In his opinion, Douglas stated that the specific guarantees of the Bill of Rights have penumbras "formed by emanations from those guarantees that help give them life and sub-stance," and that the right to privacy exists within this area.

I'm a bit confused. Could you give us an example to illustrate the point?

 

[BobTheCoward]

I'm a bit confused. Could you give us an example to illustrate the point?

I think both majority and the dissents of Griswold do the best job of arguing for both sides.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZO.html

 

[RandFan]

I think both majority and the dissents of Griswold do the best job of arguing for both sides.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZO.html

Doesn't help. I've no idea what your point is. Thanks anyway.

ETA: I am sincerely interested if anyone else can lend a hand. Thank you.

 

[geni]

Given the current trends in technology I'm failing to see the point of arguing about the concept. As long as enough of your public behaviour can be tracked an analyised your private behaviour is fairly predictable.

 

[RandFan]

Given the current trends in technology I'm failing to see the point of arguing about the concept. As long as enough of your public behaviour can be tracked an analyised your private behaviour is fairly predictable.

Just to make certain I understand you. Because your activities can be tracked it's okay for me to go into your house while you are gone and rummage through your stuff? It's okay for the govt to install a camera in your bedroom without your permission and publish the photos?

 

[TimCallahan]

Given the current trends in technology I'm failing to see the point of arguing about the concept. As long as enough of your public behaviour can be tracked an analyised your private behaviour is fairly predictable.

What's important here is that people have the right to limit government surveillance, to prohibit governments from randomly spying on them.

 

[RandFan]

What's important here is that people have the right to limit government surveillance, to prohibit governments from randomly spying on them.

Exactly. And there will be conflict between privacy and security but the most important thing is that govt has limits as to what it can observe and how and if they can use certain evidence.

 

[geni]

Just to make certain I understand you. Because your activities can be tracked it's okay for me to go into your house while you are gone and rummage through your stuff? It's okay for the govt to install a camera in your bedroom without your permission and publish the photos?

No what I mean is that the traditional concept of privacy is in its final stages and it won't be long before a goverment doesn't need to install a camera in your bedroom in order to produce accurage 3d renderings of what goes on there.

 

[geni]

What's important here is that people have the right to limit government surveillance, to prohibit governments from randomly spying on them.

Why would a government bother? If they want the information they would just buy it from a private sector supplier.

 

[RandFan]

No what I mean is that the traditional concept of privacy is in its final stages and it won't be long before a goverment doesn't need to install a camera in your bedroom in order to produce accurage 3d renderings of what goes on there.

That does not seem to me to follow from what you said previously. Let's go back.

Given the current trends in technology I'm failing to see the point of arguing about the concept. As long as enough of your public behaviour can be tracked an analyised your private behaviour is fairly predictable.

Arguing about what concept? Are you saying that we should forget about the concept of privacy because there is nothing we can do to stop the govt? I'm sorry but that is simply absurd. Not that the technology isn't possible, I reject that it cannot in any way be controlled so we ought to stop arguing about it. That's wrong. We cannot control our govt absolutely. If some officer wants to plant drugs in your house and frame you it's possible he could do it and get away with it. Power corrupts. However, if an officer were caught framing you he or she could go to prison for a long time.

We can enact laws to protect us from new technology. We can put people in jail for violating our privacy. It won't stop violations of privacy anymore than current law prevents officers from lying or framing people.

What matters is that we as a society deem it wrong. Yes, we will lose more and more of our privacy but there are things we can do to protect our privacy. Like enacting legislation.

 

[Chaos]

That does not seem to me to follow from what you said previously. Let's go back.

Arguing about what concept? Are you saying that we should forget about the concept of privacy because there is nothing we can do to stop the govt? I'm sorry but that is simply absurd. Not that the technology isn't possible, I reject that it cannot in any way be controlled so we ought to stop arguing about it. That's wrong. We cannot control our govt absolutely. If some officer wants to plant drugs in your house and frame you it's possible he could do it and get away with it. Power corrupts. However, if an officer were caught framing you he or she could go to prison for a long time.

We can enact laws to protect us from new technology. We can put people in jail for violating our privacy. It won't stop violations of privacy anymore than current law prevents officers from lying or framing people.

What matters is that we as a society deem it wrong. Yes, we will lose more and more of our privacy but there are things we can do to protect our privacy. Like enacting legislation.

You know, while reading geni´s posts I got this image in my mind of a caveman telling the other cavemen that, with pointy stick technology getting better and better, the concept of not wanting to get murdered is in its last stages and we might just as well say goodbye to it.

 

[RandFan]

You know, while reading geni´s posts I got this image in my mind of a caveman telling the other cavemen that, with pointy stick technology getting better and better, the concept of not wanting to get murdered is in its last stages and we might just as well say goodbye to it.

Yes.