The Right of Privacy

[Lois]

A good topic.  Those of the NAZI persuasion believe we have no such right.  Those of us of the Liberal and Libertarian persuasions believe we do.  I found the following article that shows how it is a right protected by the US Constitution.

This is confusing for literal minds, but the article explains how it works.

The Issue:  Does the Constitution protect the right of privacy?  If so, what aspects of privacy receive protection?

The U. S. Constitution contains no express right to privacy.  The Bill of Rights, however, reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the 5th Amendment's privilege against self-incrimination, which provides protection for the privacy of personal information.  In addition, the Ninth Amendment states that the "enumeration of certain rights" in the Bill of Rights "shall not be construed to deny or disparage other rights retained by the people."  The meaning of the Ninth Amendment is elusive, but some persons (including Justice Goldberg in his Griswold concurrence) have interpreted the Ninth Amendment as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments.

The question of whether the Constitution protects privacy in ways not expressly provided in the Bill of Rights is controversial.  Many originalists, including most famously Judge Robert Bork in his ill-fated Supreme Court confirmation hearings, have argued that no such general right of privacy exists.  The Supreme Court, however, beginning as early as 1923 and continuing through its recent decisions, has broadly read the "liberty" guarantee of the Fourteenth Amendment to guarantee a fairly broad right of privacy that has come to encompass decisions about child rearing, procreation, marriage, and termination of medical treatment.  Polls show most  Americans support this broader reading of the Constitution.

The Supreme Court, in two decisions in the 1920s, read the Fourteenth Amendment's liberty clause to prohibit states from interfering with the private decisions of educators and parents to shape the education of children.  In Meyer v Nebraska (1923), the Supreme Court struck down a state law that prohibited the teaching of German and other foreign languages to children until the ninth grade.  The state argued that foreign languages could lead to inculcating in students "ideas and sentiments foreign to the best interests of this country."  The Court, however, in a 7 to 2 decision written by Justice McReynolds concluded that the state failed to show a compelling need to infringe upon the rights of parents and teachers to decide what course of education is best for young students.  Justice McReynolds wrote:

"While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."

Two years late, in Pierce v Society of Sisters, the Court applied the principles of Meyer to strike down an Oregon law that compelled all children to attend public schools, a law that would have effectively closed all parochial schools in the state.

The privacy doctrine of the 1920s gained renewed life in the Warren Court of the 1960s when, in Griswold v Connecticut (1965), the Court struck down a state law prohibiting the possession, sale, and distribution of contraceptives to married couples.  Different justifications were offered for the conclusion, ranging from Court's opinion by Justice Douglas that saw the "penumbras" and "emanations" of various Bill of Rights guarantees as creating "a zone of privacy," to Justice Goldberg's partial reliance on the Ninth Amendment's reference to "other rights retained by the people," to Justice Harlan's decision arguing that the Fourteenth Amendment's liberty clause forbade the state from engaging in conduct (such as search of marital bedrooms for evidence of illicit contraceptives) that was inconsistent with a government based "on the concept of ordered liberty."

In 1969, the Court unanimously concluded that the right of privacy protected an individual's right to possess and view pornography (including  pornography that might be the basis for a criminal prosecution against its manufacturer or distributor) in his own home.  Drawing support for the Court's decision from both the First and Fourth Amendments, Justice Marshall wrote in Stanley v Georgia:

"Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."

The Burger Court extended the right of privacy to include a woman's right to have an abortion in Roe v Wade (1972), but thereafter resisted several invitations to expand the right.  Kelley v Johnson (1976), in which the Court upheld a grooming regulation for police officers, illustrates the trend toward limiting the scope of the "zone of privacy." (The Court left open, however, the question of whether government could apply a grooming law to members of the general public, who it assumed would have some sort of liberty interest in matters of personal appearance.)  Some state courts, however, were not so reluctant about pushing the zone of privacy to new frontiers.  The Alaska Supreme Court went as far in the direction of protecting privacy rights as any state.   In Ravin v State (1975), drawing on cases such as Stanley and Griswold but also basing its decision on the more generous protection of the Alaska Constitution's privacy protections, the Alaska Supreme Court found constitutional protection for the right of a citizen to possess and use small quantities of marijuana in his own home.

The Supreme Court said in the 1977 case of Moore v. East Cleveland that "the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in the Nation's history and tradition."  Moore found privacy protection for an extended family's choice of living arrangements, striking down a housing ordinance that prohibited a grandmother from living together with her two grandsons.  Writing for the Court, Justice Powell said, "The choice of relatives in this degree of kinship to live together may not lightly be denied by the state."

In more recent decades, the Court recognized in Cruzan v Missouri Department of Health (1990) that individuals have a liberty interest that includes the right to make decisions to terminate life-prolonging medical treatments (although the Court accepted that states can impose certain conditions on the exercise of that right).  In 2003, in Lawrence v Texas, the Supreme Court, overruling an earlier decision, found that Texas violated the liberty clause of two gay men when it enforced against them a state law prohibiting homosexual sodomy.  Writing for the Court in Lawrence, Justice Kennedy reaffirmed in broad terms the Constitution's protection for privacy:

"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life....The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. 'It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.'”

One question that the Court has wrestled with through its privacy decisions is how strong of an interest states must demonstrate to overcome claims by individuals that they have invaded a protected liberty interest.  Earlier decisions such as Griswold and Roe suggested that states must show a compelling interest and narrowly tailored means when they have burdened fundamental privacy rights, but later cases such as Cruzan and Lawrence have suggested the burden on states is not so high.

The future of privacy protection remains an open question.  Justices Scalia  and Thomas, for example, are not inclined to protect privacy beyond those cases raising claims based on specific Bill of Rights guarantees.  The public, however, wants a Constitution that fills privacy gaps and prevents an overreaching Congress from telling the American people who they must marry, how many children they can have, or when they must go to bed.  The best bet is that the Court will continue to recognize protection for a general right of privacy.

Bill of Rights (and 14th Amendment) Provisions Relating to the Right of Privacy
Amendment I
(Privacy of Beliefs)
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.

Amendment III
(Privacy of the Home)
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.

Amendment IV
(Privacy of the Person and Possessions)
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.

Amendment IX
(More General Protection for Privacy?)
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Liberty Clause of the Fourteenth Amendment
No State shall... deprive any person of life, liberty, or property,
without due process of law.

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html

[phtlc]

When in doubt, defer to the constitution.

[Guy Fawkes]

When in doubt, defer to the constitution.

Screw the Constitution -- the First Amendment didn't protect Frank McCoy or Thomas Alan Arthur (Mr. Double).

If you want privacy, if you want protection, use cryptography.

[Guy Fawkes]

Facebook and Google are handing over user data to help police prosecute abortion seekers
Katherine Tangalakis-Lippert
Mar 5, 2023, 3:08 AM
[Image] view over the shoulder of a police officer shining a flashlight onto a woman with hands covering herself, in front of google search history and facebook messenger chat screenshots mentioning abortion
Marianne Ayala/Insider

https://www.businessinsider.com/police-getting-help-social-media-to-prosecute-people-seeking-abortions-2023-2

    Police make requests for social media user data to aid prosecution after a crime has been committed.
    Sometimes, the crime is abortion and social apps are turning over user chat logs and search history.

    One legal expert said social platforms may cooperate with police even if not legally required to.

As abortion bans across the nation are implemented and enforced [1], law enforcement is turning to social media platforms to build cases to prosecute women seeking abortions or abortion-inducing medication – and online platforms like Google and Facebook are helping.

This spring, a woman named Jessica Burgess and her daughter will stand trial in Nebraska for performing an illegal abortion [2] — with a key piece of evidence provided by Meta, the parent company of Facebook. Burgess allegedly helped her daughter find and take pills that would induce an abortion. The teenage Burgess also faces charges for allegedly illegally disposing of the fetus' remains.

TechCrunch [3] reported internal chat logs were provided to law enforcement officers by the social media company, which indicated the pair had discussed their plan to find the medication through the app.

Meta said in a statement regarding the Nebraska incident that it responded to "valid legal warrants from local law enforcement" prior to the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, which overturned nationwide abortion rights and allowed for bans in some states. [4] [5]

And though the warrants Meta responded to in this case "did not mention abortion" — since law enforcement had requested the chat logs while investigating the teen's disposal of the remains, which incidentally revealed the discussion of abortion pills — the subsequent charges reveal how data released by social media companies can be used to prosecute people for abortion, even when they are being investigated for other reasons.

Pharmacies sharing data

An investigation by ProPublica found online pharmacies that sell abortion medication such as mifepristone and misoprostol are sharing sensitive data, including users' web addresses, relative location, and search data, with Google and other third-party sites — which allows the data to be recoverable through law enforcement requests. [6]

ProPublica found similar web trackers that capture user data on the sites of at least nine online pharmacies that offer abortion pills by mail, including Abortion Ease, BestAbortionPill.com, PrivacyPillRX, PillsOnlineRX, Secure Abortion Pills, AbortionRx, Generic Abortion Pills, Abortion Privacy, and Online Abortion Pill Rx.

None of the pharmacies immediately responded to Insider's requests for comment.

Representatives for the FBI told Insider they were "unable to accommodate" Insider's detailed request for information about the criteria required for officers to issue a request for a civilian's social media or internet history, what information is generally turned over to them in the pursuit of such information, and what channels officers used to make those requests.

Representatives for Google and the Los Angeles and New York Police Departments, two of the largest police forces in the country, did not respond to Insider's requests for comment.

"We comply with government requests for user information only where we have a good-faith belief that the law requires us to do so," a spokesperson for Meta told Insider. "In addition, we assess whether a request is consistent with internationally recognized standards on human rights, including due process, privacy, free expression and the rule of law. When we do comply, we only produce information that is narrowly tailored to that request. If we determine that a request appears to be deficient or overly broad, we push back and will fight in court, if necessary. We do not provide governments with 'back doors' to people's information."

According to internal statistics provided by Meta, the company complies with government requests for user data more than 70% of the time and receives more than 400,000 requests per year.

"Certainly, we expect that social media companies are gonna cooperate with law enforcement when they make legitimate information requests, we need them to do that," Eric Goldman, law professor at Santa Clara University School of Law and co-director of the school's High Tech Law Institute, told Insider. "But we also know that social media isn't likely to stand up to illegitimate law enforcement requests, because of the fact that they fear their own liability, or because of the fact that it's just too costly to stand up."

Goldman indicated examples where internet services affirmatively go to court to protect user interest, "but those are the exceptions."

"There's thousands of requests for every one of those cases, and there's thousands of other decisions that the company made to just turn over the data because it's just easier quicker that way," Goldman said. "So law enforcement knows that they can make requests of social media, including court requests that do not comply with law, and expect to get most of them honored simply because that is the path of least resistance for the social media services."
No incentive to protect privacy

While cases against people seeking abortions are increasingly being informed by user data provided by social media companies, those aren't the only prosecutions being built off of what people share online.

Public social media posts can be used to build cases against people for major cases including child abuse and murder, as well as against less serious incidents that could have first amendment implications, such as jokesters who tweeted threats against airlines and memes interpreted by the DOJ as election interference. [7][8]

Private content by users — such as location data or messages — requires law enforcement to obtain a warrant before it can be turned over.

But "social media companies don't really have incentives to protect privacy," Sharon Docter, PhD, JD, and professor of legal issues and new media at California Lutheran University, told Insider. She said because the platforms themselves are unlikely to prioritize user privacy, the burden to do so falls on the individual user.

"Users of social media need to be concerned about privacy, and that users really need to think through the fact that their digital footprint might potentially be available to law enforcement if there's a valid search warrant," Docter added. "And they should do all they can really to protect their privacy, by looking into sending encrypted messages, by making sure their location data is off, by engaging in any efforts that they can to understand the privacy policies of the platforms that they use."

Expecting social media companies to change their policies or standardize encryption is unlikely, Docter and Goldman told Insider, since they aren't incentivized by law or user pressure to do so. However, overly broad requests made by the government are the key point of the problem, Goldman noted — not that social media is cooperating with law enforcement in the first place.

"All the angst directed social media services for being a pawn in law enforcement's game seems misdirected to me. Social media is in fact a pawn in that game," Goldman told Insider, adding people often don't want to get mad at law enforcement or the government for overreaching and instead get angry at Facebook or Google for complying with sometimes illegal requests.

"We say 'law enforcement is just trying to do their job,' right, and 'if they get some wrong along the way, but they get the bad guys, you know, the ends justify the means,'" Goldman added. "It's so tempting to give benefit of the doubt to law enforcement, and that's why it's so hard for us to confront the reality: maybe there are times they don't deserve that benefit."


[1] https://www.insider.com/map-where-is-abortion-illegal-us-roe-v-wade-overturned-2022-6

[2] https://central.newschannelnebraska.com/story/48093218/mother-accused-of-performing-concealing-illegal-abortion-now-slated-for-springtime-jury-trial

[3] https://techcrunch.com/2023/01/27/digital-data-roe-wade-reproductive-privacy/

[4] https://about.fb.com/news/2022/08/meta-response-nebraska-abortion-case/

[5] https://www.businessinsider.com/supreme-court-abortion-decision-final-ruling-scotus-roe-v-wade-2022-6

[6] https://www.propublica.org/article/websites-selling-abortion-pills-share-sensitive-data-with-google

[7] https://www.cnn.com/2014/04/14/travel/dutch-teen-arrest-american-airlines-terror-threat-tweet/index.html

[8] https://www.justice.gov/opa/pr/social-media-influencer-charged-election-interference-stemming-voter-disinformation-campaign

[Dudester]

On the subject of abortion:

Roe was decided in 1973 and the case had it's beginning years before. In those days, the only so called, reliable, birth control was condoms (which weren't all that reliable then). In the nearly 50 years since, many forms of birth control have been created. Studies have shown that the use of a birth control pill, AND use of a condom at the same time can prevent 99% of births. So, if a female isn't on the pill, or not using another form of birth control (i.e. IUD, etc.) and not insisting that her partner use a condom is just being irresponsible. And that is what all the squabbling about abortion is about, the right to be irresponsible. If you live in New York or California, you can be as irresponsible as you want, the state will protect your right to be irresponsible. If you live in the deep south, another story. I'm not some young guy just spouting nonsense, I'm in my 60's and for decades I utilized sex workers. They insisted I use a condom and they checked to make sure I wasn't cheating. Their marketability goes way down if they're pregnant, so, they're not going to roll the dice.

So, actually what is left here is teens. Teens are not known for being responsible. This is where parenting comes in. I've never been a parent but I did grow up in a toxic family. I know that there are a lot of families with irresponsible parents, I speak from experience. I feel for kids with irresponsible parents.

With all that said, as a libertarian myself (government doesn't fix problems, government causes problems) I am leery of big tech, which has colluded with one political party that very much embraces big government. If people had any sense, they would not subscribe to instagram, facebook, amazon or Disney (which also owns Hulu and ESPN). In the old days, if you didn't want the world to know your business, you just kept your mouth shut. Nowadays, if you don't want people to know your business, stay far away from social media.

[seeker83]

I have a relatively simple response to a nuanced issue here:
The idea of personal privacy has NOT evolved to fit the internet age.

This is not just about personal care or abortion rights.  It is about the fact that hundreds of companies know every move we make on every device we own unless we take active steps to do something about it.  I have a network-level ad and metric blocking system to prevent a LOT of tracking.  I use browsers intended to reduce the amount of tracking possible by websites, and yet NONE of this is ever truly effective.

Our phones send data about GPS location, screen gestures, app use, Operating System, memory usage, and unique device identification numbers to MULTIPLE third party companies EVERY SINGLE TIME we touch our phones.  Install the DuckDuckGo browser on an Android device and activated the cross-app data blocker beta software or use Apple's cross app cookie data blocking tools to get an idea.

It is truly scary.  Anyone who legally purchases data from these third-party advertising groups can easily figure out, who you are, what you do, and then target you for all sorts of stuff.  And that is PERFECTLY LEGAL.

So, while the discussion of the right to privacy may start because of the bedroom, it needs to be looked at from a MUCH MUCH higher level.  What are my rights not to be tagged and tracked like a dog every time I use an internet-connected device, which is basically everything now?  What are my rights to view the content I want, without fear of my ISP and 500 other companies knowing that I looked at this site or Hentai porn?  What are my rights to remain anonymous from companies I do not know about unless I read a 5000 word end-user-license-agreement?

[Guy Fawkes]

https://www.forbes.com/sites/kashmirhill/2012/02/16/how-target-figured-out-a-teen-girl-was-pregnant-before-her-father-did/

How Target Figured Out A Teen Girl Was Pregnant Before Her Father Did
Kashmir Hill
Former Staff
Welcome to The Not-So Private Parts where technology & privacy collide
Feb 16, 2012,11:02am EST
This article is more than 10 years old.

English: Logo of Target, US-based retail chain

Target has got you in its aim

Every time you go shopping, you share intimate details about your consumption patterns with retailers. And many of those retailers are studying those details to figure out what you like, what you need, and which coupons are most likely to make you happy. Target , for example, has figured out how to data-mine its way into your womb, to figure out whether you have a baby on the way long before you need to start buying diapers.

Charles Duhigg outlines in the New York Times how Target tries to hook parents-to-be at that crucial moment before they turn into rampant -- and loyal -- buyers of all things pastel, plastic, and miniature. He talked to Target statistician Andrew Pole -- before Target freaked out and cut off all communications -- about the clues to a customer's impending bundle of joy. Target assigns every customer a Guest ID number, tied to their credit card, name, or email address that becomes a bucket that stores a history of everything they've bought and any demographic information Target has collected from them or bought from other sources. Using that, Pole looked at historical buying data for all the ladies who had signed up for Target baby registries in the past. From the NYT:

    [Pole] ran test after test, analyzing the data, and before long some useful patterns emerged. Lotions, for example. Lots of people buy lotion, but one of Pole’s colleagues noticed that women on the baby registry were buying larger quantities of unscented lotion around the beginning of their second trimester. Another analyst noted that sometime in the first 20 weeks, pregnant women loaded up on supplements like calcium, magnesium and zinc. Many shoppers purchase soap and cotton balls, but when someone suddenly starts buying lots of scent-free soap and extra-big bags of cotton balls, in addition to hand sanitizers and washcloths, it signals they could be getting close to their delivery date.

Or have a rather nasty infection...

    As Pole’s computers crawled through the data, he was able to identify about 25 products that, when analyzed together, allowed him to assign each shopper a “pregnancy prediction” score. More important, he could also estimate her due date to within a small window, so Target could send coupons timed to very specific stages of her pregnancy.

    One Target employee I spoke to provided a hypothetical example. Take a fictional Target shopper named Jenny Ward, who is 23, lives in Atlanta and in March bought cocoa-butter lotion, a purse large enough to double as a diaper bag, zinc and magnesium supplements and a bright blue rug. There’s, say, an 87 percent chance that she’s pregnant and that her delivery date is sometime in late August.

    via How Companies Learn Your Secrets - NYTimes.com.

And perhaps that it's a boy based on the color of that rug?

So Target started sending coupons for baby items to customers according to their pregnancy scores. Duhigg shares an anecdote -- so good that it sounds made up -- that conveys how eerily accurate the targeting is. An angry man went into a Target outside of Minneapolis, demanding to talk to a manager:

    English: Photograph of abdomen of a pregnant woman
        Target knows before it shows.

    “My daughter got this in the mail!” he said. “She’s still in high school, and you’re sending her coupons for baby clothes and cribs? Are you trying to encourage her to get pregnant?”

    The manager didn’t have any idea what the man was talking about. He looked at the mailer. Sure enough, it was addressed to the man’s daughter and contained advertisements for maternity clothing, nursery furniture and pictures of smiling infants. The manager apologized and then called a few days later to apologize again.

(Nice customer service, Target.)

    On the phone, though, the father was somewhat abashed. “I had a talk with my daughter,” he said. “It turns out there’s been some activities in my house I haven’t been completely aware of. She’s due in August. I owe you an apology.”

[Pornhubby]

“It turns out there’s been some activities in my house I haven’t been completely aware of. She’s due in August. I owe you an apology.”

It will only get worse with A.I. We are all cogs in the machine.

I love people who complain about “the right to privacy” on social media, while typing on their smartphones. The irony is not lost on me.

[Guy Fawkes]

“It turns out there’s been some activities in my house I haven’t been completely aware of. She’s due in August. I owe you an apology.”

It will only get worse with A.I. We are all cogs in the machine.

I love people who complain about “the right to privacy” on social media, while typing on their smartphones. The irony is not lost on me.

Social media? I've seen people post using their phones on Darkweb forums! (No matter how many times people are warned, some will just not listen.)

[JBRG]

My personal thoughts on privacy are if you are in public, you should have no expectation to privacy. The same goes to those using anything on the Internet. When you log onto Facebook or TikTok or any other system, you are using somebody else's system and by default you are giving them permission to use the data you submit to the site in whatever way they see fit. If you don't want "personal" information shared to other companies, don't use the service you are logged onto.

It's the same as people complaining about CCTV cameras monitoring outdoor activity (police surveillance cameras). Here's the deal, you are out in public. If you are abiding by the law, the police don't freaking care about whether you are holding hands with your spouse or the person you are cheating with. They don't have time to give a crap.