Where Did the Right to Privacy Come From?

Constitutional Merits and Congressional Acts

Conceptual Still Life With The Preamble To The Us Constitution
Dan Thornberg / EyeEm/Getty Images

The right to privacy is the time-travel paradox of constitutional law: Even though it didn't exist as a constitutional doctrine until 1961 and didn't form the basis of a Supreme Court ruling until 1965, it is, in some respects, the oldest constitutional right. It is this assertion that we have "the right to be left alone," as Supreme Court Justice Louis Brandeis said, that forms the common foundation of the freedom of conscience outlined in the First Amendment, the right to be secure in one's person outlined in the Fourth Amendment, and the right to refuse self-incrimination outlined in the Fifth Amendment—despite the fact that the word "privacy" itself appears nowhere in the U.S. Constitution.

Today, the "right to privacy" is a common cause of action in many civil lawsuits. As such, modern tort law includes four general categories of invasion of privacy: intrusion into a person's solitude/private space by physical or electronic means; unauthorized public disclosure of private facts; publication of facts that place a person in a false light; and unauthorized use of a person's name or likeness to obtain a benefit. 

Here is a brief timeline of the laws that make it possible for ordinary citizens to stand up for their privacy rights:

Bill of Rights Guarantees, 1789

The Bill of Rights proposed by James Madison includes the Fourth Amendment, describing an unspecified "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and the Ninth Amendment, stating that "[t]he enumeration of the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," but does not specifically mention a right to privacy.

Post-Civil War Amendments

Three amendments to the U.S. Bill of Rights were ratified after the Civil War to guarantee the rights of the newly freed slaves: The Thirteenth Amendment (1865) abolished slavery, the Fifteenth Amendment (1870) gave African American men the right to vote, and Section 1 of the Fourteenth Amendment (1868) broadened civil rights protections, which would naturally extend to the newly freed slaves. "No State," the amendment reads, "shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Poe v. Ullman, 1961

In Poe v. Ullman, the U.S. Supreme Court declines to overturn a Connecticut law banning birth control on the grounds that the plaintiff was not threatened by the law and, subsequently, had no standing to sue. In his dissent, Justice John Marshall Harlan II outlines the right to privacy—and, with it, a new approach to unenumerated rights:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

Four years later, Harlan's lonely dissent would become the law of the land.

Olmstead v. United States, 1928

In a shocking ruling, the Supreme Court of the United States deemed that wiretaps obtained without a warrant and used as evidence in courts of law were not in fact violations of the Fourth and Fifth Amendments. In his dissent, Associate Justice Louis Brandeis delivered what is by now one of the most famous assertions that privacy is indeed an individual right. The Founders said Brandeis, “conferred against the government, the right to be let alone—the most comprehensive of rights and the rightmost favored by civilized men.” In his dissent, he also argued for a Constitutional Amendment to guarantee the right of privacy.

The Fourteenth Amendment in Action

Plaintiffs seeking to challenge the Connecticut birth control ban to open a Planned Parenthood clinic in New Haven are promptly arrested. This gives them standing to sue, and the resulting 1965 Supreme Court case—Griswold v. Connecticutciting the amendment's due process clause, strikes down all state-level bans on birth control and establishes the right to privacy as a constitutional doctrine. Citing freedom of assembly cases such as NAACP v. Alabama (1958), which specifically mentions "freedom to associate and privacy in one's associations," Justice William O. Douglas writes for the majority:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance … Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people' ...
The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship.

Since 1965, the Supreme Court has most famously applied the right to privacy to abortion rights, in Roe v. Wade (1973), and sodomy laws, in Lawrence v. Texas (2003)—but we will never know how many laws have not been passed and have not been enforced, due to the doctrine of a constitutional right to privacy. It has become an indispensable bedrock of U.S. civil liberties jurisprudence. Without it, our country would be a very different place.

Katz v. United States, 1967

The Supreme Court overruled the 1928 Olmstead v. United States decision by the Court to allow wiretapped phone conversations obtained without a warrant to be used as evidence in court. Katz also extended Fourth Amendment protection to all areas where a person has a "reasonable expectation of privacy."  

The Privacy Act, 1974

Congress passed this act to amend title 5 of the United States Code to establish a Code of Fair Information Practice, which governs the collection, maintenance, use, and dissemination of the personal information maintained by the federal government. It also guarantees individuals full access to these records of personal information.

Protecting Individual Finances

The Fair Credit Reporting Act of 1970 was the first law enacted to protect an individual's financial data. Not only does it protect personal financial information collected by credit reporting agencies, it puts limits on who can access that information. By also ensuring that consumers have ready access to their information at any time (free of charge, as of an amendment to the law in 2003), this law effectively makes it illegal for such institutions to maintain secret databases. It also sets a limit on the length of time that data is available, after which it is deleted from a person's record. 

Nearly three decades later, the Financial Monetization Act of 1999 required that financial institutions provide customers with a privacy policy explaining what kind of information is being collected and how it is being used. Financial institutions are also required to implement a host of safeguards both online and off to protect the collected data.

Children's Online Privacy Protection Rule (COPPA), 1998

Online privacy has been an issue since the internet was fully commercialized in the United States in 1995. While adults have a host of means by which they can protect their data, children are completely vulnerable without oversight.

Enacted by the Federal Trade Commission in 1998, COPPA imposes certain requirements on website operators and online services directed to children under 13 years of age, including requiring parental permission to collect information from children, allowing parents to decide how that information is used, and providing an easy means by which parents can opt out of future collections.

USA Freedom Act, 2015

Pundits call this act a direct vindication of computer expert and former CIA employee Edward Snowden's so-called "treasonous" acts exposing the various ways in which the U.S. government has been illegally spying on its citizens.

On June 6, 2013, the Guardian published a story based on evidence provided by Snowden that asserted the NSA had obtained secret illegal court orders requiring Verizon and other cell phone companies to collect and turn over to the government the telephone records of millions of their U.S. customers. Later, Snowden revealed information about a controversial National Security Agency surveillance program, which allowed the U.S. government to collect and analyze private data stored on servers operated by Internet service providers and held by companies like Microsoft, Google, Facebook, AOL, YouTube, and others—all without a warrant. Once revealed, these companies fought for, and won, the requirement that the U.S. government be totally transparent in its request for data.

Most importantly, however, in 2015, Congress passed an act to end once and for all the bulk collection of millions of Americans’ phone records.