What about ourselves can we keep private? In part, the issue is whether anything can be considered private in a world where corporations collect and sell personal information to the highest bidder and government regulations shape even the most personal choices. At the same time, keeping information private can cause social harm – for example, most people would agree that a would-be mass shooter should not have the right to keep their preparations private. Balancing these competing interests, the courts have established that individuals have a right to keep some information private and to make some decisions without government oversight. How much privacy does this right give the average American? How do these decisions balance an individual’s interest in privacy with society’s interest in preventing bad outcomes?
What does a “right to privacy” mean?
In the words of Supreme Court Justice Louis Brandies, the idea of a “right to privacy” is the right to be “left alone” by the government. The legal questions around the Constitutional protection of the right to privacy in the United States center on how much privacy citizens are afforded from government intervention and where our ‘zones of privacy’ extend.
There are two primary categories: the privacy of personal information and the privacy of autonomy in decisions made within some personal contexts. Legal scholars approach these categories by thinking about two concepts: privacy of tangible and physical space and privacy of the intangible world of personal decisions and thoughts.
What is the constitutional basis for the right to privacy?
The Constitution does not explicitly mention a right to privacy, although its themes appear in many of the Constitutional Amendments. The 1st Amendment protects freedom of association. The 3rd Amendment protects against the government using personal homes as lodging for soldiers during peacetime. The 4th Amendment’s protection against unreasonable searches and seizures provides protection against government overreach into our personal spaces. Similarly, the Due Process clauses in the 5th and 14th Amendments to the Constitution provide protection against undue government interference in our personal lives. Finally, the 9th Amendment’s emphasis on how the Constitution’s guarantees are not limited to the rights that are specifically spelled out.
How has the right to privacy evolved?
The right to information privacy was first articulated by Brandeis and Warren in 1890 when an exciting but potentially invasive technology was becoming widely used – the camera. As the figure shows, privacy rights have been refined by many Supreme Court decisions from the 1940s up to the present day. In particular, privacy rights were clarified in the 1965 case Griswold v. Connecticut, where the Court ruled that marital decisions like the use of contraceptives are considered private and legally protected by the Constitution and could not be made illegal by state or federal laws.
In 1973, privacy rights were extended to decisions of pregnancy termination in the Roe v. Wade decision, where the Court ruled against a Texas law prohibiting abortion. The 2022 Dobbs v. Jackson Women’s Health Organization ruling allowed states to make abortion illegal at any stage of pregnancy on the basis that abortion is neither a “fundamental right” nor is it “deeply rooted in the Nation’s history and tradition.” Even so, the concept of a right to privacy remains.
While privacy rights are usually discussed in terms of the Griswold and Row decisions, the figure below shows that the Supreme Court has mentioned privacy rights in hundreds of cases over the last 60 years. These cases deal with issues such as acceptable clothing in the workplace and at schools as well as the right to die and mandatory school attendance. 
Does the right to privacy cover personal information?
To some extent. On one hand, while publishing personal information could be considered an invasion of an individual’s privacy, the Supreme Court has regularly supported the freedom of the press over the right to privacy, when the information is publicly available and legally obtained.
On the other hand, several federal laws protect individuals’ private information from public release in order to protect individual privacy. The federal Privacy Act of 1974 set standards for and prohibited the release of private information about an individual, like social security numbers or health information, by a federal agency. On the other hand, the USA PATRIOT Act of 2001 expanded law enforcement’s legal search and seizure activities in order to protect national security. These include “sneak and peek” search warrants, which allow law enforcement to side-step normal Fourth Amendment procedures.
What are the limits on privacy rights?
It is important to understand that the right to privacy extends only to interference by the government rather than from private companies. Today, private companies primarily collect and manage private data, and attempts to extend the right to privacy into this sector have been limited. For example, federal law protects the privacy of some personal information, like private health information, but is not all-inclusive.
Moreover, while Americans’ health data is given additional protections, there are limits on the right to privacy here as well. Mental health professionals, for example, are obligated to report to law enforcement or other authorities on clients who they believe are a danger to themselves or others.
Further Reading
Chemerinsky, E. (2006). Rediscovering Brandeis’ Right to Privacy. Brandeis Law Journal 45, 643-657.
Busch, K. (2023). Generative Artificial Intelligence and Data Privacy: A Primer. Congressional Research Service. https://crsreports.congress.gov/product/pdf/R/R47569.
Griswold v. Connecticut 381 U.S. 479 (1965). https://supreme.justia.com/cases/federal/us/381/479/.
Sources
What does the right to privacy mean?
Chemerinsky, E. (2006). Rediscovering Brandeis’ Right to Privacy. Brandeis Law Journal 45, 643-657.
What is the constitutional basis for the right to privacy?
Chemerinsky, E. (2006). Rediscovering Brandeis’ Right to Privacy. Brandeis Law Journal 45, 643-657.
Santamaria, K. Y. (2022). Privacy Rights Under the Constitution: Procreation, Child Rearing, Contraception, Marriage, and Sexual Activity. https://crsreports.congress.gov/product/pdf/LSB/LSB10820, accessed 10/31/23
Griswold v. Connecticut 381 U.S. 479 (1965). https://supreme.justia.com/cases/federal/us/381/479/.
Roe v. Wade 410 U.S. 113 (1973). https://www.law.cornell.edu/supremecourt/text/410/113.
How has the right to privacy evolved?
Washington, et al. v. Glucksberg, et al. 521 US 702. (1997). https://www.law.cornell.edu/supct/html/96-110.ZS.html.
Santamaria, K. Y. (2022). Privacy Rights Under the Constitution: Procreation, Child Rearing, Contraception, Marriage, and Sexual Activity. https://crsreports.congress.gov/product/pdf/LSB/LSB10820, accessed 10/31/23Santamaria, K. Y. (2022). Privacy Rights Under the Constitution: Procreation, Child Rearing, Contraception, Marriage, and Sexual Activity. Congressional Research Service Legal Sidebar. https://crsreports.congress.gov/product/pdf/LSB/LSB10820.
Dobbs, Et Al. v. Jackson Women’s Health Organization Et Al., 597 US __ (2022). https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.
Does the right to privacy cover personal information?
Chemerinsky, E. (2006). Rediscovering Brandeis’ Right to Privacy. Brandeis Law Journal 45, 643-657.
U.S. Code 5 Section 552a. (n.d.). Privacy Act of 1974, as amended. https://tinyurl.com/mwrwarse, accessed 07/13/2023.
Congressional Research Service: Legal Sidebar. (2021). The USA PATRIOT Act at 20:Sneak and Peek Searches. https://sgp.fas.org/crs/intel/LSB10652.pdf.
Mulligan, S. P. and Linebaugh, C. D. (2019). Data Protection Law: An Overview. Congressional Research Service. https://crsreports.congress.gov/product/pdf/R/R45631.
Busch, K. (2023). Generative Artificial Intelligence and Data Privacy: A Primer. Congressional Research Service. https://crsreports.congress.gov/product/pdf/R/R47569.
What are the limits on privacy rights?
Chemerinsky, E. (2006). Rediscovering Brandeis’ Right to Privacy. Brandeis Law Journal 45, 643-657.
National Council on State Legislatures (2022) Mental Health Professionals’ Duty to Warn. https://tinyurl.com/22tcf4ts, accessed 10/31/23
This policy brief was researched by Policy vs. Politics interns Julia Acevedo and Eli Oaks, drafted by Mary Adams, and edited by Dr. Nathaniel Birkhead and Dr. William Bianco, with the assistance of subject matter expert Dr. Alison Merrill.