Constitutional Origin of the Right to Privacy

An Educational Service of the American Library Association Office for

Information Technology Policy

Prepared by Leslie Harris & Associates www.lharris.com in conjunction with OITP staff www.ala.org/oitp

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While the right to privacy is firmly rooted in the ethical tenets of the library profession, it is also an intrinsic American value, guaranteed by the United States Constitution. Although the Constitution does not explicitly reference the word "privacy," the Supreme Court has nonetheless inferred a right to privacy from various portions of the Bill of Rights and the common

law.

The most obvious protection of privacy in the Bill of Rights is the Fourth Amendment, which protects individuals in their persons, homes, papers, and effects from "unreasonable searches and seizures" by the government. The First Amendment, which protects freedom of religion, speech, press, and assembly, also implicitly safeguards the right to privacy in the form of freedom of thought and intellect. As eloquently articulated by Supreme Court Justice Louis Brandeis in his famous dissent in Olmstead v. United States: "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness . . . They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, THE RIGHT TO BE LET ALONE - the most comprehensive of rights and the right most valued by civilized men."

The first Supreme Court decision to fully articulate the right to privacy was Griswold v. Connecticut, which held that the right to privacy included the right for married couples to use contraceptives. In Griswold, Justice Douglas, writing for the Court, famously explained that the guarantees in the Bill of Rights have "penumbras," or somewhat hazy, but obviously present, extensions, which must be read as creating "zones of privacy, such as the First Amendment right of association, the Third Amendment prohibition against quartering soldiers in a home, the Fourth Amendment right to be secure in one's person, house, papers and effects, the Fifth Amendment right to not surrender anything to one's detriment, and the Ninth Amendment right to not deny or disparage any right retained by the people."

In recent years, several federal courts have recognized the right to privacy in public libraries. Specifically, these courts found that the First Amendment protects the right to receive information in a publicly funded library. However, the professional code of librarians provides a much broader promise of privacy than is guaranteed by the Bill of Rights. Consequently, constitutional limitations on the right to privacy are often at odds with the librarianship principles of privacy and confidentiality.

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Further information:

The US Constitution Online:

http://www.archives.gov/exhibit_hall/charters_of_freedom/constitution/constitution.html

Searchable US Constitution from Emory University School of Law:

http://www.law.emory.edu/FEDERAL/usconser.html

Articles on Privacy:

Louis Brandeis, "The Right to Privacy," Harvard Law Review (1890).

Considered the first articulation of the legal basis of a right to privacy in American law, this article ties together a range of early American judicial opinions to argue in support of a broadly articulated "right to privacy." http://faculty.uml.edu/sgallagher/Brandeisprivacy.htm

Case Law on Privacy:

Olmstead v. United States, 277 U.S. 438 (1928)

Griswold v. Connecticut, 381 U.S. 479 (1965). Held that privacy is a

"fundamental right" protected by the Fourteenth Amendment, which reads in

part, "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 [rotection of the laws."

Cases on Privacy in Libraries:

Board of Education v. Pico, 457 U.S. 853 (1982)

Kreimer v. Bureau of Police for the Town of Morristown, 958 F.2d 1242 (3d

Cir. 1992)

Reno v. American Civil Liberties Union, 117 S.Ct. 2329, 138 L.Ed.2d 874

(1997)

Legal Information Institute from Cornell Law School:

http://www.law.cornell.edu/

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Technology Policy

Disclaimer

This Online Privacy Tutorial is a service of the American Library Association. The content of this tutorial is primarily the work of Leslie Harris & Associates in Washington, DC. The views expressed in these messages are not necessarily the views of ALA or Leslie Harris & Associates. This tutorial is for information only and will not necessarily provide answers to concerns that arise in any particular situation. This service is not legal advice and does not include many of the technical details arising under certain laws. If you are seeking legal advice to address specific privacy issues, you should consult an attorney licensed to practice in your state.