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The Concept of Privacy Rights


The present paper is devoted to the topic of privacy rights and its relationships with other concepts. In the US Constitution, there is no particular statement that would define privacy rights, but as suggested by Lim (2015), the right is “grounded in the very architecture of the Constitution” (p. 415). In other words, Constitutional rights may be interpreted to justify privacy rights. The specific definition of the scope of privacy rights is open to discussion and has been interpreted by the US judicial system throughout the past century in different ways (Lim, 2015).

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However, the key part of the right to privacy consists of defining the extent to which the state or other people may intervene in a person’s private life, which becomes the basis for the protection of the person from the power and authority abuse (Baude & Stern, 2016). It is apparent that privacy rights are interrelated with civil rights and liberties and can be affected by the phenomenon of federalism.

In this paper, it is argued that privacy rights may be influenced by federalism in a positive and negative way while also affecting some of the aspects of the relationships between the federal and state governments and that the interpretations of privacy rights can have a positive or negative impact on the definition and interpretation of civil liberties and corresponding civil rights. The paper uses the Constitution, legal cases, and scholarly literature to demonstrate these tendencies and offers conclusions on the basis of the resulting research.

Privacy Rights and Federalism

The complex governance structure of the US is based on federalism, which presupposes decentralizing the government and finding the means of controlling, checking, and balancing its power between the state and federal bodies (Hail, 2011). It is noteworthy that the Constitution and the Bill of Rights can be described as some of the limits, restrictions, and balances that are aimed at protecting the people of the US from the abuse of power at various governmental levels (Hail, 2011, p. 33).

As it was mentioned above, the Bill of Rights and the US Constitution do not include clear statements on privacy rights. However, state constitutions and similar-level legislation include explicit definitions of the right to privacy (Hail, 2011, p. 28).

This fact illustrates the relationship between the federal and state governments: the latter retain a notable amount of autonomy, but the former is capable of enforcing certain legislation, and privacy rights can serve as an example to the case. Indeed, the history of abortion rights, which were first introduced forty years ago by Roe v. Wade (1973), demonstrates how the Court’s decisions have affected states’ options in determining the limits of privacy rights in the field of the freedom of reproductive choice.

Apart from that, the case of abortion rights introduction illustrates the positive impact of the US federalism on privacy rights: while it does not deprive states of a significant amount of autonomy in the definition of the said rights, the fundamentality of the right to make a reproductive choice is guaranteed by the federal government.

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Nonetheless, the same feature of federalism is also capable of affecting privacy rights in a negative way. The ongoing debate over abortion rights has caused the federal government to provide greater freedom in their definition to the states. Currently, the states are free to ban abortions after the beginning of the third trimester (which is believed to define fetal viability), with the exception of the cases of the endangerment of mothers’ health (Ivers, 2013).

While the abortion right has never been absolute, the states now have a greater opportunity for restricting it as compared to the Roe v. Wade (1973) decision, which implies that the states may deprive women of the right to make reproductive choices and even own their bodies. Therefore, the right to privacy of American women was significantly limited, which cannot be regarded as a positive outcome.

It may be pointed out that the presented examples also demonstrate another aspect of the relationships between privacy rights and federalism: apparently, the debate around the former affects the specific features of the latter. Indeed, abortion rights have been modifying the relationships between the state and federal governmental bodies and defining the extent of the autonomy of the former with respect to a particular area of legislation.

Moreover, while it is likely to be incorrect to suggest that privacy rights are capable of having a negative impact on federalism (since the restriction of the power of the government is their aim, not a drawback), it may be implied that when the outcome of the debate results in the restriction of civil rights and liberties, the impact of this debate on federalism is indeed negative. For example, the increased autonomy of states in the restriction of abortion rights might be classified as a negative development since the aim of federalism consists in protecting people from power abuse, not enforcing it. Therefore, the relationship between privacy rights and federalism can be regarded as reciprocal in its positive and negative impacts.

The fact that privacy rights create restrictions and obligations for bodies at every level of US governance is a natural consequence of them being a part of civil rights and liberties.

Privacy Rights and Civil Rights

Civil rights are the rights to personal liberties that are guaranteed to the people of the US by the Constitution (the Bill of Rights). The phrase “civil rights” is the term that is used to assert that the government guarantees and are obliged to provide equal protection of the fundamental rights of all the citizens regardless of the characteristics that cannot affect a person’s worth (for example, race, sex, and so on). As a result, civil rights have occasionally been defined as requiring governmental action and obligations as opposed to civil liberties, which are concerned with restrictions (US Department of Justice, 2008, p. 2).

Being a part of civil rights, the right to privacy may not always be capable of influencing them as such, but its definitions and interpretations may lead to different definitions of the state’s obligations. The definition of privacy rights has been evolving, and the currently protected privacy areas include “family, home, correspondence, honor, and reputation” (Sinha, 2013, p. 911); the thoughts and body, personal information control and protection, the right to solitude within the walls of one’s home, protection and freedom from surveillance, and several other aspects (Pozen, 2016; Siddiqui, 2014).

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In general, though, the state is obliged to protect the right to privacy only within “reasonable expectations” (Baude & Stern, 2016, p. 1824). It is apparent, therefore, that the extent and scope of the right to privacy remain open to interpretation, which typically occurs in two ways: the historical approach that revolves around traditionally accepted privacy aspects and the liberal one that centers around personal dignity, liberty, and autonomy (Siddiqui, 2014, p. 87).

It is apparent that the second approach is responsible for the novel interpretations, including the extent of the right to privacy to the right to consensual sexual conduct regardless of the sexual orientation of the participants. This extension, which occurred in 2003, has become one of the steps towards the expansion of civil rights and liberties for non-heterosexual citizens of the US, which implies that it is directly connected to the states’ obligation for non-preferential treatment (Ivers, 2013).

In particular, the fundamental right to marry was extended to same-sex couples in 2015 (Obergefell v. Hodges, 2015). It may be suggested that this development indicates the federal government’s willingness to guarantee the civil right to equal treatment for people with different orientations and admits that marriage and sexual life are a private matter regardless of the orientation. Therefore, the definition of the right to privacy is capable of affecting the state’s obligation and extending the civil rights of the population of the US.

Similarly, while it is difficult to state that the right to privacy can have a negative effect on the civil rights, it can be suggested that improper or insufficient interpretation of the right can have an adverse impact. In particular, while the historical approach to interpretation is not devoid of merit (for instance, its stability), it also has a major disadvantage, which applies to civil rights and liberties at large: it is becoming outdated very rapidly, and it supports outdated practices.

Indeed, the world has been changing quickly throughout the past century, and the pace appears to be accelerating. As a result, privacy protection is obscured by its outdated definitions, which is why the recent developments in the fields of, for example, technology or politics can complicate the assertion of the civil rights of the US population. Until 2015, the government did not consider itself obliged to protect the right to marry if same-sex couples were concerned, and in 1986, the Court ruled that sodomy had never been introduced into the Constitution, which implies that there is no reason to consider it a fundamental right (Ivers, 2013). As a result, the traditional approach would never be able to promote the equal treatment of non-heterosexual people.

The problem of outdated and insufficient definitions and provisions is recognized by the US government, and the USA PATRIOT Act can be regarded as an attempt to correspond to the changes in the world. Primarily, it is aimed at addressing the growing terrorism threat, but surveillance opportunities and dangers are also considered by the Act, and the obligation to respect privacy is reflected in it (Sinha, 2014). However, the Act was developed in 2001, and it is apparently not devoid of flawed privacy-for-security tradeoffs (Munger, 2015), which implies that this attempt might have become an obstacle of its own and that it may require a new solution.

To sum up, privacy rights are capable of affecting governmental obligations as a part of civil rights, which means that particular developments in their definitions and implications are not unlikely to affect other civil rights and complement them in the struggle for equality. Unfortunately, outdated interpretations hinder the advancement of the concept of privacy rights. Finally, negative developments like the USA PATRIOT Act are capable of lifting certain obligations of the state, for example, through “exchanging” privacy for security. However, the question of whether such trade-offs are “profitable” for the society remains open (Pozen, 2016).

Privacy Rights and Civil Liberties

In the US, civil liberties can be defined as the unalienable, fundamental rights of the citizens of the country that pose certain restrictions of the governmental (and other) forces as opposed to the obligation-defining civil rights (US Department of Justice, 2008, p. 2). The Constitution and the Bill of Rights describe the majority of civil liberties but not all of them, and the right to privacy is among the civil liberties that are not explicitly stated in the Constitution but that have been established through a long history of the interpretation of Constitution (Hail, 2011).

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Indeed, the Fifth and Fourteenth Amendments are typically cited for providing constitutional ground for privacy rights, but the Third and Ninth have also been used in this debate (Ivers, 2013). Initially, the Amendments guaranteed the safety of personal possessions, but as the concept of privacy developed, it was extended to particular (private) areas of human life, liberty, and choice that the government has no right to interfere with unless the need for the interference is lawfully justified (Ivers, 2013).

Since the right to privacy is one of the civil liberties, it may be difficult to define its positive or negative impact on them. However, it can be suggested that privacy rights affect civil liberties in a positive way by complementing them, thus ensuring a fuller scope of limitations aimed at the protection of individuals. Lim (2015) suggests that the right to privacy can be regarded as the “centerpiece of modern liberal constitutional thought in the United States” (p. 415), and this statement can be interpreted to indicate the complexity of the concept, its current development, and its fundamental importance for civil liberties.

As shown above, the right to privacy has indeed been used as a foundation for the rights to have abortions and to marry regardless of the sexes of the married couple. In general, it is the right to privacy that helped to establish the reproductive choice and sexual autonomy rights in the previous century (Ivers, 2013).

It may be suggested that the right to privacy is among the most significant liberties that sprout and support multiple others. Moreover, since the Ninth Amendment clearly states that the enumeration of the liberties in the Bill of Rights is not exhaustive (Bill of Rights Institute, n.d.), it may be suggested that the right to privacy might proceed to expand civil rights if it is justifiably needed, for instance, with respect to LGBT population.

Regardless of their expression in the Constitution, civil liberties cannot be alienated from the citizens of the US since they are fundamental (US Department of Justice, 2008, p. 2). However, as mentioned above, privacy is often seen to be contrasted with other concepts that may include security or innovation as well as other rights and liberties (for example, that too free speech) and privacy itself (Pozen, 2016).

As a result, it may be suggested that privacy can indeed affect civil liberties in a rather negative way by demonstrating incompatibility with them and demanding a tradeoff. This idea implies some obstacles to the protection of the right, but it does not diminish the need for it; rather, it highlights the fact that the cases of tradeoffs and concessions need to be made public, transparent, explained, and justified (Pozen, 2016). Also, it is noteworthy that nowadays, this idea is not very popular, and President Obama, for example, insists that it is possible to protect the privacy of the US citizens while also ensuring their safety (Greer, 2010).

Despite this positive endeavor, there are examples of privacy tradeoffs, and they include the case of surveillance, in which, supposedly, privacy is traded for security as well as the state’s interests. As a result, it is implied that the legitimate interest of the government in surveillance is justified by its mission to protect the US citizens and that the acts of terrorism (notably, the 9/11) have invited the aggressive surveillance development that is necessary to prevent crimes of this scope and used solely for this purpose.

Indeed, in the case of terrorism, prevention is incomparably preferable to response and recovery; as for justice, Munger (2015) rightfully points out that the acts of terrorism cannot be prevented by the fear of punishment, and it is not uncommon for the criminals to commit suicide. The development of surveillance technology offers a relatively effective tool for the prevention of terroristic acts.

However, this tool can also be gravely abused and employed to intrude into people’s personal lives, thus lifting the restrictions and obligations of the government. In fact, the information that was leaked by Snowden appears to demonstrate that it is being abused (Munger, 2015), which implies that the use of this tool needs to be controlled through an appropriate balancing method. As pointed out by Katyal and Caplan (2008), the protection of civil liberties and rights is essential for the US, which is why the government is expected to increase the transparency and the dialogue on the governmental activities unless it is willing to admit that currently, the civil liberty of privacy is not respected and does not impose sufficient restrictions on the activities of the officials.

To sum up, the presented examples demonstrate that privacy rights are a part of civil rights and are capable of imposing restrictions on the extent of the government’s power over the people of the US. Moreover, the right to privacy can be regarded as one of the central liberties that tends to support other ones. As a result, the cases of it being disrespected, traded off (supposedly, for security, and other important “goods”) invite numerous debates on the feasibility of such exchanges (Greer, 2010; Katyal & Caplan, 2008; Munger, 2015; Pozen, 2016). The question remains open, but this “conflict-prone” aspect of privacy rights discussion may be used to illustrate the idea that this liberty is capable of affecting other liberties and even itself in a negative way.


The present paper contains an attempt at discussing the relationships between privacy rights, federalism, civil rights, and civil liberties. The history of the development of privacy rights in the US offers multiple insights into these relationships. In particular, it can be concluded that the relationships between privacy rights and federalism can be regarded as reciprocal, and in the cases when the latter affects the former in a negative (restricting) way, it may also be suggested that the latter fails to fulfil its aim of the protection of individual rights and liberties, which is a negative outcome that is partially caused by the debate over privacy rights.

The examples of the relationship between privacy rights and federalism show that the evolution of the interpretation of the former does not appear to demonstrate positive development at all times and is capable of drawing back to restricting the rights of the US population. This observation highlights the importance of paying greater attention to the controversial aspects of privacy rights. Concerning civil rights and liberties, privacy rights belong to each of them and, therefore, are capable of introducing obligations and restrictions that help to protect individuals from power abuse, promote equality, and can serve as foundations for other rights and liberties.

Apart from that, the developments of privacy rights interpretations may achieve the same result. However, privacy rights and their interpretations also appear to be capable of affecting the rest of the liberties and rights in a relatively negative way, in particular, through a conflict between them. Still, the majority of the cases of the negative effects of privacy rights are the result of faulty interpretation, outdated definitions, and improper approaches. In other words, privacy rights do not cause negative impacts in the majority of cases, and when they do (in the situations of conflicts and tradeoffs), they mostly highlight the importance of drawing the attention of legislators to the concept and related issues and challenges in an attempt to improve the current legislation and update it to reflect the modern world.


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