Privacy Rights – To Enumerate or Not to Enumerate, That is the Question

Submitted by Gene Howington, Guest Blogger

Reasonable people tend to agree there is both a right to privacy and that it is necessary.  But what exactly is the right to privacy? Justice Brandeis famously said in Olmstead v. U.S., 277 U.S. 438, 479 (1928), “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. 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. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.” Plainly put, at its heart a right to privacy is simply a right to be let alone.

However, do we need to specifically protect it or generally protect it? Is that right absolute? Laws, by definition and the nature of entering a social compact, are restrictions on absolute liberty found in the state of nature. One of the larger disagreements at the Constitutional Convention was about whether enumerated rights would serve to unjustly limit those rights versus a failure to enumerate rights would result in rights not being properly protected. This is a valid question surrounding this issue, especially since some would advocate enumerating the right to privacy by Constitutional amendment. There are advantages and disadvantages to both approaches. While specifically defining/enumerating a right creates a foundation for arguments surrounding said right, leaving a right’s definition nebulous allows jurisprudence greater leeway to evolve around fact specific instance and questions that in the long run can result in a more nuanced understanding and application of the right without the constraints a foundational definition might impose. In this light, consider the right to privacy.

There is no denying the intimate interrelation between technology and privacy. This relationship has been long recognized by jurists. As Justice Brandies along with his law partner Samuel Warren noted in an 1890 Harvard Law Review article discussing the technology/privacy nexus, “Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right ‘to be let alone.’ Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.'” [cites omitted] All questions of applied technology and law can be a double-edged sword; one side honed by often valid public policy concerns and legitimate purpose, the other honed by the caprice of unintended consequences.  If the proposed solution to bolstering the right to privacy lay in Constitutional amendment, the wording of such an amendment would need to be very carefully made. A recently proposed EU law on its face seems to be an attempt to bolster the right “to be let alone”. Dubbed the “right to be forgotten” on the Internet and set to go into effect in 2014, this law illustrates some of these unintended and potentially dangerous  consequences of either being too specific or in lacking enough specificity in defining rights.    Let’s examine the scope of the issue by first looking at the EU law and its potential consequences followed by examining the contrast provided by American jurisprudence surrounding the right to privacy.

The dangers presented by the proposed EU law stem largely from the definition of privacy being overly broad.  Jeffery Rosen’s excellent article,  “The Right to be Forgotten” by Jeffery Rosen, 64 Stan. L. Rev. Online 88 (2012), served as introduction to the proposed legislation. Rosen clearly points out the hazards presented.  “Although [. . . ] depicted [. . .] as a modest expansion of existing data privacy rights, in fact it represents the biggest threat to free speech on the Internet in the coming decade. The right to be forgotten could make Facebook and Google, for example, liable for up to two percent of their global income if they fail to remove photos that people post about themselves and later regret, even if the photos have been widely distributed already. Unless the right is defined more precisely when it is promulgated over the next year or so, it could precipitate a dramatic clash between European and American conceptions of the proper balance between privacy and free speech, leading to a far less open Internet.

In theory, the right to be forgotten addresses an urgent problem in the digital age: it is very hard to escape your past on the Internet now that every photo, status update, and tweet lives forever in the cloud. But Europeans and Americans have diametrically opposed approaches to the problem. In Europe, the intellectual roots of the right to be forgotten can be found in French law, which recognizesle droit à l’oubli—or the ‘right of oblivion’—a right that allows a convicted criminal who has served his time and been rehabilitated to object to the publication of the facts of his conviction and incarceration. In America, by contrast, publication of someone’s criminal history is protected by the First Amendment, leading Wikipedia to resist the efforts by two Germans convicted of murdering a famous actor to remove their criminal history from the actor’s Wikipedia page.

European regulators believe that all citizens face the difficulty of escaping their past now that the Internet records everything and forgets nothing—a difficulty that used to be limited to convicted criminals. When Commissioner Reding announced the new right to be forgotten on January 22, she noted the particular risk to teenagers who might reveal compromising information that they would later come to regret. She then articulated the core provision of the ‘right to be forgotten’: ‘If an individual no longer wants his personal data to be processed or stored by a data controller, and if there is no legitimate reason for keeping it, the data should be removed from their system.’

In endorsing the new right, Reding downplayed its effect on free speech. “It is clear that the right to be forgotten cannot amount to a right of the total erasure of history,” she said. And relying on Reding’s speeches, press accounts of the newly proposed right to be forgotten have been similarly reassuring about its effect on free speech. In a post at the, Why Journalists Shouldn’t Fear Europe’s ‘Right to be Forgotten, John Hendel writes that although the original proposals a year ago ‘would have potentially given people the ability to cull any digital reference—from the public record, journalism, or social networks—they deemed irrelevant and unflattering,’ Reding had proposed a narrower definition of data that people have the right to remove: namely ‘personal data [people] have given out themselves.”According to Hendel ‘[t]his provision is key. The overhaul insists that Internet users control the data they put online, not the references in media or anywhere else.'”  This is a fine distinction, but unfortunately not reflected by the final form of the legislation.

Rosen goes on to note “Hendel seems not to have parsed the regulations that were actually proposed three days later on January 25. They are not limited to personal data that people ‘have given out themselves’; instead, they create a new right to delete personal data, defined broadly as ‘any information relating to a data subject.’ For this reason, they arguably create a legally enforceable right to demand the deletion of any photos or data that I post myself, even after they’ve gone viral, not to mention unflattering photos that include me or information about me that others post, whether or not it is true.”

Citing a blog post made by Peter Fleischer, chief privacy counsel of Google, Rosen goes on to discuss the EU law in light of the three categories of take down notice Fleischer notes the legislation would effectively create.  The “right to be forgotten” as discussed in Europe and proposed at the end of January arguably covers all three of Fleischer’s categories.  He goes on to illustrate how each of these categories and applications pose progressively greater threats to free speech.

“The first category is the least controversial: ‘If I post something online, do I have the right to delete it again?’ This involves cases where I post a photo on Facebook and later think better of it and want to take it down. Since Facebook and other social networking sites already allow me to do this, creating a legally enforceable right here is mostly symbolic and entirely unobjectionable. As proposed, the European right to be forgotten would also usefully put pressure on Facebook to abide by its own stated privacy policies by allowing users to confirm that photos and other data have been deleted from its archives after they are removed from public display.

But the right to delete data becomes far more controversial when it involves Fleischer’s second category: ‘If I post something, and someone else copies it and re-posts it on their own site, do I have the right to delete it?’ Imagine a teenager regrets posting a picture of herself with a bottle of beer on her own site and after deleting it, later discovers that several of her friends have copied and reposted the picture on their own sites. If she asks them to take down the pictures, and her friends refuse or cannot be found, should Facebook be forced to delete the picture from her friends’ albums without the owners’ consent based solely on the teenager’s objection?

According to the proposed European Right to Forget, the default answer is almost certainly yes. [. . .] For a preview of just how chilling that effect might be, consider the fact that the right to be forgotten can be asserted not only against the publisher of content (such as Facebook or a newspaper) but against search engines like Google and Yahoo that link to the content. The Spanish Data Protection authority, for example, has sued Google to force it to delete links to embarrassing newspaper articles that are legal under Spanish law. And suits against third party intermediaries are also threatening freedom of speech in Argentina, as the case of Virginia Da Cunha shows. The Argentine pop star had posed for racy pictures when she was young, but recently sued Google and Yahoo to take them down, arguing that they violated the Argentine version of the ‘right to be forgotten.’ Google replied that it could not comply technologically with a broad legal injunction demanding the removal of the pictures, and Yahoo said that the only way to comply would be to block all sites referring to Da Cunha for its Yahoo search engines. Nevertheless, an Argentine judge sided with Da Cunha and after fining Google and Yahoo, ordered them to remove all sites containing sexual images that contained her name. The decision was overturned on appeal, on the grounds that Google and Yahoo could only be held liable if they knew content was defamatory and negligently failed to remove it. But there are at least one hundred and thirty similar cases pending in Argentine courts demanding removal of photos and user-generated content, mostly brought by entertainers and models. The plaintiffs include the Sports Illustrated swimsuit model Yesica Toscanini; when a user of Yahoo Argentina plugs her name into the Yahoo search engine, the result is a blank page.

Finally, there is Fleischer’s third category of takedown requests: ‘If someone else posts something about me, do I have a right to delete it?’ This, of course, raises the most serious concerns about free expression. The U.S. Supreme Court has held that states cannot pass laws restricting the media from disseminating truthful but embarrassing information—such as the name of a rape victim—as long as the information was legally acquired.

The proposed European regulation, however, treats takedown requests for truthful information posted by others identically to takedown requests for photos I’ve posted myself that have then been copied by others: both are included in the definition of personal data as “any information relating” to me, regardless of its source. [. . . ]

It’s possible, of course, that although the European regulation defines the right to be forgotten very broadly, it will be applied more narrowly. Europeans have a long tradition of declaring abstract privacy rights in theory that they fail to enforce in practice. And the regulation may be further refined over the next year or so, as the European Parliament and the Council of Ministers hammer out the details. But in announcing the regulation, Reding said she wanted it to be ambiguous so that it could accommodate new technologies in the future. ‘This regulation needs to stand for 30 years—it needs to be very clear but imprecise enough that changes in the markets or public opinion can be maneuvered in the regulation,’ she declared ominously. Once the regulation is promulgated, moreover, it will instantly become law throughout the European Union, and if the E.U. withdraws from the safe harbor agreement that is currently in place, the European framework could be imposed on U.S. companies doing business in Europe as well. It’s hard to imagine that the Internet that results will be as free and open as it is now.” [cites omitted]

Meanwhile, back in the United States, there is no right to privacy proper recognized in the Constitution, i.e. privacy is not an enumerated right.  For this reason, many Originalists argue that there is no right to privacy protected by the Constitution. However, that is not only a reflection of the precise concern some of the Framers had about creating enumerated rights, it is also not borne out by the document itself. There are other rights specifically protected that include privacy components.

The 1st Amendment’s Free Exercise and Establishment Clauses protect the private choice of religious practice.

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.”

The 3rd Amendment protects the privacy of your 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.”

The 4th Amendment protects the privacy of your property (including your home) from unwarranted search and seizure.

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.”

The 5th Amendment recognizes that your private thoughts cannot be compelled as evidence against you in criminal court.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The 9th Amendment arguably recognizes a general right to privacy.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The 14th Amendment, Cl. 1, recognizes a liberty interest (the Liberty Clause) similar to the 9th Amendment and applies that interest to the states via the Equal Protection Clause.

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State 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.”

Some 10thers (i.e. people who don’t recognize/understand the precedent that has evolved around the 1oth Amendment and State’s Rights) would argue that the 10th Amendment creates a specific right to privacy because it’s not enumerated and “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This is specious reasoning because there is a clearly a Federal interest in privacy created by the 1st, 3rd, 4th, 5th, 9th and 14th Amendments. Many if not most 1others have an expressed interest in circumventing Federal anti-discrimination laws which are largely based upon the 14th Amendment by improperly invoking the issue of State’s Rights. For the purposes of this discussion, the use of the 10th Amendment for invoking privacy is not only improper, but unnecessary. While there may be valid State’s Rights issues out there, privacy isn’t one of them. It’s a right the Founders clearly considered (and considered important) even if they were not specific in addressing it.

In addition, there is considerable precedent developed in the jurisprudence surrounding the right to privacy defining both the right and the valid Federal interest in it.  For the sake of brevity, general cites to all cases referred to in the following paragraph are provided at the end of the article.  Meyer v. Nebraska held that there is a privacy interest in allowing schools to teach foreign languages to children earlier than the 8th grade. The reasoning in Meyer was based largely upon a failure by the state to show a compelling interest, but it recognized a common law liberty interest in “acquiring useful knowledge” and equated that interest to free exercise interests which are protected by the 1st Amendment.  Meyer and the 14th Amendment were later the basis for the ruling in finding a privacy interest Pierce v Society of Sisters in making private and/or parochial schools available and overturning a state law that would have effectively banned them. Griswold v. Connecticut held there is a privacy interest in the possession, sale, and distribution of contraceptives to married couples based largely upon the 9th and 14th Amendments.  Based on the 1st and 4th Amendment, in Stanley v. Georgia, the Court unanimously held there is a privacy interest in possessing and viewing pornography even if that pornography was otherwise actionable against a manufacturer or distributor. Famously in Roe v. Wade, the Court expounded upon the 9th and 14th Amendment privacy rights found in Griswold to recognize women have a privacy right to have an abortion. Some courts have expanded the right to privacy and others have imposed limits.  Using the rationales of both Griswold and Stanley in addition to protections found in the Alaska State Constitution, the Supreme Court of Alaska in Ravin v. State found constitutional protection for the right of a citizen to possess and use small quantities of marijuana in his own home.  In contrast, the 14th Amendment reasoning for privacy was limited by SCOTUS in Kelly v. Johnson, where a local regulation defining proper grooming for police officers didn’t violate the officer’s 14th Amendment rights, but noted that a regulation defining proper grooming for the public probably would (baggy pants attackers take note!). Cruzan v. Missouri Dep’t. of Health found a protected privacy interest in the decision to withdraw from life prolonging medical treatments while recognizing the state had a valid interest in imposing certain conditions on the exercise of rights in such decisions.  SCOTUS also reaffirmed a broad interpretation of privacy based on the 14th Amendment’s Liberty and Due Process Clauses in Lawrence v. Texas where they found Texas guilty of unconstitutionally infringing upon the rights of two gay men to their private lives and determine the nature of their private sexual lives by prosecuting them for a state law prohibiting sodomy.

Although it may seem unwieldy to prefer a case by case analysis of a nebulously defined right, it is clear that doing so does indeed allow for a more nuanced understanding of a right and allows better for unidentified challenges of that right to arise and filter through the courts where a more specific definition might prematurely terminate causes of action that could have merit and benefit greater justice for all.  Consider this flexibility in light such events as the advent of HIPPA and the repeated issues that appear around the privacy and opt out policies of electronic social networks like Facebook, Google and Twitter. Clearly there is a right to privacy and that right needs to be protected as does free speech and freedom of the press.  However, it seems to be just as easy to create conditions ripe for infringing upon free speech, freedom of the press and create an environment of historical revisionism as the EU law might in pursuit of privacy. Just so, it easy to not go far enough as many in the U.S. think is their current situation concerning privacy.

Would a right to privacy be better served by Constitutional amendment?  Or by relying upon precedent and regulation as technology evolves? Should those protections be specific or as general as possible? Can you foresee other potentially negative consequences of specifically defining and protecting privacy? Of generally defining and protecting privacy? How should America better protect the privacy rights of citizens?

What do you think?

Source(s): “The Right to be Forgotten” by Jeffery Rosen, 64 Stan. L. Rev. Online 88 (2012)Commission Proposal for a Regulation of the European Parliament and of the Council, art. 4(2), COM (2012) 11 final (Jan. 25, 2012) (.pdf), U.S. Constitution, The Atlantic.comMeyer v. Nebraska, 262 U.S. 390 (1923), Pierce vSociety of Sisters, 268 U.S. 510 (1925)Olmstead v. U.S., 277 U.S. 438 (1928),  Griswold v. Connecticut, 381 U.S. 479 (1965)Stanley v. Georgia, 394 U.S. 557 (1969)Roe vWade, 410 U.S. 113 (1973)Ravin v. State, 537 P.2d 494 (Alaska 1975)Kelley v. Johnson, 425 U.S. 238 (1976)Cruzan v. Missouri Dep’t. of Health, 497 U.S. 261 (1990)Lawrence v. Texas, 539 U.S. 558 (2003), “The Right To Privacy” by Samuel Warren and Louis D. Brandeis, 4 Harvard L. Rev. 193 (1890) (reprinted by University of Louisville)

UPDATE: Shortly after I posted this story, MSNBC ran a related story about privacy and Facebook, Google and Twitter. Can legislation and precedent help address this issue or is amendment needed?  General protection for privacy or specific protections?

~Submitted by Gene Howington, Guest Blogger

131 thoughts on “Privacy Rights – To Enumerate or Not to Enumerate, That is the Question”

  1. Bob,

    No, it wasn’t, but it did hinge upon the definition of principle the CI creates in operation. The CI is a useful tool. It’s not always the right tool, but it does have surprisingly high and broad utility. As I said, I found both statements to be neither false nor incompatible.

    I really do think you two are driving past each other.

  2. I somehow missed this a few days ago. Perhaps others missed it, too:

    Obama Administration Asks Supreme Court to Dismiss ACLU Challenge to Warrantless Wiretapping Law


    Posted by Ateqah Khaki, ACLU at 6:47pm

    “Today, the government asked the Supreme Court to overturn an appeals court ruling that allowed our lawsuit challenging the constitutionality of the 2008 FISA Amendments Act to go forward. That law gives the government unprecedented authority to monitor Americans’ international emails and phone calls.”

    “The FISA Amendments Act is the most sweeping surveillance statute ever enacted by Congress. It allows dragnet surveillance of Americans’ international communications with none of the safeguards that the Constitution requires. Little is known about how the Act has been used. In response to a Freedom of Information Act lawsuit filed by the ACLU, the government revealed that every six-month review of the Act had identified “compliance incidents,” suggesting either an inability or an unwillingness to properly safeguard Americans’ privacy rights. The government has withheld the details of those “compliance incidents,” however, including statistics relating to abuses of the Act.

    The Act is scheduled to sunset in December 2012, and we’re calling for amendments that would prohibit dragnet surveillance, require the government to be more transparent about how the law is being used and place stronger restrictions on the retention and dissemination of information that is collected.”

  3. Good videos, Elaine. And they raise the point of why I’m not strictly Kantian too; he was an absolutist. The CI is a useful framework for analyzing many problems, but the fact of the matter is that the universe often presents us problems that the solution does not fit either an absolute or requires an exception to provide a just outcome (something permissible under Weak Rule Utilitarianism). I try not to be dogmatic in my pursuit of philosophies. No one tool is better than the other because just as every problem is in some way unique, every tool has its own function and utility. To get the best solution requires using the right tools. Sometimes a deontological tool is the right one, sometimes a consequentialst tool is the right one. I prefer a synthetic approach.

  4. id707,

    One thing I can guarantee you about the discussion of philosophy and Kant: some people Kan and some people Kant. Almost no one will ever be offended by a rejection of Kant because he was the kind of philosopher that makes philosophy majors and other philosophers pull their own hair out.

  5. Gene H., BobEsq, Elaine M, Blouise, SwM, none forgotten but not all named.

    It’s nice of Gene H. to pal with BobEsq to explain Kant to us, but like Elaine I won’t buy Kant. I think his categorical imperative is BS, elite BS for the elite; and no more a basis to found a moral ethos on than other philosophies.

    “He opened the door, etc…..” Well most philosphies do need the door opened for them when they’ve been in there too long. So he helped get away from empiricism. Great. But does that make him the father of all “rights” thinking (double entendre)? No. Not faulting that which has been built on his reasoning—-as it can be sound, I mean who cares which turtle it is resting on. As for bases, I’d just as soon go back to Plato and his cave.

    Let us return to realities, with a telling example.
    Women, in medicine, have been neglected as study objects. This had enormous impact. The list is very long, and is getting longer. It is slowly being remedied, it takes time to create new study apparati, new specialties, new department, etc.
    Women ARE different medically. Shan’t take the time to explain more.

    But this does not give women medical equality research wise, or clinically.
    It still is met with resistance; similar to the misogynists who want be convinced by your reasoning, as Mike S. pointed out.

    This is bad not only from an equality standpoint, it is bad medicine.
    Study of women’s heart problems have revealed many answers to men’s problems. To the gain of the neutral problem you so well explain; but it still as bad science avoids pursuing the gender differences, the need for a completely different diagnostic workup, anemes, expression, treatment, post-acute handling, etc.

    Sorry to depart so far into reality, but it is there we are fighting.

    And I will embrace MLKjr’s words, expressed about the people in Vietnam, in paraphrase: “So long as some poor devil is suppressed there, then I am also suppressed.” And that goes for women too.

    Among all too many, they are still regarded as chattel, baby producers, diaper changers, and service providers, etc. A recipient of the spermal homunculi whose function is of lesser importance, only nurture, not generation.
    I will add no more; it’s been covered very well by others here, And notably by an excellent article which gave a very good review of the religious and cultural aspects over time.

    Reactionaries waken like Sleeping Beauty’s ugly brother. Eager to restore the world as he saw it last. But as Thomas Wolfe and others have said:
    “You can’t go home again”.

    And like new-swarming locusts, they find each other, mate, but in this case do NOT fall dead.

  6. BobEsq,
    You didn’t even get that it was a complaint (snart) of your two word answer to a reasonable question. You flipped me off, which is your privilege, but I expected more reasoning.
    You love to pose together with Kant and the boys.
    But give an answer to me? No.

    And then I attacked you on another tack. The inappropriateness of your weapons to the the enemy we face. “Make up your mind, you say.

    It’s two different questions.-

  7. Gene,

    I had stayed out of this discussion early on for a reason. I hadn’t come to a decision as to how protecting our privacy rights would best be addressed. I still haven’t. I entered the discussion after reading one of Bob’s comments–one that I felt a need to respond to.


    Bob’s comment:
    “What I found particularly annoying in the Catholic church contraception debate was confusing disdain for Catholicism and religion with some alleged claim to a right of privacy. Seriously, the extent of the arguments boiled down to ‘the Catholic church is bad because of this, so therefore I have a right to privacy that trumps their claim to free exercise.'”

    “Do you know why the phrase ‘a woman’s right to choose’ is a load of ignorant tripe? Because rights exist a priori and are a-sexual. To say that women have a right to choose what to do with their bodies says, by negative implication, that it is contrasted with an alleged man’s right to do the same.”


    I do believe the issue that we had discussed on earlier threads about the HHS contraception coverage mandate and the Catholic Church’s position on it is a serious one. The mandate doesn’t just cover the types of contraceptives prescribed by doctors but also medical procedures like tubal ligations. One has to take into consideration how many Catholic institutions there are in this country that employ women. (I have read that Catholic hospitals treat one in six people in this country.) I am concerned about the health and welfare of women. I think a woman should have the right to decide what happens to her own body. I don’t view the subject the same way that Bob does. What Bob views as ignorant tripe, most women do not. We have had to fight for equal rights for centuries.

    Should the women who work for Catholic institutions be covered by the same contraception mandate as all other women? Should the church have a right to deny women certain types of coverage? What if the women who work for Catholic institutions need birth control pills to treat medical conditions that threaten their health? Should a woman’s right to privacy trump the church’s claim to free exercise? Should women who work for Catholic institutions expect to be treated the same under the law as other women?

    I doubt a reproductive rights amendment would ever be passed–especially in this day and age.

  8. Thanks for the relay, anon nurse. Another excellent article by Rosen. I would suggest reading it for any/everyone interested in pursuing the privacy rights angle in the discussion of how to best protect rights.

  9. Elaine,

    Since the purpose of this article was to stimulate a discussion about the origin of rights and how to best protect them (up front with varied degrees of specificity or from behind with general definitions refined by precedent) using privacy as an example, I have a question for you.

    How would you address the issue of reproductive rights? Either as privacy based or some other right asserted? The ERA or similar amendment? The (often) long (but usually nuanced) path of letting precedent sort it out? A combined approach?

    Having seen the examples of unintended consequences in the privacy example, I’m just curious as what you would do.

  10. The right to privacy comes from the 4th amendment where we can’t have our property searched without reasonable cause.

  11. Could I stretch that point to suggest that, outside the boundaries of criminal indictment, public records such as birth, death, marriage certificates etc. I own my content? That no matter what the delivery system involved (news mongers, healthcare systems, government records, internet, tape recorders, neighborhood gossip, etc.) the right to my privacy is based on the fact that I, and I alone, own the content of my life and thus can permit or deny its use?
    Enforcement enforcement enforcement.

    And every time my name is sold to someother spamster I know that the above is a pipedream.
    Also, anyone who has been in the job marke recently knows that you can’t get a job unless you sign all those rights to ‘privacy’ away. The bank knows what the insurance company knows what the car dealer knows what the realtor knows…about you and it’s more than you know and they get the info free.

  12. Gene,

    You should talk to Bob. He’s the one who complained of a stench. Maybe he can tell you what the odoriferous problem is.

  13. Elaine,

    There is no “stench” to your argument. It’s from a perfectly valid basis and well written and presented like all of your arguments. My point was that you and Bob were arguing at cross purposes. Yours summed up as “Women’s rights SHOULD be important to everyone–but, sad to say, they aren’t. And both genders are not equally important to some people–including many of our elected legislators” and Bob’s assertion that (paraphrased) “equality as a principle is gender neutral because it is universal in application as an expression of self-ownership under the categorical imperative” are not contradictory or even conflicting statements. In addition, they are both true statements. Since they aren’t contradictory, conflicting or false?

    What’s the problem?

Comments are closed.