PRIVACY

1. PRIVACY • and the Law ANNA TALARICO

2. What is Privacy? There is no mention of “privacy” in the United States Constitution, therefore, Supreme Court cases have created the limits and freedoms of privacy in America. Privacy in the United States is most generally defined as “the right to be left alone,” according to Louis Brandeis and Samuel Warren in their 1890 essay on privacy. To describe this further, our “right to be left alone” can be defined by the bubble that each of us live in, which includes our behavior when we’re alone, our relationships, our opinions, and how we choose to communicate. As long as these areas of our lives do not impact society or others adversely, our private lives cannot be questioned.

3. Recognizable Forms of Invasion of Privacy • William Prosser believed that “American common law has recognized four types of actions for which one can be sued in civil court for invasion of privacy.” Quoting Prosser, they are: • Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs. • For example: forcing a blood test, phone tapping, peeping through windows • Public disclosure of embarrassing private facts about the plaintiff. • For example: posting photos on Facebook without consent, making copies of a person’s diary • Publicity which places the plaintiff in a false light in the public eye. • Slander, libel, etc. • Appropriation, for the defendant's advantage, of the plaintiff's name or likeness. • Using someone’s identity as your own; using someone’s name as your own

4. Existing Federal Privacy Laws • According to the Center for Democracy and Technology, the United States had created legislation regarding privacy and its protection. • Privacy of Communications • The Electronic Commincations Privacy Act (1986) • Extends the Wiretap Act to all forms of electronic communications • Telephone Consumer Protection Act of 1991 • Children’s Privacy • 1. Children’s Online Privacy Protection Act of 1998 • “to protect children's personal information from its collection and misuse by commercial Web sites” • Privacy of Financial Information • 1. Fair Credit Reporting Act (1970) • 2. Right to Financial Privacy Act (1978) • 3. Taxpayer Browsing Protection ACt (1997) • 4. Gramm-Leach-Bliley Act (1999) • 5. Fair and Accurate Credit Transactions Act (2003) • Privacy of Government Collections • 1.Census Confidentiality Statute of 1954 • 2. Freedom of Information Act (1966) • Individuals can access all information and records, except those that are under the Privacy Act. • 3. Privacy Act of 1974 • Act based on 5 principles: • “there should be no records whose very existence is private;an individual must be able to discover what information is contained in his or her record and how it is used;an individual must be able to prevent information collected for one purpose from being used for another purpose without consent;an individual must be able to correct or amend erroneous information; andany organization creating, maintaining, using or disseminating records of identifiable personal data must assure the reliability of the data for its intended purpose and must take precautions to prevent misuse.” • 4. Computer Security Act of 1987 • 5. E-government Act of 2002

5. Existing Federal Privacy Laws • Privacy of Medical Records • 1. Health Insurance Portability and Accountability Act of 1996 • Six principles • Doctors and hospitals must give patients notice of their rights and explain how they intend to use and disclose their health information.Patients have a right to see, copy and correct their health records.Those holding medical records must keep them secure.Health care plans and providers are barred from disclosing your health information to your employer.Patients have the right to opt-out of having their name and health status publicly disclosed in a hospital's directory.Patients can request that their records not be shared, but no consent is necessary for one doctor's office to transfer a patient's medical records to another doctor's office for treatment purposes. A covered entity "is permitted to use or disclose protected health information" for "treatment, payment, or health care operations" without patient consent. Use or disclosure of medical information for certain health related marketing is explicitly permitted. • Privacy of Miscellaneous Records and Activities • 1. Administrative Procedure Act • 2. Family Education Rights and Privacy Act (1974) • Student records are confidential. Schools have access to information, but only students and parents can release it. • 3. Privacy Protection Act of 1980 • 4. Cable Communications Policy Act of 1984 • 5. Video Privacy Protection Act of 1988 • 6. Employee Polygraph Protections Act of 1988 • Employers may not use polygraph tests in the hiring process • 7. Driver’s License Protection Act of 1994 • 8. Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 • 9. Do-Not-Call Implementation Act of 2003

6. Two Cases Involving Privacy: Roe v. Wade Griswold v. Connecticut

7. Roe v. Wade Background In 1970, Jane Roe (pseudonym) was an unmarried women who was pregnant and lived in Texas. Roe wanted to abort her pregnancy, but in Texas, an abortion was considered a felony unless ‘“on medical advice for the purpose of saving the life of the mother.”’ Saying that the Texas law was in violation of the Fourteenth Amendment, Roe sued Dallas County’s district attorney, Wade. The Fourteenth Amendment “provides equal protection of the laws and a guarantee of personal liberty, and a woman’s right to privacy implicitly guaranteed in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.” Texas argued that ““the right to life of the unborn child is superior to the right to privacy of the mother.” After a federal district court ruled that the abortion law in Texas was unconstitutional, it was “appealed directly to the U.S. Supreme Court.”

8. Roe v. Wade Decision The SC review the case in 1973 ruling in favor of Roe in a 7-2 vote. The majority opinion “recognized that a woman’s choice whether to have an abortion is protected by her right to privacy.” Three justices provided concurring opinions, and two justices provided dissenting opinions. In ruling the decision, the court had to question whether or not the Constitution protected privacy. The court determined that Roe was correct in saying that the Fourteenth Amendment does protect her privacy rights. Another decision made by the SC is that unborn fetuses are not considered people, and therefore, the Fourteenth Amendments aligns with a woman’s ability to have an abortion. The SC noted that states do have some authority in regulating abortions. In the first trimester, an abortion poses very little risk to the health of the mother and the fetus, therefore, the states have no interest in a woman’s choice to have an abortion. Since health risks are greater in the second trimester, the states can place regulations on abortions, but they cannot be prohibited. In the third trimester, states have permission to prohibit abortions because the health risks to both mother and fetus are the greatest. Each state has individual laws on abortion regulations.

9. Roe v. Wade Dissenting Decision Justice Rehnquist argued that the writers of the Fourteenth Amendment did not intend for it to be an amendment regarding privacy. The only Constitutional amendment regarding privacy is the Fourth Amendment. He also argued that this specific case concerned a woman and her state, so the course should have never come to the SC; the state legislatures should have resolved it.

10. Roe v. Wade Decision Impact The controversial decision in Roe v. Wade led to both celebration and resent. Along with the Protestant Church, the Roman Catholic was one of several faiths to form the National Right to Life Committee. The Roe decision initiated the deep division between Pro-Choice and Pro-Life groups that we see in our society today. Religion is a major reason for those who disagree with the Supreme Court ruling, and many religious groups have publicly expressed disapproval of the decision. NARAL (National Abortion Rights Action League) is a Pro-Life Interest Group that believes that “a slow erosion of abortion rights has taken place since Roe v. Wade.” In 1976, Congress passed the Hyde Amendment “prohibits the use of federal Medicaid funds to be used for abortions.” Later in 1992, the Supreme Court upheld the Roe ruling in Planned Parenthood v. Casey. Prior to Roe, abortions conducted for reasons other than medical treatment or cases of rape were conducted illegally and dangerously. Because Roe legalized abortions, abortion procedures have been made safer and medically acceptable. The case has changed women’s healthcare permanently and has given women better access to protection for their bodies because of the establishment and healthy maintenance of organizations such as Planned Parenthood. Today, the decision is still heavily debated, and the Pro-Choice Pro-Life argument rages on.

11. Griswold v. Connecticut Background In 1879, Connecticut created a law stating that “‘any person who uses any drug, medicinal article or instrument for the purposes of preventing conception shall be fined not less than forty dollars or imprisoned not less than sixty days.’” This law could also be attributed to “‘any person who assists, abets, counsels, causes, hires or commands another to commit any offense.’” After Estelle Griswold and Dr. C. Lee Buxton were arrested for offending this law by providing contraceptives to a married couple, they were each fined $100. Griswold, the executive director of Planned Parenthood League of Connecticut, and Buxton, a Yale Medical School doctor and professor, claimed that their prosecution and arrest violated the Fourteenth Amendment and appealed to the Supreme Court of Errors of Connecticut. The court ruled against Griswold and Buxton, causing them to appeal to the Supreme Court.

12. Griswold v. Connecticut Decision The SC reviewed the case in 1965 and ruled in a 7-2 decision “that the law violated the ‘right to marital privacy’ and could not be enforced against married people.” The court contested that the First Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, and the Ninth Amendment, which are enforced by the Fourteenth Amendment, “create a general ‘right to privacy’ that cannot be unduly infringed,” arguing that marital privacy is ‘‘fundamental.’” Connecticut had to provide evidence that the law is “‘compelling’” and “‘absolutely necessary’” in order to rule against marital privacy rights. Connecticut could not accomplish this, so the law was invalidated.

13. Griswold v. Connecticut Decision Impact The impact of the Griswold decision revolutionized America and paved the way toward Roe v. Wade. Since the Supreme Court declared legal use of birth control “profound and beneficial social changes occurred, in large part because of women's relatively new freedom to control their fertility — maternal and infant health have improved dramatically, the infant death rate has plummeted, and women have been able to fulfill increasingly diverse educational, social, political, and professional aspirations.” Teenage pregnancy has reduced in the United States because of access to birth control and other contraceptives. This decision re-defined societal norms for all Americans, and has irrevocably changed how women’s health is viewed in not only the United States, but also the world.

14. Works Cited "57d. Roe v. Wade and Its Impact." Roe v. Wade and Its Impact [ushistory.org]. N.p., n.d. Web. 22 Mar. 2013. "American Civil Liberties Union." American Civil Liberties Union. N.p., n.d. Web. 19 Mar. 2013. "Existing Federal Privacy Laws." Center for Democracy & Technology. N.p., n.d. Web. 19 Mar. 2013. "FACT SHEETGriswold v. Connecticut —The Impact of Legal Birth Control and the Challenges That Remain." Griswold v. Connecticut. N.p., n.d. Web. 22 Mar. 2013. "Landmark Cases: Griswold v. Connecticut." PBS. PBS, n.d. Web. 22 Mar. 2013. "Landmark Cases of the U.S. Supreme Court." Roe v. Wade. N.p., n.d. Web. 19 Mar. 2013. McFarland, Michael, SJ. "What Is Privacy?" What Is Privacy? N.p., n.d. Web. 19 Mar. 2013. "Roe v. Wade: Its History and Impact." Planned Parenthood, n.d. Web. 24 Mar. 2013.