Is the Privacy of Americans Under Attack?
September 2021 | Maryam Raja, Staff Writer/Editor
Privacy and surveillance have evolved tremendously throughout the history of America. The fine line between individual privacy and protection is thinning at an incredible rate. While the right to privacy is deemed as a fundamental right protected by the government, it has been breached by third parties who are not under the same expectation.[1] In this way, tech giants are stomping on our rights to privacy by selling our information to the government.[2] While this civil liberty is protected by the government, it does not mean our protection will not be attacked by other entities. Privacy has seen severe changes through the evolution of technology and will most likely continue to see changes. Unfortunately, the issue of privacy is not something private companies are obligated to protect.
The evolution of privacy laws begins with the case Griswold v. Connecticut (1965). This case was brought to the Supreme Court because of a Connecticut state law that enacted an anti-contraceptives ban on married couples.[3] In 1965, the majority opinion in this landmark case ruled that the law violated the right to privacy, which was implied in several amendments within the Bill of Rights.[4] Thus, the Supreme Court ruled 7-2 to strike down Connecticut’s state law against married couples’ using contraceptives. Subsequent cases were decided using Griswold, as it was the first case to establish “the first explicit U.S. right to privacy.”[5] Justice William O. Douglas famously stated, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights…”[6] The Supreme Court's decision in Griswold led to an expansion of privacy rights regarding abortions in Roe v. Wade, and eventually, to larger privacy rights off of Griswold’s holdings.
Griswold shows what happens when the state laws impede on the privacy of an individual, but what happens when companies breach the privacy of their customers? Do these customers have protections despite signing off on terms and services? In 2014, Yahoo underwent a significant data breach and was sued as a result. Fortunately, they were found liable for selling personal information of their users and sued for gross negligence.[7] In cases like these, the Federal Trade Commission (FTC) Act can be used to hold companies accountable. However, this act is not enough, as it is quite vague in terms of what companies can be held accountable for, especially in terms of privacy infringements. The FTC does not explicitly regulate what should be included in website privacy policies.[8] Since there is no clear-cut way to label privacy invasions, it is not an efficient act. Overall, there is a broad jurisdiction on the issue of privacy and no clearly-established set of rules denoting what is legal and what is not when it comes to privacy policies by digital sites and companies.
Technically, the companies do not have to protect citizens’ privacy to the same extent the government does because companies are not obligated to respect civil liberties. However, consumer information gets sold and accessed by third parties without consumer consent in many different ways (ie. data breaches and software bugs). There have been far too many cases of companies involved in lawsuits due to the breach of their client’s information, which is quite alarming. Despite the direction of privacy rights seemingly going in a negative direction, hope is not lost. Instead, with increased accountability of political representatives, citizens can put pressure so that surveillance and privacy issues are prioritized. In conclusion, the right to privacy should not be exploited for the sake of company greed. Moreover, stopping tech giants from taking advantage of the unaware American is important for the development of trust and continued technological use. The federal government has a responsibility to protect its citizens from these intrusions by implementing clearer privacy laws, that way companies stop infringing on and start respecting the right to privacy.
Sources
Chao, Bernard. "Privacy Losses as Wrongful Gains." Iowa Law Review 106 (2) (01): 555-606. 2021.
“Your Data Is Shared and Sold...What’s Being Done About It?” The Wharton School of the University of Pennsylvania. October 28, 2019.
Griswold v. Connecticut. 381 U.S. 479. (1965).
Ibid.
Warren, Samuel D., and Louis D. Brandeis. “The Right to Privacy.” Harvard Law Review 4 (5): 193–220. 1890.
Griswold v. Connecticut. 381 U.S. 479. (1965).
Schwartz v Yahoo Inc, U.S. District Court, Northern District of California, No. 16-05456. 2016.
Hovenkamp, Herbert. “The Federal Trade Commission and the Sherman Act” University of Pennsylvania Carey Law School. 2010.