In the United States the concept of privacy has garnered a lot of attention lately. Two more states, Utah and Connecticut have joined California, Virginia, and Colorado in passing comprehensive consumer data privacy laws. The Supreme Court of the US considered the problem in it recent case of Dobbs vs. Jackson Women’s Health Organization, which overturned the almost 50-year-old precedent granting women a right to an abortion.
But what is the legal concept of ‘privacy’ in the US? The Europeans and many other countries have codified privacy in the General Data Protection Regulation (GDPR) for over 20 years without much concern. In contrast, the concept seems new in the US. It isn’t.
In the late 19th century, almost universal literacy combined with steam presses gave rise to many new newspapers including Joseph Pulitzer’s New York World. The paper rapidly increased circulation with sensationalism, sex, crime, and graphic horrors as well as crusades against corruption. But he had one problem. No Kardashians!
Without radio, film, television or internet celebrities, newspaper editors had to fall back on rich people to create interest. Unlike most celebrities, rich people did not like the attention. This gave rise to the great article The Right to Privacy (4 Harvard L.R. 193 (Dec. 15, 1890)) written by Samuel D. Warren II and Louis Brandeis (later Supreme Court Justice). It was published in the 1890 Harvard Law Review. This one article, over a hundred years old, became the basis of the concept of privacy in US law. Brandeis argued, based in part on earlier British precedent, that there existed a right to be “let alone”. He compared it to the right not be assaulted or beaten, the right not be imprisoned, the right not to be maliciously prosecuted, and the right not to be defamed.
When regarding privacy, Justice Alito in Dobbs divided the concept into two categories. “The right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference.” Justice Alito argued that when personal decision concerns human life, legislatures can interfere. He also argued that the right to privacy was not mentioned in the US Constitution and therefore, to be protected had to be “deeply rooted in [our] history and tradition”.
The problem with this bifurcation is that it tends to open the door to all sorts of governmental interference. Alito definitely tries to ensure that the decision does not get extended. He attempts to limit the case only to abortion. He claims that marital right to contraceptives, consensual sex acts, and same sex marriage “are not the issue”. But are they?
In China the interest of the government in all areas of personal decision-making is considered a basis for the government to hoover up every bit of information from personal health to street cameras. This level of governmental interest in all forms or human activity is not unusual. In former East Germany (German Democratic Republic) it is estimated that one-third of the population were informers for the secret police, the Stasi.
The loss of a right to an abortion is not the only constitutional right impacted by this decision. The Constitutional right to travel (commerce clause) is threatened. Freedom of religion is an issue in a Florida case asserting that under Jewish law, life begins at birth and Jewish women must terminate pregnancies that threaten their lives.
In addition to the privacy implications, there will undoubtable be economic consequences. An excellent example is the distinction between Meta (aka Facebook) and Apple. While Apple has made a very public announcements (Privacy is a fundamental human right), Meta doesn’t. While Apple has lost 20% of its value, Meta has lost half of its value.
States with abortion protections make up the top ten of states with large technology industries. The states without make up the bottom ten. The only potential exception is Texas, where Republicans may face non abortion issues like school shootings, lack of Covid actions and failure of the electric grid in the upcoming election. Tech industries understand the global competition for competent employees. Restrictions on rights may favor more conservative voters, but not more innovative industries.
Other economic issues are related to the business need for a consistent legal infrastructure. Business investment follows property rights favored by the legal infrastructure. Business cannot radically change its investments, which may take years to show a return. Roe has been around for almost 50 years. No doubt the states that favor continuity will be a better choice than those that are comfortable with abrupt change.
It is not just the investment in property, but the property right of privacy itself. Until the advent of the world wide web and massive processing capabilities, an individual’s personal data was very difficult to monetize. With data lakes this has become much easier. Data may be the new oil, but it does not necessarily belong to the people who hold it.
Louis Brandeis in his article does discuss privacy as property, but he did not feel that the protections allowed to property were sufficient to protect privacy. So, he elevated it to a right. In essence, though, privacy is property. The GDPR provides clear elements to property rights in privacy as does the new California CPPA. If privacy is property, it is part of John Locke’s fundamental rights, life, liberty, and property. Contrary to Alito’s assertions, nothing is more deeply rooted in US history and tradition