Reconstructing the Right to Privacy

Abstract

Perhaps the most striking thing about the right to privacy is that nobody seems to have any very clear idea what it is. So begins Judith Thom son's article, Right to Privacy.1 Over twenty-five years later her observation stands, but with a new urgency. Explicitly identified by Warren and Brandeis in 1890, public recog nition of the right to privacy grew steadily.2 By the end of the 20th cen tury—still lacking any clear idea what it is—our sensitivity to privacy violations had become remarkably acute. Unsolicited advertisements, once seen as mere annoyances, were now violations of a fundamental right. Information about our personal tastes, interests, and buying habits were private property, its unpermitted collection an act of theft. On the morning of September 12, 2001, most of us awoke with a new perspective on the matter. Personal privacy now seemed an almost trivial concern when compared with the threat of terrorism. If protecting us from Al-Qaeda and its ilk meant submitting our own comparatively in nocent activities to public scrutiny, then so be it. The very next month Congress easily passed the Patriot Act (H.R. 3162), granting government agencies previously unthinkable license to monitor the private lives of U.S. citizens.