Right of Privacy: Constitutional Issues and Judicial Responses in USA and India, Particularly in Cyber Age

Abstract

The concept of privacy is not easy to capture in words or phraseology. It is known that privacy as an aspect of life is absolutely imperative; one cannot do without privacy or one’s ‘space’. Privacy is, therefore, an extremely precious and valuable aspect of one’s personality. Also, sociologists as well as psychologists agree that a person has a fundamental need for privacy. Most discussions about this extremely intricate subject take as their preliminary point the phrase ‘the right to be left alone’ coined by Cooley and adopted by Warren and Brandeis in a seminal Harvard Law Review article which has been held as providing the basis for the birth and development of the law in this area. ‘Privacy’ has been used as the key term for a plethora of debates of a wide range of issues, from abortion rights to the unreasonable searches of premises, from the unauthorized taking of photographs to the disclosure of secret documents. Although the word privacy is used almost everywhere, it is an uphill task to explain what privacy really entails. It is “a sweeping phrase which is as comprehensive as it is vague” . Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively. [P]rivacy is sometimes related to anonymity, the wish to remain unnoticed or unidentified in the public realm. When something is private to a person, it usually means there is something within them that is considered inherently special or personally sensitive. [P]rivacy can be seen as an aspect of security - one in which trade-offs between the interests of one group and another can become particularly clear. The Calcutt Committee used as its working definition:The right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information . Territorial privacy, one of the central categories of privacy protection, involves setting limit boundaries on intrusion into an explicit space or locale. Initially, the Restatement (Second) of Torts, which defined the privacy tort of intrusion, as applied by courts, most notably designated two classes of excluded areas: “private” places in which the individual can expect to be free from governmental intrusion, and “non-private” places, in which the individual does not have a recognized expectation of privacy. The designation of an area as “private” then also protected the personal information located there from governmental seizure. In the real world, courts ultimately held almost uniformly that the tort of intrusion could not occur in a public place or in a place that may be viewed from a public place.Cyberspace, on the other hand, was not left with a public sphere nor has a balanced territorial privacy policy so far been established. Instead, based on the category of database privacy protection, only an ownable-based private privacy legal rule was adopted and too widely so. One of the main explanations for this anomaly, in fact, derives from cyberspace’s unique architecture. While the real world is subject to a default rule of a continuous public sphere that is then subject to distinct proprietary private sphere allotments; Cyberspace architecture, on the other hand, imbeds a different structure. In the latter, apart from the Internet’s “public roads” or backbone transit infrastructure, which is regulated according to telecommunications and antitrust law, the present default rule contains a mosaic of private allotments - namely, neighboring proprietary web sites. This anomaly is even more acute given that the U.S government, the FTC and theoreticians alike, thus far, have developed neither comprehensive nor supportive boundary theory that could maintain territorial privacy. All three, instead, have implicitly or explicitly only considered technocentristic boundary approaches. From a legal perspective the factual truths or scientific hypothesis underlying the existence of on-line spatiality, as discussed notably in the works of Johnson and Post, Lessig, Hunter, Lemley and others, should, instead, be only a parameter in establishing legal truth. In compliance with what is an alternat ive localist boundary approach, this study suggests that law, indeed, could construct a legal fiction of on-line locales, through which territorial privacy, ultimately, could be integrated into cyberspace privacy policy at large.Research Questions1.What is right to privacy with a special emphasis on privacy in cyber age?2.Scrutinize the origin and development of the right to privacy.3.Does constitutional protection of right to privacy include privacy in cyber age?4.Does the right to freedom of speech and expression violate the right to privacy?5.Whether electronic surveillance is a violation of right to privacy in cyber age?