Constitutional Privacy Research Articles

An Ethical Exploration of Privacy and Radio Frequency Identification

This manuscript reviews the background of Radio Frequency Identification (RFID) as well as the ethical foundations of individual privacy. This includes a historical perspective on personal privacy, a review of the United States Constitutional privacy interpretations, the United Nations Declaration of Human Rights, European Union Regulations, as well as the positions of industry and advocacy groups. A brief review of the information technology ethics literature is also included. The RFID privacy concerns are three-fold: pre-sales activities, sales transaction activities, and post-sales uses. A proposal to address these privacy concerns is detailed, generally based on past philosophical frameworks and specifically on the Fair Information Practices that the Federal Trade Commission has outlined for the electronic marketplace (e-commerce). It is proposed that by application of these Fair Information Practices, the major privacy issues of RFID can be addressed.

Singleton's Story: Choosing between Psychosis and Execution

Singleton's Story:Choosing between Psychosis and Execution Julia C. Spring (bio) In early 2003, an episode of "The Practice" featured a psychotic death row inmate who stopped taking medication in order to avoid execution. The court forced the prisoner to take the medication but then commuted the sentence to life imprisonment on the grounds that executing someone who is mentally ill would be cruel and unusual punishment. In real life cases where death row convicts think about foregoing antipsychotic medication, few endings are happy. Mentally ill convicts are sometimes executed, competent or incompetent, while being medicated forcibly, voluntarily, or not at all.1 The Constitution requires defendants and convicts to be mentally competent at all stages of the criminal process. To be competent for execution, the prisoner must understand that he is to be executed and why. Applying that principle to the mentally ill, the Supreme Court's 1986 Ford opinion held that the "Eighth Amendment ban on cruel and unusual punishment prohibits a State from carrying out a sentence of death upon a prisoner who is insane."2 The majority opinion did not mention antipsychotic medication and its potential for improving mental capacity, although these drugs had by then been used to treat the mentally ill for at least two decades. However, a footnote in a concurring opinion stated that "if [Ford] is cured of his disease, the State is free to execute him."3 This opened up the possibility—a loophole for the prosecution—that antipsychotic drugs or some other treatment might make a mentally ill capital convict sane enough to meet the minimal competency requirement for execution, even though the treatment would not actually "cure" the underlying illness. Ford has been followed by extensive litigation about the forcible medication of mentally ill convicts. Because the Constitutional privacy right to refuse unwanted intrusion into the body applies to the incarcerated as well as to the free, the Court has held that a prisoner may be medicated involuntarily only if he is dangerous to himself or others and the medication is in his best medical interest. 4 In 2003, however, the Court upheld and refined the Eighth Circuit's Sell decision, holding that under limited circumstances the Eighth Amendment permits forcible psychotropic medication to make a nondangerous defendant competent to stand trial.5 A few months later, the Court declined to review Singleton, in which the same federal appeals court had denied an Eighth Amendment claim by a capital convict, Charles Singleton, that he should not be forcibly medicated to be made competent for execution.6 The Eighth Circuit majority opinion made much of the fact that Singleton was already taking psychotropic medication voluntarily. It allowed Singleton to be put to death when his voluntary medication had the incidental effect of making him competent to be executed. Thus the only way for Singleton to postpone or possibly escape death was to stop taking medication, regress to psychosis, become dangerous to himself or others, lose his ability to understand that he was to be executed and why—and then start the whole cycle over again. He chose not to take this path. Charles Singleton—taking antipsychotics voluntarily, formally competent yet hearing voices—was executed by lethal injection on January 6, 2004. His last words were "a largely rambling missive peppered with Biblical references."7 Sell and Singleton keep alive the question that Ford seemed to settle in 1986. Although the Supreme Court let the Eighth Circuit's Singleton opinion stand, it has not itself ruled on forcible medication for competence to be executed, and no other circuits have followed Singleton. What will happen when the case of a Charles Singleton who continues to refuse medication arrives at the Court, as it surely will? Certainly the Court will not treat a condemned prisoner's rights and interests as cavalierly as the Eighth Circuit did in Singleton. It will use Sell's "generic" test, which was designed to balance the state's interest in moving toward a final criminal judgment with the convict's right to refuse medication.8 However, the Court found that the Sell test did not permit forcible medication of Charles Sell himself, at least on the...

Supernumerary Pregnancies, the Harm Issue and the Limits of Constitutional Privacy

There exist many new reproductive technologies. Are there (or should there be) limits on the use of such technologies, or should their use be unregulated in accordance with the Fourteenth Amendment? For instance, if a fertility drug helps one conceive six or more fertilized embryos, should there be limits on how many of the embryos are allowed to develop and be brought to term (for reasons of health of the future newborns)? Roberts suggests that, unlike privacy protections in regard to technologies to prevent reproduction, technologies to bring persons into existence ought to be subject to regulation. Since new technologies bring people into existence their possible future harm must be taken into consideration in possible regulation of the use of such reproductive technologies.

A Social Networks Theory of Privacy

What facts are public and what facts are private? It is the fundamental, first-principles question in privacy law, and a necessary element in the two most important privacy torts, public disclosure of private facts and intrusion upon seclusion. Yet the American courts lack a coherent, consistent methodology for determining whether an individual has a reasonable expectation of privacy in a particular fact that he has shared with one or more persons. Some courts hold that when an individual discloses a sensitive fact about himself to a handful of co-workers, friends, relatives, or strangers, this disclosure renders the fact in question sufficiently public to deprive him of a tort cause of action when that fact is subsequently widely disseminated or obtained by a third party using improper means. Other courts hold that an individual can share such a fact with dozens, or even hundreds of people, and still retain a cause of action under privacy tort law. So how much disclosure is enough to transform a private fact into a public fact? This paper argues that insights from the literature on social networks and information dissemination can help provide courts with satisfying answers to these central questions in privacy law. The social networks literature has generated theoretical and empirical insights about the probability that information disclosed to one member of a community will ultimately become known by a large segment of the community. Using these insights, courts can gauge whether the plaintiff's previously private information would have been widely disseminated regardless of the defendant's actions in a particular case. If so, the information in question was public, and if not, the tort law ought to deem the information as private. This paper argues that such an approach, which treats the privacy question as an empirical one, is more attractive than any other method of establishing whether the plaintiff had a reasonable expectation of privacy in the information at issue. The literature on social networks and information dissemination has wide applications beyond privacy tort law, but has found its way into little legal scholarship. Legal scholars interested in Fourth Amendment law, trade secrets, patent law, constitutional privacy, defamation, and other fields might find the paper's survey of social networks theory useful and provocative.

Legal Protection for Conversational and Communication Privacy in Family, Marriage and Domestic Disputes: An Examination Federal and State Wiretap and Stored Communications Acts and the Common Law Privacy Intrusion Tort

In the article I examine the legality of the not uncommon practice of surreptitiously recording telephone conversations, videotaping activities and accessing e-mail or voicemail communications by parties in domestic disputes. First, I examine the important values that are implicated by such activities. These values include conversation, communication and physical privacy. Conversation (and communication) privacy are valued on both intrinsic and instrumentalist grounds. These values run into countervailing values in domestic conflict cases. These include parental autonomy in child rearing and the best interests of the child. I argue that the pervasiveness of electronic surveillance and the emerging tradition in our legal system to grant mature minors self-determination in respect to decisions traditionally left to parents need to count more in accommodating values in parental electronic surveillance cases. Section II examines the legality of electronic surveillance in domestic disputes under federal and state wiretap and stored communications acts and the common law privacy intrusion tort. Wiretap and stored communications acts are notorious for their lack of clarity. I endeavor in part of this section to lay foundations about the basic concepts and structure of these laws and identify areas where there is some clarity. Wiretap acts generally prohibit surreptitious electronic surveillance of conversations. However, electronic surveillance in domestic disputes may be legal if the surveillance is sanctioned under three exceptions. These are: (1) the marital conflict exception; (2) the telephone extension exception; and (3) the vicarious consent exception. I join other commentators in their criticism of the first two exceptions. The vicarious consent exception is of recent vintage and I argue that the exception ought to be junked for several reasons. These include inherent problems with the parental motive tests, the incomprehensibility of vicarious consent with the modern law of joint custody, and the non-identity of interests in parental electronic surveillance cases. I also suggest that the problems with the self-minimization role granted to parents under the vicarious consent exception is another reason to junk the defense. Access to e-mail and voicemail are regulated under federal and state stored communications acts. Unlike wiretap acts these statutes do not contain exclusionary rules and the fruits of violations of stored communications acts are still admissible in civil and criminal proceedings. Courts have construed stored communication acts to not apply to surreptitious access of e-mail and voicemail from computers in the home. In addition, silent video surveillance is not regulated under wiretap or stored communications acts. This development has elevated the role of the common law privacy intrusion tort in legal evaluation of access to e-mail in home computers and surreptitious video surveillance in the home. It is clear that surreptitious audio and video surveillance in domestic conflicts may constitute tortuous conduct even if the conduct does not violate wiretap or stored communications acts. I examine the extent to which parties may have reasonable expectations of privacy in conversations and communications within the meaning of the privacy intrusion tort. I conclude that it would be tortuous conduct for a spouse to access e-mail stored in a home computer if the e-mail is stored in a segregated account and the parties have maintained separate passwords. Much evidence that is obtained by illegal electronic surveillance maybe admissible in marriage and custody proceedings because violations of stored communications acts and the privacy intrusion tort do not provide a basis for excluding evidence in civil court proceedings. I suggest that protective orders based upon discovery rules and constitutional privacy rights may provide a way to protect privacy by excluding some communications or images from admissibility in judicial records.

The Reconstruction of Constitutional Privacy Rights and the New American State

Scholars have accorded the late nineteenth and early twentieth century a uniquely important place in the annals of American political development. During this period, the nation underwent transformations from a rural and agricultural to an urban and industrial society. Underlying these transformations was a revolution in the nature of the country's political economy, which shifted rapidly from a longstanding proprietary-competitive order to an unwonted corporate-administrative one.Martin Sklar, The Corporate Reconstruction of American Capitalism (New York: Cambridge University Press, 1986), 3. Specifically Sklar defines “proprietary-competitive” as capitalist property and market relations in which the dominant type of enterprise was headed by an owner-manager (or owner-managers), or a direct agent thereof, and in which such enterprise was a price-taker, rather than a price-maker, price being determined by conditions of supply and demand beyond the control of the enterprise short of anticompetitive inter-firm collusion. By the new “corporate-administrative” order, he means a political economy characterized by the capitalization of . . . property in the form of negotiable securities relatively widely dispersed in ownership, a corresponding separation of ownership title and management function, and management of the enterprise by bureaucratic-administrative methods involving a division, or a specialization of managerial function, and an integration, or at least a centralization, of financial control. It is meant to designate “a process occurring not merely in a few notable firms, or in a sector of the economy . . . but pervasively, and hence involving the change in the broader economy from price-competitive to administered, or ‘oligopolistic,' markets” (Sklar, Corporate Reconstruction, 4 n.1). This transformation fundamentally altered traditional forms of work and management in the private sector, leading to the preeminence of a wage-labor system, the separation of corporate ownership from control, and the rise of bureaucratized and professionalized business management.See Robert H. Wiebe, The Search for Order, 1877–1920 (New York: Hill and Wang, 1967); Samuel P. Hays, The Response to Industrialism: 1885–1914 (Chicago: University of Chicago Press, 1957); Alfred D. Chandler, Jr., The Visible Hand: The Managerial Revolution in American Business (Cambridge, MA: Belknap Press, 1977). At the same time, a “new American state” was formed with its own analogous cadres of governing professionals, professionals who in the new administrative agencies asserted increasingly centralized control over the nation's economy and civil society.Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920 (New York: Cambridge University Press, 1982).

Is privacy the enemy of public health?

Is privacy the enemy of public health?

Constitutional privacy

Constitutional privacy

The Queer Nation Acts Up: Health Care, Politics, and Sexual Diversity in the County of Angels

The emergence of organized political groups of people with AIDS has forced issues of health and illness into a public visibility which threatens traditional assumptions of privacy and public heterosexual privilege. The struggle against the stigmatization of AIDS has forced many gay men and lesbians to reject the relative pleasures of the closet and its legal girdings in discredited notions of constitutional privacy for a radical insistence on the right to be ‘queer’ on their own terms in public. ACT UP and Queer Nation present a threat not only to prevailing state and church ideologies of power and submission, but perhaps more importantly to the gendered and sexualized assumptions which define the boundaries of public space itself. People who are ill and people defined as degenerates present a special threat to the historical myths and antiurban morphology of Los Angeles, which still is perceived as an island of private consumption and public piety by those in power. The challenge presented by ACT UP and Queer Nation is an integral part of the spatial densification of the region, feared by old Anglo and new Catholic authorities.

Privacy as a constitutional right: sex, drugs, and the right to life

Preface Introduction The Foundations of Constitutional Privacy The Historical Foundation: From Hittites to Puritans The Philosophical Foundation: From Natural Law to Natural Rights The Constitutional Foundation: From Natural Rights to Substantive Due Process The Common Law Foundation: Creating the Right to Privacy Constitutional Privacy Creating Constitutional Privacy Sex and Marriage Life and Death Mind and Body Beyond Constitutional Privacy Who Owns History? State Constitutional Privacy Conclusion Appendix Index

Unanswered questions about the criminalization of therapist-patient sex.

Even though much has been written about the issue of criminalization of therapist-patient sex, many questions about the issue remain unanswered, raising doubts about the wisdom of nationwide adoption of criminalizing legislation. From a philosophical standpoint, we need to understand more fully what thoughts, emotions, and behaviors constitute consent. Furthermore we must determine how much value to give consent in relation to other social values and goals. From a clinical standpoint we still need a better understanding of what constitutes the therapist-patient relationship: what it is and when it is over. We must also examine more carefully the nature of power within a psychotherapeutic relationship. From a legal standpoint we must determine how criminalization affects constitutional privacy rights, as embodied both in state constitutions and the federal Constitution. From an empirical standpoint we need to assess the efficacy of current criminalization statutes and determine their effect on tort compensation for patient victims. We also need to assess the practical application of these statutes by juries. Without more thorough analysis of all the issues raised, the criminalization of patient-therapist sex by state legislatures may in fact cause more harm than good.

The constitutional privacy rights of public employees

Despite the significant expansion of the constitutional rights of public employees during the last three decades, the Supreme Court has proven extremely reluctant to restrict public-sector employment practices on the grounds that they violate the constitutional privacy rights of public employees. This treatment of the privacy rights of public employees is likely to continue because of the Court's formulation of a public-service vision of the public-employment relationship. The adoption of the public-service vision has provided the Court the basis for continuing the policy of declining to strictly scrutinize employment practices that arguably limit the privacy of public employees both on and off the job.

Constitutional Privacy, Judicial Interpretation, and Bowers v. Hardwick

Constitutional Privacy, Judicial Interpretation, and Bowers v. Hardwick

Defending the ?private? in constitutional privacy

Suppose we agree to reject the view that privacy has narrow scope and consequently is irrelevant to the constitutional privacy cases. We then have (at least) these two options: (1) We might further emphasize and draw out similarities between tort and constitutional privacy claims in order to develop a notion of privacy fundamental to informational and Fourth Amendment privacy concerns as well as the constitutional cases. We can cite examples indicating this is a promising position. Consider consenting homosexuality conducted in one's home, for instance. We view it as a private matter, whether the state is seeking to regulate the behavior, or if others are attempting to gain or exploit information about it. I believe basic conceptual similarities between tort and constitutional interests can be identified by showing that there is a range of similar reasons for protecting both tort and constitutional privacy concerns. We might worry, however, that a comprehensive concept of privacy may be too general to be very useful, given that privacy violations can be so diverse, and can arise, for example, from misuse of confidential information, from conduct that is intrusive even if no information is gained or disclosed, from disturbance of an intimate relationship, or from disruption of various other important aspects of one's life.

Toleration and the Constitution

Why have the issues of religious liberty, free speech and constitutional privacy come to figure so prominently in our society? What are the origins of the basic principles of our constitutional law? This work develops a general theory of constitutional interpretation based on an original synthesis of political theory, history, law, and a larger approach to the interpretation of culture. In fusing these myriad components, Professor Richards argues against the notion of interpretivism--the view that constitutional interpretation is concerned exclusively with the text of the Constitution and the views of its authors--and contends that the best political theory is one in which courts are permitted use contractarian theory to decide about individual rights that are immunized from majoritarian control. Presenting both historical and theoretical arguments in support of a theory that affirms the moral sovereignty of the people, Richards maintains that toleration, or respect for conscience and individual freedom, is the central constitutional ideal. He discusses such current topics of constitutional controversy as church-state relations, the scope of free speech, and the application of the constitutional right to privacy to abortion and consensual adult sexual relations.

Hippocrates meets the data banks: Patient privacy in computer age

Protection of computerized medical records from unauthorized use was a major topic of concern at the 1984 World Congress on Medical Informatics (MedInfo). Summarized here are the comments of speakers from the United States and several European countries on the issues of data and usage integrity, legal protection for computerized patient data, and the implications of international data access and transfer. Participants agreed that governments have a major role to play in enacting consumer-oriented legislation to protect patient records and expanding constitutional privacy rights to include personal data.

Rutherford, Privitera, and Chad Green: Laetrile’s Setbacks in the Courts

Abstract The Chad Green case has again focused national and international attention on the unproven cancer remedy known as laetrile. Laetrile has attracted considerable attention in recent years as a result of claims that it is a nontoxic form of cancer treatment. Twenty-one states have legalized prescription of laetrile within their borders, despite the efforts of the Food and Drug Administration (FDA) to keep laetrile off the market. The authors examine the claims about laetrile’s effectiveness and comment upon scientific tests concerning its efficacy. They maintain that scientific support for the use of laetrile is almost totally absent and that evidence of the dangers of laetrile is substantial. After reviewing the medical evidence concerning laetrile, the authors describe the efforts of laetrile proponents to use the courts as the battleground to legalize laetrile. In early skirmishes, laetrile proponents were successful in opposing the efforts of the FDA; under a constitutional privacy theory several courts upheld the right of competent adults to select laetrile therapy. Subsequently, however, as the authors demonstrate, the U.S. Supreme Court, in United States v. Rutherford, and the California Supreme Court, in People v. Privitera, narrowed the federal constitutional privacy right by declining to read into it a right to take laetrile. Finally, the Massachusetts Supreme Judicial Court, in the Chad Green case, considered the question of laetrile’s toxicity to a recipient of the drug. The authors discuss the interrelationship among the three cases. They argue that the overwhelming proof in Chad Green that laetrile is harmful undermines any statutory or constitutional claims supporting legalization, because such claims assume that even if laetrile is not truly therapeutic outside of the placebo effect, it is not toxic. In light of the three decisions, the authors conclude that supporters of laetrile should not expect that the courts will be sympathetic to future legal efforts to approve or to permit use of laetrile therapy.

Application of the Constitutional Privacy Right to Exclusions and Dismissals from Public Employment

Application of the Constitutional Privacy Right to Exclusions and Dismissals from Public Employment