Constitutional Right Of Privacy Research Articles

INFORMATION PRIVACY: A CONCEPTUAL APPROACH

The paper attempts to expose the basic concepts of informational privacy reflected in Western jurisprudence, as well as to outline the author's vision of the content and scope of informational privacy, to distinguish the relevant powers from which this right consists, to reveal its place and role from the standpoint of system-structural approach.
 It is noted that in the modern scientific literature, dedicated to ensuring the privacy and respect for his / her privacy, clearly distinguishes two main approaches to understanding the informational advantage - broad and narrow. Proponents of the narrow approach consider the primes solely in the informational aspect, and other constituents (physical, visual, phonetic privacy, etc.) tend to relate to the content of other fundamental rights. However, one group of authors interprets information privacy as the right of the person to control their personal data, while the second group considers it more rational and efficient to consider information pricing as the right of ownership of personal data. Attempting to unite both camps of supporters of a narrow interpretation of the information front is the Restricted Access / Limited Control (RALC) theory.
 Proponents of the broad-based approach view information primacy as important, but only one of the many substantive elements of constitutional law in favor. At the same time, the authors' exit beyond the information sphere when considering the content of the precedence can be considered progressive and more consistent with the essence of this right and its purpose in ensuring personal freedom and autonomy.
 In view of the author, revealing the content of the right to privacy, it should be borne in mind that the object of this right includes several areas (aspects), in each of which a person may be in different states of privacy, and the privacy itself has certain measurements. On this basis, information is regarded by the author as an element of the constitutional right of privacy, distinguished by the aspects of privacy and the form (method) of its objectification.
 Unlike other aspects of privacy, the informational aspect is detached from the physical body of the individual and exists independently, and relevant information continues to exist even after the death of the individual. Therefore, even the death of a person does not make sense of the information associated with that person, and sometimes even enhances its value and significance. It is noted that unlike other aspects of the case, information privacy has no states (such as loneliness, intimacy, anonymity, etc.); it merely provides information protection for such states and does not allow them to be disclosed without the consent of the entity itself.

An Overview of eHealth Regulations in Tanzania

This article provides a descriptive analysis of eHealth regulations in Tanzania. The author argues that in the absence of a robust data protection legislation that specifically incorporates conditions for processing personal health data in the context of eHealth, the current constitutional right of privacy in the Tanzanian Constitution remains inadequate to offer a regulatory framework for the protection of such data.

Infringement of Fundamental Right to Privacy: U.S. Government Employeess Right to Privacy Regarding the Record Release of Unsubstantiated Allegations of Misconduct

The issue at hand is whether U.S. government employees’ fundamental right to privacy protects a record of an unsubstantiated allegation of misconduct from being released through the Public Records Act (PRA). A narrower version of this question has been brought before the Court several times, but not completely answered. In 2008, the Court reasoned that because the public records request was broad and included many government employees, redacting the names would provide sufficient privacy. The Court held that “[t]he teachers' identities are clearly “personal information” because they relate to particular people.” However, in practice that meant that the report was still released, only with all of the names redacted. The Court’s holding side stepped the issue of constitutional privacy rights that the teachers raised. Next, in 2011, the Court held that “[u]nder the PRA, [the government employee, a police officer] maintains his right to privacy in his identity, regardless of the media coverage of this unsubstantiated allegation. An agency should look to the contents of the document, and not the knowledge of third parties when deciding if the subject of a report has a right to privacy in their identity.” Again, in practice this meant that the report was still released, but that the officer’s name was redacted. The question of a fundamental right to privacy was not raised. Finally, in 2015, in Predisik v. Spokane Sch. Dist., the Court found that the records of unsubstantiated allegations of misconduct by government employees did not implicate a privacy interest and were not subject to the personal information exemption. However, the Court did state that “[a]gencies and courts must review each responsive record and discern from its four corners whether the record discloses factual allegations that are truly of a private nature, using the Restatement as a guide.” Even after the above three landmark cases on this issue, there is still an open question regarding privacy as a fundamental right and how that should affect the release of unsubstantiated allegations of government employee misconduct.The following four sections are covered below: First, the definition of a record for purposes of the PRA. Second, the federal and state constitutional right to privacy and related analysis. Third, the applicable exemptions within the PRA. Fourth, and finally, a closing argument calling for privacy as a fundamental right, resulting in records of unsubstantiated allegations of government employee misconduct being withheld from release through the PRA.

A Question of Choice

Women's reproductive rights, reproductive health, and constitutional privacy rights in the United States are addressed in light of the contemporary onslaught of the Christian Right. The misuse of State power by fundamentalist social forces in America is critiqued. The article also briefly reviews the question of State control over women's bodies.

Sexual Morality and the Constitution: People V. Onofre

The New York Court of Appeals decision in People v. Onofre, 51 N.Y.2d 476 (1980), addressed the issue of prohibitions on private consensual, sodomatic conduct, both hetro- and homosexual. The Court of Appeals made history because it was the first judicial victory for advocates of sexual freedom for homosexuals in a case where homosexual acts were directly at issue.This article examines the doctrinal origins of the New York Court of Appeals’ concepts of sexual privacy, equal protection and substantive due process. It also reexamines the Supreme Court’s pronouncements on sexual privacy. The article argues that the Supreme Court precedent was incorrectly interpreted and confused jurisprudential theory with constitutional mandate. However, it further states that the result in Onofre could have been the same even if its inclusion of freedom of sexual expression within the federal constitutional right of privacy.

Appeals Court Rules for Psychiatrist in Case Against Medical Board

Appeals Court Rules for Psychiatrist in Case Against Medical Board

Griswold v. Connecticut: birth control and the constitutional right of privacy

Americans value as one of their most cherished rights, yet word privacy isn't even mentioned in U.S. Constitution. It took Supreme Court's ruling in v. Connecticut (1965) to bestow constitutional protection upon this right. That remains one of Court's most hotly debated rulings and led directly to an even more controversial decision in Roe v. Wade (1973). John Johnson's masterly critique of Griswold which observes its 40th anniversary on June 7, 2005 reminds us once again of its crucial impact on both American law and society. Johnson explores Griswold's origins in a challenge to Connecticut's 1879 anti-contraception law, provides a detailed narrative of its progress, examines unfolding of newly secured right of up to recent controversies over same-sex relations, and grounds story in two key contexts: struggle within one state to establish right to birth control and national debate over right of privacy. He also provides important insights into Supreme Court decision in Poe v. Ullman (1961), which rejected challenges to Connecticut's law and was itself immediately challenged. In response to Poe, Planned Parenthood opened a clinic in New Haven to dispense birth control advice and devices to married women. Ten days later, a local prosecutor shut clinic down and indicted executive director Estelle Griswold and her medical director, C. Lee Buxton. Tracing progress of Griswold's case, Johnson clarifies how or the right to be let alone became a judicially constructed right. In one of most idiosyncratic opinions in Court's history, Justice William O. Douglas ruled that emanations from five constitutional amendments afforded protection to right of privacy, while several other justices proposed competing rationales in support. As he unravels this fascinating tale, Johnson reveals a multifaceted decision that was not in fact doctrinal novelty that many scholars have argued. For two generations, Griswold has functioned as legal basis for judicial rulings involving issues of sexual intimacy, reproductive rights, and family life. Even today, it continues to set agenda for debates about in American life and about how Constitution itself should be interpreted. Johnson's deft and incisive analysis of case will interest anyone concerned about nature, scope, and future of in America.

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.

Guidelines for Adolescent Health Research*1, *2A position paper of the Society for Adolescent Medicine

Guidelines for Adolescent Health Research*1, *2A position paper of the Society for Adolescent Medicine

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).

Supporting Professional Development: Understanding the Interplay Between Health Law and Professional Ethics

ABSTRACT Physical therapists in all practice settings-clinical, educational, and research-- are bound by legal and ethical professional standards governing practice. In recent times, the substance of these formerly distinct obligations have become blended into increasingly unitary standards of professional conduct. Courts now examine health care professional codes of ethics as secondary sources of legal obligation, licensure statutes and regulations derive from professional codes of ethics, and professional association ethics codes encompass legal concepts, including patient abandonment, informed consent, and confidentiality, among others. Physical therapists must simultaneously conform official conduct to legal as well as ethical standards to avoid sanctions on the privilege to practice in a variety of disciplinary forums. THE MODERN BLENDING OF LAW AND ETHICS Although legal and health care professional ethical obligations seemingly involve distinct duties incumbent upon physical therapists (and other health care professionals), in fact they have become in modern times very closely intertwined. What constitutes a breach of professional ethics more often than not also violates regulatory, civil, and/or criminal legal standards. This concept of duality of ethical-legal duties is referred to as the modem blending of health and ethics, and is illustrated in Figure 1. Modern legal standards and health care professional codes of ethics derived, in part, from the pronouncements and processes of medieval ecclesiastical and equity courts within the British commonwealth system. These specialty jurisdiction courts enforced moral standards and ensured fundamental fairness and justice, respectively. The sovereign law courts, or King's bench, on the other hand, strictly enforced written statutory laws, without explicit regard for morals or fairness. Historically, ecclesiastical courts reviewed church-related matters, including the fact and validity of marriage, and questions of legitimacy. Equity courts heard civil (private dispute) cases that could not be resolved through the ordinary mechanisms of justice in the courts and were the first to hear pro bono cases of poor litigants without the financial means to pay for requisite writs (legal papers). Over time, ecclesiastical courts were dissolved, and the and equity courts merged into the unitary legal system that exists in the Anglo-American world today.1 Part of the rationale for the modern blending of health and professional ethics relates to the fact that peoples within the western world are highly litigious, and societies inordinately legalistic--especially in the United States, where as many as 20 million new civil lawsuits are filed annually.2 Additionally, consumers (including patients) are better educated, more sophisticated, and acclimated to the legal culture, so that they more readily assert and enforce their legal rights. The processes of submitting claims to professional associations and licensure entities for breaches of health care professional ethics very closely mirror those for legal complaints within administrative, civil, and criminal legal systems. SOURCES OF LEGAL AND ETHICAL DUTIES Legal obligations bind everyone in society (except those with diplomatic immunity) to their provisions. Health care professional ethics codes formally obligate members of a health care discipline's professional association (and, indirectly, nonmembers as well) to their provisions and address professional conduct. There are four primary sources of legal obligation. They are briefly discussed in descending hierarchal order. The highest-order primary source of legal obligation in the United States is the federal Constitution, particularly, its Bill of Rights and subsequent amendments, which delineate personal rights and duties, including the constitutional right of privacy from undue governmental intrusion. …

Is privacy the enemy of public health?

Is privacy the enemy of public health?

City of Sherman v. Henry: Is The Texas Constitutional Right of Privacy Still a Source of Protection for Texas Citizens?

Part I of this Note explores the Texas constitutional right of privacy and the right of privacy guaranteed by the United States Constitution as well as the relationship between the two. Part II reviews the facts in Henry, the Texas Supreme Court's decision, and concurrences of both Justice Owen and Justice Spector. Part III analyzes the court's reasoning in Henry and determines that the decision fails to safeguard the constitutional right of privacy guaranteed by the Texas Constitution. Part IV proposes two potential solutions available to Texas courts to protect police officers and other public employees from unreasonable intrusions into their private lives, thus ensuring the effectiveness of the right of privacy guaranteed by the Texas Constitution in TSEU.

Privacy and autonomy: from Warren and Brandeis to Roe and Cruzan.

Warren and Brandeis' tort against invasion of privacy had chiefly a social goal: to enlist the courts to reinforce the norm of civility. Years later in Griswold v. Connecticut (1965), the Supreme Court announced a constitutional right of privacy that was personal in focus. Here and in subsequent rulings on abortion and the "right to die, " it became apparent that Warren and Brandeis' Victorian "right to be let alone" had metamorphosed into a right to autonomy, whose amoeboid contours made prediction or even description a tricky business. But privacy is an unsatisfactory proxy for autonomy, and perhaps for this reason has dwindled in importance as a rationale in these areas.

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.

At Law: Parenthood and Frozen Embryos More Than Property and Privacy

It is time, Lori Andrews once announced in these pages, start acknowledging that people's parts are their personal property.[1] Her suggestion was prompted by the case John Moore brought against the University of California at Los Angeles and others for using his blood to develop a patented (and commercially valuable) cell line without informing him of what was going on. The California Supreme Court eventually rejected Andrews's suggestion, holding that Moore might have a case of fiduciary breach but not of property conversion.[2] Another test for the body-as-property theory came on 1 June 1992, when the Supreme Court of Tennessee handed down its decision in Davis v. Davis. This case began as a dispute between a divorcing couple who--during the course of six failed attempts at reproducing through in fertilization (IVF)--had left seven frozen in a liquid nitrogen tank at a fertility clinic. Mary Sue Davis wanted to have the pre-embryos implanted in her uterus in a further attempt to become pregnant, while Junior Davis wanted them left frozen. In a divorce proceeding, property is typically divided evenly between the parties: from a set of eight Chippendale chairs each would get four, unless one wanted the whole set and the other accepted some other property of equal value. In awarding custody of children, however, a court exercises its parens patriae authority to find an arrangement that would serve the children's interests. Extending Andrew's analysis, the pre-embryos in the Davis case were not my body for either Mr. or Mrs. Davis, but rather our body--seven pieces of property. The trial court declined, however, to treat the pre-embryos like Chippendale chairs. Instead it declared them to be in vitro and concluded that their best interests would be served by awarding their custody to Ms. Davis, since she offered the greatest hope the embryos would be carried to term. In 1990 the Tennessee Court of Appeal reversed, giving the parties joint control and an equal voice over the embryos' disposition.[3] The court based its holding on Mr. Davis's constitutional right of privacy, which protected his choice not to beget a child. The state has no compelling interest, the appellate court found, that would allow it to order implantation against the will of one of the parties. Although largely affirming the appellate decision, the Tennessee Supreme Court focused on what is really at issue: choice about relationships. The need to think in such terms--rather than in terms of property or privacy, to cite two competing paradigms--is underscored by another recent and perhaps even more bizarre case, the fraud and perjury trial of Dr. Cecil Jacobson in the U.S. District Court in Alexandria, Virginia. The Overeager Inseminator In March, Dr. Jacobson was sentenced to five years in prison for using his own semen in artificial insemination (AID) of patients who thought the semen had come from anonymous donors or, in at least one case, from the woman's husband. The evidence presented at trial showed that Dr. Jacobson had fathered fifteen children, but the prosecutors speculated that the true total exceeded seventy. Plainly, these women and their husbands wanted children through AID and presumably cherish the children that Dr. Jacobson helped them to bear. Yet the fact that Dr. Jacobson made himself the father of these children angered the couples and led to his prosecution. Their anger and his conviction were justified because his actions radically altered the relationship his patients had with him without their knowledge or consent. Dr. Jacobson's wrong is not well captured within the rubric of (if anything remains of that concept after the U.S. Supreme Court's recent Casey decision)[4] because Roe v. Wade had defined the unit for privacy analysis as the-physician-and-his-patient. …

"Kodakers Lying in Wait": Amateur Photography and the Right of Privacy in New York, 1885-1915

RECENT POLITICAL DEBATES MAY SUGGEST TO SOME OBSERVERS THAT the right of privacy was cut out of whole cloth, or even more ethereal stuff, by the Warren Court in the 1960s.1 The constitutional right of privacy, which provides protection from government intrusion, may arguably have such a recent pedigree. But the common law right of privacy, which protects against intrusions by other persons, finds its roots in certain cultural and technological developments which occurred during the Victorian age.2 In that period, as in our own, the need for privacy was linked to the ideas of selfhood and personal identity. Cultural historians have recognized that there were subtle and complex transformations in constructions of the self among bourgeois Americans during the late Victorian period. Their work indicates that the change largely concerned the enhanced role of feeling, emotion, or sentiment as aspects of selfhood. This same recognition of the importance of feeling or emotion contributed to the recognition of the legal right of privacy. The modern scholarly literature on the right of privacy includes, for the most part, doctrinal histories and analyses, philosophical analyses, and combinations of the two.3 Scholars have debated whether the tort of invasion of privacy is composed of a number of distinct torts, each protecting a distinct interest, or whether it protects a single, broad interest.4 They have rehashed the debates of the Victorian era over

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.

The Supreme Court and the Constitutional Right to Privacy

Since its creation in 1965, the constitutional right of privacy has been difficult to understand, even contradictory. This may be explained as the result of the incremental implementation of the sweeping language of Griswold v. Connecticut, with privacy coming into conflict with other rights such as the freedom of the press. In addition, the initial criticisms of Griswold’s synoptic privacy reasoning intensified when Roe v. Wade provoked potent political opposition. These influences combined with the changing membership on the Supreme Court to produce an evaporation of privacy language from recent decisions, most notably Webster v. Reproductive Health Services and Cruzan v. Director, Missouri Department of Health. Furthermore, the Court is transforming Roe's declaration of privacy as a “fundamental right” protected by “strict scrutiny” into a “liberty interest” protected by the relaxed standard of “rational-basis scrutiny.” Finally, Rehnquist and Scalia want to give a narrow historical interpretation to any “liberty interest,” thus limiting the application of privacy to other areas of constitutional law.

Nancy Cruzan and the Right to Die

The national discussion concerning decision making for incompetent patients began with the 1976 case of Karen Ann Quinlan. Because she had been left in a persistent vegetative state after two periods of anoxia, her parents sought court authorization to remove her from a ventilator. The New Jersey Supreme Court, in a landmark, unanimous decision, authorized the removal on the basis of Quinlan's constitutional right of privacy, which the court concluded would be lost unless her parents were given authority to exercise it on her behalf.1 In the 15 years since Quinlan, courts in almost 20 states have reviewed disputes . . .