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Right to Privacy 

What Is the Right to Privacy

The right to privacy generally refers to the concept that individuals have the right to live their lives with a reasonable degree of freedom from surveillance and intrusion by others, including the government, corporations, and other individuals. 

This right should extend to various aspects of personal and familial life, communication, and personal information.

Third-party definition 

The right of a person to be free from intrusion in their private life. – Government of Canada

Globally 

The right to privacy is recognized globally in several international treaties and agreements, such as the Universal Declaration of Human Rights.

In the US

In the United States, the right to privacy is not explicitly stated in the Constitution, but it is implied through various amendments and is further defined by federal and state laws. 

Constitutional amendments 

Some (not all) amendments that imply the right to privacy include the following: 

The Third Amendment establishes a protective boundary around the privacy of one’s home, essentially barring the quartering of soldiers in private homes in times of peace without the owner’s consent, reinforcing the concept of the home as a private sanctuary.

The Fourth Amendment guarantees individuals protection against unreasonable searches and seizures. This legal provision ensures that law enforcement cannot conduct searches or make arrests without a justified reason, safeguarding personal spaces such as homes, vehicles, and personal effects unless there is a warrant backed by probable cause.

The Fifth Amendment includes protections against self-incrimination, asserting an individual’s right not to be compelled to testify against themselves. 

Federal laws

Several federal laws also provide specific protections for personal privacy, including the following: 

  • Privacy Act of 1974 – Regulates how federal agencies collect, maintain, use, and disseminate your personally identifiable information. 
  • Electronic Communications Privacy Act of 1986 (ECPA) – Safeguards communications when they’re being made, are in transit, and are stored.
  • Health Insurance Portability and Accountability Act of 1996 (HIPAA) – Protects the privacy of individual health information.
  • Children’s Online Privacy Protection Act of 1998 (COPPA) – Protects children’s privacy by requiring parental consent for collecting and using personal information belonging to those aged under 13 years of age.
  • Fair Credit Reporting Act (FCRA) – Governs who can access consumer credit reports. 

State Laws

State laws regarding privacy vary widely but often provide additional protections beyond federal laws. 

Relevant types of state laws include the following: 

  • Consumer privacy laws – States like California have enacted comprehensive laws that give consumers more control over the personal information that businesses collect about them.
  • Biometric privacy laws – Some states, like Illinois, have laws specifically protecting biometric information (for example, fingerprints and facial recognition).
  • Workplace privacy laws – Several states have laws regulating employer surveillance and the use of polygraph tests by employers.
  • Surveillance laws – State laws also govern the use of surveillance equipment and practices by private and governmental entities, often requiring a warrant or consent for surveillance activities.

These constitutional amendments, federal laws, and state statutes collectively form a complex framework that defines and protects the right to privacy in various contexts across the United States.

In Europe

Various legal frameworks protect the right to privacy in Europe, with a particularly strong emphasis on the protection of personal data. 

Here are the key aspects:

European Convention on Human Rights (ECHR)

The right to privacy is explicitly recognized in Article 8 of the European Convention on Human Rights, which protects a person’s right to respect for their private and family life, home, and correspondence. 

Limitations are only allowed when they are lawful, necessary, and proportionate to the interests of a democratic society.

EU General Data Protection Regulation (GDPR)

The GDPR, which came into effect in May 2018, gives individuals several rights, including (but not limited to) the right to access personal data and the right to rectify and erase (“the right to be forgotten”) data.

Directive on Privacy and Electronic Communications (ePrivacy Directive)

Often referred to as the “Cookie Law,” this directive complements the GDPR and deals with the confidentiality of electronic communications and the tracking technologies used in digital marketing. It requires prior informed consent for storage or access to data on a user’s device.

National laws

EU member states also have their own privacy laws that complement and enhance EU regulations. These laws can be more specific to the member state’s needs but must not conflict with the overarching principles of the GDPR.

Court of Justice of the European Union (CJEU)

The CJEU plays a significant role in shaping privacy rights by interpreting EU legislation and ensuring its uniform application across all member states. Landmark decisions by the CJEU, such as the striking down of the Data Retention Directive and the Safe Harbour agreement with the US, significantly impact how privacy is understood and implemented across Europe.