AMERICAN PRIVACY IN THE 20th and 21st CENTURIES

This is yet another paper I wrote for school. It bothered me to let it go to waste, and I didn't want to have written it just for a grade, so I'm putting it to use and sharing it on my site. It's about what the title suggests, though it's hardly in depth. I'd like to have delved deeper into the underlying problems with privacy in the past century or so, but one can only get so deep with school projects. Maybe one day I'll revisit this subject, as I believe to be very important, but for now... here you go:

-------------------------------------------------------------------

Jon Babb

Professor Kenneth Goldsmith

BUSN-2370-NO6 – Legal Environment of Business

12-03-2021

AMERICAN PRIVACY IN THE 20th and 21st CENTURIES

What is worker’s privacy? Most importantly, where does a worker’s right to privacy begin and end in America? Does the Constitution explicitly state a citizen’s right to privacy? If not, what have judges decided in past privacy cases? How have technological developments effected worker’s privacy? This paper will try to cover those questions, outlining historical legal milestones in the hopes to shed light on where privacy is headed in the years to come.

For this paper, there are a few distinct kinds of legal privacy I would like to discuss the history of. First, the privacy of the individual from the State, then the privacy of workers from employers, and finally, mass surveillance from the State, and then Big-Tech companies. My goal is to find what the Constitution and past Supreme Court Cases have to say about each.

First, what is the definition of privacy? According to Merriam-Webster, privacy is, “the quality of or state of being apart from company or observation; freedom from unauthorized intrusion (Merriam-Webster).” Does the Constitution protect privacy of this kind for the individual? Not exactly. The word privacy does not occur within the Constitution. But obviously there are federal laws in place to protect privacy to some degree, so I began researching what parts of the Constitution are typically brought up in privacy Supreme Court Cases, and I found that the case of Griswold v Connecticut (1965) argues that the Bill of Rights has penumbras, or implications that indirectly protect the right of individual privacy from the State. The case of Griswold v Connecticut reasoned that the state of Connecticut could not ban the use of contraceptives by married couples, and that it was a breach of marital privacy. It was also the first time the Supreme Court recognized the right of personal privacy from the State (albeit restricted to only married couples), becoming a landmark case often brought up in future privacy Supreme Court cases (McBride). Supreme Court Justice Harlan said regarding the case, “I consider that this Connecticut legislation, as construed to apply to these appellants, violates the Fourteenth Amendment. I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual's personal life.” In State privacy cases since, Justices have chosen to rely on Justice Harlan’s personal conclusion, which does not rely on Constitutional penumbras (Institute). Another landmark case regarding personal privacy was Eisenstadt V Baird (1972). This case was also a dispute between the private use of contraceptives and the State, where the right to buy contraceptives was extended to unmarried couples, as the Supreme Court found the Constitution protected the individual and not just the marital couple. The infamous Roe V Wade (1973) extended the right of privacy as derived from the Fourteenth Amendment to allow women to receive abortions if they so desire. The last major privacy case I want to cover is Lawrence V Texas (2003), which extended same-sex couples the right to engage in sexual conduct without government intervention under the Due Process Clause. The Court held, “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government (Institute)." The Due Process Clause guarantees “Due process of law” and that the government cannot deprive an individual of life, liberty, or property without a fair, legal reason. In Lawrence, Due Process was required, and it was found that the government could not direct the personal actions of John Geddes Lawrence Jr. after police arrested them for now defunct “anti-sodomy” laws.

Now that I have covered privacy from the State, I would like to move onto privacy laws protecting employees from employers. Unlike personal privacy, workplace privacy is not a well-protected right. Video surveillance, monitoring of social media accounts, lifestyle discrimination, to physical body searches are all things major companies seemingly have the authority to do. What does the Constitution or other legal entities say about this?

The Electronics Communications Privacy Act (ECPA) was enacted in 1986 to extended restrictions on government wire taps, computer communications, and added new provisions prohibiting the access of archived electronic communications (i.e., the Stored Communications Act) and added “pen trap” provisions which permit the tracing of telephone communications (Wikipedia, Electronic Communications Privacy Act).

I would like to analyze one Supreme Court ruling which I believe to be in violation of the ECPA—the City of Ontario V Quon (2010) Supreme Court case, which concerns the monitoring of electronics communications in a government workplace. The Police department of Ontario, California audited the pager text messages of police sergeant Jeff Quon and other officers after they exceeded their messaging allowance. After the audit, the officers sued the city, alleging their Fourth-Amendment rights as well as federal communication privacy laws were violated. Quon made it to the Supreme Court, and Justice Anthony Kennedy signed a majority opinion to not rule on the matter, as electronics communications were “still evolving”. Justice Antonin Scalia argued that his fellow justice’s arguments had been “vague” and had ignored a breach of the Fourth Amendment, and Electronics Communications Privacy Act (Wikipedia, City of Ontario v. Quon).

Though no court decision was made, it still paints a clear picture of what problems can be faced when taking a case involving a new electronic medium to court. I believe the majority opinion ignored the ECPA because the case took place in a government facility and laid low to not cause further disputes between the state of California and the Federal Government. Still, the ECPA only has authority over the government, and not private organizations.

A common practice among larger private organizations is the monitoring of social media accounts of its employees. This is done to preserve reputation. If an employee goes on a Twitter rant one day after a bad shift, then their followers are going to have a negative interpretation of the company in question—and for obvious reasons companies want to keep up appearances. A company may also have employees sanitize their accounts to make them more presentable to the public, even if it the expression of a personal lifestyle or way of being. This is smart for PR reasons, but like the past forms of monitoring, it can be abused. Though there are federal laws in place to stop some discriminatory behavior that may stem from social media monitoring, like the Equal Pay Act, the Worker Adjustment and Retraining Notification Act, and the Genetic Information Nondiscrimination Act, there are no federal laws in place that prohibit employer monitoring of social media to begin with.

What constitutes as speech, and where should corporate monitoring begin and end? In Bland V Roberts, Sheriff’s Department employees were fired for liking the posts of the Sheriff’s running opponent. After the firing, the employees soon argued that this was a breach of their First Amendment rights to freedom of speech. The termination of their employment was reversed by the Fourth Circuit of Appeals, who considered ‘liking’ something speech, and was protected by the First Amendment. Is that to say everything you do on social media can be considered speech? According to this milestone case, yes it can.

Note, it is completely legal for employers to monitor your social media, but what about unauthorized third parties?

For the final analysis of my paper, Big-Tech surveillance, I am going to discuss the Cambridge Analytica scandal and the legal action that followed.

In the 2010’s, British consulting firm Cambridge Analytica collected the data of millions of Facebook users without Facebook’s permission through an app called “This is Your Digital Life”. The app’s goal was to build psychological profiles from questions presented to the user, and then collected their data through Facebook’s Open Graph platform. It used the data of up to 87 million Facebook users, which was released and used by the 2016 presidential campaigns of Ted Cruz and Donald Trump. In 2018, information about the scandal first reached the public through former Cambridge Analytica employee, Christopher Wylie, in interviews with The Guardian and New York Times. After this, Congress called Facebook CEO Mark Zuckerberg to testify. Facebook was required to pay $5 billion fine to the Federal Trade Commission for its privacy violations and a $500,000 fine to the UK’s Information Commissioner's Office (Wikipedia, Facebook–Cambridge Analytica data scandal). This is an example of a Big-Tech company’s resources being neglected, stolen, and used for bad--even in targeting citizens and attempting to sway their election vote.

In the past we saw more government breaches of privacy. Currently, the biggest threat of personal invasion of privacy I would say are Big-Tech companies and breaches of their databases like in the Cambridge Analytica scandal. With employee’s privacy from employer’s, it is hard to judge what is right and wrong, as an employment is a voluntary position, and most people know what they are getting into. But in an individual’s Gmail account alone, there is enough to information to change that person’s life forever if leaked. I think there needs to be more regulation in America for Big-Tech companies before more breaches occur.

I hope this paper painted a clear picture of the history of privacy in America through the analysis of landmark cases and scandals.

Sources

https://www.annenbergclassroom.org/resource/the-pursuit-of-justice/pursuit-justice-chapter-16-finding-right-privacy/. n.d. Electronic. 29 11 2021.

Institute, Legal Information (https://www.law.cornell.edu/wex/privacy). Privacy. 29 11 2021.

McBride, Alex. thirteen.org > Supreme Court History > Expanding Civil Rights >Griswold V Connecticut. 2007. Electronic . 27 11 2021.

Merriam-Webster. Pirvacy. 27 Accessed November 2021. Electronic.

Wikipedia. City of Ontario v. Quon. 16 September (last edited) 2021. Electronic.

—. Electronic Communications Privacy Act. 16 September last edited 2021. Electroinc.

—. Facebook–Cambridge Analytica data scandal. 3 December last edited 2021. Electronic.