The Right to Privacy

One of the most imperative concerns that will affect “twenty-somethings” over the course of life in the United States is the right to privacy. Presently, this right is not guaranteed within the constitution. Though several states have found it prudent to make specific laws as to what this right should entail, there is no federal definition. Over the past year, it has become necessary for the federal government to create a definition of what the right to privacy is. After the release of certain information gathering techniques utilized by the National Security Agency by Edward Snowden, the need for a federal definition has become more and more pressing because there is no understanding of what a person’s rights are at the individual level. This will have a direct impact on those in their 20’s because while they are searching for employment in a consistently changing economy, they will need to know what rights they have in regards to their employers and in regards to what the federal government can do with certain personal information. Whether it’s employers searching through a Facebook or LinkedIn profile, Tumblr, or another blog account, or the federal government obtaining and storing metadata from phone calls, text messages, IM’s, etc., the need for a federal definition of Privacy Rights and an congressional act of the Right to Privacy must be enacted in order to foster confidence in a government and private sector that is becoming more distrustful of its citizens and potential employees. In order to properly come to a solution, this problem will need to be analyzed accurately; then, a proposal of a solution will be offered, as well as support for that proposal, implementation of the proposal, and finally, an analysis of obstacles to the proposal, as well as ways to overcome them will be explained thoroughly.

Why the Right to Privacy is important?

The Right to Privacy is vital to a democratic society because the populous of a democratic society must be able to trust its government and the information the government is gathering on the populace. The populace must also be able to trust the private sector in order to maintain a society that effectively works in the marketplace. Information gathered by both government and potential employers without the knowledge of job seekers and citizens of the United States breeds a culture of distrust and confusion. As the twenty-somethings become a larger voting bloc in the United States, it will be up to them to choose what they consider is their right to privacy, as well as how much they are willing to relinquish their privacy. Though these are actually two separate issues and should be discussed accordingly. The first is that of the right to privacy for job seekers and employees.

Technology has certainly changed over the past decade, realistically past two decades, but the most relevant changes have occurred over the past decade. For instance, Facebook is now synonymous with a person in the United States. It’s terrifically hard to find anyone in the United States that are looking for a job or is employed that does not have a Facebook profile. In fact, it has become so prevalent that when applying to many jobs, online applications specifically ask for a person’s Facebook profile, as well as LinkedIn, Twitter, Tumblr, and blogs. Potential employers seem to want to know everything about a person before they invite them to an interview. This wouldn't be as startling in the age of technology that exists today, but what is surprising is that the Equal Opportunity Act has no definition of how this information can or cannot be used (Equal Employment Opportunity Act of 1972, 2013). Though all of these online profiles and blogs are interesting, the most interesting case is Facebook.

Employers do expect and often check out a person’s Facebook profile before inviting them to an interview, or they might even regularly check an employee’s Facebook profile in order to see what that employee is doing during their spare time. While Facebook users, of course, have the right to control what they post about themselves, there is little control over what other people, such as friends and family post about someone. Facebook’s own Data Use Policy clearly states “of course, for information others share about you, they control how it is shared” (Information we receive and how it is used, 2013). The reality is that while an individual may not want to share any personal information about where they’ve been or what they've been doing, someone else can do so publicly without any control of the individual. This might be acceptable in certain circumstances, but there have been countless cases of ex-significant others sharing information about an individual that is private and personal. As previously stated, there is no legal recourse for a company that chooses not to hire someone or fires someone based on their Facebook profile and what others choose to share about an individual. Based on this simple example, it’s clear that there needs to be a legal federal definition of what information can be used by employers and potential employers when dealing with employees or potential employees.

Secondly, the use of government data collection is just as disturbing, if not far more disturbing than private companies’ use of online information. The legal right to private phone calls and text messages was expected by the American public up until very recently when Edward Snowden released information about the NSA gathering data on phone calls and text messages based on an understanding of the 4th amendment of the constitution that the American public is “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[…]” as quoted in the Constitution and pointed out by Doug Linder at the University of Missouri-Kansas City (Linder, 2013). Before Edward Snowden leaked classified information to The Guardian, it was generally expected that the government had no right to gather any information, metadata or otherwise, on the American publics’ phone calls and text messages without a warrant. Though this has clearly been going on for some time as was released by Snowden, it was not knowledge that the American public had up until this year. The ability of the government to gather, collect, and store this information without a warrant would seem to be a constitutional violation as well as impeding on cybercrime laws. However, the reality clearly shows that constitutional law doesn't currently exist specifically for electronic surveillance. This problem immediately creates a distrust of the federal government for those in their 20’s because it proves to them that they don't have the rights they thought they had, in addition to the fact that they don't seem to have the control over the government that their parents had when their parents were of the same age. When those in their 20’s feel that they can no longer trust their government, protests, both violent and non-violent, tend to take place as has happened with Occupy Wall Street and even in other countries like Egypt. The issue of the right to privacy is rapidly becoming one of the most important issues for those in their 20’s when they consider how to vote, who to vote for, and whether they are willing to participate in protests. These two factors of government oversight, or lack thereof, will affect those in their 20’s directly from transitioning from youth into adulthood because they may find themselves under investigation for crimes they didn't commit but considered by text messaging or over the phone, or they may find it virtually impossible to get a job because of what their social media platforms may say about them or what they have said about themselves. As stated by Cornell University’s Law website, “It appears that the voluntary regime is insufficient, and the prospect of the further right of the privacy legislation in the area of access to personal information is very real” (Personal Information, 2013). All hope is not lost yet. There are a number of different solutions to this problem.

A New Proposal

Though there have been several different proposals to solve this problem, none of them have been effective in finding an actual solution. The primary problem is that it is actually two separate issues of how data communication is gathered and can be used, those being from the government sector and the private sector. These need to be discussed separately in order to discover an actual solution.

First, the government sector and its right to gather data on individuals within the United States has become a focus of many, including President Barack Obama. President Obama initially introduced the idea of dismantling the Patriot Act during his initial campaign for the presidency. The Patriot Act is what the NSA has used in order to collect metadata on personal phone calls and text messages as reported by Edward Snowden. After President Obama won the campaign and became President, there has been no attempt, at least publicly, to dismantle the Patriot Act, but rather the powers to the President have actually been expanded under President Obama. This, obviously, is not a proper solution at this time, though it may be in the future.

One solution that has been offered is that of states’ rights, which has been changing since the Edward Snowden leaks. Though this is a start in the right direction, it still means that most states have not adopted privacy laws. Linder examines two court cases discussing states’ rights and responsibilities and concludes, “Earlier decisions such as Griswold and Roe suggested that states must show a compelling interest and narrowly tailored means when they have burdened fundamental privacy rights[…] (Linder, 2013). Though this analysis of the state level is at an earlier point in the 20th century, he does talk about more recent cases as well. Linder states, “later cases such as Cruzan and Lawrence have suggested the burden on states is not so high (Linder, 2013). The more important point is that the states should have a lesser burden than the federal government when it comes to the Right to Privacy.

The second issue is that of the right to privacy when it comes to employment, which can be addressed through changes to the Equal Opportunity Act or by passing a new amendment to the Constitution stating the rights of privacy that the American public has when it comes to employment. Realistically, there are a series of laws that need to be changed in order to overcome both the problem of a lack of privacy where the government is concerned and a legal definition of privacy where employment is concerned.

First of all, the NSA needs to be stopped in collecting metadata and any other forms of data that it might be collecting. President Obama was correct to consider dismantling the Patriot Act but has not done so and it appears unlikely that he will in the future. The Supreme Court should declare the Patriot Act unconstitutional based on its unfair bias toward giving the Executive branch more powers than other branches of the government.

Next, both houses of Congress will need to pass a law that provides a federal definition of American citizens’ right to privacy. Though certain laws have been proposed by Congress that give specific definitions in order “To provide for a legal framework for the operation of public unmanned aircraft systems, and for other purposes” as explained in H.R. 637, they have not passed and there is still no legal definition of what the individual rights to privacy are (H.R. 637, 2013). This legal framework is not enough; there needs to be a legal definition of American citizens’ right to privacy, which Congress can provide.

Lastly, amendments to the Equal Opportunity Act need to be put into place in order for twenty-somethings to feel comfortable to make certain information available online without it having any effect on their careers. The Equal Opportunity Act, which is officially called the “Equal Employment Opportunity Act of 1972” was put into place “To further promote equal employment opportunities for American workers” (Equal Employment Opportunity Act of 1972, 1972). Though it was originally passed in 1972, there have been many amendments to it since then, including an amendment for Americans with disabilities, as well as many others. It should be easy enough for Congress to include an amendment that states that employers cannot dismiss an employee or refuse employment based on information gathered electronically without the knowledge of the employee or potential employee.

Obstacles

Though there are several obstacles in order to actually make these changes within the government. The first of which is that the Supreme Court seems to have little or no interest in limiting the Executive branch’s powers, as well as dismantling the Patriot Act. This is a fundamental problem and one that is not easy to change due to the Supreme Court’s lifetime appointments. The only solution to this may be to wait until a Supreme Court that is more activist to come into place, but by voting more activist Presidents into office, this could happen sooner rather than later. Cornell’s Legal Information Institute makes a surprising announcement saying, “The court's preference for a case-by-case approach to the right of privacy in as much as it protects personal autonomy […] makes a succinct statement about the boundaries of the right of privacy nearly impossible (Personal Autonomy, 2013). The next obstacle is that it is evident based on the recent government shutdown that anyone in Congress can actually work together in order to find a solution, but that can be changed by phone calls and protests from millions of people to urge their congressmen and congresswomen to provide a definition of privacy and what rights American citizens have. Though some in congress do want to create a definition of the right to privacy and make amendments to the Equal Opportunity Act, their voices are not heard and become distant in the arguing and confusion because of what Congress has become lately.

There are solutions to this, but it may take time, possibly a long time for the federal government and Congress to change. It may be a matter of voting responsibly and changing the way the federal government works through protests and informed debate. Regrettably, this is not the easiest solution, but the only solution in order to create a government that will genuinely develop a true Right to Privacy Act or Amendment that will allow American citizens to become stable, both financially and emotionally, with the American government and their employers.

In conclusion, an analysis of the problem of the right to privacy has been explained thoroughly. There exists a problem within the federal government of the United States because they have not defined privacy in any meaningful legal manner, either for government use or for the private sector. The proposed solution to this problem is to dismantle the Patriot Act, for Congress to provide a federal definition of privacy, and for the Equal Opportunity Act to be amended in order to allow employees the freedom to post aspects of their lives online without fear of losing their jobs. There have been obstacles discussed and analyzed, such as the lack of desire of all three branches of government to make a change in this regard. Specifically, the Supreme Court needs to become more involved in the debate, but because as stated above they are interested in the “case-by-case basis,” it doesn't seem likely that they will become more involved without changing (Personal Autonomy, 2013). The only way to effectively make this change is for people to change the government. If they are successful, those in their 20’s will be able to feel secure that they have a stable government and stable career, which will, in turn, create an easy transition from youth to adulthood. The twenty-somethings will be able to challenge the world in a new way filled with the technological advances that have become available and start forging their own path within the government and outside of it in order to create a world they want to live in and are proud of. The twenty-somethings of today are the future of American society and they should be the ones that change the world in the way that seems most appropriate to them, but they can only do so if they are employed and employable and not in fear of the American government.

References

Equal Employment Opportunity Act of 1972. (n.d.). Equal Employment Opportunity Commission. Retrieved December 16, 2013, from http://www.eeoc.gov/eeoc/history/35th/thelaw/eeo_1972.html

H.R. 367. (2013, February 13). Authenticated US Government Information GPO. Retrieved December 16, 2013, from http://www.gpo.gov/fdsys/pkg/BILLS-113hr637ih/pdf/BILLS-113hr637ih.pdf

Information we receive and how it is used. (n.d.). Facebook. Retrieved December 15, 2013, from https://www.facebook.com/about/privacy/your-info

Linder, D. (n.d.). The Right of Privacy: Is it Protected by the Constitution?. (n.d.). The Right of Privacy: Is it Protected by the Constitution?. Retrieved December 16, 2013, from http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html

Personal Autonomy. (n.d.). LII. Retrieved December 16, 2013, from http://www.law.cornell.edu/wex/Personal_Autonomy

Personal Information. (n.d.). LII. Retrieved December 16, 2013, from http://www.law.cornell.edu/wex/Personal_Information