Right to privacy

[Jonathan Buhacoff]

The proposed right:

No government or person shall search a person or their property or their living space, or secretly observe them in their living space or in any place designated as a private space, without consent except in accordance with a lawful process such as a warrant.

Important clarifications:

We say living space instead of home because it also applies to someone who is staying in a hotel room or in a tent in the forest. Other spaces that might be explicitly designated as a private space might be a bathroom or changing room at a store or gym or school, a counseling or therapy office, and a doctor’s office. The legislature should enact laws requiring the designation of certain spaces as private and requiring the prominent display of a privacy sign in such places, but failure to display the privacy sign does not change the status of the place as a designated private place if the law requires it to be private.

Furthermore, any non-public space can be designated a private space by ensuring its contents are not visible to the public and by prominently displaying a privacy sign to all who enter. If the space met the requirements for a private space when a person entered, it remains private even if someone later removes the sign. People should avoid such confusing or tricky behavior because they would be liable for violating someone’s privacy right or contributing to the violation if something goes wrong.

The prohibition on secret observation means that tapping phone calls, installing spy cameras, and other such spying techniques are prohibited unless the government obtains a warrant. Since private individuals cannot obtain a warrant, it is always illegal for a private individual to spy on someone else in this way, with one exception — to protect the rights of others. If the person being recorded is planning to commit a crime or talking about a crime they committed, recording and sharing with law enforcement to protect the rights of others is more important than preserving the privacy of people who plan to violate or already violated the rights of others. This is equivalent to “whistleblower” protection laws that have been enacted in some countries. Without whistleblower protection, evil people will enjoy the right to privacy while making their evil plans, and then perversely accuse people trying to expose them with a violation of privacy.

If two people are talking in public and one of them records the conversation, even in secret, this is allowed because the conversation is in public and not in the person’s living space. A person only has a right to privacy in their own living space. When visiting someone else’s home, it is the person at home who has the right to privacy, not the visitor, unless the visitor is assigned their own room where they can stay and in that case they can expect privacy in that room — the same as in a hotel. If the host says something along the lines of “my house is your house” or “please make yourself at home” then the host is extending the right to privacy to the guest and the guest then has the right to privacy anywhere in the home, same as the homeowner. In that case, any secretly recorded conversation between them is violating the right to privacy of the person who didn’t know they were being recorded.

If a person is in a home or hotel room and they have the window curtains or blinds open and someone outside happens to look in or is intently looking in, that does not violate the person’s right to privacy because the observation is not in secret — it is obvious that when the window curtains or blinds are open that people can see into the room and so anything that happens in that room while the window curtains or blinds are open is not covered by the right to privacy. However if the curtains or blinds are closed, or mostly closed, and someone looks in between the cracks, it can be assumed that the observation is in secret and that the person or people in the room believe the curtains or blinds are closed and are expecting privacy.

People have no right to privacy against secret observation in public because they are not in their own living space.

In the United States, the “search” part of the Fourth Amendment to the Constitution is covered by the right to privacy. This means the government cannot search a person’s body, clothing, accessories, bags or luggage in private or in public without a lawful warrant, and cannot search their living space or secretly observe their living space without a warrant. However, the government may secretly observe someone in public without a warrant without violating this right.

When conducting business online, people who want privacy should only do business with companies who promise to keep the customer’s information and data confidential and not voluntarily share it with the government or anyone else without directly obtaining the customer’s consent. This means the government would need a warrant to search the person’s information or data stored by the other party. To make such a promise, a business or organization operating an online space merely needs to describe it to users as “private” because the right to privacy includes “any place designated as a private space”. By advertising and informing their users that their use of the online service is private, the company is then required to protect the user’s privacy. If an online space is not marked as private, users should not assume they have any privacy there because it is like visiting a grocery store or other supply store — other people can see what the person is doing in the store. Similarly, in any online forum that is designated a private space and more than one person is there for conversation, it is the same privacy that is expected when visiting someone’s home and they say “make yourself at home” — everyone there is expected to protect each other’s privacy and if they disclose their conversation or recordings without consent they are violating others’ privacy.

The right to privacy cannot be used to hide evidence of criminal conduct. If someone makes a secret recording that is a violation of privacy, and the recording contains evidence of a violation of rights, or a conspiracy to violate rights, the whistleblower protection created by the right to justice of the victims will apply.

[Author]

Posts