Americans are used to thinking of ourselves as “rights pioneers.” But the American constitution is particularly difficult to amend, and is therefore slower than most to respond to a rapidly changing technological and cultural landscape. Justice Brandeis’s 1890 law review article on “The Right to Privacy” conceived of the Constitution as embodying a central, unarticulated “right to be let alone”, expressed as the “right to an inviolate personality.” Such a right was eventually recognized in the context of marriage by the US Supreme Court in Griswold v. Connecticut (1965), famously arguing in much-mocked language that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” The difficulty with embodying privacy as a right consists in the fact that nobody can define it clearly in a way that is not highly contingent on time-specific cultural and generational norms; we cannot say now, in 2013 and after the passage of (to name only two) marital rape laws and gay marriage laws, that the norms governing marital privacy are the same now as when Griswold was decided. Thus, culture and technology continually gallop ahead, while the law is still getting saddled up. In this post, we explore some innovative efforts to help the law catch up.
The little-known Ninth Amendment offers an alternate route to exploring increasing rights-based protections: it in fact requires us to consider that other rights than those expressed already in the Constitution do exist and may potentially be worthy of legal protection. One such potential or “unenumerated” right now being much discussed in Europe is the “right to obscurity.”
Obscurity, before digitization, was the common lot of almost all of humanity. Even those few who flamed spectacularly across the public view were guaranteed renewed obscurity by default, unless they strove ceaselessly to maintain their fame. The world is different now. For those who use digital devices of any kind, their movements, activities and tastes become part of detailed digital profiles that are hard ever to delete and that violate privacy if released. So, the question EU regulators are grappling with is whether this long-term persistence of information about ourselves puts the “inviolate personality” at risk. If we become aware that our movements, activities and tastes are publicizable, that will necessarily affect the way we move and act.
A new March 29 article, “How Obscurity Could Help The Right To Fail” by David Hoffman on the Policy@Intel blog, continues a very useful series on the ways the newly proposed EU Data Protection Regulation addresses this notion of a right to obscurity. It introduces an affirmative right of EU residents to request government and private agencies to delete information about them that is inaccurate or no longer relevant. Hoffman covers a variety of kinds of data that one might wish to have forgotten or obscured (made non-retrievable), among which are:
1. Remorse – I did a bad thing but truly feel sorry, paid my debt and learned my lesson. (a drunk driving conviction followed by 20 years of sobriety and exemplary driving) […]
5. Others Perceive as Bad – I think it is right, but others will discriminate against me for it. (protesting at a rally for a controversial political cause; or a teacher expressing a political opinion on a blog that is then read by students). […]
7. Bad things (that aren’t so bad) – (jaywalking, driving 5 miles over the speed limit, college sophomores drinking alcohol)
In American society, the new persistence of this kind of data weighs much more on poor people and ethnic minorities. Someone who is poor and carrying contraband is much more likely to be outside and use public spaces, making them much more vulnerable to search by law enforcement than a wealthier person carrying contraband. Police have a much heavier presence in high-minority neighborhoods, and more systematically and aggressively try to uncover even minor criminal activity in such places. The widespread use of stop-and-frisk practices, when in New York City 98% of people stopped and frisked are from racial minorities, accentuate this imbalance. Then, the lack of high-quality public criminal defense makes it much more likely for poor and ethnic-minority defendants to have to plead guilty and to be sentenced to jail time for minor offenses. Jaywalking and minor speeding represent almost zero-risk activities for Mr. Hoffman, and for me, but can potentially serve as the gateway to criminalization for law enforcement’s targeted groups (like black youths aged 14-21, for example).
The Fourth Amendment is therefore in many ways a more meaningful Constitutional protection for the poor than it is for the rich. It acts as a vital counterbalance to dragnet-style law enforcement that uses group identity markers instead of individualized suspicion tied to an investigation of actual criminal activity. But the Fourth Amendment is not the only possible counterbalance, and the introduction of a “right to obscurity” in some form would also limit dragnet law enforcement and especially law enforcement based on algorithmic pattern recognition in large, integrated federal databases. However, it’s also hard, as Hoffman observes, to work out who would decide what past data about one’s activities should be obscured. It’s much more likely in the American context that private services such as Reputation.com will expand to fill the increased demand for “obscurity services”, than that a regulator will arise with responsibility for determining which data is salient enough on a systematic basis. Anderson argues that a legal right to obscurity would be enforced primarily on behalf of public officials and law enforcement officials, hampering the First Amendment, governmental accountability, and the ability for us to know the truth about public officials.
I welcome the increased interest among legal scholars in a potential right to obscurity, and I believe that it will become a more and more important issue in the years ahead. I sense this is a discussion that is really just beginning.