Is There a Privacy Right in Cell Phone Data?
How far does a privacy right extend? Is there a privacy right in cell phone data? Given the government’s request that Apple unencrypt cell phone data from the phone of a known terrorist the term “right to privacy” has been tossed about quite a bit. Most people understand what is meant by privacy. Most people value their privacy. Many people would prefer the government never intrude into their private lives. But is it a recognized right and, if so, is it absolute under all circumstance?
There are many different definitions of rights. There are “human rights” which are not written down. Reasonable people can disagree about them. There are rights created by Congress, like the United States Fair Housing and anti discrimination laws. And there are rights based in the United States Constitution. Rights that may be granted to foreign citizens by their governments are not necessarily rights held by U.S. citizens. US rights do not necessarily extend to people in other countries even though we might wish they would.
The question of whether the U.S. Constitution protects privacy in ways not expressly provided in the Bill of Rights is controversial. Many Constitutional “originalists” have argued that no such general right of privacy exists. The Supreme Court, however, beginning as early as 1923 and continuing through its recent decisions, has broadly read the “liberty” guarantee of the Fourteenth Amendment to guarantee a fairly broad right of privacy that has come to encompass several limited personal decisions about child rearing, procreation, marriage, and termination of medical treatment. There has never been a ruling that a person’s privately stored data is subject to absolute privacy protections. In fact, the 4th Amendment, which protects Americans from “unreasonable” searches and seizures of property, has always allowed the government to acquire a persons private data after establishing probable cause, going before a judge and securing a search warrant.
The Court’s rulings on this issue in the upcoming weeks should prove interesting.
