Reports From My Nanocosm

Wow, July is almost over. Just the other day, it was June First. The weeks have flown by. That’s probably because I’ve kept pretty busy all summer, for good reason. As a result, a great number of things have languished, waiting until I get some time. Two things that languished were to post my privacy law paper (below) and check on all my grades. Last time I checked, they weren’t all in yet. I finally got around to it last week almost three several weeks ago when I needed to print my grades for tuition reimbursement at work. (can you tell I started drafting this post weeks ago?) And with that I realized I had not thought much about or reflected on the spring semester since it ended. Did I really take exams? And I finished my paper?

The spring semester was busy. I expected it to be busy. It turned out to be much busier than I expected. I was close to exhaustion by the end of the semester.

I started working again during the semester, so not only did I balance school with work, I found time to get ready for our little Sprout. It is worth saying that I thought I could manage my time and handle work and school. I now have a new-found appreciation for those who work and go to school at the same time. I’m not sure how anyone does it through all of law school. Wow. And to keep good grades, double wow. I nearly killed myself getting grades similar to last fall. More than once during the semester, I thought about resigning from work. But I like both so I will keep at it.

I did finish my Privacy Law paper. Giving a presentation turned out, like last semester, to be a good preparation for the paper. You can review the presentation in an earlier post – Zones of Privacy (wonkish & raw). As with the presentation, the paper is very wonkish and raw. The ideas arenâ??t completely fleshed out and the whole thing is very much a work in progress. If you’d like to read all 36 pages, including footnotes, please do: Zones of Privacy: A New Analytical Framework (PDF).

I’m satisfied with my Privacy Law paper but I know it could have been better. I ran out of time and didn’t fix some obvious errors and missed a few citations in my haste to finish. I like the ideas behind it and will spend the next year or two refining it and prepping it for publication, eventually.

I now have the academia bug. Some people get the travel bug. I have a bug for school. If I won the lottery, I would be a professional student. When I finish law school, I intend to apply to graduate programs in public policy with the intention of completing a Ph.D. and teaching on the college level. I already know my focus will be on technology policy with a special interest in privacy. The privacy paper cemented that goal.

School begins next week. I’m looking forward to it. I’m excited to have the classes I do: Water Law, Tax Policy, and Negotiation.

I gave a presentation during my privacy law class this afternoon regarding the research paper I’m working on. I warn you that it is very wonkish and raw. The ideas aren’t completely fleshed out and the whole thing is very much a work in progress.

This contains my personal thoughts and work product. Sorry for the image quality of some slides. I might distribute the slideshow file itself one day.

• The image has no special meaning
• My paper and this presentation just serve as a high level overview of the zones of privacy.
• My goal is to make a more responsive framework to consider privacy interests and to help the dialog regarding the right to privacy.

• Outline of my discussion

• One of the earliest arguments in the Supreme Court for implied rights to privacy came in Olmstead in 1928.
• Olmstead was the first case in front of the Supreme Court to challenge a wiretap of phone conversations.
• The court held that wiretapping did not require the police to enter the home, therefore did not require the higher standard of probable cause.
• Brandeis, in his dissent, identified an overreaching privacy interests:
  • privacy of the individual
• Holmes provides the first mention of privacy rights in penumbras I can find.

• Justice Douglas replaced Brandeis on the Supreme Court
• In Pollak, the Court sustained a challenge to a policy that allowed public bus to play a local radio station over speakers.
• But Douglas dissented, arguing that it violated the sanctity of thought and belief.
  • Douglas built on what Brandeis had to say in Olmstead.
  • Argued that a right to privacy is found in the Fourth Amendment which protects the home from invasion, as well as the First Amendment which respects the thoughts and beliefs of people.
    • This presented two different zones

• Toward the end of the McCarthy era, Douglas gave a few speeches that he then published as a book entitled The Right of the People.
• Douglas talked through much of what he was thinking about privacy and then later used in his Griswold opinion less than ten years later.
• The second section was: The Right to be Let Alone
  • Douglas focused on privacy related to:
    • Conscience
    • Person/body
    • Home
  • He also picked up on Holmes dissent in Olmstead which identifies penumbras, or shadows, of the Bill of Rights as potential origins of privacy.

• Douglas referred to a natural right to privacy underlying the Bill of Rights.
• He concluded that privacy extends to:
  • matters of conscience
  • sanctity of the home
  • sanctity of the person and their body

• These zones of privacy have been described in terms of Concentric Circles.
• The further you go towards the center, the more protected that privacy interest is.
• Here, the privacy interests move outward from conscience to body to home.
• I’ll return to this model later.

• The case that put â??zones of privacyâ? into the lexicon is Griswold.
• Douglas, in his opinion, built on ideas he talked through in Right of the People.
• He also revisited the Holmes dissent in Olmstead which identified penumbras of the Bill of Rights as potential origins of the zones of privacy.
• Right of privacy lies within
  • 1st Amendment
  • 3rd Amendment
  • 4th Amendment
  • 5th Amendment
  • 9th Amendment

• Next in the progression establishing zones of privacy were the abortion cases: Roe v. Wade and Doe v. Bolton.
• Roe confirmed that there are zones of privacy
• It provided that the zones of privacy are broad enough to protect a woman’s right to abortion, but it was not an absolute right.
• Roots of the right to privacy lie in the
  • First Amendment,
  • Fourth and Fifth Amendments
  • penumbras of the Bill of Rights
  • Ninth Amendment
  • concepts of liberty guaranteed by the first section of the Fourteenth Amendment.

• In Doe, Douglas penned a concurrence in which he broadened his initial zones of privacy to be more inclusive
  • autonomy over development and expression of intellect
    • corresponds with matters of conscience
  • freedom of choice over basic decisions over life
    • corresponds with sanctity of body/person and home
  • freedom to care for health, from bodily restraint or compulsion
    • corresponds with sanctity of body/person

• Returning to the visual model of concentric circles used earlier
• Justice Douglas broadened his original zones of privacy from the Right of the People so the circles encompass more broad freedoms enjoyed in life.
• Here, the privacy interests move outward from autonomy of the mind to freedom of basic life decisions to freedom of health and movement.
• Again, the idea of concentric circles is a visual model I’ve seen used by others commenting on the zones of privacy.

• I think a better way to visualize the variety of privacy interests is a stack, like a stack of pancakes, stacked on top of one another.
• This visual model can serve as a framework for further identifying and analyzing the zones of privacy.
• The more fundamental interests live at the bottom, or foundation, of the stack.
  • Here, the most fundamental right and privacy interest belongs to the mind
  • Then the body
  • And on up.
• A stack is a more scalable framework with which to consider privacy interests.
• In addition to the interests here, we can add additional interests as they arise.

• A stack can be broken down into generic, high-level categories
• Or like here, take a sectoral approach that considers privacy on a more granular level.

• Or a stack can return to more generic levels of privacy interests such as Douglas in Right of the People.

• A cross-section of each interest can then be divided into concentric circles based on the relation to the person in question.
• Relationships:
  • Self
  • Very Close: Spouse; Immediate Family; or special relation, such as priest, lawyer, doctor, etc
  • Very close would also include banks, accountants, email service providers, and anyone with a similar confidential relationship.
  • Personal: Friends, neighbors, close co-workers, house guest
  • Semi-public:
  • Public: when out on the street

• The further someone is from the center, the more that is required to pierce the veil between each relationship.
• Example: The interests of the states in the viability of a fetus has been found to reach into a woman’s interest in her body that is protected by a right to abortion.
  • State interest grows with the progression of the pregnancy and the relationship grows closer.
• Example: The tax man comes calling with questions regarding discrepancies between reported 1099 income and investment income reported on an Income Tax form.
  • The relationship becomes closer since it is more direct. Here, it is more of a personal relationship.
  • However, it remains specific to only items related to income tax filings.
  • Government can’t use taxpayer relationship to ask for health information.

• This could be similar to First Amendment jurisprudence.
  • Strict Scrutiny:
    • 1st Am: necessary to promote a compelling govâ??t interest
    • Privacy: Covers public relationships encroaching the boundaries of close and even personal relationships
  • Intermediate scrutiny:
    • 1st Am: substantial relation to a important govâ??t interest
    • Privacy: When the distance between the request is not as much
  • Rational Basis:
    • 1st Am: rational relationship to a legitimate govâ??t interest
    • Privacy: used when the relationship gap is minimal or non-existent.

• Cases immediately following Roe & Doe confirmed that zones of privacy exist
  • They include independence to make important decisions
  • And are broad enough to protect a woman from State interference when she chooses to abort a pregnancy.
• Cases generally focused on the explicit rights of privacy provided by the Fourth and Fifth Amendments.
• Cases have also refused to define certain aspects of life within a zone of privacy such as bank records.

• The court also drew lines in the sand to limit the reach of the zones of privacy
  • In Bowers v. Hardwick, the court limited the right to privacy in a home to legal rights.
    • Sexual freedom in the bedroom once deemed illegal was not protected from government interference.
  • This was overruled 17 years later in Lawrence v. Texas
• There has also been a group of unhappy dissenters who have argued strongly against a right to privacy.
  • 4 justices in Casey
  • 3 justices in Lawrence â?? this quote from Justice Thomas says it all. He can’t find a general right of privacy.

• Because the Zones of Privacy rely on implicit rights from the Bill of Rights, they are vulnerable to change
  • It is possible that Justice Thomas will get his way and the clock reversed to 1964, pre-Griswold.
• To preserve any of the implied rights currently in the zones of privacy, we need a Constitutional amendment regarding an explicit right to privacy.
  • Needs to cover people & corporations because most data is collected by private parties and the government gets a lot of its information from private parties.

I’m working on a paper and presentation about the zones of privacy and keep running across this quote from Justice Brandeis’s dissent in Olmstead v. United States. I like it a lot so I am sharing it:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.”

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