Guest column: What is our constitutional right to privacy?

Guest Column by Jeffrey Rosen

Imagine that the government decided to announce a new security program — call it Open Planet. Under the program, tiny cameras mounted on drones would roam through the skies, with the capacity to follow any citizen from door to door 24 hours a day, broadcasting his or her movements on the Internet. Imagine that the government used the Open Planet to follow you without a judicial warrant and then recorded and posted on YouTube the footage of every step you take in public, 24 hours a day, for a month.

Would Open Planet violate the Fourth Amendment to the Constitution, which protects “the right of the people to be secure in our persons, houses, papers, and effects, against unreasonable searches and seizures”?

The surprising truth is that, according to current Supreme Court cases, it’s not clear whether or not Open Planet would violate the Constitution. Although the Court held last week that the police can’t search our cellphones on arrest without a warrant, it has generally allowed the government to track our movements in public places unless there is some kind of physical trespass.

The constitutionality of Open Planet is just one of the many topics about the history and future of privacy and the Constitution that I’ll be talking about at Chautauqua Institution this morning. I’m honored to have the chance to introduce a week of conversation about privacy, and we will have much to discuss. Here are some of the topics we’ll cover:

In its recent cellphone decision, a unanimous Supreme Court compared warrantless searches of our cellphones to the “general warrants” and “writs of assistance” that sparked the American Revolution. Does warrantless NSA surveillance of the telephone numbers we dial look like a similarly unconstitutional search, or is it necessary to protect our security?

What happens when privacy invasions come from Google and Facebook, rather than the government? Today, lawyers at Facebook and Google have more power over our privacy than any king or president or Supreme Court justice. And yet the U.S. Constitution constrains the government, but not Google or other private companies. Do we need a new privacy amendment to the Constitution to protect our privacy online?

What happens when privacy clashes with free speech? In 1890, in the most famous article on privacy ever written, Louis Brandeis, the future Supreme Court justice, proposed a new “right to be let alone,” based on the European rights of honor and dignity, that would constrain privacy invasions by the tabloid press. But American courts have been reluctant to enforce the right because the First Amendment generally protects the right of the press to publish truthful but embarrassing facts about it.

In Europe, the balance is entirely different. The European Court of Human Rights recently recognized a broad new privacy right called “the right to be forgotten.” It allows European citizens to demand that Google or Yahoo or Facebook remove any embarrassing material written about them, even if it’s true. The decision is provoking the biggest clash between privacy and free speech of the digital age.

And what about the constitutional right to privacy recognized by the U.S. Supreme Court? It has already been invoked to protect a woman’s right to reproductive choice, as well as the sexual intimacy of gays and lesbians. Lower courts are invoking it to recognize a right of marriage equality and the Supreme Court may soon do the same. And yet, on the last day of the term, the Court allowed religiously motivated, for-profit corporations to refuse to provide contraceptive coverage under the Affordable Care Act. Does that decision mean Roe could be overturned or not?

 Finally, to come full circle, might the right to privacy and autonomy recognized in Roe v. Wade be invoked to prevent Google and Facebook from tracing our movements in public 24/7, using new technologies such as Google Glass, and then posting the live feeds on the Internet?

These are just some of the fascinating questions we’ll be talking about at this morning. I hope to see you there and am looking forward to the conversation.

Jeffrey Rosen is president & CEO of the National Constitution Center in Philadelphia. He is also a law professor at George Washington University and legal affairs editor of The New Republic. His most recent book, as co-editor, is Constitution 3.0: Freedom and Technological Change