The Right to Privacy

By Larry Huss
In: Bill of Rights, Facebook, Government Regulation, Individual Responsiblity, Internet Regulation, Janus v. AFSCME, Privacy, Right to Privacy
Wednesday July 3, 2019

The right to privacy is a constitutionally guaranteed right. The Fourth Amendment states in pertinent part:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, . . .”

Its constitutional presence distinguishes it from the myriad of “rights” alluded to by those seeking the Democrat nomination to the presidency:

  •  The “right” to a taxpayer funded abortion on demand
  •  The “right” to free healthcare.
  •  The “right” to immigrate
  •  The “right” to a free college education
  •  The “right” to cancellation of college debt
  •  The “right” to impose participation in non-traditional wedding ceremonies (i.e. bakeries, ministries, caterers, etc.)
  •  The “right” to vote without identification
  •  The “right” to a living wage whether you work or not.

The right to privacy is absolute and therefore objective; its exceptions are specifically enumerated and two hundred years of litigation have illuminated the restrictions on those exceptions. Enforcement of the right to privacy is done through a combination of civil (tort) and criminal law. As a result the right of privacy joins the five pillars of freedom as the foundation for America.

These constitutional rights stand in marked contrast to the “rights” alluded to by the Democrat primary contenders in three important ways. First, none of these “rights” existed during the first nearly two centuries of the United States existence and, therefore, they are not existential rights. Second, most of these “rights” are subjective – they exist in different degrees in the eyes of the beholder. And finally, each of these “rights” come at the expense of someone else’s rights – usually the taxpayers’ rights.

Like the other foundational rights, the right to privacy is not self-enforcing. One must act to secure their privacy. One can waive the right to privacy and amongst the foundational rights, it is the right most often waived.

In today’s internet world the right to privacy is waived virtually any time you turn on your computer and log into the internet. Your email is scanned and stored and information contained in those emails is accumulated, manipulated and used to build a “profile” that may or may not accurately portray you as an individual. So too are your internet purchases and most importantly your internet searches (Google). The resulting “profiles” are subsequently sold or leased to the government and commercial enterprises for purpose of solicitations. In most instances those who have collected your information refuse to allow you to know, correct or extinguish the information. Privacy is non-existent in the cyber world. But wait just a minute.

Waiver of a right requires a knowing and affirmative act. Negative acceptance (acceptance by failure to object) is frowned on particularly when dealing with constitutional rights. Janus vs. AFSCME (2018). And a “knowing” act requires full knowledge of the consequences of the act. This is where “contracts of adhesion” come into play. These contracts are usually “boiler plate” contracts where the party in a superior positions dictates the terms of the contract and the other party needs the goods or services of the superior party and is not in a position to negotiate elements of the contract. It is doubtful that any of the billions of users of the services of internet and social media giants such a Google, Facebook, SnapChat, Tumblr, etc. have ever read the well crafted contracts designed by their armies of lawyers and/or understand to what they are agreeing. The fact that the service is free clouds users judgement. Asking users of these services to what they have agreed would be like Jesse Waters interviewing people on the street about American political history – mostly wrong answers or blank stares.

As previously noted, contracts of adhesion assume a disparate bargaining positions AND a significant need by the parties in the inferior bargaining position. But with the exception of Google, the other social media and internet phenoms are neither necessary nor particularly beneficial to the user. (The exception to the comment is found in politicians’ use of Twitter and similar messaging service to bypass an obviously biased mainstream media.) Everyone can get along quite nicely without Facebook or its snot-nosed geek in a gray T-shirt, Mark Zuckerberg. To say that Facebook’s users contract is a contract of adhesion suggests that peddling “selfies” is somehow a basic human right – it might pass with the current crop of Democrat candidates but not with the general public.

But Google is different. It is possible to navigate the internet without Google but Google is used in over ninety percent of all internet searches. (Business Insider 4/23/2018) The remaining 10 percent of the market is divided amongst the dozen or so other providers. So pervasive is Google’s presence that even Mozilla (Firefox) uses Google as its default search engine. In today’s world you cannot sustain a business or an education without access to the internet. Google would be considered a monopoly based on is market power and subject to utility regulation.

However, based on a thirty-year practice before public utility commissions the last thing I would ever recommend is that Google become subject to utility or monopoly regulation. And the reason I say that is because utility regulators are incapable of administering regulation without injecting subjective social goals into what should be a strictly an economic application. Regulation has proven to inhibit innovation, impose unnecessary costs and delay action for interminable periods. Its initial intent has been lost in a myriad of judicial decisions that mindlessly give deference to administrative decisions.

There are suggestions that these social media and internet giants who collect data from users should be banned from using such data for purposes of advertising for third parties. That’s pretty fuzzy thinking given that the almost instantaneous result would be to put them out of business because that is precisely their business. Facebook, Tumblr, Twitter, et al. are not really social media companies. They are, in fact, advertising businesses with significant data that can be used for “targeted” advertising – so targeted that it can be drawn to individual users based upon their “profiles.” And that alone should scare the hell out of you.

The best solution, as is the case in most matters involving a free market, is to shine a bright light on what has been taking place in the shadows of these giants. In order for that bright light to shine there needs to be a change in their disclosure agreements. They should be required to do three things.

1. Disclose to individual users the type of data collected, the use of the data collected, and the parties to whom the data is either sold or provided, including those instances in which the data is used to advertise on behalf of a third party without actually transferring the data to the third party.
2. Disclose the profile of the user assembled by using that data and any other data collected or purchased for advertising purposes. (Facebook not only mines the data that users put on their Facebook pages but also purchases data from others.)
3. Allow the user to object to the profile or any portion of it and ultimately to require the removal of the profile and the data already collected.

There should also be a statutory limitation on the length of time that such data can be kept and/or used. Given the rapidly changing nature of most markets I would suggest two years.

For those of you who suggested that they have nothing to hide and, therefore, don’t care what data is being accumulated, you are whistling up a dark alley because you don’t know what data is being collected or how it is being manipulated to build your profile. A brief re-look at your Spam files might give you pause. Those emails, solicitations and political propaganda did not arrive magically – it arrived because your “profile” suggests that you are susceptible to those inducements. But if these social media and internet companies are compelled to disclose the information suggested above and to then allow demanded corrective action, then you can truly say “I don’t care” because you will know that it is harmless.

Your privacy is guaranteed by the United States Constitution. Don’t let it slip away because you can’t be bothered to ask critical questions.

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