In the 1890s, future U.S. Supreme Court Justice Louis Brandeis articulated a concept of privacy that urged that it was the individual's "right to be left alone." Brandeis argued that privacy was the most cherished of freedoms in a democracy, and he was concerned that it should be reflected in the Constitution. While some States have included privacy rights in their constitutions, to date the right to privacy in the US is implied, not explicated in the US Constitutional as a human right.
Many countries have recognized privacy rights as a human right and enacted that in specific laws and institutionalized these laws. Canada has an Office of the Privacy Commissioner as only one example. This is not true in the U.S. Privacy protections for individuals remain a patchwork vulnerable to perpetual litigation. The question remains, why not explicate privacy rights in constitutional terms?
This is not an idle question. There is a question of timeliness. Information technology has accelerated rapidly. Privacy invasions have increased correspondingly. Today, privacy laws are being rewritten on the run across the globe to address new technologies.
Unlike the U.S., a number of countries have at least a floor - a constitutional mandate for privacy protection.
Sensitive to changing technologies and the need to remedy past abuses from dictatorial regimes, the European Union passed a Europe-wide directive to address the transfer of information across countries. The EU adopted the Data Protection Directive, officially known as Directive 95/46/EC in 1995. It offers greater protection for individuals with regard to the processing of personal data and on the free movement of such data. The Directive is binding within the member states of the EU and regulates how personal data is collected and processed .
The U.S. can learn from other constitutions around the globe. An international survey of privacy rights conducted by the Global Internet Liberty Campaign and funded by the Open Society Institute provides details of the state of privacy in fifty countries from around the world. It outlines the constitutional and legal conditions of privacy protection, and summarizes important issues and events relating to privacy and surveillance.
The EU Directive set a benchmark for national law, which at times is effectively at odds with the US in the corporate world. While a perfect world would run on agreed upon principles, when it comes to transnational corporations, volunteerism does not work.
For instance, the Safe Harbor Act was a self-regulatory scheme that was created because of the large difference between EU privacy policies and U.S. privacy laws. This measure depended upon corporations voluntarily honoring the principles of the Act. U.S. corporations have managed to circumvent the Act in various ways including contractual arrangements or waivers with individual countries.
Despite codification and constitutional references around the globe in more than 150 countries, privacy rights are always going to be a matter of due diligence and in that regard requires adequate safeguards. That is particularly true today. For example, police services, even in countries with strong privacy laws, increasingly maintain extensive files on citizens not accused or even suspected of any crime. Corporations equally will invariably try to get away with flaunting privacy laws.
Perhaps the challenge of new technologies that blur the line between public and private life will bring new opportunities for lawmaking and consideration of privacy as a human right; as a fundamental right.
Perhaps, someday, this can extend to constitutional non-starters that did not have a fair share of basic rights, such as women’s rights as persons (currently not explicated as a constitutional matter) which would include privacy rights related to women's reproductive rights and more broadly women's remedial rights.
What is the danger of not addressing privacy rights in more concrete terms? Privacy International observed, "In the absence of meaningful legal or constitutional protections, ...technology is inimical to democratic reform. It can certainly prove fatal to anyone 'of interest' to a regime.
Finally, ”Privacy underpins human dignity and other key values such as freedom of association and freedom of speech. It has become one of the most important human rights issues of the modern age. As a fundamental right, as defined by an evolving history of international law, privacy includes the right to engage in relationships ..to establish and develop relationships with other human beings, especially in the emotional field for the development and fulfillment of one's own personality."