A History of Privacy Protections
No single law governs privacy in the United States. In fact, the word "privacy" isn't even in the Constitution. Privacy laws in the United States have developed in a fragmented way, and currently are a diffuse mixture of constitutional protections, federal and state statutes, common laws, and regulatory rules. The main privacy concern of the framers of the Constitution was to be free from excessive government intrusion and that one’s privacy was to be recognized and respected by the government. Their aversion to the government's power to invade the privacy of its citizens is reflected in the Bill of Rights in the First, Third, Fourth, and Fifth Amendments.
The Bill of Rights
The First Amendment provides for privacy of one’s faith. The Third Amendment prevents government from requiring homeowners to house soldiers (privacy of one’s home). The Fourth Amendment places broad restrictions on the government's power to search and seize (privacy of one’s belongings). In part, it provides, "The right of the people to be secure in their person, houses, papers and effects, against unreasonable searches and seizures shall not be violated...." The Fifth Amendment prevents the government from compelling a person to divulge incriminating information about them. These Amendments and U.S. Supreme Court cases that followed laid a strong foundation for the protection of one’s personal information and privacy.
Governmental Protection of our Privacy
In the 19th Century the government’s principal form of record keeping was the census, which in the early 1800s asked only three or four questions. With each subsequent census, however, the number of questions increased asking more personal details. By the 20th century, the public's dissatisfaction with the census and the use of its information led to the passage of stricter laws to protect the confidentiality of census data.
One of the most significant developments in privacy laws was the article by Samuel Warren and Louis Brandeis', "The Right to Privacy," published in 1890 in the Harvard Law Review. For many legal scholars, this was the most influential law review article of all time and it is considered to have given rise to America's privacy laws. Impetus for the article was Warren and Brandeis' concerns about privacy with the development of new technologies, such as the telephone and Eastman Kodak's "snap camera," that allowed the public to take candid photos of anyone in the most private settings. They were also concerned with the newspaper’s sensationalism as their circulation was rapidly expanding thoughout the country.
Privacy laws have become intertwined with changes in communications technology such as by the growth of telephone communication in the early 20th century. Telegraph and telegram communications were in wide use by the 1900s, and as their use increased, so did privacy issues such as wiretapping and recording State legislatures responded with new legislation. In 1905, California expanded its 1862 law against intercepting telegraph messages and telephone calls. Unfortunately, these early privacy laws did not hold up well under the pressures of Prohibition. Federal agents were willing to trade an individual's privacy rights in order to catch criminals. It was standard practice for federal agents to use electronic wiretap devices to listen in on bootleggers' conversations. In response, the government passed the Communications Act of 1934 that became the basis for later Supreme Court decisions prohibiting warrantless wiretapping by federal agents.
The Communications Act, however, did not end the government's wiretapping of citizens. During World War II and the 1950's, the FBI seized upon the nation's fear of Communism, to use electronic surveillance on its citizens. A provision in the Act, known as the National Security Exception, allowed the President to take whatever measures necessary to protect national security. J. Edgar Hoover, as director of the FBI, used the exception to authorize the phone tapping of thousands of civilians and civil rights activists.
The social revolution of the 1960's had a similar effect on privacy laws and application of the Fourth Amendment. In a well-known Supreme Court case, Mapp v. Ohio,l the Court held that any evidence obtained in violation of the Fourth Amendment was to be excluded from evidence in all criminal trials.2 In 1967, the development of privacy law took a giant leap forward in the case of Katz v. United States.3 Charles Katz was a bookie who conducted his business in a public telephone booth. The FBI wiretapped Katz's conversation in the phone booth and arrested him. The Supreme Court in an historic decision held that the Fourth Amendment "protects people, not places" and applies when a person exhibits an "actual or subjective expectation of privacy" and "the expectation is one that society is prepared to recognize as reasonable." The Fourth Amendment as applied today in the "reasonable
expectation of privacy test" emerged from Katz v. United States.
In the 1960's and 1970's, the Supreme Court further expanded the concept of privacy (marital privacy) of Americans in the landmark decisions of Griswold v. Connecticut4 and Roe v. Wade. In Griswold, modern substantive due process was borne when the Court held that the government could not ban contraceptives, and that "specific guarantees" within the Bill of Rights protected various "zones of privacy.” In Roe v. Wade, the Court further extended privacy rights when it held that a woman's right to terminate a pregnancy was protected by the right to privacy.
Privacy Act of 1974 and Right to Financial Privacy Act of 1978
Changes in technology and mobility in the 1970's increased banks and other businesses reliance on records and documents to assess a person's credit worthiness. Credit reporting agencies, companies that obtain and report a person's credit history, such as Equifax, Experian, and Trans Union compiled extensive data about virtually every adult citizen in the country.
Due to numerous complaints about erroneous credit reports and credit reporting agencies lack of responsiveness, Congress passed the Fair Credit Reporting Act (FCRA) in 1970. The purpose of the FCRA was to enable people to access their records, and restrict the manner in which those records were disclosed.
1 Mapp v. Ohio (1961) 357 U.S. 643
2 Id. at 655
3 Katz v. United States (1967) 389 U.S. 347
4 Griswold v. Connecticut (1965) 381 U.S. 479
People could now challenge inaccuracies on their reports and could sue to collect damages for violations of the Act.
Congress passed the Privacy Act of 1974 in response to the public's outcry over the expanded use of social security numbers by federal and state agencies. The Act, in part, tried to eliminate the threat to individual privacy that the disclosure of confidential information, including one’s social security number, posed.
The Privacy Act of 1974 regulated the collection and use of personal records by federal agencies, and gave individuals the right to access and correct their personal information. It did not, however, restrict the use of social security numbers (“SSN”) by commercial enterprises. As a result, the widespread dissemination social security numbers remained unchecked until 2005 when California amended its' laws to bar private businesses from publicly displaying SSNs. The California law went even further to prohibit the posting, printing or publically displaying of a SSN; printing a SSN on documents mailed to customers; and transmitting them over the internet.
Congress passed the Right to Financial Privacy Act (RFPA) in 1978, which also provided limited protection of financial records. Pursuant to the RFPA, personal financial information could not be obtained without a subpoena on which a "reason to believe that the records sought are relevant” was shown. Additionally, the customer must receive prior notice of the subpoena.
As the Internet began to expand in the mid-to-late 1990s, and people began to surf the Web and engage in online commercial activity, concern for one’s privacy and data security increased as a significant amount of personal data could be gathered. Many people were reluctant to use the Internet out of fear that their data could be illegally accessed.
SO WHERE ARE WE TODAY WITH PRIVACY?
Privacy is one of the hottest yet least developed areas of the law. As the information, computer, and internet age has evolved, many consumers are alarmed that certain entities are crossing lines they shouldn't. Whether it is unscrupulous companies, identity thieves, or even our government, there is a need to put into place a set of fair and equitable laws, that will allow business and government to operate, but not in such a way to infringe upon our privacy rights
The privacy issues addressed in our website are those specific violations that we believe affect most of us. Our objective is to represent you, the consumer, in protecting your rights utilizing the class action approach-which is the most effective and practical method in prosecuting these type of matters. This also allows us to accept qualified cases on a contingency, '"no recovery/no fee" basis.
Please give our office a call at 855-216-9303 for a free and confidential, no obligation telephone consultation.
