The Implications of Privacy Rights
Privacy rights in the law of the United States entail many concepts which mainly revolve around the respect to personal and societal individuality. In the U.S as in many countries in the world, the right to privacy is not concerned with the superficial form of the word which involves preservation of one’s personal affairs from the public. On the contrary, the right to privacy refers to an individual’s right to be left on their own. This right is covered in the first ten Amendments of the U.S law, which describe the limitations of the government in according this right as well as the government obligations in preserving the rights of individuals to privacy (Horowitz, 2006, par. 2). While each individual in the country enjoys the right to privacy, they also have the obligation to contribute to the country through their talents and good qualities and for the good of the public.
Hail (2011, p. 31), asserts that the Fourth Amendment focuses on the right of the person to be accorded security in their personal space and personal properties. In this regard, individual spaces are to be protected against unnecessary and unwarranted searches and/ or seizure. In cases where there is a need for any person to be subjected to search and/ seizure of property, there are laws that regulate such actions by the agencies. Without any discrimination, lawful claims have to be made and supported by a search warrant in order to ensure that such actions are only conducted lawfully. Moreover, the warrants provided have to describe the scope of the search and the specific properties that have to be seized should the relevant need arise. Any search conducted without a warrant is deemed unreasonable (Hail, 2011, p. 31). On the other hand, information searching proves to be challenging especially for information plucked from websites and through video recording.
Respect for privacy rights comes with challenges in various aspects of the constitution. This is because privacy rights affect law enforcement in different ways and they have to be considered in such a way so that any actions performed in the course of law enforcement do not counter the rights to privacy. As with regard to the person’s privacy, states also have their individual rights Vis a Vis the requirements from the federal law. In the following sections, the implications of privacy rights on various aspects of the U.S law are discussed. This will help to provide greater details in the understanding of privacy rights and how they interrelate in general law practice. The paper is divided into three major sections which discuss the implications on federalism, civil rights and civil liberties.
Implications of Privacy Rights on Federalism
Federalism in this context is taken to refer to the relations that exist between various levels of governance in the U.S. In particular, this refers to the relations between the Federal and the state governments of the U.S. According to a study conducted by Clovis (2016, par. 1), there are three key theories that explain the concept of federalism. These theories include cooperative, coercive, and competitive theories. The cooperative theory brings the perception that the state governments cooperate mutually with the national government to bring about public good. The key limitation of this type of relation is that there may be challenges in resolving issues where a consensus is necessary, yet the two levels of government are on different stances. The coercive relation is such that the federal government always has its own way regardless of the status of the state government. The competitive kind of relations is just as it is described, where there is constant competition between the state and the federal government levels. Each of these theories of federalism has its own strengths and limitations, and the most applicable theory, which is referred to in this paper combines the three by taking the strengths of each and eliminating the weaknesses of each.
In the work done by Clovis, federalism is defined as the principle that determines the demand for preparedness in case of constitutional disasters (Par. 1). The U.S constitution clearly describes the obligations and rights of states based on various aspects of privacy rights. For instance, in the 13th and 14th Amendment of the U.S constitution the rights of the states are clearly identified (GWIP, 2008, p. 10- 11). The 14th amendment goes even further to describe the obligations of the federal government with regard to respecting the rights of the states and going beyond the liberties enjoyed by the states. Clovis (2016, par. 9-10), reports that previously, each of the states enjoyed the right to freedom and may have been considered sovereign to a given extent. This was especially prior to the incorporation of the bill of rights into the state constitutions. During this time, the states had the right to change their constitutions in order to suit the needs of the state. Without the 13th and 14th amendments, states, for instance, could change their laws to support slavery and slave trade (Horowitz, 2006, par. 3).
In the original conception of state sovereignty, it was believed that through making the states sovereign, they would be better capable of catering for individual rights (Lim, 2015, p. 417). This was through better liberty, improved life and freedom to pursue happiness. Such kind of life could only be achieved based on the acceptance of and respect to individual privacy rights. Through the years however, Lim (2015, p. 418) argues that the sovereignty of the state became the basis for the restriction of private rights and interests in the period of revolution. From the perspective developed by Tim, sovereignty used the pursuance of public good as a justification for the capping of privacy rights of individuals. In the present day however, cooperative federalism has since led to changes especially in how the law is enforced such that there is no longer justification for the violation of individual privacy rights unless where the law allows. This led to the consideration of the constitution as the highest power in law enforcement. Collaboration between states and the national governments takes place more often than before for the preservation of privacy rights.
The ability of states to modify their laws to suit their needs implied that states could violate privacy rights of individuals without any implications on the federal law. However, the situation has changed with the introduction of the Bill of Rights into the state laws, and such actions are no longer viable. The Bill of Rights especially helped to protect the privacy rights of the minority ethnic and racial groups within the states. Through precedence, it was made clear that in cases where the state laws go contrary to the requisitions of the Bill of Rights or the Federal laws, a provision was made for the case to be decided at the Supreme Court where the constitution determined the outcome of the case (Clovis, 2016, par. 18). This created precedence for other cases where the power of the state would be pitted against the federal law.
An example of situations where federalism has been an issue as pertains to privacy laws was during the Great Depression of the early 80-s. The Depression came at a time when cooperative federalism was just beginning to find root in the country. The problem proved to be cataclysmic for the state governments, and it would have been impossible for the states to stand financially at this time without the assistance of the national government (Clovis, 2016, par. 5). The federal government during that time took over power from the states especially with regard to tax collection and the allocation of funds for state use. In this way, a positive outcome was achieved. On the other hand, federalism has also led to various other outcomes such as variations in the acceptance of medical marijuana use across states, elimination of the death sentence and elimination of discrimination against foreigners in some of the states. In each of these instances, federalism proves to be a challenge since some states treat foreigners with decorum while the same is not experienced in other states where suspicious treatment of foreigners is the order of the day.
Implications for Civil Rights
Civil rights include the role of the state in providing equal opportunities for all the members to have their privacy rights protected. Civil rights as provided by the U.S law are well described through the Fourth Amendment which requires that all citizens regardless of their origin, ethnicity or gender should have equal rights to protection under the law. The protection discussed does not only refer to their persons but also to their properties, homes, and every other aspect of their lives. In order to provide such protection, the states must have accurate data on the citizens it harbors. This only means that all citizens have to be protected in every aspect of their lives whether they are employed or not, or even whether they are of particular religious affiliations or not. There are many implications on the state with regard to the protection of citizens’ rights, and there are equally many implications on the members of the public. This is because whatever actions are undertaken by the state to protect the citizens, they must be performed with the public interest in mind. There would be no essence in protecting an individual if doing so caused havoc in the entire society.
The federal and state laws also require the state to provide equal opportunities for the citizens to exercise their privileges as citizens regardless of their race, religion, ethnicity or sex. The privileges of citizenship in this regard include the right to be served by the state governments where there is need for as well as the rights to good healthcare systems and public service sector. For each citizen within a state the state is obliged to provide all the necessary privileges without considering the citizenship status of the recipient. Moreover, the federal laws require that the state governments should promote equality through actions that eliminate discrimination. The 4thAmendment as included in the state constitutions asserts that no discrimination should be observed in the provision of civil services such as education, healthcare or even law enforcement. This makes any actions that border on discrimination illegal. Furthermore, all agencies linked to law enforcement have to do their work lawfully to avoid issues such as those that are described as discrimination.
While protecting citizens, the state has the obligation of protecting crucial information against disclosure. Such protection, however, proves to be difficult, especially when the information that is to be protected can be accessed through the internet. In the present days, this has been the greatest challenge of the state and federal governments in protecting the civil rights of the citizens. In the report by GIWP (2008), the concept of civil rights is discussed as pertains to public safety. GIWP (p. 9-11) opines that in the cases where civil rights have to be accorded to citizens, the aspect of public safety comes as the highest priority, whose objective is to ensure that the provision of rights does not contradict the demands for law enforcement. At the same time, efforts to achieve public safety should not come with inequality in offering protection to the citizens.
In the recent times, the most common issue concerning civil rights has been the fight against terrorism. Anti- terror wars have to some extent targeted persons of particular nationalities and/ or races. Due to this, the maintenance of equality in protection has been difficult to achieve as fighting terrorism comes with some level of discrimination. GIWP (2008, p. 10), reports that the fight against terror should come with lawfulness, especially where it entails searches and seizures. This means that searches and seizures should only be done when there is a valid reason to conduct such. This also means that apart from having valid reasons, the law enforcement officers engaging in searches and property seizures should also have a warrant that clearly indicates the scope of their search and/ or seizure. For instance, if the warrant states that a search is to be conducted in the house, any evidence against an offender that is collected from within the compound but outside the house may be inadmissible in a court of law. In most cases, individuals observed to be probably Arabic in ethnicity are often held suspect prior to determination of their course of action. This form of behavior, especially among the law enforcement agencies became more rampant in the post 9/ 11 years where racial profiling has been common place in the fight against terrorism. The case of Shelby County v. Holder also provides a positive example where civil rights may be applicable in the country today. The case, as discussed by Bagenstos (par. 1) offers insight into how civil rights could pose a limitation to voter discrimination. While this may seem positive, it may also hinder some of the potential voters from voting due to limitations imposed by the law.
From these, it can be argued that civil rights provide a direction to the federal and state governments on how to go about handling cases pertaining to privacy laws, especially with regards to protection. Besides having those laws to help citizens be secure in their being, the civil rights oblige the state governments to protect their citizens through various actions. This means that civil rights are some of the aspects that drive citizens towards maintaining personal freedom and liberty in their actions. As such, it can be said that discussion civil rights can never be satisfactory if civil liberties are not disused in the same forum due to the potential implication of each on the other.
Implications on Civil Liberties
While civil rights refer to government obligations towards protecting the people, civil liberties entail the restrictions that the government has while dealing with its citizens. This refers to the rights of the individuals such as the freedom of movement, speech, right to life, right to religion, and due process among others. In the government actions, no matter what the antecedent might have been, the fundamental rights restrict the government on the course of actions to take (Sutherland, 2005, p. 294). Citizens of any state have to be free enough to be innovative, to develop new paradigms and to provide fresh approaches to existing problems in the country. However, this is not achievable without security in the state and in the country. The ability to feel secure is intertwined with privacy rights in that privacy rights are also founded on the need for security in oneself, place and properties. This argument makes it difficult to understand exactly how the two aspects of privacy rights and individual fundamental freedoms are interlinked. This is because improving security depends on the ability to fight the vices that result in insecurity such as through fighting terrorism. In some cases, fighting terrorism may result in the ignorance of the rights to privacy through conducting searches and seizure unacceptably (Sutherland, 2005, p. 298).
In the report prepared by Sutherland, methods of fighting terrorism mainly entail unwarranted searches where necessary and racial profiling in order to ascertain identities. This has led to many Arab men and women being held up in prisons and/ or cells merely because they have committed certain mistakes that may not even cause public harm (Sutherland, 2008, p. 293). This implies that such actions hamper the liberty of the citizens through restricting their freedom of movement to various places. Moreover, the use of an ethnic approach to law enforcement also forms another way through which personal liberty is abused while also abusing privacy rights. Sutherland (2005, p. 297) supposes that an ethnic approach should never be used in making the decision on whether to search, detain or seize property at any time. On the other hand, such an approach could only be suitable where the victim fits the description of a wanted personality or where there are other reasons for the stoppage and the search that differ from the ethnicity of the individual being subjected to the search. In a court ruling in the case of United States v. Brignoni- Ponce (1975), the search conducted was proven unlawful since it was conducted based on ethnic discrimination (Sutherland, 2008, p. 295). On the other hand, the case of the United States v. Avery (1997), the search was accepted as lawful due to the fact that there were other reasons for stopping (Sutherland, p. 295).
The Patriot Act was formulated as the law that would help to protect the U.S citizens against the tendency to abuse their civil liberties (Kashan, 2009, p. 88). Moreover, the law was to help in enforcing civil rights through avoidance of discrimination. The Patriot Act requires that all form of criminal law enforcement should follow the right procedure and should only be conducted based on the federal and/ or state laws. However, through the years, reference to the Patriot Act has seen it being described as a law that is threatening to the liberties of the people in the U.S. While the law assists in maintaining positivity and avoiding discrimination to some extent, it also results in the ease of violating people’s liberty. This is because as Kashan says, allowing American citizens to report any event that they consider suspect without proof results in a lot of unnecessary reports, some of which lead to the violation of other people’s liberties (p. 89). For instance, a citizen may report an individual or group of individuals they suspect to be of ill intentions yet their suspicion could be due to religious or racial discrimination. Stopping and searching such an individual amounts to violation of their privacy rights.
Maintaining individual civil liberties in the face of fighting terrorism proves to be the greatest challenge of the law enforcement agencies. On the one hand, the government has to protect the rights of all the citizens and the citizens must feel secure within their persons as well as in their property and place of residence. With speculations concerning the possibility of terror activity and continued suspicion of people within the neighborhood, it would be impossible for people to have that sense of security. At the same time, violating the privacy of others by virtue of their appearance would be considered an abuse of their civil liberties. This thus implies that the fight against terror provides the most rational example of negative aspects on these implications. On the positive side, the constraints placed on the government in the maintenance of civil liberties imply that there is limited opportunity for violating such liberties. The people therefore remain at an imbalance between total security and total liberty.
Privacy rights form a key subject of discussion due to the extent of the law on the subject. The U.S constitution requires that all citizens have to be protected and made secure in their person, properties and homes. In order to fully achieve this, state and federal governments have to act in line with the available resources, obligations and restrictions on the government. The relations between different levels of governance can influence how privacy rights are deployed to the people through predetermination of conflicting cases. For instance, where a state is faced by a case that requires decision yet goes contrary to privacy rights, the Supreme Court decides on the case, with the U.S constitution as the key referent. The obligation to provide protection to all citizens comes with the restrictions of fundamental rights and freedoms as well as with the need to maintain public safety. In some instances, the desire to maintain public safety may come with the cost of compromising on individual privacy rights. In such cases, the deontological principles may apply since violation of privacy rights is due to common good for many people.
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