The Fight For Privacy by Danielle Keats Citron

I referenced Danielle Citron's new book in my earlier summary of things going on. She was again a guest on the Strict Scrutiny Podcast to help preview Internet-related cases (oral arguments).  

As noted, the book has a lot of good stuff, but some (well me at least) might not find it good reading straight thru.  On the other hand, again, there is some good stuff there. This includes appendixes on how to improve your and your children's privacy.  Which is a chore!

Citron supports the civil right of intimate privacy.  It is useful to understand these terms. "Civil rights are rights considered fundamental because they enable us to flourish as whole individuals and active members of society." 

Civil rights have legal significance and moral resonance.  She cites Robin West, who noted that they are necessary to "secure the preconditions for a good life."  Civil rights are put in place as a combination of state and federal laws, including constitutional rights.  They are our rights as citizens.

I have on this blog discussed privacy rights for some time. My sentiment is that there was not enough done to provide a foundation for a right to privacy though the material is there.  So, for example, Justice Douglas talked about the importance of privacy in a free society in a dissent involving being forced to listen to radio broadcasts.  

Privacy is something that is necessary for our breed of liberty as much as things like federalism and separation of powers.  The constitutional text expresses such things in various ways even if the word "federalism" itself is not used. To quote: 

With intimate privacy, we can explore unpopular ideas, play with our identities, and figure out our future selves -- the ever-evolving notion of the selves we want to be.

Privacy here is part of what would we label First Amendment liberties.  It would also be part of liberty overall including how we live our lives. The Due Process Clause, for instance, protects the rights of persons. The core interest here is personhood.  We have a general interest to be our own person with all that entails.  And, privacy helps here.  

One thing that comes to mind here is a good bit in the film First Monday In October (a flawed movie, but it has some good lines).  The liberal justice writes an opinion on surveillance:

When God created the world, he did it alone, in private. All by himself.  No monitors, no hidden microphones. He made it the way he wanted it. But what if someone had invaded God's privacy? Would he have put the world together the same way? I doubt it. He would've made it a popular world. And the Garden of Eden would have turned out like Las Vegas or 42nd Street. 

Citron honors a similar philosophy regarding intimate privacy.  It allows us a chance to make mistakes, and to have a space to be "honest and raw."  Life cannot be in a fishbowl, at least to truly enjoy it.  Privacy enables "autonomy, dignity, and companionship."

We are surrounded by threats to our privacy, including many means to collect information.  These include details collected about bodily functions, health conditions, searches, sexual activities, correspondence, body fat/appearance, and menstrual cycles.  We eventually do not expect as much privacy. This is complicated because privacy rights often rest on "expectations" of privacy.  So, this is a matter of creating demand.

This demand is there now to some degree but experience suggests it is not evenly respected.  The book covers various cases where intimate privacy is invaded, especially involving those with less power (women, gays, poor, handicapped, etc.) though an infamous case involved two FBI agents.  

Revenge porn is one example covered.  This was also covered in The Cult of the Constitution, including an argument that we can (and must) regulate the Internet without violating equal liberty.  The Supreme Court cases also become relevant here, including Section 230, which we saw arising in Taking Down Back Page.  The law is meant to protect "good samaritans," websites with some oversight not being treated as providers open to lawsuits.  But, what about websites that intentionally promote harm?  

Richard Nixon argued a case in front of the Supreme Court entitled Time v. Hill, involving the use of a real-life crime to create an exploitation film originally starring Humphrey Bogart. The family sued for invasion of privacy connected to the coverage of the film, coverage that included some erroneous content.  The Supreme Court originally upheld the lawsuit but eventually went the other way.  The dissent said privacy won out here.  

The lines might be complicated in various cases -- such as printing intimate details that have some public interest such as the sex lives of politicians -- but we need to understand there are two things to weigh.  A right to intimate privacy keeps this in mind.  Finally, the book reminds the famous law review article on privacy (Warren/Brandeis) was partially inspired by the concerns of the brother of one of the authors who was homosexual.