Privacy: Investigating the Development of Privacy Rights in American Law

Introduction

Although the right to privacy is not explicitly stated in the Constitution, it can be derived through the Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. The right to privacy entails protection against “unreasonable searches and seizures” of private property or information, as well as protection of individual autonomy. Because of this, privacy rights are closely related to democracy, equal protection, and freedom of expression: Voting according to personal beliefs is difficult when one fears reprisal, and equal protection cannot occur amid uneven overreach by state power, nor can freedom of expression. However, the scope and application of privacy rights have shifted alongside changing legal interpretations and social conditions. Privacy is often regarded as an implicit and fundamental right, but its development reveals that it has been unevenly defined and enforced, with legal protections frequently shaped by class, race, and state interests.

Roots of American Privacy

Early conceptions of privacy in the U.S. were grounded in Lockean theories of property and legal protections against federal interference. Locke theorized about both broad and narrow theories of property; he posited that property included tangible belongings, as well as a person's rights and ideas. Many Anglo-American colonists, including James Madison, resonated with these ideas because they had experienced the writs of assistance and quartering of American soldiers. Locke's ideas were influential, shaping Whig thought and the implementation of the Fourth Amendment; however, true protection from government intrusion remained an ideal, not a reality, for many marginalized groups.

The privacy of free and enslaved Blacks was violated due to institutional slavery. Edward Prigg, a slave catcher, was indicted for kidnapping Margaret Morgan, a Black woman, because he violated a Pennsylvania statute prohibiting the removal of Black people from the state without due process. In Prigg v. Pennsylvania (1842), the Supreme Court reversed Prigg's conviction and ruled that the Pennsylvania statute was unconstitutional on the grounds that the federal Fugitive Slave Act of 1793 superseded it. This Court decision further legitimized slavery while opening up avenues for legislation that would enable further intrusion.

The Fugitive Slave Act of 1850 held provisions that further violated the privacy rights of free and enslaved Blacks. For example, government officials were liable to a fine of $1,000 for not arresting fugitive slaves, when incentivized officials conduct surveillance, searches, and seizures on any person having dark skin. Moreover, alleged fugitive slaves were denied habeas corpus, not able to testify in court, and denied a jury. This legislation created a legacy in which slave catchers, who would later become local law enforcement, continued systemic surveillance and curfew enforcement for Black Americans.

Myth: Privacy Rights vs. Reality

Regardless of intrusions on Black Americans and other “minority” groups, privacy continued to be associated with personal autonomy, especially in the domestic sphere. But, this ideal was contradicted by laws that allowed government interference with intimate aspects of life. For instance, the Comstock Act of 1873 prohibited the distribution of contraceptive information and reproductive materials through mail; this granted the federal government authority to regulate private decisions regarding reproduction. This demonstrates that privacy rights were largely conditional, specifically when social or moral norms were invoked.

Similarly, the Court's decision in Pace v. Alabama (1883) upheld laws criminalizing interracial relationships, reinforcing the idea that personal relationships could be subject to state control. Despite the rhetoric of a protected private sphere, these policies demonstrate that privacy was selectively applied and often denied to those outside dominant social groups.

Expansions and Limitations of Privacy

Throughout the twentieth century, privacy rights expanded through judicial interpretation, but these gains were consistently limited by state power, technological advances, and systemic inequalities. Roy Olmstead, a former Seattle police officer, organized an alcohol importation enterprise in the midst of the Eighteenth Amendment, which criminalized alcohol. Federal officers utilized wiretaps of telephones at Olmstead's home to obtain incriminating evidence. Olmstead's lawyers appealed to the Supreme Court on the grounds that the wiretaps amounted to unreasonable search and seizure, which violated the Fourth Amendment. The Court ruled in United States v. Olmstead (1928) that the use of wiretaps without a warrant was constitutional. Mr. Justice Louis Brandeis wrote a dissenting opinion, which argued that the Constitution should not be interpreted too narrowly. Although Mr. Justice Brandeis was in the minority, his view on a return to broader interpretation of the Fourth Amendment influenced later Court decisions, namely Katz v. United States (1967).

At the same time, the expansion of police powers limited these protections in practice. The decision in Terry v. Ohio (1968) allowed law enforcement to conduct searches based on “reasonable suspicion” rather than probable cause, normalizing preventive surveillance in everyday policing.