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The Right to Privacy: its nuances, constraints and concerns
Sherice Henderson
CJ205-51 Criminal Procedure and Practice
Professor John Montes
Monroe College
12/14/2015

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Abstract
The right to privacy, although not expressly stated in the Bill of Rights, is a right that is
upheld and carved out of the enumerated rights. This paper seeks to delineate what the
right to privacy entails, the extent of its protection and the nuances that affect judicial
interpretation of this right. This paper will additionally highlight some specific areas of
concern as it relates to this right; areas such as the need for clearer boundaries in response
to surveillance and technological advancement, intrusion into matters of women’s right,
discretion in terms of sexual privacy and also sexual orientation. The research will also
provide relevant case law, in the assessment of these concerns. This researcher hopes that
this research will prove beneficial to those seeking clarity about the constraints and limits
of the right to privacy and those that are pursuing a career in a field that finds this
research pertinent, it is also hoped that this research will add to pre-existing literature
about the topic and further increase knowledge.

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The right to privacy: its nuances, constraints and concerns
For years the law has acted as an anchor, preventing moral deviation and adhering
to criminal procedural practices. Some of these practices and laws, however, diminished
and encroached the rights of the very citizens it was created to protect. The law and
officials acted as proverbial voyeurists, peeping into the bedrooms and homes of ordinary
citizens under the guise of law enforcement and upholding society’s moral compass.
There have been many controversial debates about the right to privacy and how it
contradicts other aspects of law; they’re various limbs and exceptions to consider when it
comes to the analysis of whether a right exists in particular situations. This paper seeks to
define what the right to privacy is and what is protected under it, how technological
advancement changes the landscape of legal operation as it relates to the right, women’s
rights and the Right to Privacy and additionally how one’s sexual practices or sexual
orientation is protected under this right.
The right to privacy is not expressly written in the constitution but has been linked
to the ninth amendment. The ninth amendment states, “The enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage others retained
by the people.” However, contrary to popular belief, this amendment does not afford a
right to privacy, the Ninth Amendment deals mainly with constitutional interpretation and
“It is neither a grant of power nor a source of rights” (lash, 2004). The case of Griswold
vs. Connecticut (381 U.S. 479) became the precedent for further cases dealing with the
right to privacy, in this case two physicians were arrested and subsequently fined because
they gave advice to a married couple regarding prevention of conception. Upon appeal, it
was held that the first amendment provides a penumbra, which protects the right to

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privacy, and it also protects the association of marriage and all discussions made within
such a union, thus government intrusion is unconstitutional and threatens to contravene
the explicit and implied rights of the involved parties. Another relevant case that helped
to further clarify this area of law is Katz vs. The U.S, in this case, law enforcement
officials used the defendant’s end of a phone conversation, to convict him of transmitting
wagering information, the defendant was communicating via a public phone booth and
later appealed the decision, arguing that the admission of the phone conversation was
unconstitutional. It was later upheld that the fourth amendment followed people and not
places, and although the petitioner was in a public booth, where he could be seen by
members of the public, the act of using a public booth and closing the door behind him,
signals a desire for privacy and a reasonable expectation that his conversation would not
be overheard. Thus electronically collecting and using such evidence, absent a search
warrant and specific articulable facts amounting to probable cause, renders such evidence
is inadmissible and unconstitutional. Katz vs. the US also provided a two-tailed text,
which helps to determine whether there exists a right to privacy; the fist limb, seeks to
access whether the individual demonstrated an actual expectation of privacy and the
second limb accesses (by and objective test), whether this expectation is one that society
is prepared to accept as reasonable.
Technological advancement is also an area that often converges with the right to
privacy. An issue that deserves emphasis is the issue of surveillance and how it impinges
the right to privacy; surveillance is problematic, as although it improves the crime
fighting efforts of law enforcement it also contravenes an implied right to privacy in
some cases. The major point of concern is that it observes that which an individual

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believes to be private, people have the right to not have their every move observed and
used to incriminate them. Prior to the case of Katz vs. the US, the law only protected the
right of a person to not be searched absent a warrant but this case redefined the definition
of a search as not only involving physical intrusion but also intrusion via wire-tapping
and collecting information that the party involved believed to be private and it was
subsequently held that listening to one’s phone conversation without a warrant constitutes
a search. A case that has carved out an exception to the subjective requirement of part
one of the Katz doctrine is United States vs. Myers, in his case officials used thermal
image scanning to detect excessive heat waves that might denote that criminal activity
such as indoor marijuana cultivation is afoot (Kearns, 1999). Although under normal
circumstances, the indoor concealment of the marijuana would make the subjective
expectation of privacy argument viable, it was upheld that there was no satisfaction of the
first limb of Katz because the defendant did nothing to conceal the emission of the heat
waves. Prior to this case, this type of image scanning did not exist, thus its existence adds
a new dimension to judicial interpretation as it relates to the right to privacy. The courts
also have to balance facts and circumstances and determine if, in a particular case, the
public interest and the due process of law overrides the right to privacy of individuals.
For example, in Whalen vs. Roe it was upheld that a database could be kept in New York
of all the persons who legally acquired narcotics via prescription, considering that the
public and state interest regarding the regulation of drug dispersion outweighs the right to
information privacy demonstrated by those documented (Kearns, 1999).
The right to privacy is also included in the discussion of women’s liberation and
the right to control what happens to their body and their decisions as it regards

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reproduction. Courts should not invade a woman’s womb and attempt to control or
regulate reproduction. In Roe vs. wade 1973, a pregnant singe woman contested Texas
criminal abortion laws, stating that they were unconstitutional and contravened her ninth
and fourteenth amendment rights, she was eventually granted declaratory relief and these
laws were declared void and unconstitutional. The limits of this right were later
reassessed, making these decisions subject to those that have a ‘compelling state interest’.
It was decided that there was a compelling interest held by the courts as it regards
protecting the health of the pregnant woman and the potential for human life, that the
fetus demonstrates. The constraints of court intervention were also later defined and they
are as follows: "(a) for the stage prior to approximately the end of the first trimester, the
abortion decision must be left to the medical judgment of the pregnant woman's attending
physician; (b) for the stage subsequent to approximately the end of the first trimester, the
State, in promoting its interest in the health of the mother, may, if it chooses, regulate the
abortion procedure in ways that are reasonably related to maternal health; (c) for the stage
subsequent to viability, the State in promoting its interest in the potentiality of human life
may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life or health of the mother."
(Roe v Wade, 1973).
Courts have also intervened in matters of sexuality and orientation over the years
and it was more pervasive in the era after the abolition of slavery and the post cold war
period. During the 1960s there was an upsurge of cases where people were being
deported because they demonstrated a ‘psychopathic personality’, which at this time was
extended to include homosexuality. Sarah Harb Quiroz was the first to be deported in

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1961 for homosexuality. The immigration and nationality act of 1952, stipulated that
there was a right to deport or bar from entry anyone displaying signs of a ‘psychopathic
personality’, although Quiroz contested by arguing that homosexuality did not equate to a
psychopathic personality, the decision was still upheld and she was deported to Mexico.
In these times research was not as vast as it is today and people viewed homosexuality as
a scourge or abominable lifestyle choice. Consequently, courts have also sought to
control the sex lives of individuals and check the rate of sexual liberation; this is
demonstrated by Williams v Attorney General of Alabama where it was upheld by
federal courts that it was illegal to sell or advertise sex toys, this decision is based on the
anti-obscenity enforcement act of 1998,which prohibits the sale of "any device designed
or marketed as useful primarily for the stimulation of human genital organs." The
problem arises when the government tries to regulate and control things done in the
bedroom, which evades their scope of power or jurisprudence. Since sex is typically a
private act between two consenting adults, objects or ways to increase pleasure should
not be legislated against, with the exception of cases where one of the individuals
involved in the act are not consenting nor are they ‘adults’. Intrusion would thus be
considered an encroachment of the right to privacy.
In summation, there are certain implied rights provided by law, one such right is
the right to privacy. The right to privacy is found to fall under the penumbra of the bill of
rights and is defined by relevant case law such as Griswold v Connecticut and Katz v the
US. In claiming a right to privacy a two pronged test must be satisfied as outlined the
Katz doctrine, this includes an actual expectation of privacy and society objectively
viewing whether the expectation is reasonable or not. Time immemorial has seen the

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courts abusing their judicial influence to legislate against matters that are generally
supposed to be private. This has been seen in case law from the 60s when homosexuality
was classified as a ‘psychopathic disorder’ and used as the predicate to deport people and
also in a more recent case when Alabama law tried to criminalize the sale and distribution
of sex toys. Although the right to privacy is not expressly written in the constitution, it is
implied using the penumbra of enumerated rights and cannot be contravened by law
enforcement.

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References
Abortion. (n.d.). Retrieved December 13, 2015, from
http://law.justia.com/constitution/us/amendment-14/31-abortion.html
FindLaw | Legal Commentary. (n.d.). Retrieved December 13, 2015, from
http://writ.news.findlaw.com/dorf/20040804.html
Griswold v. Connecticut 381 U.S. 479 (1965)
Katz v. United States, 389 U.S. 347 (1967)
Lash, Kurt T. 2004. "The Lost Original Meaning of the Ninth Amendment." Texas Law
Review 83 (2). http://0-web.ebscohost.com.library.regent.edu/ehost/detail?
Records of Rights. (n.d.). Retrieved December 13, 2015, from
http://recordsofrights.org/themes/5/rights-to-privacy-and-sexuality#the-spirit-of-
Houston
Roe v. Wade 410 U.S. 113 (1973)
Thomas B. Kearns, Technology and the Right to Privacy: The Convergence of
Surveillance and Information Privacy Concerns, 7 Wm. & Mary Bill Rts. J. 975 (
1999), http://scholarship.law.wm.edu/ wmborj/vol7/iss3/10
Williams v Attorney General of Alabama 02–16135, 2004

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