Scalia Is No Friend of the Right to Privacy

by Gerard Emershaw

The flood of shocking revelations about the NSA resulting from the whistleblowing of Edward Snowden will inevitably land issues concerning the surveillance state, national security, the Fourth Amendment, and the right to privacy before the Supreme Court. With the current makeup of the court, this does not bode well for civil liberties. Earlier this year, in Clapper v. Amnesty International, the Supreme Court held that the plaintiffs in the case could not challenge the NSA’s warrantless wiretapping because they lacked standing. They lacked standing because they could not show that they were harmed by the program. However, the proof that a plaintiff would need to show that he or she is affected and harmed by the NSA program is classified. Therefore, as long as the NSA keeps this information secret, it is impossible for anyone to sue. This alone is enough to signal to civil libertarians that any NSA case decided in the near future is not going to end well. But, it appears that the prospects for the right to privacy may be even worse.

Justice Antonin Scalia recently spoke before the Northern Virginia Technology Council and told them that he believed the Court would soon be hearing cases connected with the NSA. Justice Scalia appears to be less than thrilled about having to hear such cases. He believes that elected branches of government are better equipped to deal with such issues. However, the Supreme Court opted, beginning in the 1960s, to expand its power in hearing cases concerning the right to privacy. According to Justice Scalia, this was not wise:

The consequence of that is that whether the NSA can do the stuff it's been doing ... which used to be a question for the people ... will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed.

Justice Scalia told his audience that prior to cases like Katz v. United States (1967), the Court held that there were no constitutional constraints on wiretaps because the Court believed that the Fourth Amendment did not apply in such cases and gave no protection at all to conversations. Justice Scalia then lamented the fact that the Warren Court stepped in on the issue and explained that the Warren Court found that “there's a generalized right of privacy that comes from penumbras and emanations, blah blah blah, garbage.” This does not sound like a jurist who believes in the right to privacy.

The landmark case that established the constitutional right to privacy is Griswold v. Connecticut (1965). In this case, the Supreme Court ruled that a Connecticut law outlawing contraceptives was unconstitutional. In William O. Douglas’s majority opinion, he speaks of why the constitutional right to privacy was recognized:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Justice Scalia, obviously, is unimpressed by this. However, despite his ingenuity, Justice Douglas could have stopped after a quick discussion of 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.” In other words, just because a natural right is not specifically enumerated in the Constitution, it does not mean that the people do not possess that right in virtue of their humanity.

One source of evidence concerning the existence of a natural right to privacy is tort law. In 1960, legal scholar William L. Prosser documented the right to receive damages under the common law for invasions of privacy. Four distinct privacy torts have developed: 

1. Intrusion upon seclusion or solitude, or into private affairs;

2. Public disclosure of embarrassing private facts;

3. Publicity which places a person in a false light in the public eye; and

4. Appropriation of name or likeness.

This provides strong support for the existence of a right to privacy. If an individual can exert this right against his or her fellow civilians, then he or she should also be able to exert these rights against the government.

Furthermore, the aspects of the right to privacy which concern wiretaps and other advanced technological forms of electronic intrusion used by the NSA, FBI, etc., are fully encompassed by the Fourth Amendment. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

While the Founders did not contemplate things such as wiretaps and other surveillance telephone lines, cellphones, the internet, etc., they did institute the requirement that a search cannot take place without a specific judicial warrant issued upon probable cause. While the Supreme Court has disputed this in recent decades, this is simply an indication that they are either not careful readers or they simply wish to create constitutional law that does not exist.

When a person is in a place of privacy and has a conversation with a companion—whether this is a face-to-face conversation or an electronic conversation via a phone or the internet—the content of that conversation is akin to his or her person. The words—whether spoken into the air, spoken into a telephone, or typed—are inseparable from the person in that searching the words is akin to searching the speaker of the words. Therefore, since persons are protected by the Fourth Amendment, so are conversations. Furthermore, modern forms of communication such as phone calls, text messages, e-mail, and instant messages are secondarily covered by the Fourth Amendment because they can only be achieved through the use of telephones, cellphones, or computers. These items are clearly “effects”—movable belongings. Given that the Fourth Amendment guarantees the protection of persons and effects, private conversations of all types are clearly protected. Unfortunately, this is not the way that Justice Scalia and a likely majority of his colleagues will see it.