Queen Elizabeth I passed a law in 1571 mandating that all male commoners in England must wear a woolen cap. The queen had good reason for this early Renaissance industrial policy. It was enacted to protect the English knitting industry and to provide employment for the people.
This rule may seem quaint today, one of the sweeping, imperious edicts from the era of absolute monarchy. Yet, is it not possible to imagine an upcoming regulation, Off with Their Hats!, barring the near-ubiquitous baseball cap and other brimmed hats so that facial recognition technology will not be frustrated in its efforts to capture digital images and measurements of every face?
Another tough leader, Theodore Roosevelt, shouted into the throng at Madison Square Garden a century ago, “Friends, perhaps once in a generation, perhaps not so often, there comes a chance for the people of a country to play their part wisely and fearlessly in some great battle of the age-long warfare for human rights.”
Go suit up. Privacy is a human right.
The Universal Declaration of Human Rights (UDHR), the founding document of the modern human rights era, was adopted by the United Nations General Assembly in 1948 without a single dissenting vote. We do not know the words of wisdom that Theodore Roosevelt gave his niece Eleanor along with his arm to escort her down the aisle. Whether or not human rights were mentioned on her wedding day, Eleanor took up TR’s challenge and played her part wisely and fearlessly when the opportunity arose. Eleanor Roosevelt chaired the UDHR drafting committee.
The UDHR, along with the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights, both from 1966, are called the International Bill of Human Rights. The International Bill of Human Rights is one of the most successful legal regimes in the history of the world. More than 160 countries are parties to these conventions. The adoption and ratification of the main human rights instruments by so many nations underscore the high degree of international consensus on the principles of human rights.
Human rights were considered so important that governments extraordinarily agreed to limit their own sovereignty, reallocating some of their power to other nations and international bodies and some to individuals. Human rights conventions limit the range of a country’s discretion regarding individuals within their geographic territory. Not only are individuals acknowledged as the basis of governmental authority, but individuals may also reach outside their nation to seek redress for human rights violations by their governments.
Along with rights to life, liberty, equal protection under the law and presumption of innocence, privacy is a human right. UDHR article twelve proclaimed, and ICCPR article seventeen, almost twenty years later, repeated, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” The ICCPR entered into force in 1976 and the United States ratified the treaty in 1992. The United States has since submitted four periodic reports.
Continually over sixty-five years, the human right of privacy has been declared, protected, and affirmed in treaties, national constitutions, regional regulations, and national legislation on every continent. The United States catalyzed modern human rights protection. The human rights instruments and institutions, along with their implementation and enforcement, guarantee human rights.
Privacy and protection of personal information support autonomy, self-determination, and dignity. On the wind these days flies the canard that privacy is an amorphous concept. This gossamer attack, that it is not clear what privacy actually is, generates a miasma of doubt.
On the contrary, the protection of privacy is deeply embedded in the laws and institutions of the modern democratic state. Moreover, one has a strong visceral sense of privacy and apprehends clearly when it has been abrogated. It would be like saying that an individual does not understand liberty, freedom, and justice. Yet, while passersby on the sidewalk might be hard-pressed to give a textbook definition of privacy, they could easily provide several examples of violations of their privacy, together with severe real-world consequences of job loss, public humiliation, and damage to reputation. Just because privacy is a concept, rather than a wrench, does not render it any less valuable to us. Love is another one of those abstract concepts in which we place deep, abiding value.
Traditionally, U.S. law recognized four invasions of privacy: intrusion on the right to be let alone, public disclosure of private facts, depiction in a false light, and commercial appropriation of personal information. Modern data protection and privacy laws contain core elements, sometimes described as “Fair Information Practices,” that set out the rights and responsibilities associated with the collection and use of personal data.