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Who Needs Privacy Anyway?

by | Jul 8, 2022 | Divorce, Family Law

This past week, the Supreme Court has issued a number of opinions which have widespread effects, not the least of which being Dobbs v. Jackson which overturned the Roe v. Wade decision of 1973. Roe, like many other precedents, furthered the established concept of the right to privacy, which the Court claims “…that privacy right, Roe observed, had been found to spring from no fewer than five different constitutional provisions—the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.” Dobbs V. Jackson Women’s Health Organization, 597 U. S. ____ (2022) at p. 9. While it is a deeply ingrained piece of our modern understanding of the world, especially now with the use of technology, the right to privacy is not one made explicit in the constitution, nor in any subsequent amendments. In the Dobbs opinion, the Supreme Court states that the established right to privacy upon which Roe was predicated is made by an amalgamation of amendment usage that should no longer stand.

Amidst the “legalese”, the message can be boiled down in that the right to privacy is open to be challenged, and in fact has taken a major blow by the overturning of the right to abortion. Regardless of personal positions on that particular issue, the right to privacy has been used to establish the rights of individuals to live private lives without interference by the government in their private social, romantic, and sexual affairs. Those precedents include to right marry regardless of race (Loving v. Virginia), the right to access contraceptives (Griswold v. Connecticut), the right to marry regardless of gender (Obergefell v. Hodges),  the right to not be sterilized without consent (Skinner v. Oklahoma), the right to determine the education of your children (Pierce v. Society of Sisters), the right to refuse medical treatment (Winston v. Lee), and the right to a private bedroom life (Lawrence v. Texas). Alongside this, the right to privacy was a major piece of outcry upon the Snowden leak in 2013. Without that protection, the ability to spy on private messaging systems, banking activity, private webcams and microphones on personal devices will become available. If privacy is no longer an element of Due Process, the function of data stored or processed in the United States will likely serve a dual purpose in not only the prosecution of a crime, but perhaps even predicting it.

Beyond the Dobbs decision, the Supreme Court also issued an opinion in Egbert v. Boule which declined to extend to individuals the ability to seek damages against border patrol agents for violations of the Fourth Amendment, via use of excessive force, if done so within the border zone of 100 miles inland, as the dissent states “Certain CBP agents exercise broad authority to make warrantless arrests and search vehicles up to 100 miles away from the border”. 596 U. S. ____ (2022). The ability of a border territory exception to the previously available remedy under the Bivens precedent the Court discusses removes the ability for Americans living along the borders and coasts to sue an agent or agency for the use of excessive force or warrantless entry regardless of the outcome or justification; there is simply no method by which a private citizen can reach a civil remedy for those damages.

The concern then becomes where a line can be drawn and what hoops should be set up to jump through for law enforcement before they can access private information and private property, though it may not be available to place hurdles at all should this trend continue. While these may seem largely like criminal issues, they apply to family law as well. Where issues of adultery are concerned for example, the states have and can continue to place criminal and civil penalties on individuals for cheating on their spouses. In doing so, they will have access to private chat systems hosted in the U.S., such as Facebook, to monitor conversations and gather evidence likely before the spouse ever catches on. And, should they live within a border zone and their paramour be visiting from another country, it could lead to a criminal conviction such that they are deported and denied future entry, all without a warrant ever having to have been written.

It certainly sounds extreme, but the Court’s swift movement on these issues leads me to believe that we should be prepared for the next three steps in order to try to keep up with the law in our own courtrooms.  Every American’s life just got substantially more controlled by our government.  So govern yourself accordingly.

Kaitie Ruhl-Pirone

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