Privacy as a concept is considered as a subjective phenomenon because of different factors such as culture and beliefs. For example, the Japanese can see each other naked in an onsen which is considered normal to them culturally. However, it is taboo to do the same in the Philippines. It can be considered a breach of the person’s privacy to see other people naked.

On the other hand, part of Filipino culture is hospitality, which to some extent involves caring and oversharing. Some Filipinos tend to ask too personal questions even if they have just met the person. For the Japanese, this may be breaching their personal privacy.

The universally acceptable definition of privacy can be, “Any information that an individual wants to protect from becoming public knowledge.” Do you agree?

There are different philosophical viewpoints of privacy described in Muzamil Riffat’s paper entitled, “Legal Aspects of Privacy and Security: A Case-Study of Apple versus FBI Arguments.” For this article, however, we will only be focusing on one viewpoint, which is the Privacy Right in the United States. 

Fourth Amendment in the US Constitution

The Fourth Amendment primarily focuses on the protection of the people against illegal searches and seizures by the government. The Fourth Amendment states: “The right of the people to be secure in their persons, houses, 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”.

The amendment is intended for government search and seizures only.  The important questions about the provision are: 1) What constitutes an unreasonable action? (Protected from “unreasonable” searches);  and 2) What is probable cause? (Warrant could only be granted if there is a “probable cause.”)

Katz vs. United States (1967)

One of the landmark cases that helped define the scope of the Fourth Amendment in Katz vs. United States in 1967. To summarize the case, the FBI eavesdropped Charles Katz’s phone conversation in a telephone booth upon suspicion that he was giving gambling information to clients in other states.

The question was whether Katz was protected by the Fourth Amendment against the FBI to eavesdrop the conversation in a public phone booth without a search warrant.

The Supreme Court voted 7-1 in favor of Katz. According to Justice Potter Stewart, “The Fourth Amendment protects people, not places.” The court ruling extended the Fourth Amendment protection beyond homes and properties.

Justice John Marshall Harlan II on a concurring opinion, interpreted the law by passing a two-part test: 1) That a person has exhibited an actual expectation of privacy; and 2) That the expectation is one that society is prepared to recognize as “reasonable.”

The “Katz Test” has been used in thousands of cases related to privacy especially related to communication, media, and the use of advanced devices.

Although it was a triumph for Charles Katz, it also opened so many opportunities for criminals to do malicious activities and get protected by the Fourth Amendment later on.

Further Reading:

1. Legal Aspects of Privacy and Security: A Case-Study of Apple versus FBI Arguments, Muzamil Riffat, SANS
2. Katz v. United States, 389 U.S. 347 (1967), Justia US Supreme Court
3. Katz v. United States, Oyez
4. Katz v. United States, Legal Information Institute, Cornell Law School
5. Katz v. United States, Wikipedia