Thesis Statement
Changes in our society have given rise to new aspects of privacy that need protection under the Constitution, such as the right to certain privacies of our mind or body, or the right to privacy in the digital world.
Annotated Bibliography
Samuel D. Warren and Louis D. Brandeis. (1890). The Right to Privacy Harvard Law Review. 4(5): 193-220. Available at http://www.jstor.org/stable/1321160
The authors begin with a discussion of how our Constitutional rights to the safety of our person and property have evolved to protect the intangible as well as the tangible. Our right to the safety of our person now encompasses our right not to be placed in fear of incurring bodily hurt, or be slandered or defamed. However, the law at the time this article was written had no provisions against injury to our feelings. The concept of invasion of privacy is then introduced. The authors’ view is that invasion of the privacy of an individual lowers social standards and morality, and believe the law should protect our right to privacy.
The authors proceed to consider whether there are any laws that may be applied to protect our privacy; and if so, what would be the nature and extent of our right to privacy.
Their conclusion was that our right to privacy should evolve out of tort law and that its invasion should be treated as a form of slander or defamation.
Cruzan v. Director, Missouri Department of Health. 497 U.S. 261. (1990).
In Cruzan v. Director, Missouri Department of Health (1990), the Supreme Court ruled that the lower court had the constitutional right to refuse to withdraw life-support treatment from a young woman in a permanent state of vegetation. Withdrawing life-sustaining treatment would have constituted an invasion of privacy of the young woman.
The main issue in Cruzan was that the patient had not signed a Living Will, and that she was not legally competent to be able to give her informed consent for the withdrawal of “death-sustaining” treatment. Testimony to the effect that the young woman had in more than one occasion expressed to friends and family that she would not want to be kept alive through artificial means, were she ever find herself in that situation, was viewed by the court as hearsay evidence. The court also held that the preservation of human life was more important than the right to privacy.
English, A., & Ford, C. (2004). The HIPAA privacy rule and adolescents: Legal questions and clinical challenges. Perspectives on Sexual Reproduction and Health. 36 (2), 80-86.
In 2002, the federal government passed a new privacy law to protect the private medical records of patients. The law has special provisions for minors against parental invasion of the privacy of their children. There remains a lot of controversy surrounding this law; parents feel this law violates their parental rights and that it undermines the relationship between themselves and their children, whereas health care providers believe the law will help them provide better care for their underage patients.
Proponents of the law view it as critical to public health, for most of the controversy regarding the right of privacy of minors centers around reproduction issues, and the law would help adolescents gain access to medical care.
Lambert v. Wicklund. 520 U.S. 292 (1997) (per curiam)
In the Lambent v. Wicklund (1997) ruling, the Supreme Court protected the right to privacy of a minor by holding that minors had the right to obtain an abortion without the consent of a parent or guardian, provided the minor could show that notifying them would be detrimental to her interests.This law is just as controversial as the one denying parental access to medical records.
The White House. (2012). Consumer Data Privacy in a Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Economy. Retrieved from http://www.whitehouse.gov/sites/default/files/email-files/privacy_white_paper.pdf
The Obama administration announced its intention to create a “Consumer Privacy Bill of Rights” that protects digital consumer data. This new Bill of Rights will be drafted in cooperation with industrial and consumer advocates, and will be enforceable by the Federal Trade Commission. The IT industry has agreed to develop "Do Not Track" technology against behavior-based web advertising. The impact of this new legislation on health care information systems and electronic retrieval of medical records needs to be evaluated.
