Introduction 

In its decision to overturn the constitutional right to abortion in Dobbs v. Jackson, the  Roberts court sent a tumultuous shock through the field of civil rights, leaving many Americans to wonder which other civil liberties are at risk. One such right explicitly brought into question by Dobbs is that of privacy. A citizen’s right to make personal  decisions without government interference is a concept that extends far beyond American  jurisprudence—it is widely recognized in fundamental literature, such as the official UN Charter, and is historically well-documented from the Warren court to our currently benched  Supreme Court justices. Much like the right to free speech and the right to bear arms, privacy is  a deeply valued liberty among a majorly individualistic American population. Yet, our  judicature has failed to steadily and permanently affirm the right to privacy within our law. Unlike numerous other rights that seem inherent to U.S. citizenship, privacy is not explicitly protected by  the U.S. Constitution. The legal right to privacy as we know it relies on piecemeal court decisions and various interpretations of  the Constitution, most often drawing upon the First, Fifth, and Fourteenth amendments. Dobbs v.  Jackson, however, brought this incremental progress to a grinding halt. It suggests that past decisions supporting the right to privacy were inherently flawed in their application of substantive due process—the very pillar that these decisions leaned on. The right to privacy in a modern context is now under threat, as Justice Clarence Thomas illustrates in his majority opinion brief,  arguing that the court should “… reconsider all of (its) substantive due process precedents, including Griswold, Lawrence, and Obergefell.”1 Post-Dobbs, there is a strong case for a constitutional amendment protecting the right to privacy. The protections scattered throughout our laws are not sufficient to uniformly protect what is widely accepted as a natural right2. The Constitution must be amended to guarantee the right to privacy as a natural right; in an increasingly digital age, privacy’s role as a foundation of personal liberty is more significant than ever. 

Substantive Due Process and Constitutional Interpretation 

The most important tie between the foundational privacy cases discussed in the following  sections is their reliance on substantive due process. The concept of due process, which appears  in both the Fifth and Fourteenth amendments to the Constitution, ensures fair treatment in both  procedural and ethical aspects of state-sanctioned rights violations. Procedural due process  refers to the proper use of administrative channels to deprive a citizen of their rights. By  contrast, substantive due process is the highly contentious doctrine of “implied fundamental rights”3 that is used to derive fundamental rights from the implicative language of the Constitution.  Applications of substantive due process vary greatly depending on how sitting justices approach  constitutional interpretation. Typically, methods of constitutional interpretation can be divided  into two schools of thought: originalist and progressive. Originalist interpretation (which five sitting Supreme Court justices publicly abide by) is rooted in the analysis of constitutional  language based on the time in which it was written. Progressive interpretation (which a liberal  minority of the current court seems to express) views the Constitution as a living document  whose interpretation should be subject to change based on the rapid evolution of American  society. Progressives generally use substantive due process to expand and challenge historical  ideas of fundamental rights through the application of modern public values. Originalists tend away from the use of substantive due process, clinging to the precise text of the  Constitution to produce a narrow definition of fundamental rights. The difference in these  approaches underlies much of the tension regarding legal protection of privacy laws today, given  the field’s reliance on substantive constitutional interpretation.  

Privacy as a Natural Right 

Our right to privacy has been established through an amalgam of civil cases, each  providing various constitutional interpretations that point to privacy’s status as a natural right.  Walter Murphy, a Constitutional scholar at Princeton University, suggested that “the nature of  the American Constitution requires recognition of a thick and powerful right to be let alone” that  cannot be removed or restricted without undermining the document as a whole4. Privacy rights as  we know them exist strictly as a derivative of the Constitution. They’ve been incrementally established over the past hundred years to create a right that is only penumbral rather than explicit. The term  “penumbra” refers here to non-enumerated rights that are derived from the text of the Constitution through judicial interpretation. This function explains its nomenclature—while an  astronomical penumbra describes a shadow cast by an eclipsing celestial body, a legal penumbra  can be described as a shadow cast by the Bill of Rights that creates a distinct “zone”5 of civil  liberty. Since a penumbra relies on constitutional interpretation, the protection of the right it  establishes is highly variable from court-to-court, depending fully on how a judiciary approaches penumbral elements. 

One of the first established elements of the privacy penumbra was Union Pacific Railway Co. vs. Botsford (1891). Although it did so narrowly, the majority opinion suggested a  legal right to personal bodily privacy. Plaintiff Clara L. Botsford was seriously injured while  riding in a Pacific Railway Company sleeper car, resulting in permanent debilitating injuries.  Botsford filed a negligence claim against the Pacific Railway Company (hereinafter referred to as  Pacific). Pacific responded with a motion to order Botsford to “submit to a surgical  examination”6to certify her injuries. The court decided that it had no legal right to impose such  an examination on Botsford, citing the importance of one’s “…possession and control of his own  person, free from all restraint or interference of others, unless by clear and unquestionable  authority of law”7. While Union Pac. Ry. Co. vs. Botsford set an argumentative framework for  bodily privacy, other cases like Watkins v. US (1957) implied the existence of the right to  informational privacy. Watkins v. US involved a labor union organizer (Watson) who was  subpoenaed by a U.S. House Committee on Un-American Activities under suspicion of  affiliation with the Communist Party. Watkins complied with the Committee’s investigation into his person but refused to participate in inquiries regarding the political ventures of his peers. He argued that “… (he did) not believe that (the) committee has the right to undertake the public  exposure of persons because of their past activities”8. He was held in contempt of court and ultimately granted a writ of certiorari by the Supreme Court in review of his conviction. In a 6-1  opinion, the Court overturned his conviction, citing a violation of Watkins’ first amendment  rights. By inquiring into issues unrelated to the task at hand, the committee had violated  Watkins’ First mendment right to association, and by extension, his right to privacy9. This case  established the right to refuse disclosure of unwarranted information to the government, or “the  right to be let alone”10. Between these two cases (and few others), a diluted right to bodily and  informational privacy was cemented into law. 

Griswold v. Connecticut (1965), a case which protected marital privacy, has been the most significant and formative basis for privacy as a right. In 1965, a Connecticut law banned the use of contraception  between married couples. The law was overturned on the grounds of a violation of marital  privacy—but, perhaps more importantly, the majority opinion explicitly expressed the law’s  violation of a right to privacy. Justice William Douglas wrote, “specific guarantees in the Bill of  Rights have penumbras, formed by emanations from those guarantees that help give them life  and substance"11. Griswold tied the constitutional privacy penumbra to a collection of rights assembled by past cases to suggest the existence of man’s inherent right to  privacy. This broader right to privacy was described in the majority opinion as a “constellation of  values curbing government power over privileged individual interests”. Previous cases had  begun to suggest that a right to privacy exists in a natural, common-sense manner. Although  these interpretations were important beginnings for privacy rights in the U.S., their implications  were not nearly broad enough to provide the protections that a natural right requires. The  Griswold decision was the first of its kind to suggest a right to privacy that exists in a realm  beyond the law, which some describe as a “God-given” right.  

Protecting privacy as a natural, uniformly applied right for all citizens could be  accomplished by Constitutional amendment, which exists as a standard for our other natural  rights such as life, liberty, and property. Justice Elena Kagan expertly describes the need for  uniform law in her dissenting opinion of Burwell v. Hobby Lobby Stores (2014). She contends that if every violation of rights were to be tested on a case-by-case basis, uniform law would be pointless since “everything would be piecemeal”12. Inalienable natural rights, such as the established right to privacy, cannot and should not be left to piecemeal evaluation. In practical use, a more uniform law would make the application of privacy rights stronger and more efficient, ensuring the protection of the natural rights of citizens (and less importantly, the quickness of courts).

Privacy as a Necessary Right: Data  

The cases we have discussed thus far have reaffirmed the idea that citizens have a right to shield their private life from government involvement, whether it be in their arrangement of marriage, use of birth control, or choice in sexual activity. Multiple Supreme Courts have looked back on precedent based on Constitutional validity and public value to imply an inherent right to  privacy. The most substantial elements of the privacy penumbra are dated, though– the most  significant in recent history were established in the 1960’s. The stagnant nature of privacy laws in a modern context is dangerous, especially during an era in which privacy is arguably  more vulnerable than it has been in the past. One area of law which illustrates the danger of this  stagnancy is the litigious realm of data privacy and how its susceptibility to breach has shown a  significant need for stronger privacy laws. There is simply more information to be kept private, a  quantity which will only increase over time, and our current regulations have not been sufficient protection from personal privacy violations.  

User privacy agreements don’t limit data collection as significantly as we are led to  believe. Companies like Google are regularly penalized for unethical use of personal data  without consent13, and are fined tens of millions of dollars for distributing it14. A massive amount  of data about online user activity is harvested at a jarring speed by private online firms—in 2019  alone, there was a 9% increase in internet usage from the prior year, reaching 56.1% of the  population15. Although users may be aware of the gaps in these privacy agreements, there is little  choice but to agree to them. There is no substitute for internet use— it has become a non-negotiable aspect of both private and public life, playing a central role in day-to-day operations  like using a search engine or setting up an email account. The Journal of Public Economics  acknowledges this in their 173rd volume, examining how “excessive collection of personal  information… results in excessive loss of privacy compared to the social optimum”16. The issue of growing personal data collection can be compared to urban freeway construction– the more lanes there are, the more traffic there will be. When more personal data is collected, privacy breaches have increasingly more widespread and devastating consequences for users. Leaks which used to contain users’ email addresses now expose highly sensitive financial and personal information, from banking details to personal preferences in content consumption. Concerningly, a study in WSEAS Transactions on Business and Economics projects that data collection isn’t likely to  slow or stop. A study in the journal found that “[Data collection] technologies are likely to  advance in operations beyond what we have witnessed in the past decade or so. The result of  these developments is [that] data [collection] will forever…increase”17. Data collection isn’t the  only statistic trending upwards—Purdue University’s public institution, Purdue Global, observed  a 54% increase in the number of data breaches from 2018 to 201918. Over three thousand data  breaches occurred over the span of six months, releasing both mundane and sensitive personal  data from millions of users.  

As of July 2021, only three states (California, Colorado, and Virginia) had passed and  signed data privacy legislation19. Other states had failed to introduce such legislation at the same  point in time. While data privacy laws vary from state to state, the inherent right of citizens to  maintain their privacy does not. As we can see by the rapid and concerning rise of personal data collection and the risks associated with such a trend, privacy rights are exceptionally important in our current historical moment, and will only continue to grow as such. A strong, uniform presence of privacy legislation is necessary at  the federal level to impose privacy regulation and antitrust conduct on these private firms, and  one method of establishing grounds to do so may be through constitutional amendment. 

Strength and Uniformity through Constitutional Amendment 

Having examined why the right to privacy is both natural and necessary, we can begin to  focus on solutions that establish two important qualities notably absent from current privacy  law: strength and uniformity. These criteria can be met by both federal regulation and  constitutional amendment, but since these distinct options occur in very different time frames,  they likely work best in tandem with one another.  

Given the urgency created by insufficient legal protections of our privacy, strengthening federal legislation on the issue is a necessary (albeit short-term) aspect of the solution. The Roberts court’s contempt for a modern use of substantive due  process, as shown in Dobbs, is a departure from a well-supported, well-established, and  public tenant of legal citizenship. Legal government interference in personal decisions (such as  the use of birth control or the decision to have an abortion) has been explicitly endorsed by Justice Thomas in his concurring opinion on Dobbs v. Jackson. Justice Clarence  Thomas sees “…any substantive due process decision [as] ‘demonstrably erroneous’… we have a duty to ‘correct the error’ established in those precedents”. This threat suggests that our right to  privacy may be able to wait for the passage of a constitutional amendment and signals a need for more immediate action. Stringent federal legislation is the most immediate way to  achieve this, and there are existing legal frameworks that the federal government can employ in a  swift and pointed manner. States like California have already enacted legislation (like the  California Consumer Protection Act) which set a relatively high standard for data privacy  regulation, and federal legislation could be modeled after these examples. These regulations mimic those  enacted by the European Union, which encompasses 14 of the top 20 countries ranked by  internet privacy standards20. The use of federal legislation to impose uniform law is a strategy  regularly employed by the executive branch. For example, the Biden administration used federal  legislation to impose uniform law on December 13th, 2022, by codifying same-sex marriage  protections. Nevertheless, these federal regulations aren’t an optimal end goal. Federal laws can be  overturned at the state level, which reverses the uniformity of potential privacy legislation while  leaving the natural rights of citizens in jeopardy. Stronger federal privacy legislation is a  temporary solution at best, and would ideally be followed by a constitutional amendment  stipulating the right to privacy.  

Constitutional amendment, under ideal conditions21, would be the most secure and lasting method of protecting the right to privacy for all citizens. The strongest components of  American law exist within the Constitution— its contents trump both state and federal laws, and  when written specifically enough, also minimize the need for judicial discretion. Privacy rights would no longer lean on substantive due process,  therefore strengthening  their foundations and making them more difficult to overturn. A significant obstacle to achieving this goal is the fact that Constitutional amendments are difficult to pass, with only 27 out of 11,000 proposed  amendments securing passage since 178922. Amendments that do pass do so in a variable and  unpredictable amount of time. Amendments have been passed as quickly as three months23, and  have been left dormant for periods of over two hundred years24 before becoming part of the  Constitution. Any proposed amendment protecting privacy rights could take years before  passing. Given the immediate need for privacy laws in our digital age, an amendment alone may  take too long to produce the safe and optimal results it promises, especially considering the direct  threats against the privacy penumbra launched by members of the Supreme Court.  

The ideal solution would be to enact federal legislation using elements of an existing framework, such  as the California Consumer Protection Act, to ensure temporary uniformity and strength of  informational privacy laws during the arduous process of constitutional amendment. Rather than just acting as a placeholder, though, these laws could act as a template for the constitutionally protected regulations that will follow after the ratification of a privacy amendment. While the amendment would likely remain broad, the early development of privacy protection laws would allow the legislature to refine its lawmaking and discover the most effective and plausible regulations to impose. The legislation created under the protection of the amendment, having come after these somewhat experimental regulations, would be able to have more legal specificity and enforceability. While the federal legislation takes effect (and state legislatures  potentially begin proceedings to overturn it), the safest and most secure option of a  Constitutional amendment could proceed through Congress. This amendment would, ideally, broadly define privacy as one’s right to non-disclosure in the context of personal matters (such as sexual preference, medical procedures, etc.) and informed consent (akin to the guidelines laid out in the FIPP).25 As mentioned previously, the language of the amendment would imply a wide scope– the FIPP details practices such as purpose specification, use limitation, and minimization, all of which would lay groundwork for constitutionally creating more stringent regulations surrounding technology. 

CONCLUSION 

Our legislature has failed to protect the right to privacy for two prominent reasons: public officials often benefit from data collection for election and campaign purposes, and the generational gap between those who were raised with technology and those who were raised without has caused a lag in the policymaking process that the urgent situation surrounding privacy rights requires. The Obama administration was the first to try and legislate through the issue of data privacy– unfortunately, the proposal for the Consumer Privacy Bill of Rights was a victim of “bad timing and lost momentum”26, as the financial and innovative successes of Silicon Valley charmed legislators out of regulating the tech industry in its early days. The average age within the House of Representatives decreased this year27, and with the first Generation Z members of Congress taking office, this trend may indicate a greater generational shift in our legislative bodies. This suggests that we have a better chance of amending our Constitution to protect privacy than ever before during the rise of technology and data collection.

While a constitutional amendment may seem like a drastic measure to take in the name of  privacy rights, amending the Constitution to reflect modern contexts of natural rights is neither  radical nor new. For example, the “right to life” used to principally protect one from physical harm, but is  now interpreted to protect the right to live with dignity28. The legal scope of these natural rights  has broadened greatly over the years to accommodate a rapidly changing society. Warren and  Brandeis, the renowned “founders” of privacy law, acknowledged in their 1890 review article  that “Political, social, and economic changes entail the recognition of new rights, and the  common law, in its eternal youth, grows to meet the new demands of society.”29. It would be  inconsistent and dangerous to treat privacy any differently, especially during a time of such  substantial changes to how our personal information is handled. We must modernize and expand  our view of “liberty” and what it protects, and the long list of cases like Griswold make it clear that the Constitution should heavily burden the government to uphold privacy as an  unalienable right. The most optimal path to enshrining our right to privacy in our law would be  to enact stringent federal regulations in coordination with a proposal for a Constitutional  amendment establishing the right to privacy. The amendment cannot be the only solution given its time-intensive nature and the urgency of the issue, but ultimately our right to privacy  would be best and most securely preserved by its codification in the Constitution.

Bibliography

1 See Thomas, J., Dobbs v. Jackson, Concurring (2022) supremecourt.gov. 

2 See UN Charter, Article 12, un.org. 

3 See Maddy Cittadino, Dobbs v. Jackson: The Overturning of Roe v. Wade and its Implications on Substantive Due  Process (2022), lawreview.syr.edu.

4 See Ralph F. Gaebler, Is There a Natural Right to Privacy? (1992), law.indiana.edu. 

5 See Privacy, Cornell Legal Information Institute, law.cornell.edu. 

6 See Union Pacific Railway Co. v. Botsford, 141 U.S. 250 (1891), supreme.justia.com. 

7 See Union Pac. Ry. Co. v. Botsford, Cornell Legal Information Institute, 141 U.S. 250 (1891), law.cornell.edu. 

8 See Watkins v. US (1957), Cornell Legal Information Institute, law.cornell.edu. 

9 See Tim Meinke, The First Amendment Encyclopedia, Watkins c. United States (1957), mtsu.edu. 10See Warren and Brandeis, The Right to Privacy (1890), Harvard Law Review, mit.edu. 11 See Griswold v. Connecticut (1965), Oyez, oyez.org. 

12 See Amy Howe, Birth Control, Business, and Religious Beliefs: In Plain English, SCOTUS Blog,  

Scotusblog.com.

13 See Jessica Guynn, EU Commissioner says New Google Privacy Policy Breaks the Law (2012), Los Angeles  Times, latimes.com. 

14 See Adam Satariano, Google is Fined $57 Million Under Europe’s Data Privacy Law (2019), The New York  Times, nytimes.com. 

15 See Nicole Martin, How Much Data is Collected Every Minute of the Day (2019), Forbes, forbes.com. 

16 See Jay Pil Choi, et al Privacy and Personal Data Collection with Information Externalities (2019), Journal of  Public Economics, vol 173, pgs. 113-124. 

17 See Yartey, Darlington, et al., Personal Data Collection and Usage for Mobile Marketing, Customer Awareness,  and Perception (2021), WSEAS Transactions on Business and Economics, vol 18. 

18 See Top 10 Worst Data Breaches of All Time (2019), Purdue University Global, purdueglobal.edu. 

19 See Thorin Klosowski, The State of Consumer Data Privacy Laws in the US (And Why It Matters) (2021), The             New York Times, nytimes.com.

20 See Robert E.G. Beens, The Privacy Mindset of the EU vs. the US (2020), Forbes, forbes.com.

21 Refers to the time required to pass an amendment. 

22 See Amending the Constitution, U.S. Senate, senate.gov. 

23 See National Archives, 26th Amendment to the US Constitution, archives.gov.

24 See Scott Bomboy, How a College Term Paper Led to a Constitutional Amendment, National Constitution Center,  constitutioncenter.org. 

25See “Fair Information Practice Principles (FIPPs).” FPC.gov, https://www.fpc.gov/resources/fipps/. 

26 See “Reforming the U.S. Approach to Data Protection and Privacy.” Council on Foreign Relations, Council on Foreign Relations, https://www.cfr.org/report/reforming-us-approach-data-protection. 

27 See Hickey, Walt. “Congress Is about to Get a Little Bit Younger, with Lawmakers' Median Age Dropping by Two-and-a-Half Years.” Business Insider, Business Insider, https://www.businessinsider.com/congress-age-oldest-members-younger-2022-12. 

28See Anna Dzhuska, et al., Modern Concept of Understanding the Human Right to Life (2021), National Institute of  Health, nih.gov. 

29 See Warren and Brandeis, Harvard Law Review, The Right to Privacy (1890), mit.edu.