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When the Constitution was written in 1791, the major concern of thedrafters was that a powerful government could intrude on the privacy ofindividual citizens, hence the provisions in the Bill of Rights, specificallythe Fourth and Fifth Amendments, to protect citizens from government. Today,individuals also need protection from intrusion by large corporations,but the law has been slow to provide such protections.
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A 1946 majority opinion considered a newspaper's refusal to comply witha subpoena, in which the Court cited, in a long footnote, Brandeis' dissentin as making "the case for protected privacy"., 327 U.S. 186, 204, n.30 (1946).
As a second example, consider purchases of underwear. The purchasesare made in a public place and the sales clerk and other customers arenot professionals with a duty of confidentiality. Therefore, under currentlaw, there is no expectation of privacy. If the customer is a famous person,the store clerk could report the type of underwear that the famous personpurchased. Yet it seems obvious that such a reporting is not only a violationof the purchaser's privacy, but is also an uncivil activity that degradessociety as well as embarrasses the victim.
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Because privacy is an emerging right, a discussion of privacy is typicallya list of examples where the right has been recognized, instead of a simpledefinition. Privacy can be discussed in two different directions: the natureof the right and the source of the right (e.g., case law, statute, Constitution).
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Unreasonable intrusion upon seclusion only applies to secret or surreptitiousinvasions of privacy. An open and notorious invasion of privacywould be public, not private, and the victim could then chose not to revealprivate or confidential information. For example, recording of telephoneconversations is not wrong if both participants are notified before speaking that the conversationis, or may be, recorded. There certainly are offensive events in public,but these are properly classified as assaults, not invasions of privacy.
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Other examples of privacy are included in professional ethics, suchas confidentiality of disclosures during physician-patient, priest-penitent,attorney-client relationships, together with the evidence code that protectssuch disclosures. Violation of such confidentiality can be a tort. , 696 P.2d 527 (Or. 1985)(physicianviolated confidentiality of adoption by helping daughter find her birthmother). The violation of confidentiality could also be a matter for aprofessional licensing board.
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The wisdom in this dissenting view lay dormant for many years. The followingis a brief history of the use the "right to be let alone" inmajority opinions of the U.S. Supreme Court.
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A 1966 majority opinion in a habeas corpus proceeding mentioned thatthe Fourth and Fifth Amendments stand "as a protection of quite differentconstitutional values reflecting the concern of our society for the rightof each individual to be let alone." The Court provided no citationto an earlier use of the "right ... to be let alone" in thiscase. , 382 U.S. 406, 416 (1966).