Brian Gongol
In the ongoing debates about individual privacy, the argument often centers on whether the individual has a fundamental philosophical right to privacy. The question of "Where in the Constitution can a right to privacy be found?" is often asked of judicial candidates and legal scholars, and often less than satisfactorily answered. Some argue an inherent right to privacy implied by the Fourth Amendment prohibition on unreasonable search and seizure. Others argue that the right to privacy derives from the Ninth Amendment, which clearly states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Despite the Constitution's Clarity, Many Still Doubt the Right to Privacy
Yet, unfortunately, neither argument seals the debate. There are Americans everywhere -- including Pennsylvania Senator Rick Santorum who think (and say) that we have no Constitutional right to privacy.
The overwhelmingly clear statement in the Ninth and Tenth Amendments that the people have Constitutional rights even if they don't appear in the Constitution, and that the government has no powers against those rights unless specifically granted by the people appears not to have persuaded even people elected and sworn to uphold the Constitution. Perhaps, then, they can be persuaded by an argument based off Americans' widely-recognized right to hold private property.
What Makes Privacy a Property Right?
Information about an individual has a certain amount of value. That value is measurable, and the information itself can be bought and sold. A very simple example is the use of credit reports. Those reports contain documented information about the individual's income and debts (sometimes even including information on parking tickets and library fines), and are extremely valuable -- the three main credit bureaus make millions of dollars every year exchanging and reporting that information. Since that information has measurable value and because license and rights to it can be assigned and transferred, it meets all of the normal standards for the definition of property.
As further evidence, people make judgments every day about their right to the privacy of their personal information; whether dealing with privacy policies when visiting websites, choosing to respond to offers of credit that arrive in the mail, or simply deciding whether to make purchases at stores that track and retain details about their customers' buying habits, either through "preferred customer" clubs or through massive databases of purchasing activity.
Government's Obligation to Respect the Property Right to Privacy
The fight between Google and the US Justice Department illustrates that consumers demand their right to privacy -- Google is fighting an order to turn over aggregated data that the government has demanded in the name of fighting pornographic content on the Internet. Whether the firm really believes in its users' right to privacy or not, Google reasonably calculates that if it doesn't defend what people believe to be their right to privacy, people will punish Google by using other search engines that do protect that right. Google's defense of privacy doesn't need to be motivated by principle; Americans' expectation of a right to privacy is enough to force their hand.
Thus, if the government seeks to capture anything which could be regarded as private information, then it should have to call it what it really is: An exercise in eminent domain. For the government to take information about the individual requires that the government properly compensate the person from whom that information is taken. A market value for the information exists (see the example of the credit bureaus), and even if it is captured by force, the individual has a right to compensation as guaranteed by the Fifth Amendment.
Ultimately, the argument that privacy is a property right is a functionalistic argument -- it rests on the mechanisms of law, rather than on the philosophy that the Constitution reserves all of the rights of the people. Arguments in favor of the right to privacy are strongest from the Ninth and Tenth Amendments, but when those fail (as they sometimes do), argument from the nature of property may provide a reliable alternative.