AS THE TIMES CHANGE, THE CONSTITUTION EXPANDS: RIGHT TO PRIVACY IN THE HOME, BODY AND CELL PHONES

Many matters of constitutional concern are not explicitly articulated in the U.S. Constitution. Rather, courts have expanded on the intent of the framers words. Those that believe the Constitution is a “living” document favor this expansive approach. Others, like the late Justice Scalia, subscribed to an originalist philosophy when interpreting the Constitution and defined it as follows:

“The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”

The “originalist” approach has enabled courts to strictly interpret the words of the  2nd Amendment–  “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”– as being a literal prohibition against any restriction on the right to bear arms.   

Others believe the Constitution is a “living document” and that Justices should be permitted to interpret the meaning or intent of the words based on an ever-changing and developing world. They would argue that the original purpose of having a “well regulated Militia” is no longer valid because we now have a sophisticated military. We agree with the “living Constitution” since it requires adherence to a changing world with new technologies. We think an originalist approach is appropriate where the 2nd Amendment is concerned because modernism does not impact on the fundamental right to own and possess firearms. 

In GRISWOLD v. CONNECTICUT, (1965), a case where the Executive Director of the Planned Parenthood League of Connecticut, and its medical director, a licensed physician, were convicted as accessories for giving married persons information and medical advice on how to prevent conception, the Supreme Court held that the Connecticut statute violated the right of marital privacy which is within the PENUMBRAS of specific guarantees of the Bill of Rights. There is no mention of “penumbras” in the Constitution, let alone the privacy right to have an abortion, or for two adults to have sex in private settings. However, the court treated the Constitution as “living” and brought the due process clause into the 20th century. We applaud them for doing so.

The right to privacy is closely linked to the right to be secure from unreasonable search and seizures as guaranteed by the Fourth Amendment. This is another area where the courts have modernized the actual words of the Constitutional and applied it to the unique circumstances we find ourselves in today. The amendment’s protection against unreasonable searches has been extended from our homes to our mobile assets, including cell phones. There is private data in cell phones that once could be expected to be found only in our homes or offices. In other words, we all have a reasonable expectation of privacy in this information and the public should not be entitled to see it. 

The Supreme Court in RILEY v. CALIFORNIA noted:

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s person. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos. This has several interrelated privacy consequences”.

The issue of privacy is central to a genuinely free country and is more important than issues of “potential” national security, religious concerns about abortion or even the need for family members to extract data from the phone of a recently deceased loved one.The essence of the existence of privacy is the prior belief that the intimate details of your life will be kept from public view. It should only be in the rarest case where such expectations are violated. For these reasons, we supported Apple’s right to protect their encryption system, and why we think that laws offered to require phone companies to disclose private data from the phones of a recently deceased loved one are treading on dangerous ground.

In Minnesota, a University student was found froze to death near the Stone Bridge in Minneapolis. According to local reports there, Jake Anderson (19) had been at a party and last seen walking a girl home and somehow ended up at the bottom of the Mississippi riverbank in December of 2013. The medical examiner determined that he died of accidental hypothermia. Understandably, the family would like access to Jake’s phone records to garner any information about the details of events leading to his death.

The family has since appeared before a Minnesota Senate Committee to support a Digital Access Act that would allow one person to access the digital data of the deceased. As I understand the proposed law, a person could opt to have his personal data available for a particular person (chosen beforehand) and could opt out at any time. We feel this is one of those “rare cases” where on balance, the family’s need for closure outweighs general privacy considerations. But even here, we would enclose language in the bill that prohibits any use of the data for prosecution or any purpose by the government.


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