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Debate 2000 Essay, Research Paper
PROBLEM AREA II: RIGHT OF PRIVACY
The Right to Be Left Alone:
An Examination of the Right of Privacy
Prepared for Submission to the 1999 National Debate Topic Selection Committee
Colleyville Heritage HS
The Right to Be Left Alone: An Examination of the Right of Privacy
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment to the United States Constitution
“The right to be left alone ?? the most comprehensive of rights and the right most valued by a free people.”
Justice Louis Brandeis, Olmstead v. U.S. (1928)
BACKGROUND AND JUSTIFICATION
Although the word “privacy” does not exist in our constitution, the Fourth Amendment serves as the basis for the discussion of a “right to privacy” in our country, a right which has been controversial since its inception. However, there has never been such an assault on privacy as exists now; the increasing reliance on science and technology and the growing role of government as protector has made it possible to circumvent traditional protections on privacy and subject the individual to increasing scrutiny by government, employers, and the public at large.
Incursions on privacy have a long history, largely in response to technological advances:
1861 ?? Western Union begins operating the first transcontinental telegraph line
1861 ?? wiretapping begins during the Civil War
1876 ?? the telephone is invented
1890 ?? Louis D. Brandeis articulates the legal expression of a “right to privacy” in a Harvard Law Review article
1899 ?? the credit reporting agency, Equifax Inc., is founded ?? under the name Retail Credit Company
1902 ?? the Medical Information Bureau, Inc. is established to act as a clearinghouse for medical claims to assist insurance companies
1935 ?? the Social Security Act creates a de facto national identification number
1950 ?? the first credit card is issued
1972 ?? electronic mail is introduced
1974 ?? the Privacy Act is signed into law
1986 ?? Caller ID is introduced
There is also a historic record of privacy protection. Amitai Etzioni, author of The Limits of Privacy, and a professor at George Washington University, describes three historical periods in the formation of privacy rights:
Stage One ?? pre 1890 ?? a vague social concept of privacy exists which is linked to property rights, i.e. if you damaged someone’s reputation by revealing private details you were harming something owned (a reputation). Private property was held semisacred, a part of natural law.
Stage Two ?? 1890-1965 ?? an essay by Samuel D. Warren and Louis D. Brandeis, considered “the most influential law review article ever published” asserted that privacy was distinct from other rights, particularly property rights. They called it the “right to be left alone” and considered its existence self-evident. Later authorities declared it an “inalienable right.” Privacy was considered to be protected by tort law.
Stage Three ?? post-1965 ?? legal foundations of privacy are established with cases such as Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972), and Roe v. Wade (1973) which all happened to deal with reproductive issues. Supreme Court decisions established privacy as an unlimited good and paved the way for legislative recognition of the right to privacy.
Although Etzioni stops with stage three, it’s possible that we are now in a fourth stage, as traditional concepts of privacy are challenged by both technological innovations and social concepts of utilitarianism. While Americans have been fighting against governmental incursions on privacy, the private sector has been making steady inroads. Consumers, employees, even patients and children have little protection from marketeers, insurance companies, bankers, and corporate surveillance. Additionally, as the Supreme Court has given greater leniency to law enforcement officials in recent decisions our personal privacy may gradually be coming to an end. A 1996 Harris/Equifax poll found that 80% of Americans were somewhat or very concerned about threats to personal privacy while a 1997 Harris-Westin poll found that 92% of Americans were concerned about threats to their personal privacy. (Etzioni, p. 6 – 10)
Indeed, as Carl Micham, professor of philosophy and director of the Science, Technology, and Society Program at Penn State University, noted in The World and I on March 3, 1996,
Although extensive bureaucratic record keeping is no new activity, computerized information is vulnerable to electronic invasion and manipulation by hackers and program viruses in ways that hard-copy records never were. Additionally, much more information is being collected than ever before, and in forms that allow the linking of medical, financial, and legal records to create integrated profiles of use to commercial as well as law-enforcement interests.
Privacy is an issue that affects all Americans in virtually every aspect of their lives. An internet search to the Electronic Privacy Information Center revealed the following inexhaustive list of areas in which privacy is threatened:
Air travel – passenger profiles
Cable TV records
Children’s privacy – from marketing efforts
Direct marketing and junk mail
Federal Trade Commission
National ID cards
New surveillance technology
Personal and consumer information
Social Security numbers
This gives a good idea of the scope of the problem. We will now look at a few of the issues in more depth in order to understand how privacy is impacted on a daily basis. A discussion of these issues is not meant to establish priorities, but rather to illustrate the wide range privacy matters entail.
Imagine this: A prominent local banker is appointed to a state health commission. He peruses the commission’s computer files to identify every cancer patient living in his community. Then he has the bank call in their mortgages.
What about this one: a teenage prankster uses her mom’s access to computerized hospital files to get a list of emergency room patients. Then the mischief-maker calls seven of the patients and falsely informs them they have tested positive for the HIV virus.
Or how about this? a member of congress running for reelection has her medical records faxed to a newspaper in her district on the eve of the primary. She and her family wake up to find a front page story about her attempted suicide years earlier.(Washington Times)
Sound farfetched? Hardly. According to The Washington Times in August of 1998, these violations of medical privacy have occurred in recent years. Etzioni explains how “the privacy of sex offenders or encrypted messages may not be of direct personal interest to everyone, but we all have medical records and cherish their privacy.” (Etzioni, p. 139) This concern about medical privacy seems to be justified; a 1993 Louis Harris poll quoted in the article found that, “34 percent of medical professionals admitted that patient information is given to unauthorized persons ’somewhat often.’” (Washington Times)
This concern becomes even more urgent as most of the medical profession is switching from paper records to computerized files to online databases. The problem is that access is not just given to health care professionals but a variety of other sources as well such as pharmaceuticals, employers and research centers. A report issued by the Office of Technology Assessment (OTA) observes that “as a result of computers, patient information will no longer be maintained, be accessed, or even necessarily originate with a single institution, but will instead travel among a myriad of facilities.” These electronic medical records give a “cradle to grave” view of a patient’s health care history. Health care providers are not the only sources of medical information. Equifax, the giant consumer credit reporting agency, said in 1995 that it would supply computerized medical records systems in addition to consumer credit reports. The major problem associated with disclosure of this information is that a growing number of employers are using this data to the detriment of prospective and current employees. In fact, in 1996, 35 percent of the Fortune 500 companies acknowledged they use this information in making employment decisions. These companies employ millions of people, the effect is staggering. (Washington Times)
Another potential concern is that fear of improper use of medical records is harming medical research and may endanger treatment. Senator Olympia J. Snowe (R-Maine) reported:
One third of high risk women refused to participate in a Pennsylvania study to understand how to keep women healthy with a breast cancer gene. They refused to participate because they feared losing confidentiality with respect to genetic information. (Washington Times)
A.G. Breitenstein, director of the Health Law Institute, a Boston advocacy group, said, “People are not going to feel comfortable going to the doctor, because now you are going to have a permanent record that follows you around for the rest of your life that says you had syphilis, or depression, or an abortion or whatever else.” (Washington Times) Numerous individuals avoid counseling or schedule sessions sporadically in order to pay in cash to avoid creating an insurance “file” on their mental health which could adversely affect them later.
The “information brokers” adopted voluntary guidelines on January 1,1999 to restrict data they sell. Ed Mierzwinski of the U.S. Public Interest Group, a consumer advocacy organization stated in USA Today that ” These new rules will protect some of your information some of the time… Rules are a poor substitute for legislation”. Current legislation is a morass of erratic law, both statutory and judicial, defining the confidentiality of health information. Between a lack of regulations or relevant regulations in the states, computerized interstate transmissions which make state laws irrelevant, and state laws that do not go far enough. Secretary of Health and Human Services Donna E. Shalala concurs that:
every day, our private health information is being shared, collected, analyzed, and stored with fewer federal safeguards than our video store records… To eliminate this clear and present danger to our citizens and our health care system, we must act now with national legislation, national education and a natural conversation. (Washington Times)
Other specific examples of how privacy rights are affected within the realm of medicine include insurance companies and their access to medical records. The very real potential of companies denying benefits based on access to privileged records is frightening and also highlights the need for national protection. Individuals with HIV or Hepatitis C have a vested interest in keeping their medical records private to avoid discrimination based on societal stereotypes.
The use of genetic information (from gene mapping) can also contribute to the misuse of the data. In yet another scenario described by the Yale Daily News on October 16, 1998, doctors who determine that there is a genetic risk of a fatal disease may be prohibited from sharing that information with family members in danger if the original patient wants to keep that information confidential – all because such information is privileged. On the other hand, employers who discover that their potential employees have genetic markers for certain diseases may be reluctant the hire them fearing the high cost of health insurance. Privacy is affected on both sides of the issue.
Even efforts to reform the health care system (at both the provider and insurer level) come with a cost to privacy. The efforts made in the 1996 Health Insurance Portability and Accountability Act to electronically gather medical records to guarantee insurance “portability” would not only create a “unique health identifier” number but would also make it possible for all of your medical records to be accessed by anyone with a connection to the database.
PRIVACY AND CONSUMERS There are several areas in which individual privacy is compromised by businesses. The Minneapolis Star Tribune reported on July 6, 1997 that promotions, such as those found in grocery stores, are often used to track shopping patterns. For example, stores which use buyer cards to give discounts use data collected to increase sales and profits, without notifying consumers that personal data is being disseminated. Video stores can use buyer cards to track movie viewing patterns. If you have ever received a preapproval form for a credit card you have had personal, private information distributed about you. Many catalog companies do the same thing. Manipulation of such information is not only unregulated currently, but is defended by businesses as essential to their operation. They resist regulation citing higher costs, but fail to acknowledge that they are using information gleaned without permission for free.
There are other examples of potential consumer exploitation. The Dallas Morning News noted on March 7, 1999 that Microsoft Corp. was having to modify its Windows 98 operating system when it was discovered that the company had quietly been using it to compile a vast database about computer users. An identifying number in the program could even be used to trace documents created by the individual using the computer. In essence, a “digital fingerprint” had been created. Intel was involved in a similar controversy. Both companies took action only after tech-savvy consumers noted the markers. The average computer user would never have known the information was being collected. As Marc Rotenberg, director of the Electronic Privacy Information Center (EPIC) in Washington, noted, “The problem is the absence of legal rules that limit the collection and use of personal information.”
Employees aren’t even safe within their own companies. EPIC reported on April 22, 1996 that some corporations not only disclose confidential employee information to creditors, but they also neglect to tell their employees about such access and even what is contained in their records. David Linowes, who is one of the nation’s experts on privacy laws and who directed a study of Fortune 500 companies, said “This limited approach is not sufficient. A uniform federal law is needed to protect individuals and to set guidelines of fair-information practices for businesses.” In the study, 35% of the companies polled admitted using medical records in making employment-making decisions. Linowes continued to note that the US lags behind other industrial nations in securing such private information. (EPIC)
IDENTITY THEFT/PRIVATE RECORDS
Another area in which privacy may be compromised is an area known as Identity Theft. This crime involves the selling or stealing of critical information which can be used to steal someone’s credit information, bank records, etc. The incidence of such theft is alarming. USA Today reported on January 18, 1999 that as many as 1000 people a day report that their identity has been stolen. To make matters worse, it may take years for an individual to clear their records once such theft has occurred. With easy access to databases, a thief often only needs a social security number, birthdate and a mother’s maiden name to take on a new identity while ruining the credit rating of the innocent and unknowing victim. Credit bureaus and information brokers who had been distributing private information, without the knowledge of the individuals involved, voluntarily imposed regulations on January 1st to avoid federal government intervention, but privacy advocates say that the rules are crafted too narrowly. “The rules are a poor substitute for legislation,” says Evan Hendricks, editor of the newsletter Privacy Times.
There is a growing field of new technology to counter identity theft. One such device was described in the Iowa City Press-Citizen in June 1999. The article describes how the banks of the future will use retina scanners at ATM machines to prevent fraudulent use of accounts. Retina scans prove to be valuable as an identifying marker because no two are alike, rather like fingerprints. Critics, however, fearful of an Orwellian nightmare, are reluctant to embrace such intimate technology.
Private records are also involved in the field of adoption searches. Many states are now considering legislation to open adoption records to adoptees on their 21st birthday. Birth parents are very concerned that information they had thought protected could now be made public two decades later without their consent. Both sides of the issue have legitimate interests at stake; emotional issues as well as competing rights claims of parents and children are involved. Adoption itself may be at stake. Counsel for the Edna Gladney Center, one of the largest private adoption agencies in the country argued that, “without assurances of confidentiality, some parents are simply unwilling to consider adoption.” (Dallas Morning News, March 7, 1999) Adoptees’ interests range from finding closure about their birth circumstances to uncovering hereditary health information. Typically courts have sided on the side of the child and private records are frequently unsealed. The internet, with its ability to make searches affordable, has contributed to the intensity of the controversy. Currently, states are responsible for the final decision in each case, leading to patchwork solutions.
MEDIA AND PRIVACY
Ruth Shulman lay pinned inside her family’s overturned car, her legs sticking out, in a ditch alongside a freeway. She moaned in pain, begging to know if her children had survived and at one point urging a paramedic to let her die. Little did she know that the crash that left her a paraplegic would be weekend fare for millions of TV viewers across the nation. The paramedic had worn a mini-microphone. A cameraman on the helicopter ambulance had taped the frantic trip to the hospital. ‘They took one of the most tragic moments of my life and made it entertainment for the nation,’ said Shulman, 53, who sat stunned in her hospital room three months later, watching herself on a syndicated show about real-life rescues. (LA Times, August 1, 1997)
This dramatic account is indicative of invasions of privacy being displayed in the mass media. A cursory perusal of the weekly television listings will reveal a number of “real life” shows which feature the use of hidden cameras, tiny microphones and “ride alongs” to capture the drama of everyday life. The problem is that these “real life” people have their most traumatic, embarrassing and horrifying moments captured without their permission and then displayed for everyone in the nation to watch. In one case, a widow watched a news program which showed the frantic efforts made to save the life of her dying husband, filmed without her knowledge in her own bathroom. In another situation, a mother watching a similar broadcast saw the body of her college-aged son draped over a chair as a result of a drug overdose while police arrived on the scene to investigate.
Such privacy invasions aren’t limited to television. The print media regularly makes use of photos and stories gained without the knowledge or permission of the individuals involved. Celebrities are the most frequent target, even finding their intimate moments featured on internet sites. Although legal claims have been made, and won, the damage has already been done.
Consistent judicial remedy at this point has been sorely lacking. Journalists use their broad first amendment protection to cover these stories citing “public interest.” The victims of the stories question the need for their private tragedies to be revealed in order to cover the story.
PRIVACY IN THE WORKPLACE
Some privacy invasions are generally considered acceptable by the majority of Americans; they typically occur in the workplace. The federal government has established several warranted invasions, particularly in the face of public safety interests. For example, in Skinner v. Railway Labor Executives’ Association (1989) a majority of the Supreme Court justices concluded that mandatory blood and urine testing of employees was justified for those involved in train accidents or who violated safety rules. It was held that “government’s compelling interests outweighed privacy concerns.” Essentially, this cost-benefit analysis has had the effect of ignoring the Fourth Amendment, but the public has generally accepted the need. Airplane pilots, train engineers, air traffic controllers, and bus drivers are among those occupations where there is perceived need to permit privacy violations in the interest of public safety.
The concept of privacy in the workplace (outside of these areas) is more complex. Private individuals can expect a certain level of privacy protection which is not afforded to employees. As Michael Bulzomi notes in The FBI Law Enforcement Bulletin, “As a general rule, intrusions that are reasonably employment-related do not require warrants to be considered reasonable under the Fourth Amendment and are evaluated on a case-by-case basis.” For example, federal courts have ruled that employers have access to employee lockers, desks, e-mails, correspondence, file cabinets, paging systems, even confidential medical records including psychiatric care while “private ” possessions like purses and wallets, coats, and briefcases are generally protected. However, despite these rudimentary protections, Bob Herbert notes in a recent article, “Most people assume that federal laws protect Americans from being spied upon in the workplace. To the contrary, over the years Congress has rejected legislation spelling out basic privacy protections for employees.”
PRIVACY AND LAW ENFORCEMENT
Law enforcement is one field where incursions on privacy rights have had dramatic changes. The Supreme Court has continually shown great latitude into what constitutes a lawful search and seizure, in everything from routine traffic stops to criminal investigations. But privacy violations can continue even after a defendant has been found guilty, sentenced, and served his time. Numerous states have “Megan’s Laws,” statutes which mandate informing the public if a former sex offender is living in their neighborhood. In many cases, these individuals find that they are not free from their sentence after all; instead, they are driven from their new homes by frightened and angry neighbors. As most of these laws are fairly new, society has not had time to gage their impact on rights’ violations.
Genetic testing is also an area which has law enforcement ramifications. The Dallas Morning News noted in an editorial on March 8, 1999 that some state legislatures want DNA samples taken from every arrested person. The DNA samples would then reside indefinitely in a criminal DNA bank. Both the state and federal government would have access to this information. A chilling thought, the editorial notes, as the key American principles of right to privacy, freedom from unlawful search and seizure, and the presumption of innocence would all be violated. The information gained would undoubtedly provide potential benefits, but at what cost?
These are just a few of the areas where issues of privacy rights are involved, but the do serve to illuminate the scope of the problem.
As of May 1999, these are some of the federal laws which deal with privacy issues:
Title VII of the Civil Rights Act of 1964 – covers private employers – prohibits discrimination in employment on basis of sex, race, color, national origin, or religion
Freedom of Information Act of 1966 – applies to general public – makes government documents available for public disclosure
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 – covers private employers – limits interception and disclosure of telephone communications
Fair Credit Reporting Act – (15 USC Sec. 1681a – 1/24/99) – earlier 1974 – defines procedures for release of credit information and disclosure
Privacy Act – (5 USC Sec. 552a – 1/24/94) – provides for making known to the public the existence and characteristics of all personal information systems kept by every Federal agency. Earlier version in 1974.
Immigration Reform and Control Act of 1986 – defines document requirements to establish employment eligibility
Electronic Communications Privacy Act – (USC Sec. 2510 – 1/24/94) – earlier 1986 – limits employer access to electronic communications
Drug-Free Workplace Act of 1988 – requires establishment of policy to promote drug-free workplace
Employee Polygraph Protection Act of 1988 – prohibits use of polygraph in preemployment screening, defines procedures for investigations
Americans with Disabilities Act of 1990 – prohibits discrimination and limits use of medical records
Telephone Consumer Privacy Act of 1991
Omnibus Transportation Employee Testing Act of 1991- requires drug testing of certain employees Boxer/Moran Drivers Privacy Protection Act of 1993 – limits access to information on your driver’s license
Computer Fraud and Abuse Act – (18 USC Sec. 1030 – 1/24/94)
Health Insurance Portability and Accountability Act of 1996 – defines procedures for insurance continuation and medical record privacy
Financial Records Privacy Act – ( 12 USC Sec. 3402 – 1/24/99)
Postal Patron Privacy Act – proposed
Privacy Protection Commission Bill – proposed
Electronic Monitoring Bill – proposed
Caller ID legislation – several proposals
SUPREME COURT CASES
The following is a sampling of Supreme Court cases which have dealt with privacy issues in the past 30 years:
Roe v. Wade (1973) – determined that the constitutional right to privacy included a woman’s right to terminate her pregnancy.
Bowers v. Hardwick (1986) – the court upheld Georgia’s anti-sodomy statute.
O’Connor v. Ortega – (1987) – the court held that the very nature of a public employee’s position allows intrusions into privacy that would not otherwise be tolerated by the Fourth Amendment.
Skinner v. Railway Labor Executives’ Association (1989) – government’s compelling interest in protecting public safety justifies blood and urine testing of employees.
National Treasury Employees Union v. Von Raab (1989) – justified drug testing of Customs Service employees due to the special needs of deterrence and workers’ professional integrity.
Florida v. Jimeno (1991) – justified a search of a stopped car which resulted in discovery of narcotics in a closed container when the suspect gave police permission to search the car. Employment Division, Department of Human Resources of Oregon v. Smith (1990) – the court rules against the sacramental use of peyote during a religious service. Essentially the court moved from projecting individual rights to being guardians of majority rule.
Florida v. Bostick (1991) – held that police can constitutionally search a bus passenger’s luggage without probable cause or a warrant if consent was given. Essentially this case shifted the burden to the citizen to defend their rights rather than the officer.
“The goal of privacy advocates is not extreme . . . to try to restore the privacy that was universal in the 1970s is to chase a chimera. . . but 20 years hence most people will find that the privacy they take for granted today will be just as elusive as the privacy of the 1970s now seems. . . People will have to start assuming that they simply have no privacy. This will constitute one of the greatest social changes of modern times.” (The Economist, May 1, 1999)
The time to act is now . . .
privacy – freedom from unauthorized intrusion; state of being let alone and able to keep certain esp. personal matters to oneself. (Meriam Webster’s Dictionary of Law, 1996)
Privacy -the right to be left alone; that is, to be free from unwarranted publicity and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned. The so-called right, founded upon the claim that a man has the right to pass through this world, if he wills, without having his picture published, his business enterprises discussed, his successful experiments written up for the benefit of others, or his eccentricities commented upon either in handbills, circulars, catalogues, periodicals, or newspapers; and, necessarily, that the things which may not be written and published of him must not be spoken of him by his neighbors, whether the comment be favorable or otherwise. The theory that everyone has a right to privacy and that the same is a personal right growing out of the inviolability of the person. The right to one’s person may be said to be a right of complete immunity, to be let alone. That a person is entitled to relief at law or in equity for an invasion of this right, is generally understood to have been first publicly advanced in an article entitled, “The Right to Privacy,” in 4 Harvard Law Review 193 (December, 1890) – (Ballentine Law Dictionary, 1969)
Private – affecting or belonging to private individuals, as distinct from the public generally. (Black’s Law Dictionary, 1990)
right of privacy
1) a general right to privacy: the right of an individual “to be let alone” in the enjoyment of a private life in an increasingly intrusive society. In particular, the right includes freedom from unwanted publication of matters that the public has no right to know concerning an individual’s “private life, habits, acts, and relations.” Accurate or not, such a publication that subjects one to “mental pain and suffering” is an invasion of the right and actionable in tort.
2) the right to be let alone (sense 1) as an umbrella for a variety of torts for invasion of that right. Usage varies by statute and decision. Typically:
a. unreasonable intrusion, physical or otherwise, into one’s seclusion or private affairs. E.g. housebreaking, wiretapping, opening mail.
b. public disclosure of intimate facts of private life that are not of public concern at least when they relate to an ordinary private person, as distinct from a public figure.
c. publicity, though not defamatory, that places one in a false light. E.g. a false fictionalized account that plaintiff had been raped.
d. a use without consent (appropriation) of one’ name or likeness for the user’s benefit, e.g. advertising a product. Appropriation may be unwanted publicity, or something much different: depriving an individual (e.g. a celebrity) of an exclusive property, sometimes called the right of publicity.
3) a constitutional right of privacy: a controversial version of the right to be let alone (sense 1) stated to be a constitutional right, as distinct from traditional protections of privacy and personal liberty under specific provisions of the US Constitution, e.g. Third, Fourth, Fifth, and Fourteenth Amendments. Usage is not uniform. Typically, the right is described not only in terms of freedom from unwanted intrusions and publicity (sense 1 and 2 ). Increasingly, it is described to include personal autonomy in making critically important decisions over the intimate affairs of life, e.g., begetting, bearing, and rearing of children (contraception, abortion, education): e.g., marital and non marital sexual relationships. With its content in flux, a constitutional right of privacy has attracted a confusing variety of what are intended as endearing epithets, in addition to autonomy; e.g., dignity, identity, individuality, intimacy lifestyle, person hood, selfhood. Some speak of distinctive rights, e.g., lifestyle, and, notably, freedom of intimate association. (Mellinkoff’s Dictionary of American Legal Usage, 1992)
Privacy, right of – The right to be let alone; the right of a person to be free from unwarranted publicity; and right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned. Term “right of privacy” is generic term encompassing various rights recognized to be inherent in concept of ordered liberty, and such right prevents governmental interference in intimate personal relationships or activities freedoms of individual to make fundamental choices involving himself, his family, and his relationship with others. (Black’s Law Dictionary, 1990)
Privacy laws – Those federal and state statutes which prohibit an invasion of a person’s right to be left alone (e.g. to not be photographed in private), and also restrict access to personal information (e.g. income tax returns, credit reports); and overhearing of private communications (e.g. electronic surveillance). Some provide for equitable relief in the form of injunction to prevent the invasion of privacy while others specifically call for money damages and some provide for both legal and equitable protection. (Black’s Law Dictionary,1990)
Invasion of Privacy – an unjustified exploitation of one’s personality or intrusion into one’s personal activity, actionable under tort law and sometimes under constitutional law: the four types of invasion of privacy in tort are: 1) an appropriation, for ones’ benefit, of another’s name or likeness, 2) and offensive, intentional interference with a persons seclusion or private affairs, 3) the public disclosure, of an objectionable nature, or private information about another, and 4) the use of publicity to place another in a false light in the public eye. (Black’s Law Dictionary, 1996)
Breach of privacy – knowingly and without lawful authority: a)intercepting, without the consent of the sender or receiver, a message by telephone, telegraph, letter or other means of private communications; or b) divulging, without the consent of the sender or receiver the existence or contents of such message if such person knows that the message was illegally intercepted, or if he illegally learned of the message in the course of employment with an agency in transmitting it. (Black’s Law Dictionary, 1990)
Identity Theft – the misuse of personal identifying information to commit various types of financial fraud. (The Limits of Privacy, 1999)
Resolved: that the United States Federal Government should establish regulations substantially increasing protection of privacy of United States citizens.
Resolved: that the Federal Government should significantly increase protection of privacy in one or more of the following areas: the workplace, medical records, identity theft, and search and seizure.
Resolved: that the United States Federal Government should establish legislation protecting individuals’ privacy in the workplace.
Resolved: that one or more United States Supreme Court decisions denying a constitutionally based individual right of privacy should be reversed.
Resolved: that the United States Supreme Court should overrule one or more of its decisions recognizing a constitutional right to privacy.
Resolved: that the federal government should regulate the commercial use of private information.
NFSHSA CRITERIA FOR DEBATE TOPICS
Propositions: This problem area lends itself to a myriad of possible resolutions. The topic could be agent specific dealing with the Supreme Court as an agent of change or it could offer legislation as a method of change or be one that allows both as possible vehicles of change. Additionally, a focus on specific areas of potential privacy violations could occur as well as a more general topic that allows an examination of a broader range of issues.
Timeliness: This topic area is incredibly timely. Weekly we hear about new areas of intrusion into the privacy we hold so dear. Public debates about information sharing, medical records, the scope of search and seizure and new encryption/computer issues make this one of the most timely topics in years.
Scope: Privacy is one issue that affects everyone. Coaches, students and judges are all impacted by potential privacy violations. The scope of this area is not dependent on the region or state in which you live, urban or rural location, race, gender etc…
Range: The concept of privacy is one that is easily understood by novice debaters but complex and challenging enough to make even the most experienced debater interested for an entire debate season. This is particularly true given the different areas of potential privacy violations from which most affirmative cases will choose to deal.
Quality: This topic area insures quality debates. Not only does intuitive negative ground exist (ie… the Federal Government should not increase its involvement in the area of increasing personal privacy). Ample research exists from a diversity of easily accessible sources that allow for competitive debates.
Materials: Lots of easily accessible information exists on this topic. Daily articles are written on the issue of privacy. The internet also provides a wealth of information from both a perspective of diversity as well as quality. Online data bases such as the Electric Library and Ebsco Host provided some of the material for this paper, but daily newspapers were useful as well.
Interest: All are affected. The interest level should be high. Every teenager understands the issue of privacy and its importance.
Balance: This could be one of the most balanced topics in years. With the lines drawn between societal and governmental interests and individual interests, the balance exists in regards to both research and quality of argumentation.
Correlation: It is and will continue to be a hot topic for years.
Value: The potential case list gives some indication of the possibilities that exists to discuss pertinent and meaningful issues.
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