Facebook’s data collection scandal has precipitated congressional hearings with Facebook CEO Mark Zuckerberg, and Apple CEO Tim Cook recently slammed Facebook, asserting, “Privacy to us is a human right.” Singling out the U.S., he continued, “It’s a civil liberty, and something that is unique to America. This is like freedom of speech and freedom of the press. Privacy is right up there with that for us.”
Is data privacy really a human right?
According to the Universal Declaration of Human Rights, a resolution adopted by the United Nations in 1948, privacy is indeed a human right. Article 12 of the Declaration reads, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
Even though this human right to privacy was declared long before people were widely concerned about the privacy of their “data” (a word first used by Harvard in its computational sense only two years earlier, in 1946), its principles regarding the privacy of one’s personal life and correspondence apply very clearly to our modern concerns about online privacy.
Indeed, the European Union used this understanding to pass the Data Protection Directive in 1995, and most recently, the General Data Protection Regulation (GDPR), which will go into force on May 25, 2018. The GDPR is figuring highly into Europe’s response to the Facebook privacy issue.
However, in the United States, a long-held belief since its founding has been the understanding that international law is only domestically binding to a certain extent — that is, insofar as U.S. law affirms it. Furthermore, when it comes to the UN’s Universal Declaration of Human Rights in particular, the Supreme Court ruled in the 2004 case of Sosa v. Alvarez-Machain that “the Declaration does not of its own force impose obligations as a matter of international law.”
So, when we consider the issue of data privacy as a human right in the U.S., as Tim Cook asserted, we must look at the narrower scope of U.S. law. The Constitution doesn’t say anything about the right to privacy, at least not explicitly, but the Bill of Rights does speak about certain privacy rights, and we do have a few Supreme Court decisions on the subject.
Certain states like California are trying to press Facebook to protect private user data, but it’s federal law that would drive the real change. “Federal crimes carry much more severe penalties than their statewide counterparts,” says David McKenzie, an attorney who specializes in federal cases.
The right to privacy is not something that is “unique to America,” as Tim Cook says, but it is indeed a right upheld by the Supreme Court, at least where the Bill of Rights makes those guarantees explicit. Europe has been in the vanguard of explicitly enshrining and enforcing the right to data privacy, and in the months and years to come, we’ll see if the U.S. follows suit.