According to Smagadi (2008), the right to privacy is concerned with the protection of honor and reputation, physical integrity and space. The advent of information technology which involves collection, analysis and dissemination of information has highlighted various legal issues of privacy protection.
The origin of privacy rights can be traced back to the article published by Boston attorney Samuel Warren and Louis Brandeis, The right to Privacy, 4 Harvard L.REV.193 (1890), whose writing was triggered by the skyrocketing production of photographs and newspapers (Warren et al.,2010). In their article, Brandeis and Warren criticized photojournalists for breaching the privacy of individuals and made a plea to the state law machinery to look into the right to privacy and penalize such violations.
In the renowned dissenting opinion in Olmstead v. United States, Brandeis advocated for the entrenchment of personal privacy matters in the constitution. By 1967, telephones were seen as personal devices through which conversations could be easily tapped by an eavesdropping machine. This led to a landmark case known as Katz v. United States (1967)and a subsequent extension of the Fourth Amendment protection to accommodate intrusin of one’s privacy immaterially through the use of technology (U.S. Supreme Court, 1975).
Much as there is no globally accepted privacy law, the United Nation came up with the Universal Declaration of Human Rights on 10 December, 1948 in which the right to privacy is envisaged in its article 12. The issue of privacy though has been linked to other contentious matters of law namely reproduction and gay rights. The major issues that elicit legal debate as far as reproduction is concerned are abortion, sexual reproduction and the use of contraceptives.
Reproduction and Gay Rights
In the Einsenstadt v. Baird (McBride, 2008)case, the issue at hand was the right of unmarried persons to have in possession birth control devices just like married couples. The case resulted in the Supreme Court overruling a law which prohibited the distribution of contraceptives to unmarried persons reasoning that it contravened the ‘Equal protection clause’ of the Constitution. In another case, the Carey v. Population Services, the Supreme Court passed a ruling that the government will no longer deter persons below sixteen years of age from using contraceptives.
Moreover, abortion rights activists have reasoned that since preegnancy affects the bodies of women, then they are entitled to privacy in doing whatever they please with their bodies including abortion. The Supreme Court’s decision in the Roe v. Wade (Hitchhock, 2007), however, ruled that the state has the jurisdiction to protect the life of an unborn child from abortion unless the life of the mother was at stake.
In Baim et al. (2010), Terry Cosgrove, a white gay man, notes that “there is very little difference in the opposition to gay and lesbian rights issues and reproductive rights issues.”Cosgrove compares the choice of someone to marry with the right of a woman to have control over her body. Baime et al. (2010) adds that this comparison has been used by many courts with reference to right to privacy given to many women as a basis for providing gays with rights to privacy.
In as much as the homosexuals push for the gay rights to privacy, the Supreme Court in the Bowers v. Hardwick (1986) case clarified its stance on the right to privacy by the gay community. It stated that the right to privacy was entrenched in the Constitution with the American traditional relationships in mind. This included the family and marriages belonging to the straights (Wazler, 2002 p.78).