Enforcing Digital Privacy Might Be Tough

[Commentary] Though there is an argument to be made that digital privacy rights are enshrined in the supreme law of the land, legal scholar Mark Tushnet of Harvard Law says that idea is actually controversial.

It stems from outdated doctrines and case-law that doesn’t reflect modern realities. In the abortion cases of the 1960s and 1970s, to protect a woman’s reproductive privacy, the Supreme Court relied on what Tushnet calls a “slew of constitutional provisions,” including the First, Fourth, and Fifth amendments. Legal scholars characterize this type of privacy as “decisional autonomy.” This is a different concept than a right to digital privacy, says Tushnet. Eventually, he says, it’s likely the court will be forced to consider the issue directly, but currently there have only been allusions to it, making the media’s argument that the National Security Agency shouldn’t be collecting the bulk metadata of Americans a more difficult one, due to lack of precedent.

[Marlisse Silver Sweeney is a freelance journalist]