The Right to Privacy


The Right to Privacy

Federal law recognizes an individual's right to privacy. There is no explicit constitutional amendment giving the right to privacy, but as far back as 1890, legal scholars have recognized the “right to be left alone.” Finally, in 1965, the Supreme Court ruled that the Constitution protects a legal right to privacy.

Privacy rights protect you from government overreach, limiting the ways police and other state actors can search you or your property, take your property, make you give them information, collect personal information, and eavesdrop on your activities and conversations. However, all too often, law enforcement and other government officials ignore these constitutional protections and infringe on the right to privacy.

Search and Seizure

The Fourth Amendment of the Constitution protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This means that the police are not supposed to stop you without a reason, and they cannot go looking through your pockets, bags, car or anywhere else where an individual has a reasonable expectation of privacy.

Unfortunately, the police do not always follow the rules, often at the expense of a citizen's constitutional rights. However, if the police have violated your Fourth Amendment rights through an unlawful arrest, then they should not be able to benefit from breaking the law. In most cases, if the police did not go through the process of getting a valid search warrant or if they arrest you without probable cause, then the evidence gathered illegally cannot be used against you in court.

Warrants and Wiretaps

Police and law enforcement have to go through the proper procedures and legal checks and balances before they can search a home or spy on someone's activities. This usually requires seeking a search warrant, or a warrant for electronic surveillance. The officers have to get a judge to approve a search warrant, based on probable cause that the search will turn up evidence. The warrant has to specify the place to be searched, and the items to be seized. If the police act outside the restraints of the warrant, the evidence seized may be suppressed, and not admissible in court.

A wiretap usually involves tapping into a phone line to listen and record telephone conversations. Wiretaps can also involve text, voice or computer messages. In order for police to wiretap a suspect, they usually have to get a warrant for surveillance from a judge or magistrate. This is because people have a reasonable expectation of privacy when communicating with someone over the phone. In order to get a warrant, police officers have to show probable cause, describing in particularity the conversations to be intercepted, with a limit to the time and place of the surveillance.

One of the most common reasons for police to seek a wiretap warrant is for drug crime cases. Homicides, smuggling, and money laundering are other common sources for wiretap warrants.

One of the most common reasons for police to seek a wiretap warrant is for drug crime cases. Homicides, smuggling, and money laundering are other common sources for wiretap warrants.

Physical phone lines used to be the most common way to listen in on a conversation, but fewer people regularly use a landline phone. Now, cellular and mobile networks are accessed to record cell phone conversations and track the location and movement of an individual.

The laws covering search warrants and wiretaps changed slowly over the years, but as technology is developing so quickly, the laws are not always keeping up with new ways to track, detect, record, and listen in on information and various forms of communication.

In 2012, the Supreme Court ruled that warrantless GPS tracking of a suspect is an unreasonable search. In 2014, the Court ruled that police cannot search a suspect's mobile phone without a warrant. In most cases, police officers cannot force a suspect to enter their password to access a smart phone, which could be a violation of the Fifth Amendment protection against self-incrimination. But issues concerning the right to privacy with the increasing use of biometric data collection is still largely unsettled.

Private Personal Information

The Privacy Act of 1974 guarantees the right of individuals to be protected against an unwarranted invasion of their privacy from the collection, maintenance, use, and disclosure of personal information. It is intended to protect individuals from an invasion of personal privacy through federal agency misuse. While government agencies are only supposed to maintain relevant and necessary information, the government ends up collecting massive amounts of information on just about everyone.

With the increasing use of technology in our daily lives, just about every move we make may end up being recorded. Phone companies track your movements by tracing where your phone travels across the network. Internet search engines record what websites you visit, and what you search for. Social media apps may be collecting information from your address book, including the contact information for your friends, family, co-workers, and even some people you may not want to be publicly connected to. While it is primarily private companies collecting all of this data, the government can request this information from the private companies, and use it against you in a court of law.

Government Data Collection

While we all would like to be able to trust our government, public officials, and law enforcement officers, history has shown that it may be better to be skeptical about the extent of governmental privacy violations. When Edward Snowden brought to light secret government surveillance, many people were shocked to learn the extent to which government agencies were collecting personal data on its own citizens.

Snowden's disclosures included the PRISM program, which allowed the government to have direct access to Google and Yahoo accounts. The National Security Agency was collecting and searching email messages, contact lists, and tracking the movements of mobile phones. Although changes have been made since those disclosures, it remains unclear just how much, and what types of information the government may regularly seek regarding ordinary citizens.

Mobile Phone Searches

Your phone company gathers information from the calls, messages and movements of your phone. However, police officers and law enforcement may also be tracking your phone; not through requesting a warrant to search your phone records, but from mimicking the phone cell towers. Cell site simulators, also known as “stingrays,” are portable devices which send out signals to trick mobile phones into providing information on their location, as well as other identifying information. This information can be used to track an individual, find out who they are calling or messaging, and even gather content from calls and text messages.

According to the American Civil Liberties Union (ACLU), law enforcement agencies are actively trying to conceal their use of cell site simulators from public scrutiny. Even if police officers are tracking a criminal suspect, anyone else in the area with a cell phone can also have their phone data collected and accessed secretly, all without their knowledge or consent. This new technology is not well-regulated, and has a potential to be abused by law enforcement.

Government Investigations

An individual suspected of wrongdoing may have no idea that they are being investigated. In fact, many individuals who are under investigation are completely innocent of any crime. Law enforcement or government investigations may go on for years before any arrest is made or charges are filed. During this time, officers and agents may be gathering information from surveillance, wiretaps, search warrants, or other evidence gathering methods, unbeknownst to an unsuspecting, innocent citizen.

Criminal Defense for Privacy Rights Violations

The problem with many privacy rights violations is that an individual may be completely unaware that they are being watched, recorded, or followed. It may only come to light when someone is placed under arrest. Only upon an in-depth inquiry into the evidence will it be possible to see that the police conducted surveillance or tapped the suspect's phone or computer to gather the evidence against them. An in-depth investigation may be required before your lawyer will be able to discover that the police acted outside the law, in violation of your rights.

If the police do not follow the rules, and violate your constitutional rights, then you need someone to fight for you, to make sure you don't end up behind bars. Privacy rights' violations can be a complex area of the law. These cases require the knowledge of an experienced attorney who has successfully defended their clients in court. If you, or someone you know has been arrested, contact the criminal defense lawyers who will help you through the process, investigate all possible legal defenses, and fight to get your charges reduced or dismissed, and defend your rights in court.

What Happens Now?

If you are incarcerated, we will contact you in the jail where you are held, and we will remain in contact throughout the pendency of your case. If you are able to come in to the office, we will ask you to come meet in person as soon as possible. Our approach to defense is zealous, organized, and fast-paced, and we look forward to helping you.


Carmichael Ellis & Brock, PLLC is committed to representing you in criminal, military, security clearance, medical malpractice, personal injury, and product liability cases.