In the last decade, new computer-based methods for storing, searching, and sharing data about individuals have proliferated. With the popularization and commercialization of the Internet, the tracking of individuals and their databodies has become big business, one in which governments increasingly participate. In a similar vein, optical devices have become smaller and cheaper, leading to an expansion of government and corporate surveillance cameras, which continuously monitor an ever-increasing number of private and public spaces. These technologically-facilitated developments have revitalized the ongoing debate about privacy. At issue is what form privacy will take—both as a principle, as well as a legal protection—in the so-called Information Age.

While it is commonly thought of as a fundamental right, privacy is not expressly protected by the U.S. Constitution. In the United States, the law of privacy has developed in a hodge-podge manner, largely by Supreme Court decisions in which the Court was presented with a specific factual scenario and determined whether or not a privacy right existed in that specific instance. This development pattern has led some legal scholars to declare that rather than an overarching “right to privacy,” citizens of the United States enjoy only particularized “rights” to privacy–those that the U.S. Supreme Court has established in various cases, or that the U.S. Congress has enacted as specific statutory protections.

The U.S. Supreme Court, for example, has found a fundamental right to privacy in the following basic areas: (1) reproduction, (2) marriage, (3) activities inside the home, (4) the right to refuse medical treatment, and (5) raising children. Similarly, Congress has passed federal laws or regulations that grant (to a greater or lesser degree) privacy protection in a host of areas, including the contents of first-class mail, information concerning which videotapes you rent, and information about your bank records.

Although these protections were created by particular court decisions or by specific statutory enactments, they share an underlying reasoning and common principles, revealing that a general concept of privacy does indeed exist.

The legal concept of privacy has developed in fits and starts, often in union with technological developments. Up until the late 1800s, “privacy” was by-and-large limited to providing a remedy when someone physically interfered with your (private) property or with your physical body. A hundred years ago, the right to privacy was not much more than a right to be free from physical battery and a right to repel invaders from your land. A major development occurred in 1890, when Samuel Warren and Louis Brandies penned an influential law review article titled “The Right to Privacy.”¹ Warren and Brandies wrote at the time when portable cameras and audio recording devices were—for the first time—available to common people, and newspaper reporters aggressively embraced these new devices. It was the genesis of the paparazzi.

In their article, Warren and Brandies articulated a legal principle, based on general concepts of privacy, which would provide people with protection against reporters’ efforts to publicize personal information. As Warren and Brandies wrote:

Instantaneous photographs and newspaper enterprises have invaded the sacred precinct or private and domestic life; and numerous mechanical devices threaten to make good the [biblical] prediction that “what is whispered in the closet shall be proclaimed from the housetops.”²

 Cognitive Liberty and the Right to Privacy

Just as Warren and Brandies called for a revisioning of “privacy” in the then-new age of portable cameras and audio recorders, as we enter into the third millennium, with ongoing developments in drug creation, nano-technology, genetic engineering, and mind-machine interfacing, it is again time to explore the meaning of privacy and the scope of what is to receive legal protection as “private” in this (post)modern age. As the U.S. Supreme Court noted in 1910:

Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of Constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, “designed to approach immortality as nearly as human institutions can approach it.³

Thus, while the current privacy debate has centered on new computer surveillance technology with the power to capture and control more and more data about each of us, it is time for the privacy debate to acknowledge, and make explicit, that a person’s mind and mental processes must be protected as private. “[T]he concept of privacy embodies the ‘moral fact that a person belongs to himself and not others nor to society as a whole.’”⁴ Certainly, a person’s thoughts and thought processes belong to himself or herself, and not to society, the government, or any other meddlesome external force.

Inasmuch as a right to privacy entails the right to be let alone, and centers on the interior and intimate aspects of a person’s life, cognitive freedom and autonomy should become a central touchstone for how we conceive of, and apply, a modern right to privacy. The areas in which the Supreme Court or Congress has expressly declared a right to privacy all center on interior spaces as opposed to exterior spaces, and serve to strengthen and protect the autonomy of the personal, or individual self. There is nothing more interior, and nothing more important and central to individual autonomy than one’s consciousness. Indeed, without independent consciousness, no sense of self is even possible.

Despite its self-evident importance to us today, the idea that a person is entitled to privacy over his or her own thoughts and thought processes is actually a fairly recent concept. For most of history, the inner workings of the mind have been perceived as a threat to the Church-State. Broad expanses of the U.S. legal system are premised on an Aristotelian-Thomistic world view. Both Aristotle and Thomas Aquinas viewed God as a “Supreme Being” who exists outside of and above humankind. In contrast to God, evil was located within the individual. The concept of privacy that developed under the Aristotelian-Thomistic belief system was one inherently skeptical of the human interior and sought to essentially force into private—to shield behind closed doors—such things as death, birth, and personal hygienic matters. Under the Aristolian-Thomistic tradition, the privacy protections that did exist were limited to those that would benefit the community and ultimately promote the pleasure of God. Privacy, then, to the extent that it exists under a Aristotelian-Thomistic paradigm is there to serve and promote the “general will” rather than to advance individual autonomy and self-actualization.

A Platonic or Buddhist belief system is just one among a host of other ways to view the world. In these systems of thought (and many other “religions,” and/or “philosophies”), god(s) exists both inside and outside of each person. Thus, a person’s interior thoughts and thought processes are not feared, but are instead cultivated, revered, and protected.

Today, however, the U.S. prides itself on being a secular, pluralist country, free from the shackles of a dominating Church power. As such, it is no longer appropriate to limit the concept of privacy to centuries-old models; indeed, just as Brandies and Warren did over a century ago, it is imperative that we continue to update our concept of privacy to fit current circumstances.

A modern conception of privacy must shed the long-standing allegiance to a single way of conceiving of Reality, and recognize that privacy is rooted in furthering human dignity and autonomy, and in protecting each person’s right to conceive of the world in his or her own way. Describing the contours of a modern right to privacy, Robert Ellis Smith, attorney and publisher of the Privacy Journal, aptly included “a sense of autonomy, a right to develop a unique personality and living space, and a right to distinguish one’s own persona from everyone else’s.”⁵

As noted earlier, the U.S. Supreme Court has a spotty record with regard to upholding individual privacy. The Court has found a narrow range of situations in which a protected privacy right exists, and a host of situations in which it does not. In 1928, for example, the Supreme Court ruled that the police could tap a person’s telephone so long as they did not enter the person’s home in order to place the tap.⁶ Not until 1967 did the Court rule that the content of telephone conversations was protected as private regardless of whether the line was tapped from inside or outside of the home.⁷ In 1984, the Supreme Court held that people have no legitimate privacy right with respect to garbage cans that they have placed on the curb for pickup. Such garbage, held the Court, may be examined by a police officer without any need to obtain a warrant.⁸ In 1989, the Court held that the police did not violate the privacy right of an individual when they flew over his home in a helicopter and peered through a hole in his roof in a search for marijuana plants.⁹ The latter two cases grew out of the War on (certain) Drugs, but their holdings extend far beyond drug cases, significantly reducing the right of privacy for all Americans.

In cases raising issues that directly concern the privacy of a person’s body in the face of government intrusion, the decisional trend has been more in favor of individual autonomy. For example, in 1965 the Supreme Court held that the decision of whether to use birth control was a private issue for married couples (a ruling later extended to unmarried couples).¹⁰ That case involved a Connecticut law prohibiting the use of “any drug, medicinal article or instrument for the purpose of preventing conception.” Such a law, held the Court, infringed upon a constitutionally protected “zone of privacy” reserved to individuals–the right to make their own decisions about reproduction. The Court struck down the Connecticut law based on what it called “the familiar principle, so often applied by this Court, that a ‘governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’”¹¹

In Roe v. Wade, the court held that the “zone of privacy” encompasses and protects a woman’s decision to terminate her pregnancy.¹²

The principles underlying the Supreme Court’s privacy rulings, especially those invoked in cases concerning an individual’s right to make decisions about the interior of his or her body, support the proposition that personal decisions about how to manage one’s interior thought processes and consciousness fall within a protected zone of privacy reserved for individuals, and protected against governmental invasion or usurpation. Just as the Connecticut law that banned all use of contraceptives was struck down as “unnecessarily broad,” today’s drug prohibition laws, which outlaw all use of certain plants and psychoactive chemicals, trespass upon the zone of privacy that protects an adult’s right to make decisions about how to manage his or her own consciousness.

Society recognizes cognitive privacy as reasonable. What goes on exclusively inside a person’s mind has traditionally been a private affair. The specter of Orwell’s “mind police” is universally chilling, as is the idea of a government employing mind control or thought-manipulation techniques on its citizenry. It is, indeed, a conservative position to state that if freedom is to mean anything, it must mean that what goes on inside a person’s skull is a private matter and something which that person—not the government—has the right to control.

Just about the only time this cognitive privacy principle is questioned is when it is applied to “drugs.” For example, in 1968, the U.S. Supreme Court held that “the mere private possession of obscene matter cannot be made a crime.”¹³ In this case, Mr. Stanley was found in possession (in his own home) of some pornographic films. He was prosecuted under a Georgia law that made possession of “obscene matter” a crime. The U.S. Supreme Court struck down the Georgia law, finding that the law violated the First Amendment. The Court distinguished laws that regulate the public distribution of “obscene material” from the Georgia law, which unlawfully targeted mere private possession of such matter. Hidden away in a footnote, however, the Court remarked that the same reasoning did not apply to drugs:

What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. Our holding in the present case turns upon the Georgia statute’s infringement of fundamental liberties protected by the First and Fourteenth Amendments. No First Amendment rights are involved in most statutes making mere possession criminal.¹⁴

This was non-binding dictum (commentary that is superfluous to the actual holding in the case). The Supreme Court has never been squarely presented with the argument that cognitive liberty is a fundamental right, or that outlawing mere possession or use of psychoactive drugs infringes on that fundamental right.

Aside from the comment in the footnote, the reasoning that pervades the Court’s opinion in Stanley supports the fundamental principle that what goes on inside a person’s head, the processing and information therein, is entitled to privacy. The Court emphasized that the Constitution “protects the right to receive information and ideas,” and that this right holds irrespective of an idea’s “social worth.”¹⁵ The Court also accepted Mr. Stanley’s argument that he had a constitutional right to control his own intellect—to determine for himself what to read or watch in the privacy of his own home:

[Mr. Stanley] is asserting the right to read or observe what he pleases—the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as “obscene” is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own home, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.¹⁶

When Georgia countered that its law was necessary to protect people from the detrimental effects of obscenity, the U.S. Supreme Court recoiled, noting that Georgia’s argument was an inappropriate attempt “to control the moral content of a person’s thoughts… an action wholly inconsistent with the philosophy of the First Amendment.”¹⁷ The government, explained the Court, “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.”¹⁸

In the end, the Court in Stanley concluded that the government may regulate obscenity, but “that power simply does not extend to mere possession by an individual in the privacy of his own home.”¹⁹

The same principles ought to apply with regard to psychoactive drugs that are used by adults in the privacy of their own homes. If, as Justice Marshall wrote in Stanley, “[o]ur whole constitutional heritage rebels at the thought of giving government the power to control men’s minds,” the State has no business telling a man or woman sitting in his or her own home, what states of consciousness are acceptable and what states of consciousness are not.

While the U.S. Supreme Court has never considered a case in which the issue was framed as “cognitive privacy,” several state courts have examined the issue of whether drug use falls within a protected privacy right.²⁰ In all but one case, these state courts have stacked the deck against cognitive privacy, by narrowly framing the issue as whether or not there is a fundamental right to use drug x, rather than whether or not there is a fundamental right to control one’s own consciousness—a fundamental right upon which drug prohibition laws substantially infringe.

One interesting case was decided in 1975 by the Alaska Supreme Court. In Ravin v. State,²¹ the Alaska Supreme Court held that the possession and use of marijuana within one’s own home was included within the scope of the privacy protection guaranteed by the Alaska Constitution. The case centered on Irwin Ravin, a man arrested and charged with possession of marijuana. Mr. Ravin filed a motion to dismiss, arguing that Alaska’s laws prohibiting marijuana use unconstitutionally infringed upon his right to privacy as guaranteed by both the U.S. and Alaska Constitutions.

The Alaska court examined U.S. Supreme Court precedent and concluded that the opinions by the high court do not support a privacy right to possess marijuana, because “the federal right to privacy only arises in connection with other fundamental rights.” The Alaska court then went on to examine whether the privacy protection of the Alaska Constitution protects an adult’s possession of marijuana in his or her home.²² The court noted that in a previous case,²³ it struck down a public school rule that prohibited long hair, finding that the school’s rule was prohibited by the Alaska Constitution’s privacy protection. In that case, the Alaska Supreme Court explained that “the right ‘to be let alone’—including the right to determine one’s own hairstyle in accordance with individual preferences and without interference of governmental officials and agents—is a fundamental right under the constitution of Alaska.”

The court then revealed an anti-marijuana bias, stating “few would believe they have been deprived of something of critical importance if deprived of marijuana, though they would if stripped of control over their personal appearance.” Here, the court was making an assumption without evidentiary support, and was also incorrectly framing the issue. Some people consider their marijuana use at least as important as their choice of hairstyle. Further, the court drew a false comparison: comparing a broad principle: “to control one’s appearance;” with a narrower principle: “to smoke marijuana.” The correct analogy would have been to compare the two actions at the same level of generality; thus, the right to control one’s outward appearance ought to have been compared to the right to control one’s inner cognition.

Based on its faulty comparison, the Ravin court refused to find that marijuana smoking was within the Alaska constitution’s privacy protection. Instead, the court relied on the well-established privacy protections surrounding the home. The court explained, “if there is any area of human activity to which a right to privacy pertains more than any other, it is the home.”²⁴ The right to privacy within the home, held the court, “encompass[es] the possession and ingestion of substances such as marijuana in a purely non-commercial context in the home, unless the state can [show that outlawing possession of marijuana in the home is necessary to achieve a legitimate state interest.]” More specifically, the court noted that the government had the “burden of showing a close and substantial relationship between the public welfare and control of ingestion or possession of marijuana in the home for personal use.”²⁵

Having shifted the burden to the government, the court then examined whether the government had met its burden. At trial, the government claimed that the use of marijuana caused a host of health problems to the marijuana user, including damage to the immune system and chromosomal structure, extreme panic reactions, long-term psychological problems, loss of motivation, and occasional violent behavior.

Before addressing these assertions, the Alaska Supreme Court questioned whether the government has a legitimate interest in “protecting” a person from him or herself. While the court was able to conceive of some circumstances in which the government may have a legitimate interest in protecting a person from him or herself, such government paternalism was the exception rather than the rule:

...the authority of the state to exert control over the individual extends only to activities of the individual which affect others or the public at large as it relates to matters of public health or safety, or to provide for the general welfare. We believe this tenet to be basic to a free society. The state cannot impose its own notions of morality, propriety, or fashion on individuals when the public has no legitimate interest in the affairs of those individuals. The right of the individual to do as he pleases is not absolute, of course: it can be made to yield when it begins to infringe on the rights and welfare of others.²⁶

Having stressed that the government should not be in the business of protecting people from themselves, the court nevertheless examined the government’s claims that marijuana was dangerous to its users, finding the evidence of serious harm unpersuasive. The court explained:

It appears that the effects of marijuana on the individual are not serious enough to justify widespread concern, at least as compared with the far more dangerous effects of alcohol, barbiturates and amphetamines.²⁷

Ultimately, the Alaska Supreme Court concluded “no adequate justification for the state’s intrusion into the citizen’s right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown.”²⁸

While the Ravin case was a clear victory for marijuana users, and for privacy advocates in general, it was more about the privacy of the home, than about cognitive freedom and privacy.²⁹ As mentioned earlier, the court did not consider whether cognitive liberty was protected by the United States Constitution or by the Alaska constitution. Instead, the decision simply underscored the longstanding and socially accepted principle that a “man’s home is his castle.” The case has yet to be forcefully made that our minds, as much as our homes, are a private inward domain entitled to protection against unwanted governmental intrusions and prohibitions.

Notes