The right to privacy in the United States has become a lightning rod issue since the turn of the 21st century. There is no specific right to privacy in the U.S. Constitution. But the U.S. Supreme Court twice ruled in the 1920s, that the “liberty clause” of the Fourteenth Amendment, broadly interpreted, includes the fundamental right to privacy (see Meyer v. Nebraska and Pierce v. Society of Sisters).

The Supreme Court expanded on Americans’ right to privacy in 1969, when it ruled in Stanley v. Georgia that citizens have the right to view pornography in the privacy of their own homes. The landmark Roe v. Wade case in 1973 was first decided on Ninth Amendment grounds by the U.S. District Court of Northern Texas. A three-judge panel in that court ruled that the Ninth Amendment’s “enumeration” clause granted women the right to a private medical procedure (abortion). The Supreme Court upheld the lower court’s decision, but again turned to the Fourteenth Amendment’s “liberty” clause in its reasoning, with one justice stating the Ninth Amendment does not create “federally enforceable rights.”

U.S. Patriot Act of 2001

Access to the World Wide Web became mainstream in the late 1990s. It did not take long thereafter for U.S. government to begin utilizing this new phenomenon as a means of instituting what is fast becoming a surveillance state.

The U.S. House of Representatives voted 357-66 in favor of the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,” or Patriot Act, on October 24, 2001. The Senate voted 98-1 in favor a day later, and President George W. Bush signed it into law a day thereafter. The Patriot Act and most of its provisions that allow unchecked spying on American citizens have been reauthorized several times by Congress and President Bush and President Barack Obama.

The most recent re-authorization came via the U.S. Freedom Act of 2015. Passed by an overwhelming majority of Congress and signed by President Obama, the Act amended Section 215 of the Patriot Act which allowed “bulk collection” by government agencies of citizens’ activities and records from private companies (phone call and text message logs, internet browsing history, etc.). The Freedom Act created a few statutory hurdles spy agencies must clear before collecting data on an individual. The Patriot and Freedom Acts also authorize government agencies to conduct searches of private property, storage facilities, library records, and anything else it chooses without warrants.

Senate Joint Resolution 34 (2017)

The Federal Communications Commission (FCC) established internet privacy rules in late 2016 that required all internet service providers (ISPs: Charter Communications, Comcast, CenturyLink, Verizon, etc.) to get explicit consent from consumers before selling their web browsing history, Social Security numbers, exact geolocation, etc. to third-parties. The rule was set to take effect in December of 2017. The FCC re-classified ISPs as public utilities in 2015, which gave the FCC jurisdiction over said companies in lieu of the Federal Trade Commission (FTC). Web-based companies like Google, Amazon and Facebook are still regulated by the FTC, thus have different rules regulating their perpetual sharing of consumer browsing habits between different companies. ISPs argued that it was unfair for web-based companies to have this freedom of information-sharing, while they do not. Despite their objections, most ISPs had already agreed to the new rules and were set to comply in December then they took effect.

Senate Joint Resolution 34 (S.J.Res.34) stopped the FCC rules from ever taking effect. Both the House and Senate narrowly passed the bill in late March of 2017 and President Donald Trump quietly signed it into law on April 3, 2017.

So what does this all really mean?

Keep in mind, ISPs always had the ability to view your most intimate, private web browsing activities and habits; and could have potentially been selling said browsing history, along with other personal information, already. S.J.Res.34 simply gives ISPs explicit permission from the federal government to engage in data mining and selling to the highest bidder. The online advertising industry is worth upwards of $270 billion per year. ISPs will ensure they get a piece of that pie. Unsavory businesses looking to profit from revenge-type websites on the dark web and those trying to take advantage of golden year Americans will also pay top dollar for personal data. Doxing platforms will also benefit.

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