3.4: The Right to Privacy

The federal constitution does not contain an explicit right to privacy. However, several of the amendments in the Bill of Rights protect individual decision-making. Other amendments protect personal autonomy from unwarranted governmental intrusion. These amendments – taken together – create a “zone of privacy” within the penumbra of the Bill of Rights. See Griswold v. Connecticut, 381 U.S. 479, 484 (1965). Under this modern constitutional interpretation, the US Supreme Court has created a right to privacy. See id. This right is considered fundamental and subject to strict scrutiny; only a compelling government interest can justify a statute encroaching on its protections.

Alaska, like many states, includes an explicit right to privacy in the Alaska Constitution.

“The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section.”

Alaska Constitution, Art. 1, §22. This explicit right to privacy has been recognized several times by the Alaska Supreme Court and restricts state action beyond what is allowed under the federal constitution. We explore each below in turn.

The Constitutional Amendments Protecting Privacy

Under the federal constitution, the right to privacy is embedded in the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. The First Amendment protects the right to speak freely, assemble peacefully, and worship according to individual choice. The Third Amendment prohibits the government from forcing individuals to quarter, house, or feed soldiers. The Fourth Amendment prevents the government from unreasonably searching or seizing an individual or an individual’s property. The Fifth and Fourteenth Amendments provide due process of law before the government can deprive an individual of life, liberty, or property. The Ninth Amendment states that rights not explicitly set forth in the Constitution may still exist. Taken together, these penumbral rights indicate that the Constitution was written to erect a barrier between individuals and an overly intrusive and regulatory government. The US Supreme Court has relied upon this federal right to privacy to guarantee the right to use birth control and the right to participate in most consensual sexual relations.

The Right to Contraception

The right to privacy was first established in the US Supreme Court case of Griswold v. Connecticut, 381 U.S. 479 (1965). In Griswold, the defendants, Planned Parenthood employees, were convicted of prescribing birth control as accessories under two Connecticut statutes that criminalized the use of birth control. The Court found the statutes unconstitutional, holding that the First, Third, Fourth, Fifth, and Ninth Amendments created a “penumbra” of unenumerated constitutional rights, including zones of privacy. See id. at 484. The Court stated that marital privacy deserved the utmost protection from governmental intrusion. The Griswold case set the stage for other fundamental privacy rights related to intimacy, including the right to consensual sexual relations.

The Right to Consensual Sexual Relations

In Bowers v. Hardwick, 478 U.S. 186 (1986), the US Supreme Court upheld a Georgia statute that made it a crime to engage in consensual sodomy. See id. at 195-96. The Court stated that there is no fundamental right to engage in sodomy and that the history of protecting marriage and family relationships should not be extended in this fashion. Nearly 20 years later, the Court changed its stance and overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003). In Lawrence, a Texas statute criminalizing homosexual sodomy was attacked after two men were convicted for having sex in their private bedroom during a law enforcement search for weapons. The Lawrence decision rested on the due process clause of the Fourteenth Amendment. The Court held that intimate choices are a form of liberty protected by the due process clause, whether or not consenting individuals are married. The Court thereafter struck down the Texas sodomy statute because it was not justified by a sufficient government interest. See id. at 578.

Example of a Right to Privacy Analysis

States criminalize consensual incest, which is sexual intercourse between family members who cannot legally marry. If an individual challenges a consensual incest statute as unconstitutional under the right to privacy, the court will balance the state’s interest in preventing harm to an infant, such as birth defects, with an individual’s interest in having consensual sexual intercourse with a family member, using strict scrutiny. If the court finds that the government interest compelling, it can uphold the statute as long as it is not vague or overbroad.

Alaska Right to Privacy

As noted, the right to privacy is an explicitly enumerated right under the Alaska Constitution and thus is considered fundamental. Similar to the federal constitution, the Alaska Supreme Court will only uphold a government regulation if the State can articulate a compelling state interest that justifies infringing the right. The state must also demonstrate that no less restrictive means exist that advance the state’s interest. This is an extremely high burden by design. But where the US Supreme Court has been vague as to what the right to privacy protects, the Alaska Supreme Court has been clear. The Alaska right to privacy contains two separate protections: (1) the right to personal autonomy, and (2) the right to shield personal information from public disclosure. See Doe v. Department of Public Safety, 444 P.3d 116, 126 (Alaska 2019).

The right to personal autonomy protects the right to make personal choices relating to one’s own personal life. For example, the right of adults to use marijuana in the privacy of one’s own home implicates the right to personal autonomy. See Ravinv. State, 494, 500 (Alaska 1975). Likewise, reproductive rights, including the right to abortion, are fundamental rights, included within Alaska’s right to privacy. See Valley Hosp. Assoc., Inc. v. Mat-Su Coalition for Choice, 948 P.2d 963, 969 (Alaska 1997). Laws that seek to criminalize such conduct are unconstitutional and unenforceable under the state constitution.

The second privacy protection – the right to shield personal information from public disclosure – protects sensitive personal information which could cause anxiety, humiliation, or harassment if it was disclosed. For example, police officers have a legitimate expectation of privacy in their personnel files. See Jones v. Jennings, 788 P.2d 732, 738 (Alaska 1990).

Exercise

Answer the following question. Check your answer using the answer key at the end of the chapter.

1. The Alaska Sex Offender Registration Act (ASORA) requires all sex offenders to register with the Alaska Department of Public Safety (i.e., Alaska State Troopers) when released from jail. A sex offender must continually register for either 15 years or life, depending on their conviction. Based on the information provided by the convicted sex offender, DPS makes the information (including name, address, photograph, date of birth, place of employment, and conviction information) available for public viewing and available on the internet. The purpose of the central registry is to protect the public from the high risk of sex offenders reoffending. Does the ASORA violate a convicted sex offender’s right to privacy? You can learn more about the ASORA at www.sor.dps.alaska.gov. Read Doe v. DPS, 444 P.3d 116, 126 (Alaska 2019), to see how the Alaska Supreme Court balanced the competing interests involved.