Privacy, Legal and Ethical Issues

Evidence collection, searching of private premises, obtaining samples for genetic and various biochemical examinations, and questioning suspects are all parts of a forensic investigation. Although the need to acquire evidence is pressing, the need to preserve and protect the privacy and liberty of individuals is also paramount.

Among the foundational principles of the Western liberal tradition that binds the American political system is the belief that the rights of the individual, wherever possible, must be preserved against the authority of the state. Emanating from that principle is the implication that individuals have a right to privacy, a right implied—as noted by several distinguished Supreme Court justices over time—in the United States Constitution. Balancing, and sometimes contradicting, this right to privacy is the need for security on a national and local level, which can include the collection of forensic evidence and the use of forensic testing.

An array of U.S. tort and constitutional laws support the individual's right to privacy. In tort law, persons have a right to seek legal redress for invasions of privacy undertaken for the purposes of material gain, mere curiosity, or intention to defame. These protections extend to all persons under U.S. law, though public figures—a term strictly defined in legal statutes—have somewhat less broad rights of privacy.

Some national constitutions spell out the rights of the individual, with the assumption that all other privileges belong to the government. The U.S. Constitution, by contrast, outlines government authority, with the provision that all other rights belong to the states and individuals. To James Madison and other founders of the republic, these guarantees did not go far enough, and therefore, Congress passed the Bill of Rights, or the first ten amendments to the Constitution. Among these are several that would later figure heavily in debates over privacy: the First Amendment, with its protection of free speech; the Fourth Amendment, which stands against unlawful search and seizure; and the Fifth Amendment, which provides for due process under law. The Fourteenth Amendment, passed after the Civil War to protect the rights of freed slaves, extended Fifth Amendment provisions to states as well, because citizenship of both the nation and the resident state was extended to persons born or naturalized in the United States (i.e., rights of citizenship could not be denied at the state level because of race).

Contrary to popular belief, neither the Constitution nor its amendments contains any reference to privacy as a right per se. The concept of "The Right to Privacy" comes from an influential 1890 Harvard Law Review article by that title, under which Supreme Court Justice Louis Brandeis, writing with Samuel Warren, put forward the proposition that privacy rights extend beyond mere protection against clear-cut intrusions on privacy. Thereafter, a number of landmark decisions in the Supreme Court broadened the concept of privacy as defined in constitutional law. Among these was Griswold v. Connecticut (1965), involving a state law that prohibited the use of contraceptives. Writing for the Court, which struck down the law, Justice William O. Douglas held that the "penumbra" of the First, Fourth, and Fifth collectively provides a "zone of privacy."

The 1970s saw a revolution in privacy rights, not only through the Court—whose Griswold decision set the stage for the protection of abortion rights in Roe v. Wade (1973)—but also in the legislative branch of government. In 1974, Congress passed the Privacy Act, which restricts the authority of government agencies to collect information on individuals or to disclose that information to persons other than the individual. The Privacy Act also requires agencies to furnish the individual with any information on him or her that the agency had in its files.

In 1967, Congress had passed the Freedom of Information Act (FOIA), which limits the ability of U.S. federal government agencies to withhold information from the public by classifying that information as secret, but it greatly expanded FOIA provisions in 1975. Together with the Privacy Act—the two are often referred to collectively as the Freedom of Information-Privacy Acts (FOIPA)—these served to further extend the rights of individuals against government intrusion. Like FOIA, the Federal Wiretapping Act of 1968 had been passed earlier, but it, too, was extended in the 1970s. Today, all U.S. states have laws against wiretapping and telephone recording.

Many of these changes occurred as a response, either directly or indirectly, to the Watergate scandal and the subsequent revelations of illegal wiretapping, recording, and surveillance activity conducted by the Nixon White House and other compartments of the federal government. In 1976, Congress passed the Foreign Intelligence Surveillance Act (FISA). FISA, which became law in 1978, placed checks and balances on the authority of government agencies to conduct surveillance on persons accused of conducting espionage—authority that had been misused by Federal Bureau of Investigation director J. Edgar Hoover in some domestic intelligence campaigns during the 1950s and 1960s.

In September, 1997, Congress passed the Fair Credit Reporting Act (FCRA), which requires potential employers to obtain written authorization from a job candidate or employee before accessing records from a consumer reporting agency. The employer is also required to notify the employee or applicant if any adverse action is taken pursuant to a negative report. Thus federal law extended privacy rights to protect the individual from intrusion by businesses as well as the government.

Many privacy issues at the dawn of the twenty-first century involved new technologies and new developments in science. In the area of technology, the broadening of access to the Internet brought with it a number of concerns regarding government monitoring of e-mail and other electronic communications traffic.

With specific regard to forensic evidence, debate still exists about the extent of privacy protections. In particular, the collection and matching of DNA sequence information in DNA databanks , especially if the information is used for other than identification of remains.

see also Criminal responsibility, historical concepts.