LIterature Review and the Last Week of Class

The last week and a new challenge in a literature review. By now all of us have probably written more than they have in a long time. I know that's the case for me. Having been out of school mode for a number of years, the last two terms here at Brandman have been a bit taxing. But taxing in a wholly good and useful way. The assignments in all of my classes thus far have been challenging. And challenging in a way that I like. I have always liked writing as form of communication. This class in particular has helped me get more out my writing in more ways than I had ever anticipated. Above all, it has forced me to sort of think on my feet. By that I mean I have to read a large amount of data and then quickly come to a conclusion about whether or not what I read was useful for my particular purpose. Secondly, I have then had to make choices in what was worth reading to go and synthesize what parts of it I was going to use in writing about it. And that act of taking the various parts and committing them to paper ( or silicon as is more appropriate) and then, making sure I had where that come from and giving the proper credit has been quite the mental exercise.
I'll close by saying that the literature was a bit of a tough exercise for a couple of reasons. I wanted to avoid the blandness of the annotated bibliography and I also didn't want to get into writing the same paper I had already written for another class. The breakthrough for me came when I realized that I was able to to really consider my sources as just that and talk about what I gleaned from them without trying to advance my own viewpoint. Once I realized I could do that separation, the assignment flowed more easily. As a last word, I'd like to thank Kathleen for her insight and extreme helpfulness in navigating the world of citations and the intricacies of the Leatherby Library.

Annotated Bibliography

Hello! For the annotated bibliography I didn't need to include any new sources as I have been able to find quite a bit of research and opinions on my research question. That question is: Does the constitution guarantee the right to privacy. I have been able to find quite a bit material regarding that question. Surprisingly, from places as far afield as Australia and the UK. A couple of challenges were had in the variety of search tools we've used throughout the class. The most useful for me have been the reference books and the academic journals. The reference books as my of the arguments and briefs for specific Constitutional cases are found there. The academic journals have been especially useful for being able to pull from a variety of law reviews that deal with many of these questions all the time.
In another time and place, in perhaps another constitutional class, of which I think there is one more for my major, I'd like to explore some of this particular issue again. To be honest, this could probably qualify for consideration of being a masters thesis.For a wider audience, writing about and pointing out the amount of information and the specifics of that information and how it is being used would be quite useful for people to know. It would be especially useful to know how they can protect the bits of information that let get out into the world or to commercial interests or our own government. I think there is a wealth of information that could still yet be gleaned to give people those tools and increase their knowledge. The sources come from all angles and all manner of disciplines. From medical and psychological information to businesses and hobbies and other pastimes, the amount of data people give out is staggering. It is even more astounding that people are unknowingly doing it without really realizing it.

My research question: Does the Constitution guarantee the right to privacy?

The Right to Privacy in the United States Constitution: An Annotated Bibliography

Charles McCall

Brandman University

Eyre, W. (2011). The real ID act : Privacy and government surveillance. El Paso, TX: LFB Scholarly Publishing LLC.

This article is a good example of the more modern problems in keeping one's private life private. It details some of the methods used to gather information from ones viewing or web surfing habits. This is quite often without the person's real knowledge of that they are giving away all of this valuable information. Many legal questions are brought up to whether or not people really know that this information is being given away. The article raises the question that one is paying for a particular service, and often at a premium price, and they having information gathered about themselves without really being specifically told they are having that happen. For my research question of: Does the Constitution protect one's right to privacy?, I find that in spite of various laws enacted to protect peoples information, many companies don't limit what information they gather, nor protect it very well despite the assurances given in their licensing or use agreements. And on top of all of that, the government is either busy looking in on that traffic or can, more or less at a moments notice, access that data with impunity.

Goldman, L. (2006). The constitutional right to privacy. Denver University Law Review, 84(2), 601-644

A review of cases, and more importantly, the legal reasoning behind some of the decisions made in those cases. It really discusses, at length, the differing approaches in legal theory on the decisions were made. Much of this is based on the opinions issued by the Supreme Court when the cases were decided. This is an excellent source as it speaks to the two schools of thought regarding how rights cases are framed and decided.

Hamilton, A. (1788) The Federalist Papers, #84 retrieved from:

https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-84

In a number of my sources, one of the basis for rendering decisions id what is called 'original intent'.

That means that sometimes a particular point of law is not specific to the legal question being raised, so there is an attempt at determining the original intention of the law to see if it applies to the question. All

of the Federalist Papers are viewed as primary sources for the intentions of the framers of the constitution as they were all written by the primary authors, James Madison, John Jay, anad Alexander Hamilton. Paper number 84 is immensely important in my research as it concerns whether or not to include a bill of rights to the constitution. Their take was that the it didn't need to include one as the government described did not have the power to grant nor take away rights as it was felt they were inherent.

Lounsbury, D. W., Reynolds, T. C., & Rapkin, B. D. (2007). Protecting the privacy of third-party information: Recommendations for social and behavioral health researchers. Social Science & Medicine, 64(1), 213-222. 10.1016/j.socscimed.2006.08.035

This particular article was somewhat of a surprising find. I found when I first pulled the article that it didn't really fit into either my research question nor my thesis statement as it really has nothing to do the constitutionality of privacy. However, as I mulled through the article even more, I found that social and behavioral research can and will likely include peoples private information even when they aren't necessarily the subject of said research. The corollary to this is information gathered from one person can, and could very likely, include personal, private information about any number of other people at the same time. For example, in keeping with this angle of behavioral research, a person uses their phone to pull up information about sexually transmitted diseases, but they are doing so while talking to their partner at their partners house but using their friends internet connection. In this way, it could be inferred that perhaps the friend was looking up this information. It could even be that the person talking about STDs is just at a good friends house that isn't involved. There is still that association should someone being 'listening in' on that internet connection.

Rubenfeld, J. (1989). The right of privacy. Harvard Law Review, 102(4), 737

A more exacting look at the nuances of the legal decisions involving privacy decisions in the Supreme Court. This takes it a step further in describing the central tenet in rights and privacy rights in particular is one of 'personhood'. This means that rights one expresses to express their personhood. In this vein, many of the cases before the Supreme Court detailing privacy have been about one's privacy of sexuality and expressing it. It details the Connecticut case involving contraception all the way through homosexual lovers being cought in the act while in private homes. That people were charged with crimes for expressing sexual feelings is where these cases come up. This was a thoroughly useful source as it dealt with not only my particular cases where the privacy issue was brought up, but also with concepts andsome of the traditions that have typically been used to frame privacy issues before the courts.

Umphrey, M. M., Douglas, L., & Sarat, A. (2012). Imagining new legalities : Privacy and its possibilities in the 21st century. Stanford, CA: Stanford Law Books.

A collection of essays that keeps some of the more legal jargon out of the arguments about privacy. While only a couple of specific essays deal with privacy in a constitutional context, the general arguments abound about what privacy means from the personal point of view. It asks the question of how much people share online, and with strangers they meet or deal with in public spaces, or when dealing with people in business cases, whether private or with the government. In these contexts it asks what a persons expectation of privacy is versus what is a reasonable expectation of privacy and how they are different. This is quite useful in my research as many times in court cases the central question asked is whether or not someone who is fighting a charge first had a right to keep whatever they were doing private, and secondly, is it the governments responsibility or duty to intrude into the life of that private citizen? Is there a vested governmental interest in knowing who you are having sex with? IS there an interest in who you are talking or texting with in order to have sex with them or to find out what the latest score is of the game they are watching?

Open Access Journals and Academic Integrity

Another interesting week in this class. As read through the assignments and looked through all of the rules, I couldn't help but think that one has to be really careful as you're reading research and making notes about where some of the ideas and quotes come from. I find as I'm reading and making notes I'm a great deal more mindful not only of what I'm reading but of the ideas that I get as I read about particular subjects. This part, in particular, has been extremely helpful for me as I have a tendency to generate different ideas when I read things and keeping a note of what was the basis for an especially good train of thought id very good, not only for being able to get back to it, but also to now be able to cite the particular work or works, in some cases, that spun those ideas out of me.

That's a good question about losing access to the library once I graduate. Though, in some respects, that may not be for a while as I'm likely to continue on to at least a masters. Though that may not be at Brandman, but then, I'd have another library to access. But having the information on the open access articles could be a very useful tool. Probably quite a good one as I move into teaching not only as a resource for myself, but for my students.

I don't know that anything was unclear. Though I did find a piece of advice, where I don't remember, ( I know, bad citation....)to be quite helpful. If you're not sure if you should cite, you probably should. I think asking yourself that question is probably the most useful as it makes you really look at the source you have to really examine how much is transefering into what you're writing.

Empirical Research Articles

Hello All,
This week was somewhat more difficult than normal for this week. It was more of a challenge to find articles that had an empirical research component to them on my research topic. As a reminder, I'm researching privacy rights as given under the Constitution. I found that quite simply, there is no real empirical research done on that topic. I did find many peer-reviewed articles last week and this week on the different aspects of privacy and the Constitution. There was a large dearth of research on it though. I suppose that that isn't really a surprise as it isn't that sort of topic. Though, I think I was quite hopeful for someone doing a study on the number of cases where people have done a spurious claim of some odd 'right' that they might have, there wasn't a single one, however. I ended up going with article on a study of school immunization where privacy was very well protected in the program. The next article I choose where there was a study about how some medical and social science studies are quite lax on the privacy of third parties that get talked about by subjects of those studies.

It was quite interesting to read these articles. But for my overall goal of getting more research articles for my paper, it just wasn't very fruitful. This was a good learning experience though.This made me see that perhaps one aspect of doing research of the kind I'm doing can't be answered by empirical research.

Peer Reviewed Journals

Hello Everyone!
This week was, how shall we say, a bit more productive research-wise. While my search was somewhat more direct and focused this week, I believe I actually found more articles of use to my research topic. There were certainly more relevant articles as opposed to books. I was little surprised by that this time around through the academic literature. This was not my first time going through that part of the library.

In my psychology class last term, many of the weekly posts were about doing some research on the question of the week. This was directed from the reading that week so the topic or an aspect of the mental disorder would nee to be researched in the library. Our restriction was that most sources had to be from an academic journal or other reliable source. Having the library handy for research was really quite convenient. Even if it was somewhat arduous in getting started using the proper database psychology research. It was also quite useful last term when I did a research paper for the same class.

This time finding articles in the academic journals has been a good deal easier as there isn't as limited a scope as there was previously. While most of the journals I have found to be mostly law review sorts of publications, there have been a couple of more social science or history related journals that have had some quite useful material.

Something I found quite revelatory in the reading of this selection of articles was more nuanced arguments for the different ways of interpreting the Constitution as far as what rights are actually granted by it specifically and inferred. On one hand, you have the historical and traditional aspect that reasons along the line of what id actually written, e.g. free speech, etc. and the justices are disinclined to expand beyond those. On the other, you have the more liberal justices that take the approach that rights are inherent to people and what makes them feel as their own person. It's termed the 'personhood' doctrine. I found that that concept has been quite instrumental in a number of rulings. The most important one is probably Roe vs. Wade.

Deeper Understandings

It was an interesting week of research for me. I decided to continue my path of correlating the law and constitution to actual cases that have been heard about privacy issues. But the difference was in which laws. I decided examine all amendments cited in constitution cases not just the three I'm primarily concerned with. I did this to get an overall basis as to what constitutes privacy as embodied by the case law. From there I can make inferences to the specifics of my direction. Secondly, I went for the more practical approach to how privacy issues are being dealt with in the modern society with the instant communication on cell phones and the various social media outlets.

Surprisingly, there have been many privacy issues raised throughout case law. But, I found that the more over riding angle from about 1967 and Katz vs. United States is concept of 'reasonable expectation'. For example if you are doing something in your home, you could expect that what you do there is private. Doing the same thing on a public street corner, you do not have that expectation. This fundamental concept will be central to much of what I examine from here on out.

In the more modern sense of what currents and trends that I looked at, in contrasts nicely with the 'reasonable expectation', in that much of what information is shared is done so voluntarily. Or so it would seem. In legal circles it is referred to as 'terms of use'. Almost no one reads those when using Facebook, for example. In it there is an explicit consent that whatever you do there will be tracked. The same goes with your cable box by the cable company. They will track what you watch. This is all done in the interest of having you see what's more relevant to you. But, that info is stored, probably forever, so that your cumulative viewing habits always looked at to give you what you might want to watch. My next step is to look at how that could be used to do other things, predict other behavior or match it to psychological profiles....

Guided Research Understanding

I am researching for a research paper for my other class HIST 358 - U.S. History and Democracy. The topic for that paper is the right to privacy under the 5th, 9th, and 14th Amendments. As I'm looking at constitutional history and the decisions and reasons for why it exists as it does, I'm looking for the source material of the Founding Fathers that wrote the actual document. I'm also looking at the issue of privacy has been looked at in a legal context in the modern era. To that end, I'm looking at important decisions from the Supreme Court that have applied or interpreted the principles of the Constitution to modern questions and problems.

For an original source document, I choose one written by one of the Founding Fathers, Alexander Hamilton, wherein he argues for the ratification of the Constitution in his home state of New York, the Federalist Papers. Specifically, I choose #84 as it concerns whether or not to include a bill of rights in the Constitution as my research concerns those particular amendments. The Federalists arguments were not to include one as is expressed in this essay.

As for an actual case or application, one of the more famous is a ruling in the case of JOHN GEDDES LAWRENCE AND TYRON GARNER, V. STATE OF TEXAS. That particular case is quite famous as it stated that citizens have a right to privacy not only in their own homes but to relationships that adults will have when making decisions on all aspects in their relationships. As a summary, it struck down Texas' anti-sodomy law that, at that time, only applied to a same sex relationship. The source I found for this was the state's briefs and arguments submitted to the Supreme Court to uphold a lower courts ruling that the law was constitutional.

I was quite enlightened by the symmetry in what these sources contained. The arguments presented by Alexander Hamilton expressed the Federalists views that including a bill of rights and what rights the enumerated, could lead to assumptions about other rights not so enumerated. By way of example he uses the proposed proclamation of the freedom of the press. Why is it necessary to claim that it shall not be infringed when the Constitution does not give the government the power to restrict it anyway? Hamilton argues further that such an expression of right is actually dangerous for it could be implied that because the right was enumerated  that it is possible that other rights might be governed or restricted as the national government has that power.

It is in fact this same argument that the State of Texas uses when advancing that their anti-sodomy law doesn't violate the constitution as there is no specific right granted for people to engage in sodomy. Also, there is no other provision that precludes that people in question have ever had that right as it had never been enumerated such as the right to free speech. So, the brief filed by the state of Texas actually was the fears of the Federalists realized in the state of Texas felt it was in the governments power to regulate a private relationship.