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There’s a little movie called Captain America: Civil War coming out soon. In Marvel’s latest action-packed film, IronMan and Captain America battle over a fundamental political question. How are privacy and security in conflict? And when they are, which is more valuable? The film centers on disagreements about how much freedom and privacy the superheroes should give up for the sake of national security.

I think it’s a question the American public should return to as well. In the post-9/11 world, we face conflicts with privacy and security every time we send emails, use the internet or go to the airport. I do not intend to exhaust this lengthy debate here, but I will seek to clarify some important terms and concepts about privacy and national security. We will explore a few of the complexities of privacy as a constitutional right, and clarify the various kinds of rights in our legal system.

The right to privacy is not listed anywhere in the Constitution. 

Using Nolo’s Law Dictionary, privacy is considered: “The right not to have one’s personal matters disclosed or publicized; the right to be left alone. The right against undue government intrusion into fundamental personal issues and decisions.” But the Constitution never explicitly guarantees this.

According to “Exploring Constitutional Conflicts”, a series with the University of Missouri, “The U.S. Constitution contains no express right to privacy. The Bill of Rights, however, reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment)…privacy of the person and possessions as against unreasonable searches (4th Amendment)…”

The list goes on and on. Examples include the right to due process of the law and the “plead the 5th” right to keep from self-incrimination. The landmark Supreme Court case Griswold vs. Connecticut from 1965 helped solidify privacy as a Constitutional right. This case struck down a state law that impeded upon the privacy of married couples, deeming such state invasion to be inconsistent with “the concept of ordered liberty.” Infringing upon liberty was considered to be a form of invading privacy.

Privacy was deemed by Justice Douglas as one of the “penumbras” of the Bill of Rights. Penumbra comes from Latin meaning “almost shadow” and it refers to rights that are in the gray areas between shadow and light — legally, it is defined as “the rights guaranteed by implication in a constitution…” Though privacy was not explicit in the text, it was implied. To invade into privacy is to infringe upon liberty. Privacy was, quite literally, considered a shadow right.

Legal Rights vs. Natural Rights

So if privacy is not in the Constitution, but was still protected by the Supreme Court, then what is it? To explore this, let’s review the different kinds of rights.

Natural rights are the inherent inalienable rights that are not granted by government, but that should be secured by government. Natural rights exist due to inherent human worth and dignity.

Generally speaking, individual rights refer to an individual (based on natural rights), while human rights refer to broader groups. (In recent years, human rights have taken on broader definitions, but should be considered to include the traditional life, liberty and property.)

In Ayn Rand’s opinion, “Rights are held, individually, by every man, by all men, at all times.”

Legal rights are when a social contract comes together to protect rights, including those that are deemed sub-categories of human rights. Examples would be the freedom of the press, right to bear arms, freedom of religion etc.

So what kind of a right is privacy? In the United States, privacy is considered a sub-right of liberty, a human right that has been Constitutionally protected and extrapolated. Because it is a governmentally defined and protected right, it is therefore considered a legal right.

When Rights Are Surrendered

While the Constitution does protect the right to individual privacy, these rights are surrendered for those who have made antagonistic actions against the state who leave us with probable cause of terrorist activity. In this situation, there must be existing or potential conflict that could bring harm to nation’s citizens, or specific information that pertains directly to terrorist threats, military action or eminent danger. This is an exemption case; however, if we say that national security is more important than individual liberty by and large, then we have sacrificed the liberty for all. Government invasion of privacy is arguably only Constitutional when there is sufficient probable cause for hostility that could endanger the American populace.

To add even more complexity, one must consider the many aspects of national security: territorial security (border control), economic security, ecological security, physical, political etc. A whole article could be committed to simply exploring the types of national security and the nuances.

What Happens When We Lose Privacy?

Edward Snowden was a technical contractor with the United States National Security Agency (NSA). He is now notorious for leaking details of both British and U.S. investigation and surveillance actions to the media. Some call him a hero for exposing controversial government action. Others consider him a traitor. Snowden realized that the NSA was instigating a widespread data collection on American citizens — their surveillance included emails, cell phones and personal information about every day people.

To Snowden, this was a breach on the Constitutional rights of citizens, especially given that this surveillance program was top secret information kept from the American public. What do you think?

This political debate will continue as we seek to apply ideology well, with an understanding of a government’s purpose. However, understanding where privacy comes from in our political scene, is crucial.

So where do you stand on the Captain America politics debate? Are you IronMan (national security) or are you Captain America (individual privacy)?

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