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Sunday, April 28, 2019

National security

From Wikipedia, the free encyclopedia

Security measures taken to protect the Houses of Parliament in London, UK. These heavy blocks of concrete are designed to prevent a car bomb or other device being rammed into the building.
 
President Reagan in a briefing with National Security Council staff on the Libya Bombing on 15 April 1986
 
National security is the security of a nation state, including its citizens, economy, and institutions, which is regarded as a duty of government. 

Originally conceived as protection against military attack, national security is now widely understood to include non-military dimensions, including the security from terrorism, crime, economic security, energy security, environmental security, food security, cyber security etc. Similarly, national security risks include, in addition to the actions of other nation states, action by violent non-state actors, narcotic cartels, and multinational corporations, and also the effects of natural disasters.

Governments rely on a range of measures, including political, economic, and military power, as well as diplomacy to enforce national security. They may also act to build the conditions of security regionally and internationally by reducing transnational causes of insecurity, such as climate change, economic inequality, political exclusion, and nuclear proliferation.

Definitions

The concept of national security remains ambiguous, having evolved from simpler definitions which emphasised freedom from military threat and from political coercion. Among the many definitions proposed to date are the following, which show how the concept has evolved to encompass non-military concerns:
  • "A nation has security when it does not have to sacrifice its legitimate ínterests to avoid war, and is able, if challenged, to maintain them by war." (Walter Lippmann, 1943).
  • "The distinctive meaning of national security means freedom from foreign dictation." (Harold Lasswell, 1950)
  • "National security objectively means the absence of threats to acquired values and subjectively, the absence of fear that such values will be attacked." (Arnold Wolfers, 1960)
  • "National security then is the ability to preserve the nation's physical integrity and territory; to maintain its economic relations with the rest of the world on reasonable terms; to preserve its nature, institution, and governance from disruption from outside; and to control its borders." (Harold Brown, U.S. Secretary of Defense, 1977-1981)
  • "National security... is best described as a capacity to control those domestic and foreign conditions that the public opinion of a given community believes necessary to enjoy its own self-determination or autonomy, prosperity and wellbeing." (Charles Maier, 1990)
  • "National security is an appropriate and aggressive blend of political resilience and maturity, human resources, economic structure and capacity, technological competence, industrial base and availability of natural resources and finally the military might." (National Defence College of India, 1996)
  • "[National security is the] measurable state of the capability of a nation to overcome the multi-dimensional threats to the apparent well-being of its people and its survival as a nation-state at any given time, by balancing all instruments of state policy through governance... and is extendable to global security by variables external to it." (Prabhakaran Paleri, 2008)
  • "[National and international security] may be understood as a shared freedom from fear and want, and the freedom to live in dignity. It implies social and ecological health rather than the absence of risk... [and is] a common right." (Ammerdown Group, 2016)

Dimensions of national security

Potential causes of national insecurity include actions by other states (e.g. military or cyber attack), violent non-state actors (e.g. terrorist attack), organised criminal groups such as narcotic cartels, and also the effects of natural disasters (e.g. flooding, earthquakes). Systemic drivers of insecurity, which may be transnational, include climate change, economic inequality and marginalisation, political exclusion, and militarisation.

In view of the wide range of risks, the security of a nation state has several dimensions, including economic security, energy security, physical security, environmental security, food security, border security, and cyber security. These dimensions correlate closely with elements of national power. 

Increasingly, governments organise their security policies into a national security strategy (NSS); as of 2017, Spain, Sweden, the United Kingdom, and the United States are among the states to have done so. Some states also appoint a National Security Council to oversee the strategy and/or a National Security Advisor.

Although states differ in their approach, with some beginning to prioritise non-military action to tackle systemic drivers of insecurity, various forms of coercive power predominate, particularly military capabilities. The scope of these capabilities has developed. Traditionally, military capabilities were mainly land- or sea-based, and in smaller countries they still are. Elsewhere, the domains of potential warfare now include the air, space, cyberspace, and psychological operations. Military capabilities designed for these domains may be used for national security, or equally for offensive purposes, for example to conquer and annex territory and resources.

Physical security

In practice, national security is associated primarily with managing physical threats and with the military capabilities used for doing so. That is, national security is often understood as the capacity of a nation to mobilise military forces to guarantee its borders and to deter or successfully defend against physical threats including military aggression and attacks by non-state actors, such as terrorism. Most states, such as South Africa and Sweden, configure their military forces mainly for territorial defence; others, such as France, Russia, the UK and the US, invest in higher-cost expeditionary capabilities, which allow their armed forces to project power and sustain military operations abroad.

Political security

Barry Buzan, Ole Wæver, Jaap de Wilde and others have argued that national security depends on political security: the stability of the social order. Others, such as Paul Rogers, have added that the equitability of the international order is equally vital. Hence, political security depends on the rule of international law (including the laws of war), the effectiveness of international political institutions, as well as diplomacy and negotiation between nations and other security actors. It also depends on, among other factors, effective political inclusion of disaffected groups and the human security of the citizenry.

Economic security

Economic security, in the context of international relations, is the ability of a nation state to maintain and develop the national economy, without which other dimensions of national security cannot be managed. In larger countries, strategies for economic security expect to access resources and markets in other countries, and to protect their own markets at home. Developing countries may be less secure than economically advanced states due to high rates of unemployment and underpaid work.

Ecological security

Ecological security, also known as environmental security, refers to the integrity of ecosystems and the biosphere, particularly in relation to their capacity to sustain a diversity of life-forms (including human life). The security of ecosystems has attracted greater attention as the impact of ecological damage by humans has grown. The degradation of ecosystems, including topsoil erosion, deforestation, biodiversity loss, and climate change, affect economic security and can precipitate mass migration, leading to increased pressure on resources elsewhere. 

The scope and nature of environmental threats to national security and strategies to engage them are a subject of debate. Romm (1993) classifies the major impacts of ecological changes on national security as:
  • Transnational environmental problems. These include global environmental problems such as climate change due to global warming, deforestation, and loss of biodiversity.
  • Local environmental or resource pressures. These include resource scarcities leading to local conflict, such as disputes over water scarcity in the Middle East; migration into the United States caused by the failure of agriculture in Mexico; and the impact on the conflict in Syria of erosion of productive land. Environmental insecurity in Rwanda following a rise in population and dwindling availability of farmland, may also have contributed to the genocide there.
  • Environmentally threatening outcomes of warfare. These include acts of war that degrade or destroy ecosystems. Examples are the Roman destruction of agriculture in Carthage; Saddam Hussein's burning of oil wells in the Gulf War; the use of Agent Orange by the UK in the Malayan Emergency and the USA in the Vietnam War for defoliating forests; and the high greenhouse gas emissions of military forces.
Climate change is affecting global agriculture and food security
 
Refugees fleeing war and insecurity in Iraq and Syria arrive at Lesbos Island, supported by Spanish volunteers, 2015

Security of energy and natural resources

Resources include water, sources of energy, land and minerals. Availability of adequate natural resources is important for a nation to develop its industry and economic power. For example, in the Persian Gulf War of 1991, Iraq captured Kuwait partly in order to secure access to its oil wells, and one reason for the US counter-invasion was the value of the same wells to its own economy. Water resources are subject to disputes between many nations, including India and Pakistan, and in the Middle East.

The interrelations between security, energy, natural resources, and their sustainability is increasingly acknowledged in national security strategies and resource security is now included among the UN Sustainable Development Goals. In the US, for example, the military has installed solar photovoltaic microgrids on their bases in case of power outage.

Computer security

Computer security, also known as cybersecurity or IT security, refers to the security of computing devices such as computers and smartphones, as well as computer networks such as private and public networks, and the Internet. It concerns the protection of hardware, software, data, people, and also the procedures by which systems are accessed, and the field has growing importance due to the increasing reliance on computer systems in most societies. Since unauthorized access to critical civil and military infrastructure is now considered a major threat, cyberspace is now recognised as a domain of warfare.

Infrastructure security

Infrastructure security is the security provided to protect infrastructure, especially critical infrastructure, such as airports, highways rail transport, hospitals, bridges, transport hubs, network communications, media, the electricity grid, dams, power plants, seaports, oil refineries, and water systems. Infrastructure security seeks to limit vulnerability of these structures and systems to sabotage, terrorism, and contamination.

Many countries have established government agencies to directly manage the security of critical infrastructure usually through the Ministry of Interior/Home Affairs, dedicated security agencies to protect facilities such as United States Federal Protective Service, and also dedicated transport police such as the British Transport Police. There are also commercial transportation security units such as the Amtrak Police in the United States. Critical infrastructure is vital for the essential functioning of a country. Incidental or deliberate damage can have a serious impact on the economy and essential services. Some of the threats to infrastructure include:

Issues in national security

Consistency of approach

The dimensions of national security outlined above are frequently in tension with one another. For example:
  • The high cost of maintaining large military forces places a burden on the economic security of a nation. The share of government expenditure on state armed forces varies internationally; for example, in 2015 it was 4% in Germany, 9% in Chile, 14% in the USA, 15% in Israel, and 19% in Pakistan. Conversely, economic constraints can limit the scale of expenditure on military capabilities.
  • Unilateral security action by states can undermine political security at an international level if it erodes the rule of law and undermines the authority of international institutions. The invasion of Iraq in 2003 and the annexation of Crimea in 2014 have been cited as examples.
  • The pursuit of economic security in competition with other nation states can undermine the ecological security of all when the impact includes widespread topsoil erosion, biodiversity loss, and climate change. Conversely, expenditure on mitigating or adapting to ecological change places a burden on the national economy.
If tensions such as these are not managed effectively, national security policies and actions may be ineffective or counterproductive.

National versus transnational security

Increasingly, national security strategies have begun to recognise that nations cannot provide for their own security without also developing the security of their regional and international context. For example, Sweden's national security strategy of 2017 declared:
"Wider security measures must also now encompass protection against epidemics and infectious diseases, combating terrorism and organised crime, ensuring safe transport and reliable food supplies, protecting against energy supply interruptions, countering devastating climate change, initiatives for peace and global development, and much more."
A US fighter jet over a burning oil well in Kuwait during the Persian Gulf War, 1991
 
The extent to which this matters, and how it should be done, is the subject of debate. Some argue that the principal beneficiary of national security policy should be the nation state itself, which should centre its strategy on protective and coercive capabilities in order to safeguard itself in a hostile environment (and potentially to project that power into its environment, and dominate it to the point of strategic supremacy). Others argue that security depends principally on building the conditions in which equitable relationships between nations can develop, partly by reducing antagonism between actors, ensuring that fundamental needs can be met, and also that differences of interest can be negotiated effectively. In the UK, for example, Malcolm Chalmers argued in 2015 that the heart of the UK's approach should be support for the Western strategic military alliance led through NATO by the United States, as "the key anchor around which international order is maintained". The Ammerdown Group argued in 2016 that the UK should shift its primary focus to building international cooperation to tackle the systemic drivers of insecurity, including climate change, economic inequality, militarisation and the political exclusion of the world's poorest people.

Impact on civil liberties and human rights

Approaches to national security can have a complex impact on human rights and civil liberties. For example, the rights and liberties of citizens are affected by the use of military personnel and militarised police forces to control public behaviour; the use of surveillance, including mass surveillance in cyberspace, which has implications for privacy; military recruitment and conscription practices; and the effects of warfare on civilians and civil infrastructure. This has led to a dialectical struggle, particularly in liberal democracies, between government authority and the rights and freedoms of the general public. 

The National Security Agency harvests personal data across the internet.
 
Even where the exercise of national security is subject to good governance and the rule of law, a risk remains that the term national security may be become a pretext for suppressing unfavorable political and social views. In the US, for example, the controversial USA Patriot Act of 2001, and the revelation by Edward Snowden in 2013 that the National Security Agency harvests the personal data of the general public, brought these issues to wide public attention. Among the questions raised are whether and how national security considerations at times of war should lead to the suppression of individual rights and freedoms, and whether such restrictions are necessary when a state is not at war.
See also: Civil liberties, Human rights, and Mass surveillance

Country-by-country perspectives

Americas

Brazil

National Security ideology as taught by the US Army School of the Americas to military personnel were vital in causing the military coup of 1964. The military dictatorship was installed on the claim by military that Leftists were an existential threat to the national interests.

United States

National Security Act of 1947
The concept of national security became an official guiding principle of foreign policy in the United States when the National Security Act of 1947 was signed on July 26, 1947 by U.S. President Harry S. Truman. As amended in 1949, this Act:
Notably, the Act did not define national security, which was conceivably advantageous, as its ambiguity made it a powerful phrase to invoke whenever issues threatened by other interests of the state, such as domestic concerns, came up for discussion and decision.

The notion that national security encompasses more than just military security was present, though understated, from the beginning. The Act established the National Security Council so as to "advise the President on the integration of domestic, military and foreign policies relating to national security".

While not defining the "interests" of national security, the Act does establish, within the National Security Council, the "Committee on Foreign Intelligence", whose duty is to conduct an annual review "identifying the intelligence required to address the national security interests of the United States as specified by the President" (emphasis added).

In Gen. Maxwell Taylor's 1974 essay "The Legitimate Claims of National Security", Taylor states:
The national valuables in this broad sense include current assets and national interests, as well as the sources of strength upon which our future as a nation depends. Some valuables are tangible and earthy; others are spiritual or intellectual. They range widely from political assets such as the Bill of Rights, our political institutions and international friendships, to many economic assets which radiate worldwide from a highly productive domestic economy supported by rich natural resources. It is the urgent need to protect valuables such as these which legitimizes and makes essential the role of national security.
Obama administration
The U.S. Armed Forces defines national security of the United States in the following manner:
A collective term encompassing both national defense and foreign relations of the United States. Specifically, the condition provided by: a. a military or defense advantage over any foreign nation or group of nations; b. a favorable foreign relations position; or c. a defense posture capable of successfully resisting hostile or destructive action from within or without, overt or covert.
In 2010, the White House included an all-encompassing world-view in a national security strategy which identified "security" as one of the country's "four enduring national interests" that were "inexorably intertwined":
To achieve the world we seek, the United States must apply our strategic approach in pursuit of four enduring national interests:
  • Security:  The security of the United States, its citizens, and U.S. allies and partners.
  • Prosperity:  A strong, innovative, and growing U.S. economy in an open international economic system that promotes opportunity and prosperity.
  • Values: Respect for universal values at home and around the world.
  • International Order:  An international order advanced by U.S. leadership that promotes peace, security, and opportunity through stronger cooperation to meet global challenges.
Each of these interests is inextricably linked to the others: no single interest can be pursued in isolation, but at the same time, positive action in one area will help advance all four.
— National Security Strategy, Executive Office of the President of the United States (May 2010)
Empowerment of women
U.S. Secretary of State Hillary Clinton has said that, "The countries that threaten regional and global peace are the very places where women and girls are deprived of dignity and opportunity". She has noted that countries where women are oppressed are places where the "rule of law and democracy are struggling to take root", and that, when women's rights as equals in society are upheld, the society as a whole changes and improves, which in turn enhances stability in that society, which in turn contributes to global society.
Cyber
In the United States, the Bush Administration in January 2008, initiated the Comprehensive National Cybersecurity Initiative (CNCI). It introduced a differentiated approach, such as: identifying existing and emerging cybersecurity threats, finding and plugging existing cyber vulnerabilities, and apprehending actors that trying to gain access to secure federal information systems. President Obama issued a declaration that the "cyber threat is one of the most serious economic and national security challenges we face as a nation" and that "America's economic prosperity in the 21st century will depend on cybersecurity."
National security state
To reflect on institutionalization of new bureaucratic infrastructures and governmental practices in the post-World War II period in the U.S., when a culture of semi-permanent military mobilization brought around the National Security Council, the CIA, the Department of Defense, and the Joint Chiefs of Staff, national-security researchers apply a notion of a national security state:
During and after World War II, US leaders expanded the concept of national security and used its terminology for the first time to explain America’s relationship to the world. For most of US history, the physical security of the continental United States had not been in jeopardy. But by 1945, this invulnerability was rapidly diminishing with the advent of long-range bombers, atom bombs, and ballistic missiles. A general perception grew that the future would not allow time to mobilize, that preparation would have to become constant. For the first time, American leaders would have to deal with the essential paradox of national security faced by the Roman Empire and subsequent great powers: Si vis pacem, para bellum — If you want peace, prepare for war.
— David Jablonsky

Asia

China

China's Armed Forces are known as the People's Liberation Army (PLA). The military is largest in the world with 2.3 million active troops in 2005.

The Ministry of State Security was established in 1983 to ensure “the security of the state through effective measures against enemy agents, spies, and counterrevolutionary activities designed to sabotage or overthrow China’s socialist system.”

Muslim separatists in Xinjiang Uygur Autonomous Region are China's most significant domestic threat.

India

State of the national security of Republic of India is determined by its internal stability and geopolitical interests. India maintains its position as one of major economic and military powers and continues to emerge to strengthen its stature and diplomatic clout. While Islamic upsurge in Indian State of Jammu and Kashmir demanding secession and far left wing terrorism in India's red corridor remain some key issues in India's internal security, terrorism from Pakistan based militant groups has been emerging as a major concern for New Delhi.

National Security Advisor of India heads National Security Council of India, receives all kinds of intelligence reports and is chief advisor to the Prime Minister of India over national and international security policy. National Security Council has India's defence, foreign, home, finance ministers and deputy chairman of NITI Aayog as its members and is responsible for shaping strategies for India's security in all aspects.

Europe

Russia

In the years 1997 and 2000, Russia adopted documents titled "National Security Concept" that described Russia's global position, the country's interests, listed threats to national security and described the means to counter those threats. In 2009, these documents were superseded by the "National Security Strategy to 2020". The key body responsible for coordination of policies related to Russia's national security is the Security Council of Russia.

According to provision 6 of the National Security Strategy to 2020, national security is "the situation in which the individual, the society and the state enjoy protection from foreign and domestic threats to the degree that ensures constitutional rights and freedoms, decent quality of life for citizens, as well as sovereignty, territorial integrity and stable development of the Russian Federation, the defense and security of the state."

United Kingdom

The primary body responsible for coordinating national security policy in the UK is the National Security Council (United Kingdom) which helps produce and enact the UK's National Security Strategy. It was created in May 2010 by the new coalition government of the Conservative Party (UK) and Liberal Democrats. The National Security Council is a committee of the Cabinet of the United Kingdom and was created as part of a wider reform of the national security apparatus. This reform also included the creation of a National Security Adviser and a National Security Secretariat to support the National Security Council.

Africa

Conceptualizing and understanding the National Security choices and challenges of African States is a difficult task. This is due to the fact that it is often not rooted in the understanding of their (mostly disrupted) state formation and their often imported process of state building.

Although Post-Cold War conceptualizations of Security have broadened, the policies and practices of many African states still privilege national security as being synonymous with state security and even more narrowly- regime security.

The problem with the above is that a number of African states (be specific) have been unable to govern their security in meaningful ways. Often failing to be able to claim the monopoly of force in their territories. The hybridity of security ‘governance’ or ‘providers’ thus exists. States that have not been able to capture this reality in official National Security strategies and policies often find their claim over having the monopoly of force and thus being the Sovereign challenged. This often leads to the weakening of the state. Examples of such states are South Sudan and Somalia.
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Right to privacy

From Wikipedia, the free encyclopedia

The right to privacy is an element of various legal traditions to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy.

Since the global surveillance disclosures of 2013, initiated by ex-NSA employee Edward Snowden, the inalienable human right to privacy has been a subject of international debate. In combating worldwide terrorism, government agencies, such as the NSA, CIA, R&AW and GCHQ, have engaged in mass, global surveillance.

There is now a question as whether the right to privacy act can co-exist with the current capabilities of intelligence agencies to access and analyse virtually every detail of an individual's life. A major question is that whether or not the right to privacy needs to be forfeited as part of the social contract to bolster defense against supposed terrorist threats.

Private sector actors could also threaten the right to privacy. Increasingly, questions have arisen about the use and collection of personal data by technology companies, such as Amazon, Apple, Facebook, Google, and Yahoo. These concerns have been strengthened by scandals, including the Facebook–Cambridge Analytica data scandal, which focused on psychographic company Cambridge Analytica's obtaining of personal data via Facebook, to influence large groups of people.

Background

State of consideration of constitutional laws and acts formed by sectors and sections

Privacy uses the theory of natural rights, and generally responds to new information and communication technologies. In the United States, an article in the December 15, 1890 issue of the Harvard Law Review, written by attorney Samuel D. Warren and future U.S. Supreme Court Justice, Louis Brandeis, entitled "The Right to Privacy", is often cited as the first explicit declaration of a U.S. right to privacy. Warren and Brandeis wrote that privacy is the "right to be let alone", and focused on protecting individuals. This approach was a response to recent technological developments of the time, such as photography, and sensationalist journalism, also known as "yellow journalism".

Privacy rights are inherently intertwined with information technology. In his widely cited dissenting opinion in Olmstead v. United States (1928), Brandeis relied on thoughts he developed in his 1890 article The Right to Privacy. But in his dissent, he now changed the focus whereby he urged making personal privacy matters more relevant to constitutional law, going so far as saying "the government [was] identified...as a potential privacy invader." He writes, "Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet." At that time, telephones were often community assets, with shared party lines and the potentially nosey human operators. By the time of Katz, in 1967, telephones had become personal devices with lines not shared across homes and switching was electro-mechanical. In the 1970s, new computing and recording technologies began to raise concerns about privacy, resulting in the Fair Information Practice Principles.

Definitions

In recent years there have been few attempts to clearly and precisely define the "right to privacy". In 2005, students of the Haifa Center for Law & Technology asserted that in fact the right to privacy "should not be defined as a separate legal right" at all. By their reasoning, existing laws relating to privacy in general should be sufficient. Other experts, such as William Prosser, have attempted, but failed, to find a "common ground" between the leading kinds of privacy cases in the court system, at least to formulate a definition. One law school treatise from Israel, however, on the subject of "privacy in the digital environment," suggests that the "right to privacy should be seen as an independent right that deserves legal protection in itself." It has therefore proposed a working definition for a "right to privacy":
The right to privacy is our right to keep a domain around us, which includes all those things that are part of us, such as our body, home, property, thoughts, feelings, secrets and identity. The right to privacy gives us the ability to choose which parts in this domain can be accessed by others, and to control the extent, manner and timing of the use of those parts we choose to disclose.

An individual right

Alan Westin believes that new technologies alter the balance between privacy and disclosure, and that privacy rights may limit government surveillance to protect democratic processes. Westin defines privacy as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others". Westin describes four states of privacy: solitude, intimacy, anonymity, reserve. These states must balance participation against norms:
Each individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives.
— Alan Westin, Privacy and Freedom, 1968
Under liberal democratic systems, privacy creates a space separate from political life, and allows personal autonomy, while ensuring democratic freedoms of association and expression. 

David Flaherty believes networked computer databases pose threats to privacy. He develops 'data protection' as an aspect of privacy, which involves "the collection, use, and dissemination of personal information". This concept forms the foundation for fair information practices used by governments globally. Flaherty forwards an idea of privacy as information control, "[i]ndividuals want to be left alone and to exercise some control over how information about them is used".

Marc Rotenberg has described the modern right to privacy as Fair Information Practices: "the rights and responsibilities associated with the collection and use of personal information." Rotenberg emphasizes that the allocation of rights are to the data subject and the responsibilities are assigned to the data collectors because of the transfer of the data and the asymmetry of information concerning data practices.

Richard Posner and Lawrence Lessig focus on the economic aspects of personal information control. Posner criticizes privacy for concealing information, which reduces market efficiency. For Posner, employment is selling oneself in the labour market, which he believes is like selling a product. Any 'defect' in the 'product' that is not reported is fraud. For Lessig, privacy breaches online can be regulated through code and law. Lessig claims "the protection of privacy would be stronger if people conceived of the right as a property right", and that "individuals should be able to control information about themselves". Economic approaches to privacy make communal conceptions of privacy difficult to maintain.

A collective value and a human right

There have been attempts to reframe privacy as a fundamental human right, whose social value is an essential component in the functioning of democratic societies. Amitai Etzioni suggests a communitarian approach to privacy. This requires a shared moral culture for establishing social order. Etzioni believes that "[p]rivacy is merely one good among many others", and that technological effects depend on community accountability and oversight. He claims that privacy laws only increase government surveillance.

Priscilla Regan believes that individual concepts of privacy have failed philosophically and in policy. She supports a social value of privacy with three dimensions: shared perceptions, public values, and collective components. Shared ideas about privacy allows freedom of conscience and diversity in thought. Public values guarantee democratic participation, including freedoms of speech and association, and limits government power. Collective elements describe privacy as collective good that cannot be divided. Regan's goal is to strengthen privacy claims in policy making: "if we did recognize the collective or public-good value of privacy, as well as the common and public value of privacy, those advocating privacy protections would have a stronger basis upon which to argue for its protection".

Leslie Regan Shade argues that the human right to privacy is necessary for meaningful democratic participation, and ensures human dignity and autonomy. Privacy depends on norms for how information is distributed, and if this is appropriate. Violations of privacy depend on context. The human right to privacy has precedent in the United Nations Declaration of Human Rights. Shade believes that privacy must be approached from a people-centered perspective, and not through the marketplace.

Universal Declaration of Human Rights

A right to privacy is explicitly stated under Article 12 of the 1948 Universal Declaration of Human Rights:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Privacy laws in different countries

United States

Although the Constitution does not explicitly include the right to privacy, the Supreme Court has found that the Constitution implicitly grants a right to privacy against governmental intrusion from the First Amendment, Third Amendment, Fourth Amendment, and the Fifth Amendment. This right to privacy has been the justification for decisions involving a wide range of civil liberties cases, including Pierce v. Society of Sisters, which invalidated a successful 1922 Oregon initiative requiring compulsory public education, Griswold v. Connecticut, where a right to privacy was first established explicitly, Roe v. Wade, which struck down a Texas abortion law and thus restricted state powers to enforce laws against abortion, and Lawrence v. Texas, which struck down a Texas sodomy law and thus eliminated state powers to enforce laws against sodomy. 

The 1890 Warren and Brandeis article "The Right To Privacy" is often cited as the first implicit declaration of a U.S. right to privacy. This right is frequently debated. Strict constructionists argue that such right exists (or at least that the Supreme Court has more jurisdiction to protect such a right), while some civil libertarians argue that the right invalidates many types of currently allowed acts not to be surveillance (wiretaps, public cameras film industry, etc.).

Most states of the United Statesalso grant a right to privacy and recognize four torts based on that right:
  1. Intrusion upon seclusion or solitude, or into private affairs;
  2. Public disclosure of embarrassing private facts;
  3. Publicity which places a person in a false light in the public eye; and
  4. Appropriation of name or likeness.
The four privacy torts above were introduced by William Prosser in his California Law Review article titled "Privacy" in 1960. Some argue that these torts, along with the "Right to Privacy" article by Samuel Warren and Louis Brandeis form the basis for modern U.S. privacy legislation.

Also, in some American jurisdictions the use of a person's name as a keyword under Google's AdWords for advertising or trade purposes without the person's consent has raised certain personal privacy concerns.

Right to privacy and social media content laws have been considered and enacted in several states, such as California's “online erasure” law protecting minors from leaving a digital trail. However, the United States is still far behind that of European Union countries in protecting privacy online. For example, the “right to be forgotten” ruling by the EU Court of Justice protects both adults and minors.

India

A nine-judge bench of the Supreme Court headed by Chief Justice JS Khehar, ruled on August 24, 2017 that the Right to Privacy is a fundamental right for Indian citizens under the Constitution of India (mostly under Article 21 and additionally under Part III rights). Thus no legislation passed by the government can unduly violate it. Specifically, the court adopted the three-pronged test required for encroachment of any Article 21 right – legality-i.e. through an existing law; necessity, in terms of a legitimate state objective and proportionality, that ensures a rational nexus between the object of the invasion and the means adopted to achieve that object. This clarification was crucial to prevent the dilution of the right in the future on the whims and fancies of the government in power. This ruling by the Supreme Court paved the way for decriminalisation of homosexuality in India on 6 September 2018, thus legalising same-sex sexual intercourse between two consenting adults in private. India is the world's biggest democracy and with this ruling, it has joined United States, Canada, South Africa, the European Union and the UK in recognizing this fundamental right.

The new data sharing policy of Whatsapp with Facebook after Facebook acquired Whatsapp in 2014 has been challenged in the Supreme Court. The Supreme Court must decide if the right to privacy can be enforced against private entities.

Australia

In Australia you can be charged if you look at private or classified material. Public servants have been arrested after they looked at the police computers without authorization. 

Journalism

It is often claimed, particularly by those in the eye of the media, that their right to privacy is violated when information about their private lives is reported in the press. The point of view of the press, however, is that the general public have a right to know personal information about those with status as a public figure. This distinction is encoded in most legal traditions as an element of freedom of speech.

Mass surveillance and privacy

Governmental organizations such as the NSA, CIA, and GCHQ amongst others conduct mass surveillance throughout the world. Programs such as PRISM, MYSTIC, and other operations conducted by NATO-member states are capable of collecting a vast quantity of metadata, internet history, and even actual recordings of phone calls from various countries. The existence of programs is justified by their conductors in terms of supposed benefits for defense and law enforcement, however this is also in conflict with the right to privacy established under various treaties, constitutions, and the Universal Declaration of Human Rights. The argument in favor of privacy has therefore come under a larger opposition to intelligence operations carried out for political purposes, and has become a contentious issue since it undermines the perceived need of nations to spy on the general population in order to maintain their power structures.

Support

  • The right to privacy is alluded to in the Fourth Amendment to the US Constitution, which states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The logical extension of the amendment to digital properties would make sense since if the internet had existed when it was written, digital documents would have been considered more important than the literal "papers" mentioned in the text.
  • Privacy helps to avoid unwanted and potentially intrusive interference in an individual's personal affairs.
  • Privacy is one of the rights that were absent in the society in George Orwell's Nineteen Eighty-Four. Without privacy, there would be nothing to stop a Big Brother-like entity from taking control of every aspect of life.

Opposition

  • In 1999, during a launch event for the Jini technology, Scott McNealy, the chief executive officer of Sun Microsystems, said that privacy issues were "a red herring" and then stated "You have zero privacy anyway. Get over it."
  • The nothing to hide argument states that government data mining and surveillance programs do not threaten privacy unless they uncover some illegal activities and those committing such activities do not have the right to keep them private. One who supports this argument may state, "I've got nothing to hide" thus, not opposing data mining and surveillance.
  • In wake of the Snowden scandal, governments have claimed that there is an existential terrorist threat that overrides the so-called right to privacy.
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Incorporation of the Bill of Rights

From Wikipedia, the free encyclopedia

Incorporation, in United States law, is the doctrine by which portions of the Bill of Rights have been made applicable to the states. When the Bill of Rights was ratified, courts held that its protections only extended to the actions of the federal government and that the Bill of Rights did not place limitations on the authority of state and local governments. However, the post-Civil War era, beginning in 1865 with the Thirteenth Amendment, which declared the abolition of slavery, gave rise to the incorporation of other Amendments, providing more rights to the states and people over time. Gradually, various portions of the Bill of Rights have been held to be applicable to state and local governments by incorporation through the Fourteenth Amendment in 1868 and the Fifteenth Amendment in 1870. 

Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

History

Background

No person shall ... be deprived of life, liberty, or property, without due process of law ...
—Due Process Clause of the Fifth Amendment (1791)

The United States Bill of Rights is the first ten amendments to the United States Constitution. Proposed following the oftentimes bitter 1787–88 battle over ratification of the United States Constitution, and crafted to address the objections raised by Anti-Federalists, the Bill of Rights amendments add to the Constitution specific guarantees of personal freedoms and rights, clear limitations on the government's power in judicial and other proceedings, and explicit declarations that all powers not specifically delegated to Congress by the Constitution are reserved for the states or the people. The concepts codified in these amendments are built upon those found in several earlier documents, including the Virginia Declaration of Rights and the English Bill of Rights 1689, along with earlier documents such as Magna Carta (1215). Although James Madison's proposed amendments included a provision to extend the protection of some of the Bill of Rights to the states, the amendments that were finally submitted for ratification applied only to the federal government. 

[N]or shall any State deprive any person of life, liberty, or property, without due process of law ...
—Due Process Clause of the Fourteenth Amendment (1868)

In the 1833 case of Barron v. Baltimore, the Supreme Court of the United States held that the Bill of Rights did not apply to state governments; such protections were instead provided by the constitutions of each state. After the Civil War, Congress and the states ratified the Fourteenth Amendment, which included the Due Process Clause and the Privileges or Immunities Clause. While the Fifth Amendment had included a due process clause, the due process clause of the Fourteenth Amendment crucially differed from the Fifth Amendment in that it explicitly applied to the states. The Privileges or Immunities Clause also explicitly applied to the states, unlike the Privileges and Immunities Clause of Article IV of the Constitution. In the Slaughter-House Cases (1873), the Supreme Court ruled that the Privileges or Immunities Clause was not designed to protect individuals from the actions of state governments. In Twining v. New Jersey (1908), the Supreme Court acknowledged that the Due Process Clause might incorporate some of the Bill of Rights, but continued to reject any incorporation under the Privileges or Immunities Clause.

Incorporation

The doctrine of incorporation has been traced back to either Chicago, Burlington and Quincy Railroad v. City of Chicago (1897) in which the Supreme Court appeared to require some form of just compensation for property appropriated by state or local authorities (although there was a state statute on the books that provided the same guarantee) or, more commonly, to Gitlow v. New York (1925), in which the Court expressly held that States were bound to protect freedom of speech. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights. Provisions that the Supreme Court either has refused to incorporate, or whose possible incorporation has not yet been addressed include the Fifth Amendment right to an indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil lawsuits.

Incorporation applies both procedurally and substantively to the guarantees of the states. Thus, procedurally, only a jury can convict a defendant of a serious crime, since the Sixth Amendment jury-trial right has been incorporated against the states; substantively, for example, states must recognize the First Amendment prohibition against a state-established religion, regardless of whether state laws and constitutions offer such a prohibition. The Supreme Court has declined, however, to apply new procedural constitutional rights retroactively against the states in criminal cases (Teague v. Lane, 489 U.S. 288 (1989)) with limited exceptions, and it has waived constitutional requirements if the states can prove that a constitutional violation was "harmless beyond a reasonable doubt."

Rep. John Bingham, the principal framer of the Fourteenth Amendment, advocated that the Fourteenth applied the first eight Amendments of the Bill of Rights to the States. The U.S. Supreme Court subsequently declined to interpret it that way, despite the dissenting argument in the 1947 case of Adamson v. California by Supreme Court Justice Hugo Black that the framers' intent should control the Court's interpretation of the Fourteenth Amendment (he included a lengthy appendix that quoted extensively from Bingham's congressional testimony). Although the Adamson Court declined to adopt Black's interpretation, the Court during the following twenty-five years employed a doctrine of selective incorporation that succeeded in extending to the States almost all of the protections in the Bill of Rights, as well as other, unenumerated rights. The Bill of Rights thus imposes legal limits on the powers of governments and acts as an anti-majoritarian/minoritarian safeguard by providing deeply entrenched legal protection for various civil liberties and fundamental rights. The Supreme Court for example concluded in the West Virginia State Board of Education v. Barnette (1943) case that the founders intended the Bill of Rights to put some rights out of reach from majorities, ensuring that some liberties would endure beyond political majorities. As the Court noted the idea of the Bill of Rights "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." This is why "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." The 14th Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.

Selective versus total incorporation

In the 1940s and 1960s the Supreme Court gradually issued a series of decisions incorporating several of the specific rights from the Bill of Rights, so as to be binding upon the States. A dissenting school of thought championed by Justice Hugo Black supported that incorporation of specific rights, but urged incorporation of all specific rights instead of just some of them. Black was for so-called mechanical incorporation, or total incorporation, of Amendments 1 through 8 of the Bill of Rights (Amendments 9 and 10 being patently connected to the powers of the state governments). Black felt that the Fourteenth Amendment required the States to respect all of the enumerated rights set forth in the first eight amendments, but he did not wish to see the doctrine expanded to include other, unenumerated "fundamental rights" that might be based on the Ninth Amendment. Black felt that his formulation eliminated any arbitrariness or caprice in deciding what the Fourteenth Amendment ought to protect, by sticking to words already found in the Constitution. Although Black was willing to invalidate federal statutes on federalism grounds, he was not inclined to read any of the first eight amendments as states' rights provisions as opposed to individual rights provisions. Justice Black felt that the Fourteenth Amendment was designed to apply the first eight amendments from the Bill of Rights to the states, as he expressed in his dissenting opinion in Adamson v. California. This view was again expressed by Black in his concurrence in Duncan v. Louisiana citing the Fourteenth Amendment's Privileges or Immunities Clause: "'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States' seem to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States."

Due process interpretation

Justice Felix Frankfurter, however, felt that the incorporation process ought to be incremental, and that the federal courts should only apply those sections of the Bill of Rights whose abridgment would "shock the conscience," as he put it in Rochin v. California (1952). Such a selective incorporation approach followed that of Justice Moody, who wrote in Twining v. New Jersey (1908) that "It is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law." The due process approach thus considers a right to be incorporated not because it was listed in the Bill of Rights, but only because it is required by the definition of due process, which may change over time. For example, Moody's decision in Twining stated that the 5th Amendment right against self-incrimination was not inherent in a conception of due process and so did not apply to states, but was overruled in Malloy v. Hogan (1964). Similarly, Justice Cardozo stated in Palko v. Connecticut (1937) that the right against double jeopardy was not inherent to due process and so does not apply to the states, but that was overruled in Benton v. Maryland (1969). Frankfurter's incrementalist approach did carry the day, but the end result is very nearly what Justice Black advocated, with the exceptions noted below.

Incorporation under privileges or immunities

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. ...
—Privileges or Immunities Clause of the Fourteenth Amendment

Some have suggested that the Privileges or Immunities Clause would be a more appropriate textual basis than the due process clause for incorporation of the Bill of Rights. It is often said that the Slaughter-House Cases "gutted the privileges or immunities clause" and thus prevented its use for applying the Bill of Rights against the states. In his dissent to Adamson v. California, however, Justice Hugo Black pointed out that the Slaughter-House Cases did not directly involve any right enumerated in the Constitution:
[T]he state law under consideration in the Slaughter-House cases was only challenged as one which authorized a monopoly, and the brief for the challenger properly conceded that there was "no direct constitutional provision against a monopoly." The argument did not invoke any specific provision of the Bill of Rights, but urged that the state monopoly statute violated "the natural right of a person" to do business and engage in his trade or vocation.
Thus, in Black's view, the Slaughterhouse Cases should not impede incorporation of the Bill of Rights against the states, via the Privileges or Immunities Clause. Some scholars go even further, and argue that the Slaughterhouse Cases affirmatively supported incorporation of the Bill of Rights against the states. In dicta, Justice Miller's opinion in Slaughterhouse went so far as to acknowledge that the "right to peaceably assemble and petition for redress of grievances ... are rights of the citizen guaranteed by the Federal Constitution," although in context Miller may have only been referring to assemblies for petitioning the federal government.

In the 2010 landmark case McDonald v. Chicago, the Supreme Court declared the Second Amendment is incorporated through the Due Process Clause. However, Justice Thomas, the fifth justice in the majority, criticized substantive due process and declared instead that he reached the same incorporation only through the Privileges or Immunities Clause. No other justice attempted to question his rationale. This is considered by some as a "revival" of the Privileges or Immunities Clause, however as it is a concurring opinion and not the majority opinion in the case, it is not binding precedent in lower courts; it is merely an indication that SCOTUS may be inclined, given the proper question, to reconsider and ultimately reverse the Slaughterhouse Cases.

In the 2019 case Timbs v. Indiana, the Supreme Court, citing McDonald, ruled that the Eighth Amendment's Excessive Fines Clause is incorporated through the Due Process Clause. Justice Thomas did not join this opinion; in a separate opinion concurring in the judgment, he once again declared that he would reach the same incorporation through the Privileges or Immunities Clause. Justice Gorsuch took an in-between position. He joined the opinion of the Court, but wrote a short concurrence acknowledging that the Privileges or Immunities Clause might be the better vehicle for incorporation—but ultimately deciding that nothing in the case itself turned on the question of which clause is the source of the incorporation.

Specific amendments

Many of the provisions of the First Amendment were applied to the States in the 1930s and 1940s, but most of the procedural protections provided to criminal defendants were not enforced against the States until the Warren Court of the 1960s, famous for its concern for the rights of those accused of crimes, brought state standards in line with federal requirements. The following list enumerates, by amendment and individual clause, the Supreme Court cases that have incorporated the rights contained in the Bill of Rights. (The Ninth Amendment is not listed; its wording indicates that it "is not a source of rights as such; it is simply a rule about how to read the Constitution." The Tenth Amendment is also not listed; by its wording, it is a reservation of powers to the states and to the people.)

Amendment I

Guarantee against establishment of religion
Guarantee of freedom of speech
Guarantee of freedom of the press
Guarantee of freedom of assembly
Guarantee of the right to petition for redress of grievances
  • This right, though not in the words of the first amendment, was first mentioned in the case NAACP v. Alabama, 357 U.S. 449 (1958) and was at that time applied to the states. See also Roberts v. United States Jaycees, 468 U.S. 609 (1984), where the U.S. Supreme Court held that "implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends."

Amendment II

  • This right has been incorporated against the states. Described as a fundamental and individual right that will necessarily be subject to strict scrutiny by the courts, see McDonald v. City of Chicago (2010). Self Defense is described as "the central component" of the Second Amendment in McDonald, supra., and upheld District of Columbia v. Heller 554 U.S (2008) concluding the Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense. The 14th Amendment makes the 2nd Amendment right to keep and bear arms fully applicable to the States, see, McDonald vs. City of Chicago (2010). "The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored as long as the States legislated in an evenhanded manner," McDonald, supra..

Amendment III

In 1982, the Second Circuit applied the Third Amendment to the states in Engblom v. Carey. This is a binding authority over Connecticut, New York, and Vermont, but is only a persuasive authority over the remainder of the United States.

The Tenth Circuit has suggested that the right is incorporated because the Bill of Rights explicitly codifies the "fee ownership system developed in English law" through the Third, Fourth, and Fifth Amendments, and the Fourteenth Amendment likewise forbids the states from depriving citizens of their property without due process of law. See United States v. Nichols, 841 F.2d 1485, 1510 n.1 (10th Cir. 1988). 

The "problem" is that the third amendment, by and large, is the only one that is almost never violated by the states and Federal government; almost nobody is suing over the issue, so very few cases are being heard. The U.S. Supreme Court has never had a third amendment case appealed to it.

Amendment IV

  • This right has been incorporated against the states by the Supreme Court's decision in Mapp v. Ohio, 367 U.S. 643 (1961), although there is dicta in Wolf v. Colorado, 338 U.S. 25 (1949), saying the "core" of the Fourth Amendment applied to the States.
  • The remedy of exclusion of unlawfully seized evidence, the exclusionary rule, has been incorporated against the states. See Mapp v. Ohio. In Mapp, the Court overruled Wolf v. Colorado in which the Court had ruled that the exclusionary rule did not apply to the states.
Warrant requirements
  • The various warrant requirements have been incorporated against the states. See Aguilar v. Texas, 378 U.S. 108 (1964).
  • The standards for judging whether a search or seizure undertaken without a warrant was "unreasonable" also have been incorporated against the states. See Ker v. California, 374 U.S. 23 (1963).

Amendment V

Right to indictment by a grand jury
  • This right has been held not to be incorporated against the states. See Hurtado v. California, 110 U.S. 516 (1884).
Protection against double jeopardy
Constitutional privilege against self-incrimination
  • This right has been incorporated against the states.
    1. Self Incrimination in Court See Griffin v. California, 380 U.S. 609 (1965), Malloy v. Hogan , 378 U.S. 1 (1964).
    2. Miranda See Miranda v. Arizona, 348 U.S. 436 (1966).
  • A note about the Miranda warnings: The text of the Fifth Amendment does not require that the police, before interrogating a suspect whom they have in custody, give him or her the now-famous Miranda warnings. Nevertheless, the Court has held that these warnings are a necessary prophylactic device, and thus required by the Fifth Amendment by police who interrogate any criminal suspect in custody, regardless of whether he or she is ultimately prosecuted in state or federal court.
Protection against taking of private property without just compensation

Amendment VI

Right to a speedy trial
Right to a public trial
  • This right has been incorporated against the states. See Duncan v. Louisiana, 391 U.S. 145 (1968), which guarantees the right to a jury trial in non-petty cases. See also Parker v. Gladden, 385 U.S. 363 (1966), where the Supreme Court ruled "that the statements of the bailiff to the jurors are controlled by the command of the Sixth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment. It guarantees that 'the accused shall enjoy the right to a trial, by an impartial jury ....'" However, the size of the jury, as well as the requirement that it unanimously reach its verdict, vary between federal and state courts. Even so, the Supreme Court has ruled that a jury in a criminal case may have as few as six members. Williams v. Florida, 399 U.S. 78 (1970). If there are twelve, only nine jurors need agree on a verdict. Furthermore, there is no right to a jury trial in juvenile delinquency proceedings held in state court. See McKeiver v. Pennsylvania, 403 U.S. 528 (1971). The specific question of whether a unanimous verdict is part of the incorporated rights against the states will be addressed in a pending Supreme Court case, Ramos v. Louisiana, to be heard during the 2019-2020 term.
  • This right has not been incorporated against the states. See Caudill v. Scott, 857 F.2d 344 (6th Cir. 1988); Cook v. Morrill, 783 F.2d 593 (5th Cir. 1986); Zicarelli v. Dietz, 633 F.2d 312 (3d Cir. 1980).
Right to compulsory process (subpoenas) to obtain witness testimony

Amendment VII

Amendment VIII

Protection against excessive bail
  • This right may have been incorporated against the states. In Schilb v. Kuebel, 404 U.S. 357 (1971), the Court stated in dicta: "Bail, of course, is basic to our system of law, and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment." In Murphy v. Hunt, 455 U.S. 478 (1982), the Court did not reach the issue because the case was dismissed as moot. Bail was included in the list of incorporated rights in McDonald footnote 12, citing Schilb.
Protection against excessive fines
  • This right has been incorporated against the states. See Timbs v. Indiana, (2019), in which Justice Ruth Bader Ginsburg wrote for the majority "For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties.".
Protection against cruel and unusual punishments
  • This right has been incorporated against the states. See Robinson v. California, 370 U.S. 660 (1962). This holding has led the Court to suggest, in dicta, that the excessive bail and excessive fines protections have also been incorporated. See Baze v. Rees, 128 S. Ct. 1520, 1529 (2008).

Reverse incorporation

A similar legal doctrine to incorporation is that of reverse incorporation. Whereas incorporation applies the Bill of Rights to the states through the Due Process Clause of the Fourteenth Amendment, in reverse incorporation, the Equal Protection Clause of the Fourteenth Amendment has been held to apply to the federal government through the Due Process Clause located in the Fifth Amendment. For example, in Bolling v. Sharpe, 347U.S.497 (1954), which was a companion case to Brown v. Board of Education, the schools of the District of Columbia were desegregated even though Washington is a federal enclave. Likewise, in Adarand Constructors, Inc. v. Peña515U.S.200 (1995), an affirmative action program by the federal government was subjected to strict scrutiny based on equal protection.
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