Amdt14.S1.6.3.3 Informational Privacy, Confidentiality, and Substantive Due Process

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Supreme Court has at times suggested that the privacy right protected by the Constitution encompasses a right to informational privacy or confidentiality. The Court first indicated the existence of this protected interest in Whalen v. Roe.1 There, a group of patients and doctors sued to challenge a state law that required the state to record, in a centralized computer file, the names and addresses of all persons who have been prescribed certain drugs with abuse potential.2 The plaintiffs argued that the law impermissibly invaded two protected privacy interests: (1) the individual interest in avoiding disclosure of personal matters; and (2) the autonomy interest in making certain health decisions about what medication to use.3

The Court assumed that both interests are protected, but held that the law on its face did not “pose a sufficiently grievous threat to either interest.” 4 The record system, the Court observed, included extensive security protection that limited disclosure to that necessary to achieve the purpose of curtailing misuse of certain prescription drugs, nor did the law interfere with the decision to prescribe or use the relevant drugs.5 Following Whalen, some lower courts have questioned whether the case established a “fundamental” right to informational privacy or confidentiality.6

More than two decades after Whalen, the Court, in NASA v. Nelson, declined to rule on whether such a privacy right exists.7 In Nelson, a group of NASA workers sued to challenge the extensive background checks required to work at NASA facilities as violating their constitutional privacy rights.8 Ruling unanimously in favor of the agency, the Court again assumed without deciding that a right to informational privacy could be protected by the Constitution.9 The Court, however, held that the right does not prevent the government from asking reasonable questions in light of its interest as an employer and in light of the statutory protections that provide meaningful checks against unwarranted disclosures.10 Consequently, questions remain concerning whether and to what extent a right to informational privacy or confidentiality exists.

429 U.S. 589 (1977). back
Id. at 591, 595–96. back
Id. at 599–600. back
Id. at 600. back
Id. at 600–04. The Court cautioned that it did not decide the privacy implications of the accumulation and disclosure of vast amounts of information in data banks, but it noted that a duty to safeguard such information collected for public purposes from disclosure arguably “has its roots in the Constitution,” at least in some circumstances. Id. at 605. In Nixon v. Adm’r. of Gen. Servs., 433 U.S. 425 (1977), however, the Court rejected President Richard Nixon’s assertion that the Presidential Recordings and Materials Preservation Act, which directed the Administrator of General Services to take custody of over 42 million pages of documents and over 800 tape recordings of President Nixon, invaded his constitutionally protected privacy interest. Id. at 455–65. While recognizing that President Nixon had a legitimate expectation of privacy in at least some of the materials that were personal in nature, the Court balanced that interest against the relevant public interests—including that the disclosure would be limited to archivists for screening purposes—and upheld the law. See id. back
See, e.g., Plante v. Gonzalez, 575 F.2d 1119, 1134 (5th Cir. 1978) (noting that the Supreme Court in Whalen and Nixon considered “the confidentiality strand of privacy” and applying a “balancing test” to evaluate a claim that certain state public disclosure requirements on elected officials violated their privacy interest). back
562 U.S. 134 (2011). back
See id. at 148–56. back
See id. back
Id. For additional discussion on right to information privacy in the context of federal laws and actions, see Amdt5.7.7 Informational Privacy and Substantive Due Process. back