Amdt5.7.7 Informational Privacy and Substantive Due Process

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In a few cases, the Supreme Court has upheld federal record keeping or disclosure requirements against objections that they violated a purported Fifth Amendment substantive due process right to informational privacy. In California Bankers Association v. Schultz, the Court determined that the federal Bank Secrecy Act’s transaction recordkeeping provisions did not violate the due process rights of banks or their depositors by subjecting them to arbitrary or burdensome requirements.1 In its 2011 decision in National Aeronautics & Space Administration (NASA) v. Nelson, the Supreme Court unanimously ruled against NASA employees who argued that the extensive background checks required to work at NASA facilities violated their constitutional privacy rights.2 The Court chose to “assume, without deciding,” that the Constitution protects a right to informational privacy.3 However, it held that such a right would not prevent the government from asking reasonable questions in light of the government’s interest as an employer and statutory protections that provide meaningful checks against unwarranted disclosures.4

416 U.S. 21, 49 (1974). back
562 U.S. 134, 138 (2011). back
Id. back
Id. See also Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 455–65 (1977) (determining that former President Richard Nixon lacked a significant privacy interest in presidential records that Congress had placed under the custody of an Executive Branch official, in part because of the public interest in the records and the statute’s protections against “undue dissemination” of intermingled private materials). back