Moving from Nixon to NASA: Privacy's Second Strand--A Right to Informational Privacy

Yale Journal of Law and Technology Volume 15 Issue 1 Yale Journal of Law and Technology Article 1 2013 Moving from Nixon to NASA: Privacy's Second Strand--A Right to Informational Privacy Christina P. Moniodis Yale Law School Follow this and additional works at: https://digitalcommons.law.yale.edu/yjolt Part of the Computer Law Commons, Intellectual Property Law Commons, and the Science and Technology Law Commons Recommended Citation Christina P. Moniodis, Moving from Nixon to NASA: Privacy's Second Strand--A Right to Informational Privacy, 15 Yale J.L. & Tech (2013). Available at: https://digitalcommons.law.yale.edu/yjolt/vol15/iss1/1 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law and Technology by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Moniodis: Moving from Nixon to NASA: Privacy's Second Strand MOVING FROM NIXON TO NASA: PRIVACY’S SECOND STRAND—A RIGHT TO INFORMATIONAL PRIVACY Christina P. Moniodis* 15 YALE J.L. & TECH. 139 (2012) ABSTRACT The Supreme Court’s data privacy jurisprudence consists of only two cases, yet these cases have fueled a circuit split on data privacy rights. The Court’s hesitance to foray into data privacy law may be because the nonrival, invisible, and recombinant nature of information causes plaintiffs’ harms to elude courts. Such harms threaten the democratic relationship between citizen and state. However, the Court renewed its attention to data privacy in NASA v. Nelson, in which the Court may have recognized a tension in its jurisprudence and rejected one of its precedents to better account for the harms and interests at stake. * Associate, Munger, Tolles and Olson LLP; J.D., Yale Law School, 2012; B.A., University of Michigan, 2009. The views expressed herein are solely those of the author and should not be attributed to the author’s employer or its clients. The author thanks the Yale Law School Access to Knowledge Practicum for feedback throughout the stages of this article. She also thanks her family for their invaluable support. 139 Published by Yale Law School Legal Scholarship Repository, 2013 1 Yale Journal of Law and Technology, Vol. 15 [2013], Iss. 1, Art. 1 15 YALE J.L. & TECH. 139 (2012) 2012-2013 TABLE OF CONTENTS INTRODUCTION ............................................................................ 141 I. A BARE AND CONFUSING DOCTRINE ..................................... 143 A. The Supreme Court Pre-2011 .......................................... 143 1. Whalen v. Roe............................................................... 143 2. Nixon v. General Services Administrator..................... 146 B. The Supreme Court Speaks After Thirty Years in NASA v. Nelson .............................................................. 148 II. THE NATURE OF INFORMATIONAL PRIVACY ............................ 151 A. Data Traits Conceal Harm from Judicial Detection ....... 153 B. Weakened Data Privacy Erodes Citizen-State Relations 154 III. ANY ROLE FOR NASA? ....................................................... 157 A. NASA as Forming a Trilogy ........................................... 157 B. Resulting Flawed Balancing Test .................................... 158 1. The Individual’s Interest .............................................. 158 2. The Government’s Interest ........................................... 160 C. Displacing Nixon: NASA as Forming a Sequel.............. 163 CONCLUSION................................................................................ 167 140 https://digitalcommons.law.yale.edu/yjolt/vol15/iss1/1 2 Moniodis: Moving from Nixon to NASA: Privacy's Second Strand MOVING FROM NIXON TO NASA: PRIVACY’S SECOND STRAND—A RIGHT TO INFORMATIONAL PRIVACY INTRODUCTION Without her knowledge, a government clerk’s blood is tested for HIV and pregnancy.1 A police department asks an applicant about her off-duty sexual activities and for the name of the father of her miscarried child.2 A public school posts a former employee’s case of fibromyalgia on the internet and permits newspapers to broadcast the report.3 Although data privacy4 litigation and policy issues are increasing,5 there is no consensus among the circuits as to the underlying privacy rights. They disagree broadly over which privacy interests are constitutionally protected, how to determine which interests are protected, and whether a right to informational privacy exists at all.6 The Second, Third, Fifth, Seventh, and Ninth Circuits recognize a right to informational privacy and balance it against the state’s interest;7 the Sixth Circuit holds that the right only protects intrusions upon fundamental interests or those implicit in the concept of ordered liberty;8 and the District of Columbia Circuit questions the existence of a constitutional right to privacy.9 Thirty years ago, the Supreme Court began to parse privacy interests and recognize an interest in nondisclosure of personal information in Whalen v. Roe, a case addressing a state’s collection of citizen medical records.10 This opinion was followed months later by another informational privacy case as the issue of whether the federal government could take custody of President Nixon’s papers and screen the papers for archival purposes reached the Court in Nixon v. General Services Administrator.11 After these two cases, the Court fell into a long silence on the issue. However, 1 Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260 (9th Cir. 1998). Matson v. Bd. of Educ., 631 F.3d 57 (2d Cir. 2011). 3 Coffman v. Indianapolis Fire Dept., 578 F.3d 559 (7th Cir. 2009). 4 The right to nondisclosure, informational privacy, and data privacy are used interchangeably in the case law and literature. This Article will also use these terms interchangeably. 5 ALEXEI PAVLICHEV & G. DAVID GARSON, DIGITAL GOVERNMENT: PRINCIPLES AND BEST PRACTICES 240 (2000) (explaining that as the government processes increasing amounts of public information, privacy issues continue to grow). 6 For an overview of the “confusing and inconsistent” application of the right to informational privacy by circuit courts, see Gary R. Clouse, Comment, The Constitutional Right To Withhold Information, 77 NW. U. L. REV. 536 (1982). 7 See, e.g., Coffman v. Indianapolis Fire Dept., 578 F.3d 559, 566 (7th Cir. 2009); In Re Crawford, 194 F.3d 954, 959 (9th Cir. 1999); Barry v. New York, 712 F.2d 1554, 1559 (2d Cir. 1983); Fadjo v. Coon, 633 F.2d 1172, 1176 (5th Cir. 1981); and United States v. Westinghouse Electric Corp., 638 F.2d 570, 582 (3d Cir. 1980). 8 See, e.g., J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th Cir. 1981). 9 See, e.g., Am. Fed’n of Gov’t Emps. v. Dep’t of Hous. & Urban Dev., 118 F.3d 786, 791 (D.C. Cir. 1997). 10 Whalen v. Roe, 429 U.S. 589 (1977). 11 433 U.S. 425 (1977). 2 141 Published by Yale Law School Legal Scholar (...truncated)