Informational Privacy: Lessons from Across the Atlantic

COMMENTS INFORMATIONAL PRIVACY: LESSONS FROM ACROSS THE ATLANTIC * Timothy Azarchs INTRODUCTION The digital age sparked an explosion both in the quantity of private information that a government can gather on private citizens, and in the rapidity with which such information, once leaked, can 1 spread across the globe. As the recent controversy involving National Security Agency (“NSA”) surveillance of phone and Internet communications demonstrates, governments are eager to take advantage 2 of this new capacity. In such an age, citizens’ rights to privacy are increasingly crucial. The right to decisional privacy—to be free from government interference when making personal decisions about such things as procreation and sexuality—has been affirmed and clarified by the United States Supreme Court in a series of decisions over the 3 last half century. But the informational aspect of this “right to be let * 1 2 3 Articles Editor, University of Pennsylvania Journal of Constitutional Law, Volume 16. J.D. Candidate, 2014, University of Pennsylvania Law School; B.A., 2011, Bard College. Special thanks to Professors Frank Goodman and William Ewald, whose passion for the subject inspired me to write this Comment, and whose tremendous knowledge and expertise helped make it a better Comment, and to the Journal for allowing me the opportunity to contribute to an important body of scholarship. See, e.g., Margaret B. Hoppin, Overly Intimate Surveillance: Why Emergent Public Health Surveillance Programs Deserve Strict Scrutiny Under the Fourteenth Amendment, 87 N.Y.U. L. REV. 1950, 1957–61 (2012) (discussing New York City’s A1C registry, which requires laboratories to report to a centralized registry the results of residents’ hemoglobin tests—9.4 million tests on 3.4 million people as of 2011—which can reveal information about individual diets, stress levels, and other lifestyle choices). See, e.g., James Risen & Laura Poitras, N.S.A. Gathers Data on Social Connections of U.S. Citizens, N.Y. TIMES, Sep. 28, 2013, http://www.nytimes.com/2013/09/29/us/nsa-examinessocial-networks-of-us-citizens.html?_r=0 (describing the NSA policy of collecting phone and e-mail logs and compiling this data to create graphs of social connections, locations, and other personal information). See, e.g., Lawrence v. Texas, 539 U.S. 558, 574 (2003) (“Persons in a homosexual relationship may seek autonomy for these purposes . . . .”); Roe v. Wade, 410 U.S. 113, 152–53 (1973) (finding that a right to privacy protects a woman’s choice to abort a pregnancy). 805 806 JOURNAL OF CONSTITUTIONAL LAW [Vol. 16:3 alone”4—to avoid disclosure of personal information about oneself, either to the government or to the world at large—remains on tenu5 ous footing in the United States. Existing legislative and regulatory protections leave frightening gaps, and the text of the Constitution gives courts little material with which to fill those holes. Without a clear textual foundation, the courts have little authority to vindicate such a right when it is violated by the other two branches of govern6 ment and little guidance for determining its boundaries. A series of Supreme Court cases reached inconclusive decisions that have done little to clarify the situation, leaving the lower courts to move in dif7 ferent directions. The situation is markedly different in Europe. There, a definitive textual basis for the right has been clarified by the European Court of 8 Human Rights (“ECtHR”) and implemented into the laws of mem9 ber states, where it has been vigorously enforced. Not only does the right possess stronger footing, but it extends further, affecting not only the responsibilities of governments, but also those of private ac10 tors such as corporations and individuals. Europe protects informational privacy so thoroughly for a reason: it is a fundamental human right, important to the development of self-identity and essential to 11 the freedom to be one’s self. In the United States, the right to in4 5 6 7 8 9 10 11 Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). See, e.g., NASA v. Nelson, 131 S. Ct. 746, 751 (2011) (declining to settle whether a right to informational privacy exists, what sorts of information it might cover, and what level of scrutiny intrusions must bear, and deciding only that the circumstances before the Court did not amount to a violation). See id. at 757 n.10 (“[W]here we have only the ‘scarce and open-ended’ guideposts of substantive due process to show us the way, . . . the Court has repeatedly recognized the benefits of proceeding with caution.” (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992))); id. at 767 (Scalia, J., concurring) (criticizing the majority for not clarifying the issue for the lower courts); Ingrid Schüpbach Martin, The Right to Stay in the Closet: Information Disclosures by Government Officials, 32 SETON HALL L. REV. 407, 422–28, 430 (2002) (arguing that federal courts are reluctant to allow claims “based solely on the Fourteenth Amendment’s general protection of life and liberty” because lack of guidance forces the court into judicial legislating to fill in the gaps and may carry it beyond its constitutional authority). See Martin, supra note 6, at 412–27 (discussing Supreme Court jurisprudence on informational privacy and its various conflicting interpretations by the lower courts). Convention for the Protection of Human Rights and Fundamental Freedoms and Protocol art. 8, Council of Europe, 4 Nov. 1950, 213 U.N.T.S. 221 [hereinafter CPHR] (codifying a “right to respect for . . . private and family life”). These points will be discussed in further detail in Part II, infra. See, e.g., Mosley v. News Grp. Newspapers Ltd., [2008] EWHC 1777 (QB) (awarding damages for breach of confidence and unauthorized disclosure of private information when a newspaper printed details of a sadomasochistic orgy). Koen Lemmens, The Protection of Privacy Between a Rights-Based and a Freedom-Based Approach: What the Swiss Example Can Teach Us, 10 MAASTRICHT J. EUR. & COMP. L. 381, 383– Feb. 2014] INFORMATIONAL PRIVACY 807 formational privacy is conceived of only as an interest in avoiding embarrassment, covering less ground and deserving less protection. This Comment will attempt to show that Europe is correct to see more in privacy and that the right deserves more than an assumption to protect it. This conclusion has implications for all branches of government, but this Comment will discuss only the potential constitutional right, enforceable by the judiciary when infringed by the legislative or executive branch, as opposed to any statutory or regulatory rights governing private individuals or corporations. Part I will discuss the state of informational privacy law in the United States. Part I.A shows that the Supreme Court has left the question open, providing little guidance to lower courts on how to deal with informational privacy (...truncated)