Constitutionalizing Informational Privacy by Assumption

CONSTITUTIONALIZING INFORMATIONAL PRIVACY BY ASSUMPTION Mary D. Fan ABSTRACT For more than three decades, the hypothetical constitutional right of informational privacy has governed by assumption in the lower courts. The Supreme Court assumed the right into being in two cases decided in 1977, Whalen v. Roe and Nixon v. Administrator of General Services, and persisted in assuming the right exists without deciding recently in NASA v. Nelson. In the fertile murk of indecision, a hodgepodge of standards from interest-balancing all the way up to strict scrutiny and a quasi-constitutional law of intuitions have arisen in the lower courts. What constitutes a violation of this assumed right? The law struggles for a standard to define a violation, but we know it when we feel it. The Article contends that the very fuzziness of the hypothetical right comes from its nature as an affectively saturated moral intuition regarding the proper balance of state and citizen power and unease over incursions in times of social change. The Article is also about how to translate the powerful moral intuition that the Constitution should have something to say (even if its text does not quite say it) when the government does something creepy or outrageous with our intimate information into respectable law that helps sort out the manifold meritless claims predicated on privacy as knee-jerk reaction rather than right and allows policy innovation in the laboratories of states and political branches. The article argues that privacy is a transitional lens that opens up our vision of the liberty and freedoms safeguarded in the Constitution. We need not invent or recognize a new atextual right of informational privacy. Rather the concept of informational privacy is a lens that brings into focus a richer vision of the scope of textually inscribed constitutional freedoms and what it means to vindicate them. TABLE OF CONTENTS INTRODUCTION .................................................................................... 954 I. LIBERTY’S PRECURSOR: PRIVACY, SOCIAL CHANGE AND THE BALANCE OF POWER ...................................................................... 959 A. Decisional Privacy and Shifting Sexual Mores and Technologies .. 959 B. Informational Privacy and the Management of Information as Power ...................................................................................... 966 Assistant Professor of Law, University of Washington School of Law. Many thanks to Anita Allen-Castellitto, Jason Schultz and Kathryn Watts for insights that helped me develop the ideas in this article, to the University of Pennsylvania Journal of Constitutional Law for a rich and fascinating conference and excellent editing, and to audience participants at the University of Pennsylvania School of Law for their very helpful comments and ideas. Student participants offered wonderful ideas, and I want to particularly thank University of Pennsylvania student Julia Cohen for her insights. I am also very grateful to my excellent research assistant Alison Gaffney, University of Washington Class of 2012. 953 954 JOURNAL OF CONSTITUTIONAL LAW [Vol. 14:4  II. THE FOG OF INDECISION: ON INTUITIONS AND EMOTIONS VERSUS LAW .................................................................................. 972 III. PRIVACY’S LENS: SEEING THE SUPPLE TEXT WE HAVE, NOT INVENTING ANEW .......................................................................... 981 CONCLUSION........................................................................................ 988 Like many other desirable things not included in the Constitution, “informational privacy” seems like a good idea—wherefore the People have enacted laws . . . restricting the [G]overnment’s collection and use of information. But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them. A federal constitutional right to “informational privacy” does not exist. –Justice Antonin Scalia, concurring in NASA v. Nelson 1 INTRODUCTION The hypothetical constitutional right to informational privacy has governed by assumption in the lower courts for more than three decades. What constitutes a violation of this assumed right? The law struggles to define the metes and bounds of the claimed constitu2 tional right and a standard for when it is transgressed. But we know it when we feel it. This Article contends that the very fuzziness of the hypothetical right comes from its nature as an affectively saturated moral intuition regarding the proper balance of state and citizen power and unease over incursions in times of social change. This Article is also about how to translate into respectable law the powerful moral intuition that the Constitution should have something to say (even if its text does not quite say it) when the government does something creepy or outrageous with our intimate information. Beyond assuming the right into being, the Supreme Court has 3 never found a violation. The three cases where the Court assumed a 1 2 3  131 S. Ct. 746, 764 (2011) (Scalia, J., concurring). See, e.g., In re The Paternity of K.D., 929 N.E.2d 863, 869 (Ind. Ct. App. 2010) (observing that “neither the Supreme Court nor the Seventh Circuit has articulated a precise test for an alleged violation of the right to confidentiality or defined the boundaries of that right”). See Nelson, 131 S. Ct. at 751 (assuming without deciding that the Constitution protects information privacy but holding that government background checks of NASA contractors do not violate the assumed right); Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 459– 60, 464 (1977) (rejecting President Richard Nixon’s claim that retention of his presidential papers violated his constitutional right to privacy, explaining that the archive and review of papers served “important national interests” and “less restrictive means” were un- Mar. 2012] CONSTITUTIONALIZING INFORMATIONAL PRIVACY 955 hypothetical right to informational privacy did not ring the emotional meters of concern so typical in decisional privacy cases nor give much colorable cause to find a violation, even assuming the right exists. After thirty-three years of silence, the most recent case involves a claim described by Justice Scalia as “utter silliness”—that privacy shields NASA government contractors working with very important, expensive equipment from routine background checks into drug use 4 and treatment. The second case, decided in 1977, involved President Richard Nixon suing to prevent the archiving of the Presidential papers of his administration because some personal papers may have 5 been mixed in and had to be screened out for return. Justice Brennan, writing for the Court, was not sympathetic to Nixon, though he was sympathetic to the hypothesized right of informational privacy in 6 unspecified other (and probably more compelling) contexts. The only case that gave the Court significant (...truncated)