From: Jeremy Robinson <jpr2108@columbia.edu>
  To  : <CPC@emoglen.law.columbia.edu>
  Date: Tue, 03 May 2005 22:35:00 -0400

Paper #2: Reigning in the Beast: Informational Privacy and theConstitution

Here is my second paper (footnotes are included in the attached Word 
document).

Computers, Privacy and the Law
Second Paper
Jeremy P. Robinson

Reigning in the Beast:  Informational Privacy and the Constitution

Introduction

If the past term has made anything clear, it is that a multi-pronged 
approach is necessary to adequately protect informational privacy - one 
that addresses the data collection practices of both government and the 
private sector and ensures the security of information technologies.  In my 
view, the best solution is to combine comprehensive privacy legislation 
applicable to the private sector with a strategy to control the collection 
of personal data by government.  In this paper, I take up the latter task.

The point could be made that the Privacy Act of 1974 already requires the 
government to apply fair personal information practices.  However, this law 
is riddled with loopholes and, consequently, has proven to be ineffective 
in controlling the acquisition of vast amounts of personal data by 
government.   Accordingly, I focus on the Constitution - that final bulwark 
against the abuse of government power.  In particular, I consider whether a 
defensible argument can be made for constitutional protection of 
informational privacy.

Informational Privacy and the Constitution

The Fourth Amendment provides the focal point of many arguments seeking to 
ground informational privacy rights in the Constitution.  At first glance, 
the Fourth Amendment's protection against unreasonable searches and 
seizures seems to hold promise.  In aid of such arguments, the Supreme 
Court's decision in Kyllo v. United States  demonstrates a willingness to 
preserve a meaningful sense of those rights that are protected by the 
Fourth Amendment when threatened by the invasive surveillance capabilities 
of new technologies.  But this really only begs the question we started 
with, namely, does this provision protect informational privacy?

>From a pro-privacy perspective, the primary difficulty with the Fourth 
Amendment is that it lies so close to the heart of informational privacy 
and yet has not been interpreted in a way that is favorable to the 
inclusion of such a right.  For example, it is well-established law that 
visual observation is not a "search" under the Fourth Amendment.   The 
Supreme Court has also recently upheld a state law requiring individuals to 
identify themselves to police upon request.   Furthermore, the Court has 
held that there is no reasonable expectation of privacy in data transferred 
to third parties.   Perhaps most decisively, the Court has also explicitly 
held that the Fourth Amendment "?cannot be translated into a general 
constitutional "right to privacy.""

In contrast, the First and Fourteenth Amendments provide more fertile 
ground in which to root a right of informational privacy.  The First 
Amendment does so because it has been interpreted to protect a right of 
anonymity.   The Fourteenth Amendment's Due Process clause is also useful 
in light of the fact that it has been interpreted (in conjunction with 
various other amendments) to protect a "penumbral" right to privacy.   I do 
not suggest that the Fourteenth Amendment can be used merely due to its 
association with the term "privacy." Instead, it is the fact that the 
Supreme Court's jurisprudence in this area, from Griswold v. Connecticut to 
Lawrence v. Texas,  protects the individual's ability to make personal 
decisions relating to reproductive and sexual rights.  In protecting the 
individual's decision-making authority, the Court is really protecting 
individual autonomy (albeit in a limited capacity).

My argument for the constitutional protection of informational privacy 
requires the following three steps.  Unfortunately, there is not the space 
to explain each step in great detail.

The Constitution Protects Personal Authority.  Independently, the First and 
Fourteenth Amendments clearly fall short of protecting informational 
privacy.  However, in combination we can see that the right of anonymity 
and the right of autonomy protect a sphere of individual decision-making 
authority - one that lies at the intersection of liberty (i.e., defined as 
freedom from state interference) and the individual's ability to exercise 
control over his or her life.   For ease of reference, I will use the 
phrase "personal authority" to refer to this intersection of liberty and 
individual control.

Personal Authority is a Fundamental Right.  The next necessary step is to 
establish the concept of personal authority as a fundamental liberty 
interest that is deeply rooted in American history and tradition.  A good 
argument that personal authority is such a fundamental right can be 
constructed from the fact that the very legitimacy of the U.S. government 
is premised on the concept of the consent of the governed.  In other words, 
it is only by virtue of the people's exercise of personal authority that 
the state obtains its authority to govern.  I can think of no better 
example to support this argument than the Declaration of Independence, 
which states explicitly:

"We hold these truths to be self-evident, that all men ? are endowed with 
their Creator with certain unalienable Rights, that among these are Life, 
Liberty and the pursuit of Happiness.  That to secure these rights, 
Governments are instituted among Men, deriving their powers from the 
consent of the governed ?" [emphasis added]

Personal Authority and Informational Privacy.  The final step in this 
argument must establish a conceptual link between personal authority and 
informational privacy.  To establish such a connection, we must recognize 
that informational privacy is no longer about secrecy or confidentiality. 
Traditional notions of privacy as secrecy have been virtually eliminated by 
the rapid development of new technologies such as thermal imaging devices, 
GPS and RFID tags (to list only a few) and the emergence of an American 
surveillance society.  If privacy is to mean anything these days, it must 
as a practical necessity concern control over one's personal information. 
In the digital age, privacy is about information control not secrecy.  In 
this way, personal authority lies at the very heart of informational 
privacy.

Weaving all of the above together, I propose that a defensible (perhaps 
only plausible) argument can be advanced for the protection of 
informational privacy under either the First or Fourteenth Amendments.  To 
choose one, I suggest that the liberty protected by the Due Process clause 
of the Fourteenth Amendment provides the best constitutional "hook" upon 
which to protect informational privacy.

Postscript.  In the alternative, the above argument could also be used to 
attempt to ground informational privacy in the Ninth Amendment.  However, I 
do not think it necessary or feasible to awaken this sleeping tiger just 
yet.

-Jeremy Robinson

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@st.puters, Privacy and the LawSecond Paper
Jeremy P. Robinshicion

Reigning in the Beast:  
Informational Privacy and thhicye Constitution

Introduction

	If the past term has made hicyanything clear, it is that a multi-pronged approach is nehicycessary to adequately protect informational privacy Ц onehicy that addresses the data collection practices of both govhicyernment and the private sector and ensures the security ohicyf information technologies.  In my view, the best solutiohicyn is to combine comprehensive privacy legislation applicahicyble to the private sector with a strategy to control the hicycollection of personal data by government.  In this paperhicy, I take up the latter task.  

	The point could be made hicythat the Privacy Act of 1974 already requires the governmhicyent to apply fair personal information practices.  Howevehicyr, this law is riddled with loopholes and, consequently, hicyhas proven to be ineffective in controlling the acquisitihicyon of vast amounts of personal data by government.  Accohicyrdingly, I focus on the Constitution Ц that final bulwarkhicy against the abuse of government power.  In particular, Ihicy consider whether a defensible argument can be made for chicyonstitutional protection of informational privacy.

Inforhicymational Privacy and the Constitution

The Fourth Amendmehicynt provides the focal point of many arguments seeking to hicyground informational privacy rights in the Constitution. hicy At first glance, the Fourth AmendmentТs protection againhicyst unreasonable searches and seizures seems to hold promihicyse.  In aid of such arguments, the Supreme CourtТs decisihicyon in Kyllo v. United States demonstrates a willingness hicyto preserve a meaningful sense of those rights that are phicyrotected by the Fourth Amendment when threatened by the ihicynvasive surveillance capabilities of new technologies.  Bhicyut this really only begs the question we started with, nahicymely, does this provision protect informational privacy? hicy 

From a pro-privacy perspective, the primary difficultyhicy with the Fourth Amendment is that it lies so close to thhicye heart of informational privacy and yet has not been inthicyerpreted in a way that is favorable to the inclusion of shicyuch a right.  For example, it is well-established law thahicyt visual observation is not a УsearchФ under the Fourth Ahicymendment.  The Supreme Court has also recently upheld a hicystate law requiring individuals to identify themselves tohicy police upon request.  Furthermore, the Court has held thicyhat there is no reasonable expectation of privacy in datahicy transferred to third parties.  Perhaps most decisively,hicy the Court has also explicitly held that the Fourth Amendhicyment УЕcannot be translated into a general constitutionalhicy Уright to privacy.ФФ

In contrast, the First and Fourtehicyenth Amendments provide more fertile ground in which to rhicyoot a right of informational privacy.  The First Amendmenhicyt does so because it has been interpreted to protect a rihicyght of anonymity.  The Fourteenth AmendmentТs Due Proceshicys clause is also useful in light of the fact that it has hicybeen interpreted (in conjunction with various other amendhicyments) to protect a УpenumbralФ right to privacy.  I do hicynot suggest that the Fourteenth Amendment can be used merhicyely due to its association with the term Уprivacy.Ф Instehicyad, it is the fact that the Supreme CourtТs jurisprudencehicy in this area, from Griswold v. Connecticut to Lawrence vhicy. Texas, protects the individualТs ability to make persohicynal decisions relating to reproductive and sexual rights.hicy  In protecting the individualТs decision-making authorithicyy, the Court is really protecting individual autonomy (alhicybeit in a limited capacity).

	My argument for the constihicytutional protection of informational privacy requires thehicy following three steps.

The Constitution Protects Personhicyal Authority.  Independently, the First and Fourteenth Amhicyendments clearly fall short of protecting informational phicyrivacy.  However, in combination we can see that the righhicyt of anonymity and the right of autonomy protect a spherehicy of individual decision-making authority Ц one that lies hicyat the intersection of liberty (i.e., defined as freedom hicyfrom state interference) and the exercise of control overhicy oneТs life.  For ease of reference, I will use the phrahicyse Уpersonal authorityФ to refer to this intersection of hicyliberty and individual control.

Personal Authority is a hicyFundamental Right.  The next necessary step is to establihicysh the concept of personal authority as a fundamental libhicyerty interest that is deeply rooted in American history ahicynd tradition.  A good argument that personal authority ishicy such a fundamental right can be constructed from the fachicyt that the very legitimacy of the U.S. government is premhicyised on the concept of the consent of the governed.  In ohicyther words, it is only by virtue of the peopleТs exercisehicy of personal authority that government obtains its authorhicyity to govern.  I can think of no better example to suppohicyrt this argument point than the Declaration of Independenhicyce, which states explicitly:

УWe hold these truths to behicy self-evident, that all men Е are endowed with their Creahicytor with certain unalienable Rights, that among these arehicy Life, Liberty and the pursuit of Happiness.  That to sechicyure these rights, Governments are instituted among Men, dhicyeriving their powers from the consent of the governed ЕФ hicy[emphasis added]

Personal Authority and Informational Prhicyivacy.  The final step in this argument must establish a hicyconceptual link between personal authority and informatiohicynal privacy.  To establish such a connection, we must rechicyognize that informational privacy is no longer about secrhicyecy or confidentiality.  Traditional notions of privacy ahicys secrecy have been virtually eliminated by the emergencehicy of a surveillance society in the U.S. and the rapid devehicylopment of new technologies such as thermal imaging devichicyes, GPS and RFID tags (to list only a few).  If privacy ihicys to mean anything these days, as a practical necessity ihicyt must be about control over oneТs personal information. hicy In the digital age, privacy is about information controlhicy not secrecy.  In this way, personal authority lies at thhicye very heart of informational privacy. 

Weaving all of thicyhe above together, I propose that a defensible (perhaps ohicynly plausible) argument can be advanced for the protectiohicyn of informational privacy under either the First or Fourhicyteenth Amendments.  To choose one, I suggest that the libhicyerty protected by the Due Process clause of the Fourteenthicyh Amendment provides the best constitutional УhookФ upon hicywhich to protect informational privacy.

Postscript.  In hicythe alternative, the above argument could also be used tohicy attempt to ground informational privacy in the Ninth Amehicyndment.  However, I do not think it feasible or necessaryhicy to awaken this sleeping tiger just yet.


 See Solove, hicyDaniel J. and Hoofnagle, Chris Jay, "A Model Regime of Prhicyivacy Protection (Version 2.0)" (April 5, 2005), GWU Law hicySchool Public Law Research Paper No. 136, pp. 9 and 19 (ahicyrguing that the government can easily circumvent the Privhicyacy Act by obtaining the information it wants from privathicye sector data brokers).  See URL=  HYPERLINK "http://ssrhicyn.com/abstract=699701" http://ssrn.com/abstract=699701 hicy

 Kyllo v. United States, 533 U.S. 27 (2001) (holding thicyhat the use of a thermal imaging device to detect heat emhicyanating from a home constituted an illegal search).

 Dohicyw Chemical Co. v. United States, 476 U.S. 227 (1986).

 hicyHiibel v. Sixth Judicial District Court, No. 03Ч5554 (US hicy2004).  An officer need only have a Уreasonable suspicionhicyФ that the individual is involved in wrongdoing.

 Unitehicyd States v. Miller, 425 U.S. 435 (1976) and Smith v. Maryhicyland, 442 U.S. 735 (1979).

 Katz v. United States, 389 hicyU.S. 347, 350 (1967)

 McIntyre v. Ohio Elections Commishicysion, 514 U.S. 334 (1995) and Watchtower Bible & Tract SohicycТy of N.Y. v. Village of Stratton, 536 U.S. 150 (2002).
hicy
 Griswold v. Connecticut, 381 U.S. 479 (1965).

 Lawrehicynce v. Texas, 123 S. Ct. 2473 (2003).

 My argument herehicy recalls the structure of Justice DouglasТ argument from hicythe УpenumbrasФ in Griswold.



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