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 spread across the globe. As the recent controversy involving Nation-al Security Agency (“NSA”) surveillance of phone and Internet communications demonstrates, governments are eager to take advantage 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 last half century. But the informational aspect of this “right to be let alone”—to avoid disclosure of personal information about oneself, either to the government or to the world at large—remains on tenuous 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 government 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 different directions.
The situation is markedly different in Europe. There, a definitive textual basis for the right has been clarified by the European Court of Human Rights (“ECtHR”) and implemented into the laws of member 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 ac-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 the freedom to be one’s self. In the United States, the right to informational 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 cases that come before them. Part I.B describes the consequences of this indecision: variation among the circuits, ad hoc judicial decisions, confusion, and under- or over-protection, depending on your point of view. Part II traces European informational privacy jurisprudence to show that broader, clearer protections are both desirable and feasible. Part III argues that the Supreme Court should follow Europe’s example in providing clear guidance on a robust right to informational privacy that protects any information in which individuals have a reasonable expectation of privacy.
Informational Privacy: Lessons from Across the Atlantic,
U. Pa. J. Const. L.
Available at: https://scholarship.law.upenn.edu/jcl/vol16/iss3/5