The Courts on Confidentiality: Defining a Federal Constitutional Right of Informational Privacy (2012)

Undergraduate: Danielle Tepper

Faculty Advisor: Michael Hoefges
Department: Journalism & Mass Communication

---

Americans have become increasingly concerned about their privacy, and many have lost trust in the federal government’s ability to keep their personal information safe. The Supreme Court, in three opinions including one in 2011, has addressed the issue of “informational privacy,” which the Court has described as a constitutionally-based “individual interest in avoiding disclosure of personal matters.” Despite this recognition, however, the Supreme Court has yet to define the extent of any such right of informational privacy under the Constitution or provide much guidance as to what types of information would fall under this protection.
This report analyzes three key Supreme Court cases – Whalen v. Roe, Nixon v. Administrator of General Services, and NASA v. Nelson – as well as a number of federal appeals court cases dealing with informational privacy under the federal constitution. The findings show that a majority of United States Appeals Courts have recognized a constitutional right of informational privacy, although the extent to which the courts have recognized the right varies. The study also reveals that the primary interest competing with the privacy right has been the public’s interest in transparency and disclosure of information. This report also provides recommendations, based on the Supreme Court’s admonitions and the Federal Appeals Courts’ discussions, for dealing with a constitutional right of informational privacy in a future of digitally stored information.