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Bulk CollectionSystematic Government Access to Private-Sector Data$

Fred H. Cate and James X. Dempsey

Print publication date: 2017

Print ISBN-13: 9780190685515

Published to Oxford Scholarship Online: October 2017

DOI: 10.1093/oso/9780190685515.001.0001

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Systematic Government Access to Private-Sector Data in the United States II

Systematic Government Access to Private-Sector Data in the United States II

The US Supreme Court and Information Privacy

Chapter:
(p.193) 9 Systematic Government Access to Private-Sector Data in the United States II
Source:
Bulk Collection
Author(s):

Fred H. Cate

Beth E. Cate

Publisher:
Oxford University Press
DOI:10.1093/oso/9780190685515.003.0009

Abstract and Keywords

This chapter covers the US Supreme Court’s position on access to private-sector data in the United States. Indeed, the Supreme Court has written a great deal about “privacy” in a wide variety of contexts. These include what constitutes a “reasonable expectation of privacy” under the Fourth Amendment to the Constitution; privacy rights implicit in, and also in tension with, the First Amendment and freedom of expression; privacy rights the Court has found implied in the Constitution that protect the rights of adults to make decisions about activities such as reproduction, contraception, and the education of their children; and the application of the two privacy exemptions to the Freedom of Information Act (FOIA).

Keywords:   Fourth Amendment, US Constitution, Supreme Court, privacy, First Amendment, FOIA

I. Abstract

The US Supreme Court has written a great deal about “privacy” in a wide variety of contexts. These include what constitutes a “reasonable expectation of privacy” under the Fourth Amendment to the Constitution; privacy rights implicit in, and also in tension with, the First Amendment and freedom of expression; privacy rights the Court has found implied in the Constitution that protect the rights of adults to make decisions about activities such as reproduction, contraception, and the education of their children; and the application of the two privacy exemptions to the Freedom of Information Act (FOIA).

The Court not only uses the term “privacy” in a variety of different settings, but has identified at least three distinct meanings of the term:

  1. 1. The Court has found a constitutionally protected right of decisional privacy, generally meaning personal autonomy to make decisions without unwarranted government intervention in certain areas that the Court has concluded implicate “fundamental” individual liberties. These areas include marriage, procreation, contraception, family relationships, child-rearing, and education.

  2. 2. In its Fourth Amendment jurisprudence, the Court has provided a specific definition of privacy: whatever one “seeks to preserve as private, even in an area accessible to the public,” provided that the individual has an “actual,” subjective expectation of privacy and that expectation is (p.194) “one that society was prepared to recognize as ‘reasonable.’ ” The Court has crafted many exceptions to this right; the most significant for the future of privacy protection is that information disclosed to or held by a third party may not be treated as private.

  3. 3. The Court has described both a statutory and constitutional “individual interest in avoiding disclosure of personal matters … .” In this context the Court repeatedly has found that even though information has been disclosed to and is held by third parties, this does not eliminate the existence of a lawfully protected privacy interest. This is a far more subtle and contextual view of privacy than the binary view of privacy that the Court has thus far applied in its Fourth Amendment jurisprudence.

II. Introduction

The US Supreme Court has written a great deal about “privacy” in a wide variety of contexts. Between 1970 and 2016, the Court used the term “privacy” in 645 opinions. In over half (342 opinions) an opinion significantly addressed some aspect of privacy.

The breakdown of those 342 opinions provides interesting insight into the contexts in which the Supreme Court concerns itself with privacy. (See Figure 9.1) Not surprisingly, most of these opinions addressed privacy rights that the Court has found are protected by the US Constitution. The largest single category by far was cases involving the “reasonable expectation of privacy” under the Fourth Amendment to the Constitution (220, or 64 percent of opinions). Opinions involving the First Amendment and freedom of expression issues accounted for 17 percent (59), a large portion of which involved reviews of obscenity regulations and prosecutions. Seventeen opinions (5 percent) involved what the Court has come to call “decisional privacy,” namely the privacy rights the Court has found implied in the Constitution that protect the rights of adults to make (p.195) decisions about activities such as reproduction, contraception, and the education of their children. Highly controversial, decisions handed down by the Court in the last four years have affirmed by a bare majority a right to decisional privacy that extends to choosing civil marriage with a same-sex partner, and reaffirmed the right to choose abortion before the fetus is viable outside the womb.

Aside from constitutional privacy issues, 22 (6 percent) of the Court’s opinions involving privacy addressed the application of the two privacy exemptions to the FOIA. Seventy opinions (20 percent) did not fit within any discrete category. The total number of opinions does not add up to 342 (or the total percentages to 100 percent) because a number of opinions addressed more than one aspect of privacy.

The breadth of the Court’s constitutional (as opposed to statutory) privacy jurisprudence reflects the fact that even though privacy is not explicitly protected in the Constitution, the Court has interpreted many of the amendments constituting the Bill of Rights to provide protection to a variety of elements of privacy. These include an individual’s right to be free from unreasonable searches and seizures by the government;1 the right to make decisions about contraception,2 abortion,3 and other issues of “fundamental” individual liberty interests such as marriage, procreation, child-rearing, and education;4 the right not to disclose certain information to the government;5 the right to associate free from government intrusion;6 and the right to enjoy one’s own home free from intrusion by the government,7 sexually explicit mail8 or radio broadcasts,9 or other intrusions.10

In this chapter we provide an overview of the Supreme Court’s treatment of privacy, first in its constitutional exposition, and second in its statutory interpretation of FOIA, with brief comments on its recent treatment of other privacy-protecting statutes. We conclude with a brief analysis of the apparent inconsistency within the Court’s jurisprudence of what constitutes a

Systematic Government Access to Private-Sector Data in the United States IIThe US Supreme Court and Information Privacy

Figure 9.1 U.S. Supreme Court Cases Involving Privacy 1970–2016.

“reasonable expectation” of privacy and some thoughts on where the Court’s privacy jurisprudence may be heading.11

(p.196) III. Constitutional Sources of a Privacy Right

Fundamental rights in the United States are articulated in the federal Constitution. Two features of those rights are central to understanding the role of the Constitution in protecting privacy. First, rights articulated in the Constitution generally are protected only against government action.12 All constitutional rights—whether to speak freely, confront one’s accusers, be tried by a jury of one’s peers—regulate the public, but not the private, sector. In the absence of state action, therefore, constitutional rights are not implicated in questions surrounding privacy.13 The second significant characteristic of constitutional rights is that they are generally “negative”; they do not obligate the government to do anything, but rather to refrain from taking actions that abridge constitutionally protected rights.

A. Fundamental Rights of Personal Decision-Making

The US Supreme Court’s most controversial constitutional right to privacy has developed within a series of cases involving decision-making about contraception, abortion, and other personal issues. In 1965, the Supreme Court decided in Griswold v. Connecticut that an 80-year-old Connecticut law forbidding the use of contraceptives violated the constitutional right to “marital privacy.”14 The justices voting to strike down the law identified a variety of constitutional sources for this right. Justice Douglas, writing the opinion for the Court, drew on notions of privacy implied within several provisions of the Bill of Rights:

Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one … . The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of (p.197) peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”15

Justice Douglas wrote that the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”16 Justices Goldberg and White, in concurring opinions, focused on the Ninth Amendment and wrote that the autonomy of married couples to decide whether or not to have children was a fundamental and traditional right retained by the people. Justice Harlan’s concurrence grounded the privacy right in the due process clause of the Fourteenth Amendment,17 which he believed protected certain “values implicit in the concept of ordered liberty,” among them the right of married couples to engage in contraception without interference by the government.

Justice Harlan’s reliance on the due process clause emerged in subsequent cases as the dominant view of the constitutional basis for decisional privacy rights. Most controversially, eight years after Griswold, the Court, in Roe v. Wade, recognized a constitutional privacy right, grounded in due process, that encompasses “a woman’s decision whether or not to terminate her pregnancy.”18 The Court looked to “the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action… .”19 To guard against the potential for justices to greatly limit the scope of permissible legislative action by transforming their own policy preferences into constitutionally protected “liberties,” the Court in Roe v. Wade emphasized that the constitutional “guarantee of personal privacy” only includes “personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ … .”20 The Court specified that those fundamental rights include activities concerning marriage, procreation, contraception, family relationships, and child-rearing and education.21 Government regulation of those activities “may be justified only by a ‘compelling state interest,’ ” and (p.198) they must be “narrowly drawn to express only the legitimate state interests at stake”22—a standard described as “strict scrutiny.”

Although the Supreme Court indicated that government intrusion into inherently private areas of personal life would be subject to strict scrutiny, the Court over time has come to apply a lesser form of scrutiny to regulations involving abortion, and to emphasize the importance of balancing privacy with the government’s valid regulatory interests.23 Currently regulations imposed on pregnant women seeking abortions prior to fetal viability will be upheld as long as they do not impose an “undue burden” on access to abortion.24 The Court has defined an “undue burden” as a regulation that has the “purpose or effect of imposing a substantial obstacle” to getting a pre-viability abortion.

This standard is not without force and meaning. On the final day of its 2015–2016 term, the Court reaffirmed a woman’s right to choose abortion pre-viability and in Whole Woman’s Health v. Hellerstedt,25 struck down a Texas law that imposed two requirements on abortion providers, purportedly to protect women’s health. The Court examined the factual record and approved drawing “common sense” inferences from the facts, finding that the new rules had no demonstrated health benefits while making access to safe abortion considerably more difficult. In doing so the Court served notice that at least with respect to health-based abortion regulations, it would take a direct and close look at the evidence and not defer to legislative characterizations or judgments about a law’s impact on this privacy right.

The Court’s decisional privacy jurisprudence generally does not concern issues of informational privacy.26 In the abortion context, however, the Court has addressed certain rules that implicate informational privacy concerns. For a number of years following Roe v. Wade, the Court struck down state laws that required pregnant women, including minors, to obtain spousal or parental consent to abortion (at least in the absence of an alternative when parental consent (p.199) is unavailable or inappropriate),27 and also struck down rules requiring women to receive information about risks and alternatives that the Court found to be designed to deter a woman from having an abortion.28 In 1992, however, the Court upheld a requirement that abortion patients receive an “informed consent” booklet with information on risks and alternatives, a 24-hour waiting period, and a requirement that minors get the written consent of at least one parent, finding that none of these requirements unduly interfered with the right to access abortion.29

In recent years, states have passed additional laws requiring women seeking abortions to be given various types of information—for example, mandatory ultrasounds and fetal heartbeat audio, information on perinatal hospice care for fetuses likely to die shortly after birth, statements about studies showing that fetuses respond to pain stimuli at 20 weeks, and statements that “human physical life begins at conception.” Some lower courts struck down, on First Amendment grounds, laws requiring healthcare providers to perform ultrasounds on women seeking abortions and to display and describe their results in detail. The Supreme Court declined to review those rulings. After Whole Woman’s Health any future attempts to impose informational requirements may be in jeopardy if challengers demonstrate that the information has little to no relevance to making an informed decision about abortion but erects a substantial hurdle to getting an abortion.

As with abortion rights, the Court’s decisions involving same-sex relationships and marriage have at once restated the importance of the constitutional liberty at stake and employed less than strict scrutiny to judge laws abridging that liberty. In Lawrence v. Texas,30 the Court held that a state law criminalizing private sexual conduct between consenting same-sex couples failed to pass muster under the due process clause. Although affirming that the freedom to make intimate personal choices is central to the liberty protected by due process, the Court effectively employed a much lower standard of review than strict scrutiny and found that the state law was not rationally related to furthering any legitimate government interest.31 A decade later, in striking down federal and state bans on same-sex marriage, the Court once again used an amorphous but lesser standard, and focused on a form of privacy right grounded in dignity—the right to choose one’s partner and to have that choice respected by the government.

(p.200) B. Protection against Government Disclosure of Personal Matters

The Supreme Court has addressed privacy in the context of a general constitutional right against government-compelled “disclosure of personal matters.”32 In 1977, the Supreme Court decided Whalen v. Roe, a case involving a challenge to a New York statute requiring that copies of prescriptions for certain drugs be provided to the state, on the basis that the requirement would infringe patients’ privacy rights. Echoing Griswold, the unanimous Court wrote that the constitutionally protected “zone of privacy” included “the individual interest in avoiding disclosure of personal matters … .”33

Nevertheless, having found this new privacy interest in nondisclosure of personal information, the Court did not apply strict scrutiny, a standard typically reserved for cases involving “fundamental” interests. Instead, applying a lower level of scrutiny, the Court found that the statute did not infringe the individuals’ interest in nondisclosure.34 The Court also explicitly rejected the application of the Fourth Amendment right of privacy to broad government data collection programs for regulatory purposes, writing that Fourth Amendment cases “involve affirmative, unannounced, narrowly focused intrusions.”35 The Court has never decided a case in which it found that a government regulation or action violated the constitutional privacy right recognized in Whalen.36

In Whalen, however, the Court provided a comparatively subtle and modern understanding of what “privacy” means:

We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly (p.201) preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures.37

The Court recognized that “in some circumstances that duty [to avoid unwarranted disclosures] arguably has its roots in the Constitution.”38 The New York statute did not violate the Constitution because it “evidence[d]‌ a proper concern with, and protection of, the individual’s interest in privacy.”39 The Court concluded: “We therefore need not, and do not, decide any question which might be presented by the unwarranted disclosure of accumulated private data—whether intentional or unintentional—or by a system that did not contain comparable security provisions.”40

C. First Amendment

The Court has identified a number of privacy interests implicit in the First Amendment.41 For example, in NAACP v. Alabama,42 the Court struck down an Alabama ordinance requiring the NAACP to disclose its membership lists, finding that such a requirement constituted an unconstitutional infringement on NAACP members’ First Amendment right of association.43

In Stanley v. Georgia,44 the Court explicitly linked privacy and free expression by identifying the mutual interests they serve. The Court overturned a conviction under Georgia law for possessing obscene material in the home. Although the “[s]‌tates retain broad power to regulate obscenity,” Justice Marshall wrote for the unanimous Court, “that power simply does not extend to mere possession by the individual in the privacy of his own home.”45 The Court based its decision squarely on the First Amendment, which the Court found included the “right to be free, except in very limited circumstances, from unwanted governmental intrusion into one’s privacy.”46

(p.202) A 2013 case posed the link between privacy and First Amendment rights in the digital age, even more starkly than Stanley. Amnesty International and other lawyers, activists, and journalists communicating with clients and witnesses abroad claimed that the National Security Agency’s (NSA) reportedly sweeping surveillance of phone and email communications under an amended foreign intelligence law had “chilled” their speech, silenced witnesses, and caused plaintiffs to travel abroad to have privileged and confidential conversations.

In a controversial 5-4 decision in Clapper v. Amnesty International,47 the Court dodged plaintiffs’ claims, finding that plaintiffs lacked standing to sue because they could not show with sufficient certainty that the NSA, under the relevant law, would in fact monitor their particular communications with foreign contacts. Rejecting evidence suggesting that such monitoring would indeed occur—in particular the NSA’s interception of client communications under an earlier and more stringent surveillance law—the majority characterized plaintiffs’ concerns as “speculation” and (in the case of current travel costs) “simply the product of their fear of surveillance,” neither of which could establish standing.

Importantly, the Clapper majority acknowledged that proven surveillance can raise significant First Amendment issues, and the national security context of the surveillance in question goes a long way toward explaining the majority’s reluctance to permit the plaintiffs’ claims to proceed to discovery. More often, however, the Court identifies privacy as an interest in tension with the First Amendment’s protection for freedom of expression and press. In Breard v. City of Alexandria,48 for example, the Court upheld an ordinance prohibiting solicitation of private residences without prior permission. The Court found in the First Amendment’s free speech guarantee an implicit balance between “some householders’ desire for privacy and the publisher’s right to distribute publications in the precise way that those soliciting for him think brings the best results.”49

The Court has invoked this same implied balancing test in numerous other cases. In Kovacs v. Cooper,50 the Court upheld a Trenton, New Jersey, ordinance prohibiting the use of sound trucks and loudspeakers:

[t]‌he unwilling listener is not like the passer-by who may be offered a pamphlet in the street but cannot be made to take it. In his home or on the street he is practically helpless to escape this interference with his privacy by loudspeakers except through the protection of the municipality.51

In Rowan v. U.S. Post Office,52 the Court upheld a federal statute that permitted homeowners to specify that the Post Office not deliver to their (p.203) homes “erotically arousing” and “sexually provocative” mail. In Federal Communications Commission v. Pacifica Foundation,53 the Court allowed the Federal Communications Commission to sanction a radio station for broadcasting “indecent” programming, finding that “the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder.”54 In Frisby v. Schultz,55 the Court upheld a local ordinance that banned all residential picketing, writing that the home was “the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits”56 and “the last citadel of the tired, the weary, and the sick.”57 In Carey v. Brown,58 the Court wrote that “the State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.”59

When privacy rights conflict with free expression rights before the Court, the latter usually prevail. When information is true and obtained lawfully, the Court has repeatedly held that the state may not restrict its publication without showing a very closely tailored, compelling governmental interest. Under this requirement, the Court has struck down laws restricting the publication of confidential government reports,60 and of the names of judges under investigation,61 juvenile suspects,62 and rape victims.63 Moreover, there can be no recovery for invasion of privacy unless the information published is highly offensive to a reasonable person and either false64 or not newsworthy.65 And the Court (p.204) has accorded a variety of procedural protections to all expression, whether true or false.66

The Court recently revisited the balance between freedom of expression and privacy in Sorrell v. IMS Health Inc.67 Sorrell involved a First Amendment challenge to a Vermont law prohibiting the sale, disclosure, or use of prescriber-identifiable information in pharmacy and related records for use in marketing or promoting prescription drugs. The law was aimed at combating expensive, targeted “detailing” campaigns by drug representatives using prescribed-specific data obtained from pharmacies, insurers, and so on via data mining companies; the state also argued, however, that the law was designed to safeguard prescriber privacy.68

Justice Kennedy, writing for the six-justice majority, assumed that “for many reasons, physicians have an interest in keeping their prescription decisions confidential,” and strongly suggested that a state law that closely guarded the confidentiality of such information and allowed its disclosure and use “in only a few narrow and well justified circumstances” would be upheld against the type of challenge brought by the pharmaceutical companies.69 The majority concluded, however, that prescriber data were widely available without prescriber consent to others, including “counterdetailers” promoting non-prescription drugs, and therefore the law was insufficiently tailored to serve its stated privacy goals.70

Strikingly, though, Justice Kennedy ended the majority opinion with a strong statement—one that echoes to some extent the concluding observations in Whalen, above—about the importance of privacy and the risks posed to it by technology-enabled access to and use of personal data held by the government or elsewhere:

The capacity of technology to find and publish personal information, including records required by the government, presents serious and unresolved issues with respect to personal privacy and the dignity it seeks to secure. In considering how to protect those interests, however, the State cannot engage in content-based discrimination to advance its own side of a debate.

(p.205)

If Vermont’s statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position. Here, however, the State gives possessors of the information broad discretion and wide latitude in disclosing the information, while at the same time restricting the information’s use by some speakers and for some purposes, even while the State itself can use the information to counter the speech it seeks to suppress. Privacy is a concept too integral to the person and a right too essential to freedom to allow its manipulation to support just those ideas the government prefers.71

D. Fourth Amendment

One of the colonists’ most potent grievances against the British government was its use of general searches. The hostility to general searches found powerful expression in the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.72

1. Framework

The Fourth Amendment does not purport to keep the government from conducting searches or seizing personal information. It only prohibits “unreasonable” searches and seizures, but is silent about what makes a search or seizure “unreasonable.” In 1886, the Supreme Court first applied the term “priva[cy]” to the interests protected by the Fourth Amendment,73 and for 80 years focused its Fourth Amendment jurisprudence on whether a search required government officials to trespass on private property. In Olmstead v. United States,74 for example, five of the nine justices found that wiretapping of telephone wires by federal officials did not constitute a search or seizure as there had been no physical trespass and nothing tangible had been taken.

In 1967, the Court decided Katz v. United States,75 a case involving the constitutionality of federal authorities’ use of an electronic listening device attached to the outside of a telephone booth used by Charles Katz, whom the authorities suspected of violating gambling laws. The Court found that this method of gathering evidence infringed on Katz’s Fourth Amendment rights, even though his property had not been invaded. The Court wrote that “[t]‌he Fourth Amendment (p.206) protects people not places,” and therefore applies to whatever one “seeks to preserve as private, even in an area accessible to the public … .”76

In his concurrence, Justice Harlan introduced what was later to become the Court’s test for what was “private” within the meaning of the Fourth Amendment.77 Justice Harlan wrote that the protected zone of Fourth Amendment privacy was defined by the individual’s “actual,” subjective expectation of privacy, and the extent to which that expectation was “one that society was prepared to recognize as ‘reasonable.’ ”78 The Court adopted that test for determining what was “private” within the meaning of the Fourth Amendment in 1968 and has applied it with somewhat uneven results ever since.79 The Court has found “reasonable” expectations of privacy in homes,80 businesses,81 sealed luggage and packages,82 and even drums of chemicals,83 but no “reasonable” expectations of privacy in voice or writing samples,84 phone numbers,85 conversations recorded by concealed microphones,86 and automobile passenger compartments,87 trunks,88 and glove boxes.89

The Supreme Court interprets the Fourth Amendment generally to require that searches be conducted only with a warrant issued by a court, even though this is not a requirement contained in the amendment itself.90 For a court to issue a warrant, the government must show “probable cause” that a crime has been or is likely to be committed and that the information sought is germane to that crime.91 The Court also generally requires that the government provide the subject of a search with contemporaneous notice of the search.92

(p.207) The Fourth Amendment’s protection, although considerable, is not absolute. The Supreme Court has carved out a number of exceptions to the warrant requirement; for example, warrants are not required to search or seize items in the “plain view” of a law enforcement officer,93 for searches that are conducted incidental to valid arrests,94 for searches that serve “special needs” unrelated to law enforcement (e.g., warrantless drug tests of high school athletes and railway employees),95 and for searches specially authorized by the attorney general or the president involving foreign threats of “immediate and grave peril” to national security.96

Moreover, the Supreme Court interprets the Fourth Amendment to apply only to the collection of information, not its use. Even if information is obtained in violation of the Fourth Amendment, the Supreme Court has consistently found that the Fourth Amendment imposes no independent duty on the government to refrain from using it. “The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands, and an examination of its origin and purposes makes clear that the use of fruits of a past unlawful search or seizure ‘[works] no new Fourth Amendment wrong.’ ”97

Under the Court’s “exclusionary rule,” illegally seized data may still be used if the government agent acted in good faith,98 to impeach a witness,99 or in other settings in which the link between the unconstitutional conduct and the discovery of the data is “too attenuated to justify suppression”100 or “the officer committing the unconstitutional search or seizure” has “no responsibility or duty to, or agreement with, the sovereign seeking to use the evidence.”101 Citing the significant societal costs imposed by excluding evidence relevant to a prosecution, the Court suppresses the use of information obtained in violation of the Fourth Amendment only when doing so would have deterred the conduct of the government employee who acted unconstitutionally when collecting the information.

So, for example, the Court has allowed records illegally seized by criminal investigators to be used by tax investigators, on the basis that restricting the subsequent (p.208) use would not deter the original unconstitutional conduct.102 Protecting privacy is not a consideration. The Court wrote in 1974 that the exclusionary rule operates as “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.”103 If the Court finds no independent Fourth Amendment basis for restricting the use of illegally obtained information, obviously the Court does not apply the Fourth Amendment to restrict the use of lawfully obtained information. The Fourth Amendment today thus poses no limit on the government’s use of lawfully seized records, and in the case of unlawfully seized material restricts its use only to the extent necessary to provide a deterrent for future illegal conduct.

2. The Miller Exclusion of Third-Party Records

The Supreme Court held in 1976 in United States v. Miller104 that there can be no reasonable expectation of privacy in information shared with a third party. The case involved canceled checks, to which, the Court noted, “respondent can assert neither ownership nor possession.”105 Such documents “contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business,”106 and therefore the Court found that the Fourth Amendment is not implicated when the government sought access to them:

The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.107

The Court’s decision in Miller is remarkably sweeping. The bank did not just happen to be holding the records the government sought. Instead, the Bank Secrecy Act required (and continues to require) banks to maintain a copy of every customer check and deposit for six years or longer.108 The government thus compelled the bank to store the information, and then sought the information from the bank on the basis that as the bank held the data, there could not be any reasonable expectation of privacy and the Fourth Amendment therefore did not (p.209) apply.109 The Supreme Court was not troubled by this apparent end-run around the Fourth Amendment: “even if the banks could be said to have been acting solely as Government agents in transcribing the necessary information and complying without protest with the requirements of the subpoenas, there would be no intrusion upon the depositors’ Fourth Amendment rights.”110

The Court reinforced its holding in Miller in the 1979 case of Smith v. Maryland, involving information about (as opposed to the content of) telephone calls.111 The Supreme Court found that the Fourth Amendment is inapplicable to telecommunications “attributes” (e.g., the number dialed, the time the call was placed, the duration of the call, etc.), because that information is necessarily conveyed to, or observable by, third parties involved in connecting the call.112 “[T]‌elephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes.”113

As a result, under the Fourth Amendment, the use of “pen registers” (to record outgoing call information) and “trap and trace” devices (to record incoming call information) does not require a warrant because they only collect information about the call that is necessarily disclosed to others.114 As with information disclosed to financial institutions,115 Congress reacted to the Supreme Court’s decision by creating modest statutory requirements applicable to pen registers,116 but the Constitution does not apply.

Although the Miller third-party doctrine and its binary view of privacy have never been overruled and have generally been followed by lower courts, the Supreme Court has declined to apply the doctrine in at least one case in which the Court found extensive and routine involvement of law enforcement in the design and administration of the third party’s collection of data. In Ferguson v. Charleston,117 the Court held that a hospital drug-screening program for pregnant women that provided the results to local police without the women’s consent, in order to use threats of prosecution to prompt them to seek counseling and treatment, violated the Fourth Amendment. Justice Scalia dissented, noting: “Until today, we have never held—or even suggested—that material which a (p.210) person voluntarily entrusts to someone else cannot be given by that person to the police, and used for whatever evidence it may contain.”118

Advances in technologies, and the development of new products and services in response to those changes, have significantly expanded the potential impact of Miller’s “third party doctrine.” Today there are vastly more personal data in the hands of third parties, they are far more revealing, and they are much more readily accessible than was the case in the 1970s. Moreover, for the first time, the government has the practical ability to exploit huge data sets. Nodding to these developments, Justice Sotomayor suggested in 2012 that it may be time for the Court to revisit Miller and the third-party doctrine:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks … . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.119

3. Recent Developments

The explosive growth in digital data creation, communication, and storage has led the Supreme Court to slowly, and somewhat reluctantly, confront how the Fourth Amendment will apply to protect privacy in this brave new world. The Court’s reluctance was evident in United States v. Jones,120 in which four justices (Scalia, Roberts, Kennedy, and Thomas), joined by Justice Sotomayor, found that attaching a GPS device to the bumper of a suspect’s car without a warrant constituted an unlawful search irrespective of any expectations of privacy, because the government’s action constituted a trespass to private property. The Court wrote that “the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.”121

Although one could argue that the Court’s resurrection of common-law trespass as an independent basis for invoking the Fourth Amendment—after 45 years of reliance on the Katz standard—worked an expansion of privacy rights, four concurring justices (Alito, Ginsburg, Breyer, and Kagan) argued that the majority’s focus on trespass obscured the real privacy violation by the government: “[T]‌he Court’s reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way (p.211) with the car’s operation).”122 This, the justices argue, is particularly problematic in the modern age when around-the-clock monitoring of a vehicle’s location can be accomplished by activating the vehicle’s stolen vehicle detection system or tracking one of the occupant’s cell phones.

Justice Scalia, writing for the Court, rejected the need to grapple yet with the thorny issues presented by the increasing ability to monitor human movements without physical contact: “We may have to grapple with these ‘vexing problems’ in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.”123

Likewise, while upholding a “special needs” search of a police officer’s work-issued pager messages, the Court bypassed the question of whether the officer had a reasonable expectation of privacy with respect to the pager, and found that even if the officer had a privacy expectation, the scope of the search was reasonable and therefore constitutional. Justice Kennedy, writing for the Court, noted that “[r]‌apid changes in the dynamics of communication and information transmission are evidence not just in the technology itself but in what society accepts as proper behavior … . At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.” He concluded:

The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.124

In general the Court has expressed discomfort with using constitutional jurisprudence, rather than statutory rules, to strike the right balance between protecting personal privacy and allowing legitimate governmental access. But even the Court has its limits, and has invoked the Constitution to shut down wanton misuse by the government of predigital doctrine in a strikingly different digital context. In the consolidated cases Riley v. California and United States v. Wurie, the Court confronted a constitutional challenge to the warrantless search of defendants’ cell phone contents following arrest. The Court held unanimously that the warrant exception permitting a “search incident to arrest” did not extend to the contents of a seized cell phone. Emphasizing that modern cell phone owners generally carry with them a massive amount of sensitive and highly revealing personal data, the Court required the police to get a warrant. Chief Justice Roberts, writing for the Court, dismissed the government’s attempt to analogize to searching the contents of a seized wallet or pack of cigarettes (“That is like saying a ride on horseback is materially indistinguishable from a flight to the (p.212) moon.”)125 Even as the government’s extreme position forced a constitutional response, however—or perhaps, precisely for that reason—Justice Alito urged a statutory solution, writing that “it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment.”126 As Congress has not yet updated the decades-old legislative framework for privacy in the crime-fighting (as opposed to counterterrorism and intelligence gathering) context, the Court stepped in to impose Fourth Amendment boundaries on the government’s remarkable claim to cell phone data.

The Court also rejected the government’s claim that officers could at least search the cell phones’ call logs without a warrant because the Court had allowed warrantless access to a phone company’s pen register in Smith v. Maryland. The Court distinguished Smith on the grounds that “[t]‌he Court in that case … concluded that the use of a pen register was not a ‘search’ at all under the Fourth Amendment,” and noted too that call logs typically include identifying information along with phone numbers. The Court did not discuss the third-party doctrine, either with respect to call logs or in noting the difficulties presented in cell phone data that are stored in the cloud; the government conceded that the warrant exception for searches incident to arrest did not cover a search of remotely stored files.

The Riley and Wurie cases, and to some extent Jones, reflect an unsurprising judicial rebuff of government assertions of near-limitless investigatory power using the tools and capacity of the digital age. In other recent Fourth Amendment cases, however, a majority of justices has given the government127 considerable latitude in developing and using broad databases for crime-fighting.

For example, in Utah v. Strieff, five justices allowed the use of drug and drug paraphernalia evidence in prosecuting a man who had been detained, and his identity demanded, without the necessary reasonable suspicion. The officer had checked the man’s identity against a database and found an outstanding traffic-based arrest warrant; he then searched the man pursuant to the arrest authorized by the warrant, and found the drug evidence.

The Court held that discovery of the outstanding warrant was an “intervening event” that sufficiently attenuated the link between the original unlawful stop and the discovery of the evidence, so that the evidence need not be suppressed. The dissenting justices argued that running a check for outstanding warrants is a standard practice when officers conduct a stop, and there are a tremendous number of outstanding warrants for minor offenses; so, the upshot is a broad power for police to engage in dragnet-style searches of people on the street.

Likewise, in Maryland v. King,128 a five-justice majority upheld a state law requiring DNA cheek-swab tests of persons arrested for violent offenses and entry (p.213) of the data into a national database. Justice Kennedy, writing for the Court, reasoned that arrestees have a decreased expectation of privacy and that DNA swabs, like fingerprinting, are valuable for ascertaining the arrestee’s identity and making informed decisions about bail and pretrial release. The dissent argued strenuously that the true purpose of the tests is to match DNA against samples in the database in order to solve cold cases, and predicted that soon anyone who is arrested for any reason, great or small, rightly or wrongly, may have his or her DNA taken and placed into a national database for crime-solving purposes.

IV. FOIA

Not all of the Supreme Court’s privacy jurisprudence addresses constitutional issues. The federal Freedom of Information Act (FOIA) permits “any person” to obtain access to all federal “agency records,” subject to nine enumerated exemptions.129 Two of the nine exemptions are designed to protect privacy: Exemption 6 precludes disclosure of “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy,” and Exemption 7(C) bans release of “records or information compiled for law enforcement purposes [which] … could reasonably be expected to constitute an unwarranted invasion of privacy.”130

The Supreme Court has decided cases interpreting the extent of both exemptions and, in the process, of “privacy.” In 1989, the Court decided U.S. Department of Justice v. Reporters Committee for Freedom of the Press,131 which involved press access to law enforcement rap sheets. The press argued that because the information in an individual’s rap sheet was compiled from local, publicly available law enforcement and court records, the individual could not assert any privacy right. The Court disagreed, writing: “We reject respondents’ cramped notion of personal privacy.”132

The Court wrote, “both the common law and the literal understandings of privacy encompass the individual’s control of information concerning his or her person. In an organised society, there are few facts that are not at one time or another divulged to another.”133 According to the Court, previous disclosure does not automatically remove the privacy interest. Instead, “the extent of the protection accorded a privacy right at common law rested in part on the degree of dissemination of the allegedly private fact and the extent to which the passage of time rendered it private.”134 The Court went on to note that according (p.214) to “Webster’s initial definition, information may be classified as ‘private’ if it is ‘intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public.’ ”135

Based on this nuanced interpretation of privacy, the Court found that FBI rap sheets, even if they contain only material that is held by local law enforcement agencies and courts and that material has been made public, are nevertheless “private” within the meaning of FOIA because of the passage of time, the limited purposes motivating that disclosure, and the fact that rap sheets aggregate otherwise disparate pieces of information.

The Court in Reporter’s Committee quoted approvingly from a speech by then-justice William Rehnquist: “In sum, the fact that ‘an event is not wholly “private” does not mean that an individual has no interest in limiting disclosure or dissemination of the information.’ ”136 The Court concluded its analysis: “The privacy interest in a rap sheet is substantial. The substantial character of that interest is affected by the fact that in today’s society the computer can accumulate and store information that would otherwise have surely been forgotten long before a person attains age 80, when the FBI’s rap sheets are discarded.”137

Five years later, the Supreme Court relied on its broad definition of privacy from Reporter’s Committee in a case involving FOIA’s other privacy exemption, Exemption 6, which applies to “personnel and medical files and similar files the disclosure of which would constitute a clearly un-warranted invasion of personal privacy.”138 In United States Department of Defence v. Federal Labor Relations Authority,139 the Court was faced with a request by two unions for certain federal employees’ home addresses.

Addressing the issue of whether information as public as home addresses could ever be considered private, the Court wrote: “It is true that home addresses often are publicly available through sources such as telephone directories and voter registration lists, but ‘in an organised society, there are few facts that are not at one time or another divulged to another.’ ”140 The Court noted that the “individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be (p.215) available to the public in some form.”141 The Court found that “it is clear that [individuals] have some nontrivial privacy interest in nondisclosure.”142 The Court, therefore, found that Exemption 6 prohibited the disclosure of federal employees’ addresses.

Most recently, the Court has rejected a corporation’s claim that disclosure of records provided to a federal agency in the course of an investigation would intrude on the corporation’s “personal privacy,” and therefore the records may be withheld under Exemption 7(C).143 Applying familiar principles of statutory interpretation, the Court found that the word “personal” in both Exemption 6 and 7 connotes the privacy concerns of individuals, not entities.

V. Assessment

It is not surprising that many commentators have considered the Supreme Court’s privacy jurisprudence to be confused and disjointed. The Court not only uses the term in a variety of different settings, but has defined it to have at least three distinct meanings.

The first, which the Court has described variously as a “right of personal privacy” or “areas or zones of privacy,”144 is constitutionally protected to the extent the right can be deemed to involve decisions whose personal nature is “ ‘fundamental’ ” or “ ‘implicit in the concept of ordered liberty.’ ”145 The Court has found fundamental rights of private decision-making concerning marriage, procreation, contraception, consensual sexual relations, family relationships, child-rearing, and education.146 Although this right generally does not implicate information privacy, in certain cases it does, such as when abortion restrictions require women to receive, or provide, certain information regarding the pregnancy or fetus, as in the case of mandatory ultrasound or fetal heartbeat results, or mandatory spousal or parental notification. The Court has struck down spousal, but not parental, notification as imposing an unconstitutional “undue burden” on the right to access abortion before viability. It has upheld some mandatory informational requirements aimed at promoting informed consent, while declining to review cases striking down more recent, and controversial, provisions such as mandatory ultrasounds or fetal heartbeat results. The Court’s recent decision in Whole Woman’s Health, which signaled its willingness to question state government assertions about both the benefits and burdens of new abortion regulations, may invigorate further challenges to such regulations.

(p.216) The second meaning of privacy comes from the Court’s Fourth Amendment jurisprudence. In this setting, the Court has provided a specific definition: whatever one “seeks to preserve as private, even in an area accessible to the public,”147 provided that the individual has an “actual,” subjective expectation of privacy, and that expectation is “one that society was prepared to recognize as ‘reasonable.’ ”148 The Court has crafted many exceptions to this right; the one with the most significant implications for the digital age is that for information to be treated as private, it must not have been disclosed to, or be held by, a third party.149 As a result, this understanding of privacy is essentially binary: information is either not disclosed and therefore private, or it has been disclosed and therefore is not private. And this constitutional understanding of privacy is solely concerned with the collection of data, not with its retention, use, or sharing.

The Court describes its third meaning of privacy as “the individual interest in avoiding disclosure of personal matters … .”150 In the constitutional context, the Court has explicitly noted that information that the government constitutionally may require an individual to disclose for one purpose, may nevertheless remain sensitive and subject to privacy protections. Many legitimate government activities “all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures.”151 Despite the fact that the information has been disclosed to, and is held by, someone other than the data subject, “in some circumstances that duty [to avoid unwarranted disclosures] arguably has its roots in the Constitution.”152 This interest in nondisclosure was recognized in Whalen, a case upholding the compelled disclosure of prescription information, and has not yet invoked strict scrutiny by the Court to assess a government data-related activity. At the same time, the Court’s discussion in Sorrell suggests that a statute properly framed and even-handedly applied to protect privacy, might withstand a First Amendment challenge asserting rights to disclose and access such data.

In the statutory context, the Court has used this third meaning of privacy to block disclosure under FOIA. Repeatedly, the Court has found that even though information has been disclosed to and is held by third parties, this does not eliminate the existence of a lawfully protected privacy interest. “[T]‌he fact that ‘an event is not wholly “private” does not mean that an individual has no (p.217) interest in limiting disclosure or dissemination of the information.’ ”153 This is a far more subtle view of privacy, in which privacy is measured on a spectrum, rather than the binary view of privacy that the Court has applied so far in its Fourth Amendment jurisprudence.

The fact that there is inconsistency in the Court’s privacy jurisprudence is not surprising. In fact, the Court itself noted in Reporter’s Committee that the “question of the statutory meaning of privacy under the FOIA is, of course, not the same as the question whether a tort action might lie for invasion of privacy or the question whether an individual’s interest in privacy is protected by the Constitution.”154 However, the Court is inconsistent even within its constitutional privacy jurisprudence, employing the term in Whalen to mean something broad and subtle and requiring protection beyond mere collection limits, and in the Court’s Fourth Amendment cases to refer to something that can be eliminated by disclosure, and requires no protection beyond collection limits.

Even more significant than the inconsistency, however, is that the meaning of privacy that the Court has so far articulated in its Fourth Amendment jurisprudence—with minor exceptions—is inconsistent with popular perceptions about the meaning of privacy, and renders the Fourth Amendment impotent to protect against government intrusions into vast collections of personal information, given the extraordinary increase in both the volume and sensitivity of information about individuals necessarily held by third parties.

Professor Daniel Solove writes: “We are becoming a society of records, and these records are not held by us, but by third parties.”155 Thanks to the proliferation of digital technologies and networks such as the Internet, and tremendous advances in the capacity of storage devices and parallel decreases in their cost and physical size, those records are linked and shared more widely and stored far longer than ever before, often without the individual consumer’s knowledge or consent.156 This is especially true as more activities move online, where merchants record data not only on what individuals buy and how we pay for our purchases, but also on every detail of what we look at, what we search for, how we navigate through websites, and with whom we communicate.

The Miller exclusion from the Fourth Amendment of information disclosed to third parties means that all of this information, no matter how sensitive or how revealing of a person’s health, finances, tastes, or convictions, is available to the (p.218) government without constitutional limit. The government’s demand need not be reasonable, no warrant is necessary, and no judicial authorization or oversight is required. Jones and Riley suggest that the Court has begun to recognize the impact of technological change on the Fourth Amendment’s protection for privacy, and that some justices may even be willing to revisit Miller. The outcome is uncertain however, and the Court plainly desires Congress, rather than the Constitution, to play the major role in balancing privacy and government access needs.

Notes:

(*) The authors gratefully acknowledge the excellent research assistance provided by Lindsay Elizabeth Koenings.

(1.) Katz v. United States, 389 U.S. 347 (1967).

(2.) Griswold v. Connecticut, 381 U.S. 479 (1965).

(3.) Roe v. Wade, 410 U.S. 113 (1973).

(4.) Ibid. at 152–53.

(5.) Whalen v. Roe, 429 U.S. 589 (1977).

(6.) NAACP v. Alabama, 357 U.S. 449 (1958).

(7.) Stanley v. Georgia, 394 U.S. 557 (1969).

(8.) Rowan v. Post Office, 397 U.S. 728 (1970).

(9.) Federal Commc’ns Comm’n v. Pacifica Found., 438 U.S. 726 (1978).

(10.) Frisby v. Schultz, 487 U.S. 474 (1988); Carey v. Brown, 447 U.S. 455 (1980).

(11.) The Court has little occasion to address common-law privacy protections, which typically apply via state tort law, unless it must consider whether they are pre-empted by federal statutory or constitutional provisions. In 2011, for example, the Court held that the First Amendment protected protesters at a military funeral against a state tort law charge of intentional infliction of emotional distress. Snyder v. Phelps, 562 U.S. 443 (2011).

(12.) Only the Thirteenth Amendment, which prohibits slavery, applies directly to private parties. Clyatt v. United States, 197 U.S. 207, 216–20 (1905).

(13.) Although state action is usually found when the state acts toward a private person, the Supreme Court has also found state action when the state affords a legal right to one private party that impinges on the constitutional rights of another, see New York Times Co. v. Sullivan, 376 U.S. 264, 265 (1964), and in rare cases when a private party undertakes a traditionally public function, see Marsh v. Alabama, 326 U.S. 501 (1946), or when the activities of the state and a private entity are sufficiently intertwined to render the private parties’ activities public, see Evans v. Newtown, 382 U.S. 296 (1966).

(14.) Griswold v. Connecticut, 381 U.S. 479 (1965). The Court later extended constitutional rights of access to contraception to unmarried individuals, see Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (“[i]‌f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether or not to bear or beget a child”).

(15.) Ibid. at 484.

(16.) Ibid.

(17.) The Fourteenth Amendment provides, in relevant part: “No State shall make or enforce any law which shall … deprive any person of life, liberty, or property, without due process of law … .” U.S. Constitution amend. XIV. The Fifth Amendment applies an identical prohibition to the federal government. U.S. Constitution amend. V.

(18.) 410 U.S. 113, 153 (1973).

(19.) Ibid.

(20.) Roe v. Wade, 410 U.S. at 152 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).

(21.) Ibid. at 152–53.

(22.) Ibid. at 155.

(23.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

(24.) Ibid. After viability a state’s interest in preserving the potentiality of the life of the fetus outweighs the mother’s privacy rights and the state may ban abortion altogether except when needed to save the life or protect the health of the mother. Stenberg v. Carhart, 530 U.S. 914 (2000). But see Gonzales v. Carhart, 550 U.S. 124 (2007) (rejecting facial challenge to federal Partial-Birth Abortion Act of 2003, which does not contain an exception to the ban on partial-birth abortions to protect a woman’s health, but not ruling out challenges to individual applications of the law).

(25.) 579 U.S. ___ (2016).

(26.) Decisional “privacy” rights are better thought of as rights of personal autonomy, as Justice Ginsburg emphasized in her dissenting opinion on Gonzales v. Carhart, 550 U.S. at 172 (“legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”)

(27.) For example, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976); Bellotti v. Baird, 443 U.S. 622 (1979); City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983).

(28.) Akron, supra note 28; Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747 (1986).

(29.) Casey, 505 U.S. 833.

(30.) 539 U.S. 558 (2003).

(31.) Ibid. at 573–74, 577–78.

(32.) Whalen v. Roe, 429 U.S. 589, 599–600 (1977).

(33.) Ibid.

(34.) Ibid. at 603–04.

(35.) Ibid. at 604, n.32.

(36.) Several federal appeals courts have relied on Whalen to find that a government regulation or action violated an individual’s constitutional privacy right in nondisclosure of personal information. See, e.g., Tavoulareas v. Washington Post Co., 724 F.2d 1010 (D.C. Cir. 1984); Barry v. City of New York, 712 F.2d 1554 (2d Cir. 1983); Schacter v. Whalen, 581 F.2d 35 (2d Cir. 1978); Doe v. Southeastern Pennsylvania Transportation Authority, 72 F.3d 1133 (3d Cir. 1995); United States v. Westinghouse Electric Corp., 638 F.2d 570 (3d Cir. 1980); Plante v. Gonzalez, 575 F.2d 1119 (5th Cir. 1978); and Doe v. Attorney General, 941 F.2d 780 (9th Cir. 1991). Courts in the Fourth and Sixth Circuits, in contrast, have severely limited the scope of the Whalen nondisclosure privacy right, see Walls v. City of Petersburg, 895 F.2d 188, 192 (4th Cir. 1990), and J.P. v. DeSanti, 653 F.2d 1080 (6th Cir. 1981). Taking Whalen’s lead, those courts that have relied on the right of nondisclosure have applied only intermediate scrutiny, instead of the strict scrutiny typically used to protect fundamental constitutional rights. See Doe v. Attorney General, 941 F.2d at 796.

(37.) Whalen, 429 U.S. at 605.

(38.) Ibid.

(39.) Ibid.

(40.) Ibid. at 605–06.

(41.) “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceable to assemble … .” U.S. Constitution amend. I.

(42.) 357 U.S. 449 (1958).

(43.) Ibid. at 464–65.

(44.) 394 U.S. 557 (1969).

(45.) Ibid. at 568.

(46.) Ibid. at 564.

(47.) Clapper v. Amnesty Int’l USA, 568 U.S. ___, 133 S. Ct. 1138 (2013).

(48.) 341 U.S. 622 (1951).

(49.) Ibid. at 644.

(50.) 336 U.S. 77 (1949).

(51.) Ibid. at 86–87.

(52.) 397 U.S. 728 (1970).

(53.) 438 U.S. 726 (1978).

(54.) Ibid. at 748.

(55.) 487 U.S. 474 (1988).

(56.) Ibid. at 484 (quoting Carey, 447 U.S. at 455).

(57.) Ibid. (quoting Gregory v. City of Chicago, 394 U.S. 111, 125 (1969) (Black, J., concurring)).

(58.) 447 U.S. 455 (1980). The Court in Carey struck down an Illinois ordinance that generally prohibited residential picketing but permitted certain labor picketing; the Court rejected the state’s argument that the law properly balanced privacy interests with special solicitude for labor-related speech, emphasizing that picketing rules designed to protect privacy should be drawn without regard to the content of the speech. Ibid. at 470–71.

(59.) Ibid. at 471.

(60.) New York Times Co. v. United States, 403 U.S. 713 (1971).

(61.) Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978).

(62.) Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979).

(63.) Florida Star v. B.J.F., 491 U.S. 524 (1989); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).

(64.) Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974).

(65.) Florida Star, 491 U.S. 254.

(66.) Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (requiring that the standard for summary judgment motions take into account the plaintiff’s burden at trial); Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) (requiring independent appellant review).

(67.) 564 U.S. 552 (2011).

(68.) No patient-identifiable information was involved the disclosures.

(69.) 564 U.S. at 560.

(70.) The dissent argued that the majority overstated the access by others to prescriber data, citing state professional responsibility rules limiting disclosure of such data, the similarity of the exceptions in Vermont’s law to exceptions in the major federal health privacy law (the Health Insurance Privacy and Accountability Act, or HIPAA), and the absence of record evidence indicating the widespread use of prescriber data for counterdetailing. Ibid. at 580 (Breyer, J., dissenting).

(71.) Ibid. at 580 (emphasis added).

(72.) U.S. Constitution amend. IV.

(73.) Boyd v. United States, 116 U.S. 616, 625–26 (1886).

(74.) 277 U.S. 438 (1928).

(75.) 389 U.S. 347 (1967).

(76.) Ibid. at 351.

(77.) Ibid. at 360–61 (Harlan, J., concurring).

(78.) Ibid. at 361 (Harlan, J., concurring).

(79.) Terry v. Ohio, 392 U.S. 1 (1968).

(80.) Camara v. Municipal Court, 387 U.S. 523 (1967).

(81.) G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977).

(82.) United States v. Chadwick, 433 U.S. 1 (1977); Arkansas v. Sanders, 442 U.S. 753 (1979); Walter v. United States, 447 U.S. 649 (1980).

(83.) United States v. Knotts, 460 U.S. 276 (1983).

(84.) United States v. Dionisio, 410 U.S. 1 (1973).

(85.) Smith v. Maryland, 442 U.S. 735 (1979).

(86.) United States v. White, 401 U.S. 745 (1971).

(87.) New York v. Belton, 453 U.S. 454 (1981).

(88.) United States v. Ross, 456 U.S. 798 (1982).

(89.) South Dakota v. Opperman, 428 U.S. 364 (1976).

(90.) Akihl Reed Amar, The Constitution and Criminal Procedure 3–4 (1997).

(91.) 68 American Jurisprudence 2d, Searches and Seizures § 166 (1993).

(92.) Richards v. Wisconsin, 520 U.S. 385 (1997).

(93.) Coolidge v. New Hampshire, 403 U.S. 443 (1971).

(94.) United States v. Edwards, 415 U.S. 800 (1974).

(95.) Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995); Skinner v. Railway Labor Executives’ Ass’n., 489 U.S. 602 (1989).

(96.) 68 American Jurisprudence 2d, Searches and Seizures § 104 (1993).

(97.) United States v. Leon, 468 U.S. 897, 906 (1984).

(98.) Ibid. (quoting United States v. Calandra, 414 U.S. 338, 354 (1974)); see also Utah v. Strieff, 579 U.S. ___ (2016).

(99.) Walder v. United States, 347 U.S. 62 (1954).

(100.) Utah, 579 U.S. ___.

(101.) United States v. Janis, 428 U.S. 433, 455 (1975).

(102.) Ibid.

(103.) Calandra, 414 U.S. at 354.

(104.) United States v. Miller, 425 U.S. 435 (1976).

(105.) Ibid. at 440.

(106.) Ibid. at 442.

(107.) Ibid. at 443 (citation omitted).

(108.) 12 U.S.C. § 1829b(d) (2012); see 425 U.S. at 436; California Bankers Ass’n v. Shultz, 416 U.S. 21 (1974).

(109.) 425 U.S. at 443.

(110.) Ibid. at 444.

(111.) 442 U.S. 735 (1979).

(112.) Ibid. at 743.

(113.) Ibid.

(114.) Smith v. Maryland, 442 U.S. 735, 742 (1979).

(115.) Right to Financial Privacy Act, 12 U.S.C. §§ 3401–3422 (2012).

(116.) 18 U.S.C. §§ 3121, 1841 (2012).

(117.) 532 U.S. 67 (2001).

(118.) Ibid. at 95 (Scalia, J., dissenting).

(119.) United States v. Jones, 565 U.S. __, 132 S. Ct. 945, 957 (2012) (Sotomayor, J., concurring).

(120.) 565 U.S. __, 132 S. Ct. 945 (2012).

(121.) Ibid. at 955 (emphasis in original).

(122.) Ibid. at 961 (Alito, J., concurring).

(123.) Ibid. at 954.

(124.) City of Ontario v. Quon, 560 U.S. 746 (2010).

(125.) Riley v. California, 573 U.S. ___, 134 U.S. 2473, 2488 (2014).

(126.) Ibid. at 2497 (Alito, J., concurring).

(127.) 579 U.S. ___ (2016).

(128.) 569 U.S. ___ (2013).

(129.) 5 U.S.C. § 552 (1997).

(130.) Ibid. § 552(b)(6)–(7)(C).

(131.) 489 U.S. 749 (1989).

(132.) Ibid. at 763.

(133.) Ibid.

(134.) Ibid.

(135.) Ibid. at 763–64.

(136.) Ibid. at 710–71 (quoting William Rehnquist, Is an Expanded Right of Privacy Consistent with Fair and Effective Law Enforcement?, Nelson Timothy Stephens Lectures, University of Kansas Law School, pt. 1, p. 13 (Sept. 26–27, 1974)).

(137.) Ibid. at 771. In National Archives and Records Administration v. Favish, 541 U.S. 157 (2004), the Supreme Court further expanded its understanding of the “privacy” at issue in FOIA cases, by extending Exemption 7(C) to family members of an individual who committed suicide.

(138.) 5 U.S.C. § 552(b)(6) (2012).

(139.) 510 U.S. 487 (1994).

(140.) Ibid. at 550 (quoting Reporters Comm., 489 U.S. at 763).

(141.) Ibid.

(142.) Ibid. at 501.

(143.) Federal Commc’ns Comm’n v. AT&T Inc., 562 U.S. 397 (2011).

(144.) Roe v. Wade, 410 U.S. at 152.

(145.) Ibid. (quoting Palko, 302 U.S. at 325).

(146.) 410 U.S. at 152–53; Lawrence v. Texas, 539 U.S. 558 (2003).

(147.) Katz, 389 U.S. at 351.

(148.) Ibid. at 361 (Harlan, J., concurring); Terry, 392 U.S. 1.

(149.) Miller, 425 U.S. 435; Smith, 442 U.S. 735.

(150.) Whalen, 429 U.S. at 599–600.

(151.) Ibid. at 605.

(152.) Ibid.

(153.) 489 U.S. at 710–11 (quoting William Rehnquist, Is an Expanded Right of Privacy Consistent with Fair and Effective Law Enforcement?, Nelson Timothy Stephens Lectures, University of Kansas Law School, pt. 1, p. 13 (Sept. 26–27, 1974)).

(154.) 489 U.S. at 763 n.13.

(155.) Daniel J. Solove, “Digital Dossiers and the Dissipation of Fourth Amendment Privacy,” 75 Southern California Law Review 1083, 1089 (2002).

(156.) Ibid.; James X. Dempsey and Lara M. Flint, “Commercial Data and National Security,” 72 George Washington Law Review 1459 (2004); Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America (2001).