Caselaw on the Constitutional right of informational privacy:
(Please read only the excerpts for now. Full case readings are optional.)
Katz v. United States, 389 U.S. 347 (1967); See also Olmstead v.
United States 277 U.S. 438 (1928)
Abstract: In the early twentieth century, the Supreme Court's
Fourth Amendment jurisprudence was geared toward the
protection of property. The Court's inclination to protect property
quite clearly is reflected in its 1928 decision in Olmstead v. United
States (277 U.S. 438 (1928)). In Olmstead, the Supreme Court
held that use of a wiretap to intercept a private telephone
conversation was not a "search" for purposes of the Fourth
Amendment. One of the grounds on which the Court justified its
result was that there had been no physical intrusion into the
person's home. Under Olmstead's narrow view of the Fourth
Amendment, the amendment was not applicable in the absence of
physical intrusion. Thus, without trespass or seizure of any material
object, surveillance was beyond the scope of the Fourth
Amendment as interpreted by the Olmstead Court.
However, in its well-known decision in Katz v. United States, 389
U.S. 347 (1967), the Supreme Court rejected Olmstead's
"trespass" doctrine, articulating, in its place, a Fourth Amendment
jurisprudence based on the protection of individual privacy. In
Katz, the Court held that the Fourth Amendment protects people,
not places: "What a person knowingly exposes to the public, even
in his own home or office, is not a subject of Fourth Amendment
protection¼ But what he seeks to preserve as private, even in an
area accessible to the public, may be constitutionally protected."
Thus, the Court held that physical penetration of a constitutionally
protected area is not necessary before a search and seizure can be
held to violate the Fourth Amendment. According to the Court in
Katz, "once it is recognized that the Fourth Amendment protects
people-and not simply "areas"-against unreasonable searches and
seizures it becomes clear that the reach of that Amendment cannot
turn upon the presence or absence of a physical intrusion into any
given enclosure." Thus, although the Government's activities in Katz
involved no physical intrusion, they were found to have violated the
privacy on which the petitioner justifiably relied and thus constituted
"search and seizure" within the meaning of the 4th Amendment.
Changing technology precipitated the shift from protection of
property to protection of privacy, and in 1968, just one year after
Katz, Congress passed Title III of the Omnibus Crime Control and
Safe Streets Act authorizing microphone surveillance or
wiretapping for law enforcement purposes, and requiring a warrant,
based on probable cause, prior to such surveillance or wiretapping.
Privacy Law 2: NAACP v. Alabama ex rel. Patterson, 357 U.S. 449
Abstract: The Supreme Court in NAACP v. Alabama ex rel.
Patterson, 357 U.S. 449 (1958) held unconstitutional Alabama's
demand that the NAACP reveal the names and addresses of all of
its Alabama members and agents. The NAACP court is said to
have recognized that "[s]erious First Amendment questions arise . .
. when there is such a nexus between anonymity and speech that a
bar on the first is tantamount to a prohibition on the second." As
one district court explained: "[t]he Court in NAACP v. Alabama
was of the opinion that the injury to a right subsequent to disclosure
of identity precludes the right to identification." In NAACP, the
Court recognized freedom of association and held that forcing the
NAACP to divulge its membership lists was "likely to affect
adversely the ability of [the NAACP] to pursue their collective
effort to foster beliefs which they admittedly have the right to
advocate." Thus, anonymity was deemed necessary to the exercise
of freedom of association.
Privacy Law 3: Whalen v. Roe, 429 U.S. 589 (1977)
Abstract: In response to problems with the illegal sale of prescription drugs, New York passed a statute that required physicians to provide copies of prescriptions for ‘potentially harmful’ drugs to the state. The information turned over with the prescription included patients name, age, address, and type and quantity of medication. Prescriptions turned over to the state are cataloged and kept for five years before being destroyed. The statute mandates that security procedures be implemented to ensure the safety of the sensitive information. Public disclosure of the information is prohibited, and access to the files confined to a limited number of health department and investigatory personnel.
A group of physicians and patients brought suit challenging the constitutionality of the statute. The patients allege that there is a potential to be stigmatized for use of these drugs, and thus contend that statute is an invasion of the constitutionally protected ‘zone of privacy.’ The doctors argue that this invades their ability to give medical treatment
The district court held that
because ‘the doctor-patient relationship is one of the zones of privacy
accorded constitutional protection,’ the statute is unconstitional. The case
was then appealed to the Supreme Court. The issue decided by the Supreme Court
is ‘whether the State of New York may record, in a centralized computer file,
the names and addresses of all persons who have obtained, pursuant to a
doctor's prescription, certain drugs for which there is both a lawful and an
The Supreme Court held that the statue was constitutional. The rationale for this decision was that the statutes are a reasonable exercise of the broad police power of the states. Because the states had laid out a plan for ensuring the security of the information, the risk that the information would be mishandled is low. Thus, risk of disclosure of private information is not a significant concern here. Also, no evidence presented that this would restrict access to drugs – no evidence presented that statute impairs physician’s right to practice medicine without state interference. Thus, the privacy arguments presented by the patients and doctors are not sufficient to invalidate the statute.