Return to Privacy Module I


Caselaw on the Constitutional right of informational privacy:

(Please read only the excerpts for now.  Full case readings are optional.)


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

                        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.

                        (full case details)


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.

                        (full case details)


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 unlawful market.’

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.






                        (full case details)