Thursday, January 20, 2011

Is There A Right to Informational Privacy? After Supreme Court Decision We Still Don’t Know

The Supreme Court previously had suggested that an individual had a constitutional privacy "interest in avoiding disclosure of personal matters." Whether this right exists – and important issues like whether the right of nondisclosure of personal information is limited to an area of life protected by either the autonomy branch of the right of privacy or by other fundamental rights – remains frustratingly unclear.

The question about the extent of that right came before the Court is a case decided yesterday. In the case, NASA v Nelson, federal contract employees claimed that parts of a standard employment background investigation violate this right. However, the Court declined to address whether and to what extent the right to informational privacy exists. Instead, in an opinion by Justice Alito, the Court assumed that the right existed for purposes of this case, and then determined that the rights of the employees had not been violated because the government's interest in conducting background checks was sufficient.

In the context of advanced technology, I believe that this right to informational privacy exists and includes not only those personal rights traditionally thought of as fundamental, but also medical information, sexual activity, and financial information.

I don't know if the majority of the Supreme Court shares this view. But I know that at least two Justices – Scalia and Thomas – assuredly do not. Justice Scalia's concurrence mocks the idea of informational privacy, calling it "absurd" and invented "out of whole cloth."

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