Friday, January 21, 2011

Constitution's "Informational Privacy" Hits SCOTUS - COTW #24

In two cases decided more than 30 years ago, this Court referred broadly to a constitutional privacy "interest in avoiding disclosure of personal matters."
And so began Justice Alito's opinion of the court in the Lawffice Space employment law Case of the Week, NASA v. Nelson. Federal contract employees objected to certain elements of NASA background checks, specifically questions about counseling or treatment for illegal drug use and open-ended questions directed to their references. Perfect opportunity for the Court to weigh in on the so-called right to "informational privacy." So, what did the Court decide?

It's a punt! The Court's analysis begins by "assum[ing], without deciding" that the Constitutional right to informational privacy exists. Even if it exists:
The Government’s interests as employer and proprietor in managing its internal operations, combined with the protections against public dissemination provided by the Privacy Act of 1974, 5 U. S. C. §552a, satisfy any "interest in avoiding disclosure" that may "arguably ha[ve] its roots in the Constitution."
In short, the Government had a legitimate interest in the information, and the Privacy Act helped protect the information from further disclosure. This is the second straight privacy case that the Supreme Court has decided without really addressing the expectation of privacy. See Ontario v. Quon from last year.

Two Justices on the Court took firm positions in concurring opinions. Justice Scalia tells us:
Like many other desirable things not included in the Constitution, "informational privacy" seems like a good idea—wherefore the People have enacted laws at the federal level and in the states restricting the government’s collection and use of information. But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them. A federal constitutional right to "informational privacy" does not exist.
And Justice Thomas added:
[T]he notion that the Due Process Clause of the Fifth Amendment is a wellspring of unenumerated rights against the Federal Government "strains credulity for even the most casual user of words."
OK, I'll go ahead and put you guys down as a "no" on informational privacy. I'll keep waiting for the rest of the Court to let us know where they stand.

End Note: The two cases referenced at the start are Whalen v. Roe, 429 U. S. 589, 599–600 (1977); and Nixon v. Administrator of General Services, 433 U. S. 425, 457 (1977).

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.