The Supreme Court and information privacy

Abstract

Advances in technology—including the growing use of cloud computing by individuals, agencies, and organizations to conduct operations and store and process records—are enabling the systematic collection and use of personal data by state and federal governments for a variety of purposes. These purposes range from battling crime and terrorism to assessing public policy initiatives and enforcing regulatory regimes. To aid these efforts, governments are promoting mandatory retention and reporting of data by online service providers and the expansion of laws that facilitate wiretaps to greater portions of the web. The legal framework for protecting individual privacy within this growing world of ‘big data’ is patchy and in critical ways outdated. Most of the current framework was erected in response to pronouncements by the Supreme Court over the years regarding the scope of constitutional privacy protections. Widespread agreement over the need for legislators to update the statutory regime has not yet produced results. Against this backdrop, the US Supreme Court has struggled in recent cases to articulate workable constitutional and statutory privacy norms that can help guide government, and individuals, in a world of digital and distributed data. An examination of the Court's privacy jurisprudence over the past forty years offers a number of insights into how the Court, and policy-makers, may achieve a balance between privacy and data use that accords with constitutional norms, serves vital public policy goals, and secures greater public trust and support.