Constitutional Privacy Research Articles

Secrecy and Transparency in Substantive Due Process Litigation

A few years before the recomposed Court rejected abortion rights in Dobbs, it sustained several healthcare providers’ challenge to Louisiana abortion restrictions in June Medical. History will remember that 5–4 decision mostly as one of the last major cases to interpret and apply the Casey framework. But in the little-noticed background of the June Medical litigation, a significant dispute over sealed court records boiled over. On one side, plaintiff physicians sought anonymity and confidentiality in light of potential threats to their physical safety and patient privacy. On the other side, Louisiana asserted the public’s longstanding right to access court records and its own right to include information from June Medical companion cases in its Supreme Court briefing. Ultimately, the Fifth Circuit agreed with Louisiana, vacating the sealing order. June Medical evokes a larger dispute simmering in federal and state courts over public access to litigation information. Modern commerce and contemporary life generate an unprecedented volume of data. American civil discovery provides litigants with tools to discover and collect much of it. And courts have long recognized the public’s First Amendment and common law rights to inspect and copy public court files. Moreover, the internet and advent of electronic filing have transformed once obscure paper court files into easily accessible databases. Proponents of expanded sealing and secrecy contend that this status quo threatens litigants’ privacy and intellectual property. Proponents of more transparency posit that public access to the evidence underlying court action is essential to the integrity and proper functioning of the judiciary, as well as to public health and safety. This Article examines a largely unexplored angle of this debate: How should courts treat the unique privacy interests of litigants asserting substantive due process claims in the context of the public’s right to access litigation information? Part II explains the public’s court-access rights. Part III first considers whether forced identity revelation might infringe substantive due process rights. After concluding that infringement is possible, but recognizing that courts will often avoid the constitutional privacy questions posed by these scenarios, Part III goes on to consider the use and effects of subconstitutional privacy and access principles in rights cases where parties seek to proceed pseudonymously.

Constitutional Privacy in Israeli Law

Constitutional Privacy in Israeli Law

Liberty and Health

Liberty is the essence of human nature and is necessary for optimal health. During the COVID-19 pandemic, unprecedented restrictions were placed on personal liberty in the name of public health. For the first time, millions of noncontagious Americans were confined to their homes, hundreds of thousands of businesses and parks were forced to close, abortion clinics were shuttered, churches were heavily regulated, gatherings in private homes were monitored, interstate travel was restricted, and disease burdens were shifted onto protected populations. Personal liberty is sustenance for individual health. Medical principles of patient autonomy, patient privacy, and social justice are closely related to legal concepts of personal liberty, the liberty of constitutional privacy, and the liberty to be free from discrimination. In this paper, liberties are defined as active or passive for public health purposes. Active liberty is the liberty to do, and passive liberty is the liberty not to be done to. Restrictions on active liberties—like stay-at-home orders, business closures, and gathering size restrictions—tend to cause inactivity and lead to related side effects like social isolation, financial distress, and medical distancing. Restrictions on passive liberties—like quarantine, contact tracing, and intrusion into private homes—lead to more insidious health side effects related to discrimination and privacy-protective behaviors, in addition to social isolation, medical distancing, and financial distress. This paper examines how active and passive liberties were restricted during the COVID-19 pandemic and the side effects of those restrictions. A holistic approach to public health policy that incorporates the health effects of liberty and the side effects of restriction of liberty into public health policy is advocated following principles of the practice of medicine, which requires the artful application of science to disease in ways that account for human frailties. Often protecting liberty preserves health. Many medical research studies found evidence of health side effects of the public health measures instituted throughout the pandemic and are discussed here. Liberty is a fixed star in the American Constitutional constellation that is vital to the health of her citizens, and “no official, high or petty,” should prescribe public health measures restricting active or passive liberties without recognizing and understanding their side effects.

Comparing Constitutional Privacy and Data Protection Rights within the EU

Although both data protection and the right to privacy (or respect for private life) are recognised within the EU Charter, they are otherwise generally seen as having very different constitutional histories. The right of privacy is often seen as traditional and data protection as novel. Based on a comprehensive analysis of rights within EU State constitutions, it is found that this distinction is overdrawn. Only five current EU States recognised a constitutional right to privacy prior to 1990, although approximately three quarters and also the European Convention do so today. Subsidiary constitutional rights related to the home and correspondence but not honour and/or reputation are more long-standing and this helps link the core of privacy to the protection of intimacy. Constitutional rights to data protection emerged roughly contemporaneously and were often linked to a general right to privacy but are still only found in around half of EU States. There is also no clear consensus on specific guarantees, although around half of the States which recognise these do include rights to transparency and a slightly lower number right to rectification. This could suggest that data subject empowerment over a wide range of connected information is an important emerging particularity tied to data protection as a constitutional guarantee.

Digital Privacy in Emerging Contexts: Lessons from the SCC's Evolving Section 8 Jurisprudence.

This paper explores the Supreme Court of Canada's increasingly nuanced privacy jurisprudence through the context of R v Reeves, 2018 SCC 56, a decision cementing constitutional privacy protections in shared devices. The implications of approach adopted in R v Reeves for a number of upcoming privacy decisions are examined, ultimately touching on undercover police operations, Canada's voyeurism offence and the privacy protections an invited visitor can expect when law enforcement unlawfully enter his host's backyard.

Prescription Drug Policing: The Right to Protected Health Information Privacy Pre- and Post-Carpenter

This article operates at the intersection of privacy law, Fourth Amendment doctrine, and public health realities triggered by the United States drug overdose epidemic. Reputable reporting sources, public health scholars, and pundits frequently frame the ongoing American overdose crisis as a prescription drug overdose problem attributable to the overprescribing of opioid analgesics. The problem with this narrative is that it runs counter to the current epidemiological data, which indicate that the majority of American overdose deaths are now a result of illicit drug use and not prescription drug abuse. The prescription-centric frame has nonetheless sparked the rapid rise of law enforcement and regulatory surveillance of prescribers and patients in the form of state prescription drug monitoring program (PDMP) databases. State PDMPs, which maintain and analyze significant data concerning every dispensed prescription, collect a stunning amount of patient protected health information (PHI). To put things in context, Americans filled 4,063,166,658 prescriptions at retail pharmacies in 2017 alone. PDMPs are largely criminal and regulatory law enforcement tools dressed up in public health promoting rhetoric. Under the guise of rogue prescriber, pill mill, and doctor shopper crack downs, the Drug Enforcement Administration (DEA) has made it a routine practice to self-issue administrative subpoenas to conduct warrantless, dragnet-style sweeps of the swarms of sensitive protected health data stored in state PDMP databases. This widespread law enforcement prescribing surveillance tactic, which reveals highly personal health information, including, among other things, patients’ contraceptive histories, gender transition decisions, and HIV diagnoses, raises serious constitutional privacy concerns. The Supreme Court’s recent Fourth Amendment decision, Carpenter v. United States, however, may limit law enforcement’s ability to continue to access droves of electronically-stored patient prescribing-related PHI in the custody of a state regulatory agency without a court order supported by probable cause. The Court’s decision in Carpenter already has been heralded as “a landmark privacy case,” which this article uniquely applies to prescription drug monitoring and law enforcement surveillance tactics provoked by the U.S. overdose crisis and its dominant narrative. Carpenter and the Fourth Amendment doctrines central to its holding motivate this article and animate its two core contentions. First, this article maintains that pertinent pre-Carpenter precedent requires the DEA to obtain a Fourth Amendment warrant in order to conduct sweeps of state PDMP databases searching patient protected health information. It then posits that courts are even more likely to rule that warrantless DEA searches of sensitive and frequently revealing health care data run afoul of the Fourth Amendment in the post-Carpenter world. Simply stated, PDMP protected health information is entitled to Fourth Amendment warrant protection.

The Constitutional Limits of Private Surveillance

The age of data-driven law enforcement is upon us. As a consequence, government officials now rely heavily on private surveillance technology to forecast threats, drive investigation, and mobilize enforcement. On the whole, this development is welcome; the use of privately-collected data promises to refine policing and counterterrorism efforts. But it also has major implications for constitutional privacy. For the Fourth Amendment to safeguard privacy into the future, its approach to state action must change. Instead of turning, as it has historically, on the extent of government influence over private surveillance activity, the Fourth Amendment’s coverage should depend on whether private surveillance activity effects an extension, in practice, of law enforcement’s infrastructural capacity. In addition to its normative benefits, the “infrastructural” approach also resolves certain mysteries within existing law and brings the Fourth Amendment into greater alignment with broader patterns of state action jurisprudence. Most importantly, focusing on infrastructure underscores the connection — unappreciated to date — between (1) law enforcement’s compulsory seizure of privately-held data, enabled by the so-called “third-party doctrine,” and (2) informal data-sharing between law enforcement and the private sector. The third-party doctrine is teed up for reform this term in Carpenter v. United States. But no such progress is on the horizon for informal data-sharing. Doctrinally, the issues have been compartmentalized, even though, at an infrastructural level, they represent two sides of the same coin. Both are mechanisms by which law enforcement officials capitalize on private surveillance technology in lieu of performing surveillance directly — and both thus facilitate bulk, warrant-less data collection by the state. As such, a full solution to the shortcomings of the third-party doctrine demands parallel attention to the shortcomings of the Fourth Amendment’s antiquated state action rules, and vice versa. Solving one problem in isolation from the other risks a partial victory — or even a Pyrrhic one, to the extent that reform of the third-party doctrine could encourage even more informal data-sharing between the government and the private sector. Against this backdrop, the infrastructural approach offers an integrated path forward, and one that will only become more urgent, over time, as data-driven law enforcement practices intensify.

The Quest for Information Privacy in Africa: A Review Essay

The Quest for Information Privacy in Africa: A Review Essay

Infringement of Fundamental Right to Privacy: U.S. Government Employeess Right to Privacy Regarding the Record Release of Unsubstantiated Allegations of Misconduct

The issue at hand is whether U.S. government employees’ fundamental right to privacy protects a record of an unsubstantiated allegation of misconduct from being released through the Public Records Act (PRA). A narrower version of this question has been brought before the Court several times, but not completely answered. In 2008, the Court reasoned that because the public records request was broad and included many government employees, redacting the names would provide sufficient privacy. The Court held that “[t]he teachers' identities are clearly “personal information” because they relate to particular people.” However, in practice that meant that the report was still released, only with all of the names redacted. The Court’s holding side stepped the issue of constitutional privacy rights that the teachers raised. Next, in 2011, the Court held that “[u]nder the PRA, [the government employee, a police officer] maintains his right to privacy in his identity, regardless of the media coverage of this unsubstantiated allegation. An agency should look to the contents of the document, and not the knowledge of third parties when deciding if the subject of a report has a right to privacy in their identity.” Again, in practice this meant that the report was still released, but that the officer’s name was redacted. The question of a fundamental right to privacy was not raised. Finally, in 2015, in Predisik v. Spokane Sch. Dist., the Court found that the records of unsubstantiated allegations of misconduct by government employees did not implicate a privacy interest and were not subject to the personal information exemption. However, the Court did state that “[a]gencies and courts must review each responsive record and discern from its four corners whether the record discloses factual allegations that are truly of a private nature, using the Restatement as a guide.” Even after the above three landmark cases on this issue, there is still an open question regarding privacy as a fundamental right and how that should affect the release of unsubstantiated allegations of government employee misconduct.The following four sections are covered below: First, the definition of a record for purposes of the PRA. Second, the federal and state constitutional right to privacy and related analysis. Third, the applicable exemptions within the PRA. Fourth, and finally, a closing argument calling for privacy as a fundamental right, resulting in records of unsubstantiated allegations of government employee misconduct being withheld from release through the PRA.

Protecting Digital Assets: Legal Protections Do ''Not Equal Practical Security

This article examines how traditional legal protections fail to meet the needs of contemporary digital property owners. Strong legal property rights exist when an owner can substantiate actual and exclusive possession of, use of, and freedom to dispose of property. The intrinsic nature of digital assets undermines the strength of these traditional property rights. Furthermore, constitutional privacy protections are difficult to apply to digital assets due to the Internet's public nature. The legal landscape is ever-changing, and it is likely that a functional legal paradigm will eventually emerge to ensure meaningful protection for digital assets. Until that day comes, however, users should take proactive steps to protect themselves.

Fourth Amendment Fiduciaries

Fourth Amendment law is sorely in need of reform. To paraphrase Justice Sotomayor’s concurrence in United States v. Jones, the idea that people have no expectation of privacy in information voluntarily shared with third-parties — the foundation of the widely reviled “third-party doctrine” — makes little sense in the digital age.In truth, however, it is not just the third-party doctrine that needs retooling today. It is the Fourth Amendment’s general approach to the problem of “shared information.” Under existing law, if A shares information with B, A runs the risk of “misplaced trust” — the risk that B will disclose the information to law enforcement. Although the misplaced trust rule makes sense as a default, it comes under strain in cases where A and B have no relationship of trust and the only reason that A shares information with B is to obtain a socially valuable (and practically indispensable) service. In such cases, I argue that the doctrine should treat B as an “information fiduciary” and analyze B’s cooperation with law enforcement — whether voluntary or compelled — as a Fourth Amendment search.The argument develops in three parts. Part I demonstrates that the Court has already identified two settings — if only implicitly — where fiduciary-style protections are necessary to safeguard constitutional privacy: medical care and hotels. When A is a patient and B is a doctor, and, likewise, when A is a guest and B is a hotel manager, the Court has been reluctant to apply the “misplaced trust” rule. Rightly so: the principle is mismatched to the underlying relationship. From there, Part II fleshes out the normative argument. Put simply, we do not “trust” information fiduciaries, in the everyday sense, at all. So it makes little sense — normatively, or even semantically — to speak of trust being “misplaced.” Rather, the information is held for the benefit of the sharing party, and its use should be constrained by implied duties of care and loyalty. Finally, Part III lays the groundwork for determining who are “Fourth Amendment fiduciaries.” The Article concludes by exploring various practical metrics that courts might adopt to answer this question.

Ed Law

Technology can be a useful tool for security in schools; it can also trigger a backdraft of protest and legal complaints from parents and students raising constitutional law privacy objections. An action that begins with benign motives of student safety, identification, and helping schools and districts to improve their operations can end up in a full-blown federal court legal battle over the law governing individual freedoms.

Introduction: Technology and New Challenges for Privacy

Within the scope of the past half-century, privacy has been heralded as a core constitutional value and unequivocally pronounced dead. Privacy — now replaced by liberty — was discerned to lie at the core of a set of constitutional protections and thus to support rights to contraception, abortion, removal of life-sustaining treatment, and other intimate decisions such as whom to marry. But constitutional privacy’s hegemony was short-lived in the United States at least: subject initially to criticism as conceptually confused, constitutional privacy dissolved into a panoply of values ranging from physical integrity to the contents of suitcases or telephone records. Outside of the law, the rise of the Internet, search engines, social networking, and “big data” brought unprecedented abilities to collect, mine, analyze, and identify information about individuals. Commentators identified what they called the “privacy paradox” of people professing to value privacy but behaving as though they did not.

Knowledge, Behavior, and Opinions Regarding Online Privacy

When it comes to online privacy, what do people know, what do people do, and what do people want? To find out, we conducted a two-part online survey, eventually collecting complete surveys from about 500 respondents on each part. One part of the survey focused on opinions relating to privacy and the Internet, and the second part of the survey focused on the knowledge of the respondents. Topics ranged from targeted advertising, to online security, to constitutional privacy protections. Finding out what people know, do, and want online will help us to suggest ways to ensure that consumer decisions online are guided by informed consent. For us, informed consent must include awareness of the ways that service providers use consumer data, which is often covered in terms of service and privacy policies. We believe that informed consent will strengthen the market for cloud services and increase how much consumers trust these services. However, comprehension is essential for informed consent, so obtaining informed consent online will be difficult if comprehension of agreements with providers is low. Our survey results indicate that very few people read terms of service or privacy policies, and it is difficult to have comprehension of documents that you do not read. The results of our survey suggest that there are specific areas that policy makers and industry members can emphasize to increase trust of the government on privacy matters, increase consumer engagement, enhance the presence of informed consent online, and support further development of the market for cloud services. To facilitate the achievement of these goals, the current deficiencies in consumer knowledge should be addressed. We recommend the development of an electronic privacy agent that would consider not only what people want in terms of privacy online, but also what they know. Our proposal, termed Knowledge-based Individualized Privacy Plans (KIPPs), is in the beginning stages of development, but we believe that it has the potential to mitigate the informational asymmetry that currently exists between consumers and businesses online.

Same-Sex Marriage and Constitutional Privacy: Moral Threat and Legal Anomaly

Same-Sex Marriage and Constitutional Privacy: Moral Threat and Legal Anomaly

The Supreme Court and information privacy

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.

A Question of Choice

Women's reproductive rights, reproductive health, and constitutional privacy rights in the United States are addressed in light of the contemporary onslaught of the Christian Right. The misuse of State power by fundamentalist social forces in America is critiqued. The article also briefly reviews the question of State control over women's bodies.

Boyd Racing, LLC v. Fruge, 08-581 (La. App. 3 Cir. 11/05/08); 2008 La. App. LEXIS 1468

Gaming Law Review and EconomicsVol. 13, No. 1 CASESBoyd Racing, LLC v. Fruge, 08-581 (La. App. 3 Cir. 11/05/08); 2008 La. App. LEXIS 1468Published Online:23 Feb 2009https://doi.org/10.1089/glre.2008.13110AboutSectionsPDF/EPUB Permissions & CitationsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail FiguresReferencesRelatedDetailsCited byComparing Constitutional Privacy and Data Protection Rights within the EUSSRN Electronic Journal, Vol. 791Protecting Professional Athletes from Spectator HarassmentSSRN Electronic JournalCrypto Coin Offerings and the Freedom of ExpressionSSRN Electronic JournalRevisiting Background Principles in Takings LitigationSSRN Electronic JournalReviving the Intracorporate Communications Non-publication Rule: An Strategy to Encourage Effective Investigation of Internal MisconductSSRN Electronic JournalBlatant Contradictions in Qualified-Immunity AppealsSSRN Electronic JournalA Legal Response to the Sovereign Citizen MovementSSRN Electronic Journal, Vol. 620Can a Court Change the Law by Saying Nothing?SSRN Electronic JournalThe Automotive-Repair Industry and the Practice of Insurance Steering: Is There a Fulfilling Escape Route Available for Auto-Repair Facilities?SSRN Electronic JournalEvidence? We Don't Need No Stinkinn Evidence!: How Ambiguity in Some Statess Anti-Slapp Laws Threatens to De-Fang a Popular and Powerful Weapon Against Frivolous LitigationSSRN Electronic JournalAttorney Fees after Octane Fitness and HighmarkSSRN Electronic JournalTrade Secrets – A Detailed Analysis of Domestic and Global ChallengesSSRN Electronic Journal, Vol. 45Louisiana Tax Sales: A Mystery UnraveledSSRN Electronic JournalSmitko v. Gulf South Shrimp, Inc.: Another Thread Unraveling the Efficacy of Suits to Quiet Tax Titles in LouisianaSSRN Electronic JournalSprawl in Canada and the United StatesSSRN Electronic JournalCash Holdings and Credit RiskSSRN Electronic JournalA Structured Approach to Calculating Reasonable RoyaltiesSSRN Electronic JournalShaming Trademark BulliesSSRN Electronic JournalDo Unto Others: The Importance of Better Compliance with Consular Notification RightsSSRN Electronic JournalA Structured Approach to Calculating Reasonable RoyaltiesSSRN Electronic JournalLitigation Trends in the Desegregation of Higher EducationSSRN Electronic Journal Volume 13Issue 1Feb 2009 Information© 2009 Mary Ann Liebert, Inc.To cite this article:Boyd Racing, LLC v. Fruge, 08-581 (La. App. 3 Cir. 11/05/08); 2008 La. App. LEXIS 1468.Gaming Law Review and Economics.Feb 2009.82-85.http://doi.org/10.1089/glre.2008.13110Published in Volume: 13 Issue 1: February 23, 2009PDF download

A Taxonomy of Privacy

A Taxonomy of Privacy

Beyond Lawrence: Metaprivacy and Punishment

Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian–Randy Barnett has called it the constitutionalization of John Stuart Mill’s On Liberty–and communitarian–William Eskridge has described it as the gay rights movement’s Brown v. Board of Education. It is simultaneously broad, in its evocation of our deepest spiritual commitments, and narrow, in its self-conscious attempts to avoid condemning laws against same-sex marriage, prostitution, and bestiality. This Article reconciles these competing claims on Lawrence’s jurisprudential legacy. In Part I, it defends the view that Lawrence constitutionalizes what I call “metaprivacy”: When societal consensus internalizes a breach of the historical legal divide between particular “conduct” and an associated “status,” punishment of that conduct cannot be based on moral approbation alone. The Article then, in Part II, harmonizes this view of Lawrence’s legacy with pre-Lawrence constitutional privacy doctrine and theory. Finally, in Part III, the Article applies this understanding of Lawrence interdoctrinally, to capital sentencing. The Article suggests that all that separates the impermissible moral judgments made by a legislature in prohibiting sodomy from the permissible—indeed, almost constitutionally required–moral judgments made during the sentencing phase of a capital trial is a preference for gays over other a priori criminals. Notwithstanding the obvious appeal of permitting such a preference, Lawrence provides no support for it. author. Law Clerk, Hon. Guido Calabresi, U.S. Court of Appeals for the Second Circuit; J.D., Yale Law School, 2005; A.B., Harvard College, 1999. I wish to thank Ursula Bentele, Manuel Berrelez, Guido Calabresi, John Coyle, William Eskridge, Zachary Katz, Jon Michaels, Elora Mukherjee, Jennifer Peresie, Laurence Schwartztol, and especially Daniel Markovits for their generous feedback and support. I owe a special debt to Brenda Greene, Perry Greene, and Talib Greene for their still more generous example. GREENE 6/20/2006 12:46:52 PM