65 Pages Posted: 17 Nov 2015 Last revised: 28 Apr 2016
Date Written: November 16, 2015
The government regularly outs information concerning people’s sexuality, gender identity, and HIV status. Notwithstanding the implications of such outings, the Supreme Court has yet to resolve whether the Constitution contains a right to informational privacy — a right to limit the government’s ability to collect and disseminate personal information.
This Article probes informational privacy theory and jurisprudence to better understand the judiciary’s reluctance to fully embrace a constitutional right to informational privacy. The Article argues that while existing scholarly theories of informational privacy encourage us to broadly imagine the right and its possibilities, often focusing on informational privacy’s ability to promote individual dignity and autonomy, there is a disconnect when courts attempt to translate those theories into workable doctrine. The extant theories are products of Fourth Amendment and decisional privacy law, and bear a more attenuated relationship to informational privacy problems, hindering recognition of the right.
This Article reorients and hones the focus of the purported informational privacy right toward what the Due Process Clause suggests as the right’s two principal and more concrete values: preventing intimate information from serving as the basis for potential discrimination and creating space for the formation of political thought. By so doing, not only is a more precise theory of informational privacy constructed, but instrumentally (and perhaps most importantly), courts will be more apt to recognize a constitutional informational privacy right thereby better insulating individuals from discrimination or marginalization.
Keywords: privacy, information privacy, discrimination, due process, HIV, sexuality, gender identity, transgender, first amendment, papers-to-pee, bathroom bills
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