Constitutional Issues in Information Privacy

30 Pages Posted: 9 Oct 2001  

Fred H. Cate

Indiaan University Maurer School of Law; Indiana University

Robert E. Litan

Ewing Marion Kauffman Foundation; AEI-Brookings Joint Center for Regulatory Studies

Date Written: September 2001


The U.S. Constitution has been largely ignored in the recent flurry of privacy laws and regulations designed to protect personal information from incursion by the private sector, despite the fact that many of these enactments and efforts to enforce them significantly implicate the First Amendment. Questions about the role of the Constitution have assumed new importance in the aftermath of the September 11 terrorist attacks on the World Trade Center and the Pentagon. Efforts to identify and bring to justice the perpetrators and to protect against future terrorist attacks, while threatening to weaken constitutional protections against government intrusions into personal privacy, demonstrate vividly the value of information collected in the marketplace and the need for such information in the future.

While there is some suggestion that the First Amendment may be a source of privacy rights applicable to the collection and use of personal information by the private sector, it is clear that the First Amendment restrains the power of the government to enact and enforce privacy laws that curtail expression. The precise extent of that restraint depends on a number of factors, not all of which have been clearly resolved by the Supreme Court. But, as the events of September 11 starkly remind us, the price of privacy may be very high indeed. Legislators, regulators, and prosecutors who ignore the First Amendment when considering privacy laws do so at their - and our - peril.

JEL Classification: L5, K3

Suggested Citation

Cate, Fred H. and Litan, Robert E., Constitutional Issues in Information Privacy (September 2001). AEI-Brookings Joint Center Working Paper No. 01-11. Available at SSRN: or

Fred H. Cate

Indiaan University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States
(812) 855-1161 (Phone)

Indiana University ( email )

107 S Indiana Ave
100 South Woodlawn
Bloomington, IN 47405
United States
8128551161 (Phone)

Robert E. Litan (Contact Author)

Ewing Marion Kauffman Foundation ( email )

4801 Rockhill Road
Kansas City, MO 64110
United States

AEI-Brookings Joint Center for Regulatory Studies

1150 17th Street, N.W.
Washington, DC 20036
United States

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