The Elusive Constitutional Right to Informational Privacy

52 Pages Posted: 29 May 2020

See all articles by Larry J. Pittman

Larry J. Pittman

University of Mississippi - School of Law

Date Written: 2019

Abstract

Today, at any moment, many Americans are subject to having their private information stolen or otherwise used without their consent. This Article will discuss the specifics of a constitutional right to informational privacy theory, and a civil lawsuit remedy for the unauthorized governmental use of one's private information. The Fourth Amendment is the most logical constitutional source for this privacy theory; and, a governmental entity, to justify its unauthorized use of private information, must satisfy the strict scrutiny standard by showing a compelling governmental interest that cannot be satisfied by a less intrusive alternative.

As a part of this discussion, this Article will review the Supreme Court's substantive due process standards and show how they have changed such that the Court is less bound to a strict historical analysis of an asserted liberty interest. To further this due process analysis, this Article will review some of the Court's Fourth Amendment cases, which show that the Fourth Amendment is the most logical constitutional source to support a constitutional right to informational privacy.

The Article also contains a detailed analysis of the Court's major opinions in this area of the law and argues that the Court, contrary to assertions in its most recent opinion on this subject, has previously held that there is a constitutional right to informational privacy. This Article also contains a detailed discussion of federal circuit courts of appeals' opinions, which show that most federal circuit courts give a broader interpretation to the Court's precedent than the Court does itself, and that these circuit courts are providing more leadership in holding that there is a constitutional right to informational privacy. And, this Article will conclude that the broad approach that some of the federal circuit courts have taken is the preferable approach, and that the Fourth Amendment and strict scrutiny should be used to evaluate a constitutional right to informational privacy claim.

Keywords: Fifth Amendment, Fourteenth Amendment, Liberty Interest, Fourth Amendment, Constitutional Right to Informational Privacy, Constitutional Privacy, Informational Privacy, Fourth Amendment, Privacy, Constitution

Suggested Citation

Pittman, Larry J., The Elusive Constitutional Right to Informational Privacy (2019). Nevada Law Journal, Vol. 19, No. 1, 2019, Available at SSRN: https://ssrn.com/abstract=3344908

Larry J. Pittman (Contact Author)

University of Mississippi - School of Law ( email )

P.O. Box 1848
481 Chucky Mullins Drive
Oxford, MS 38655
United States

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