Abstract
The term informational privacy doesn’t make an appearance in a Supreme Court opinion until the early twenty-first century. In looking back, one can readily discern its relevance to early cases, even to those decided in the eighteenth century. To employ the term to talk about the Bill of Rights, however, is to engage in conceptual anachronism, for although informational privacy is pertinent to the words of the Fourth Amendment—i.e., persons, houses, papers, and effects—it’s pertinent as well to non-tangible data whose existence the framers couldn’t have anticipated (and that early twentieth-century judicial opinions assumed to be constitutionally unprotected). In this chapter and those that follow, we consider the doctrinal framework created by the Court’s mid-twentieth-century opinions. Privacy now looms as a category important in itself—indeed, as a category more important in some respects than the category (property) from which it emerged. This chapter examines the approach to interpretive supplementation employed in late twentieth-century cases that have made informational privacy a critically important category in modern constitutional law.
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- 1.
The Court introduced the term into case law in NASA v. Nelson, 562 U.S. 134, 144 (2011).
- 2.
Entick v. Carrington, 19 Howell State’s Trials 1029, 1044 (1765).
- 3.
See supra note 1.
- 4.
J.G. Lemaistre, A Rough Sketch of Modern Paris 236 (1802).
- 5.
Theodore Hook, Sayings and Doings (Second Series) 574 (1838).
- 6.
Henry James, Jr., Daisy Miller: A Study 93 (1878).
- 7.
George Orwell, 1984 6–7 (Signet Classics ed. 1950 [1949]).
- 8.
Writing to an American union leader shortly after 1984’s publication, Orwell stated: “My recent novel is NOT intended as an attack on Socialism or the British Labour Party (of which I am a supporter) but as a show up of the perversions to which a centralized economy is liable and which have already been partly realized in Communism and Fascism.” As quoted in John Rodden and John Rossi, The Cambridge Companion to George Orwell 85 (2012).
- 9.
See Section 605 of the Federal Communications Act of 1934, 48 Stat. 1064.
- 10.
For discussion of the Roosevelt administration’s use of wiretapping for national security purposes, see Daniel Solove, “Reconstructing Electronic Surveillance Law,” 72 George Washington Law Review 1264, 1274 (2004).
- 11.
See David Garrow, The FBI and Martin Luther King, Jr.: From “Solo” to Memphis, Chapter 4 (1980).
- 12.
See supra note 10, at 1274.
- 13.
Commonwealth v. Chaitt, 176 Pa. Superior Ct. 318, 328 (1954).
- 14.
As quoted in Samuel Dash, The Eavesdroppers 9 (1959).
- 15.
Ben H. Bagdikian, “Big Brother Is Listening,” 237 The Saturday Evening Post 183 (1964).
- 16.
See Christopher Bates, “Univac,” in James Ciment, ed., Post-War America: An Encyclopedia of Social, Political, Cultural, and Economic History 268 (2006).
- 17.
As quoted in George Lardner, “Data Center Warned on Privacy,” Washington Post, July 27, 1966 A1.
- 18.
For discussion of mid-twentieth century FBI electronic surveillance of Martin Luther King and other dissidents, see Betty Medsger, The Burglary: The Discovery of J. Edgar Hoover’s Secret FBI (2014).
- 19.
In the wake of revelations about electronic surveillance of domestic dissidents, Congress adopted Title III of the Omnibus Crime Control Act of 1968, discussed infra at note 21 and accompanying text. Congress also adopted the Foreign Intelligence Surveillance Act of 1978, 92 Stat. 1783, which made possible legislative oversight of government surveillance of communications coming into and out of the United States.
- 20.
The Katz facts are reported in the Ninth Circuit opinion for the case. See Katz v. United States, 369 F.2d 130 (CA9, 1967).
- 21.
According to Peter Winn, the Court initially split four to four on this question. See his “Katz and the Origins of the ‘Reasonable Expectation of Privacy’ Test,” 40 McGeorge Law Review 1 (2009).
- 22.
See Berger v. New York, 388 U.S. 41, 48 n. 5 (1967) for a tally of states that had adopted, as of 1967, restrictions on electronic surveillance.
- 23.
82 Stat. 197 (1968).
- 24.
Stewart’s only citation to Griswold was to a portion of Justice Black’s dissent in the case. See 389 U.S. 350 n. 4, citing 381 U.S. 479, 509 (Black, J., dissenting).
- 25.
For discussion of Taft’s Olmstead remarks, see supra Chapter 7, notes 50–2 and accompanying text.
- 26.
“[T]he Fourth Amendment cannot be translated into a general constitutional ‘right to privacy.’ That Amendment protects individual privacy against certain kinds of government intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental intrusion. But the protection of a person’s general right to privacy—his right to be let alone by other people—is, like the protection of his property and of his very life, left largely to the law of the individual States” (389 U.S. at 350–51).
- 27.
Id. 353.
- 28.
“There can be no doubt that the Framers were aware of this practice [i.e., eavesdropping], and if they had desired to outlaw eavesdropping, I believe that they would have used the appropriate language to do so in the Fourth Amendment” (Id. 366 (Black, J., dissenting)).
- 29.
Id. 352.
- 30.
For discussion of Scalia’s comments on the constitutional status of handwritten letters, see supra Chapter 3, notes 18–20 and accompanying text.
- 31.
See Ex Parte Jackson, 96 U.S. 727, 733 (1877).
- 32.
Id. 351–2.
- 33.
Id. 361 (Harlan, J., concurring).
- 34.
The Court incorporated them into doctrine in Rakas v. Illinois, 439 U.S. 128, 143 n. 12 (1978).
- 35.
Benjamin Franklin, Poor Richard’s Almanac (1735), reprinted in The Oxford Dictionary of Quotations 211 (2nd ed. 1959).
- 36.
Whalen v. Roe, 429 U.S. 589, 598–605 (1977).
- 37.
See, e.g., Nixon v. Administrator of General Services, 433 U.S. 425, 457 (1977); United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 770–1 (1989); and NASA v. Nelson, 562 U.S. 134, 144 (2011).
- 38.
429 U.S. at 599–600.
- 39.
For evidence that members of the founding generation entertained this premise, see supra Chapter 2, notes 2–6 and accompanying text.
- 40.
429 U.S. at 605.
- 41.
Id. 607 (Brennan, J., concurring).
- 42.
Id. 604 n. 32.
- 43.
See 88 Stat. 1896 (1974).
- 44.
429 U.S. at 598–9.
- 45.
Id. 606.
- 46.
Id. 605.
- 47.
Scholars of the common law, influenced by the Brandeis article, expressed interest in the concept of private facts throughout the early twentieth century. See, e.g., William Prosser’s discussion of tort liability for “public disclosure of embarrassing private facts” in his “Privacy,” 48 California Law Review 383, 389 (1960).
- 48.
Id. 607–8 (Stewart, J., concurring), citing Katz, 389 U.S. at 350–1.
- 49.
Smith v. Maryland, 442 U.S. 735, 744 (1979).
- 50.
Id. 748 (Stewart, J., dissenting).
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Heffernan, W.C. (2016). Chapter 10: Unobtrusive Supplementation: Katz, Whalen, and the New Era of Informational Privacy. In: Privacy and the American Constitution. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-43135-2_11
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