Moving from Nixon to NASA: Privacy's Second Strand--A Right to Informational Privacy

TABLE OF CONTENTS INTRODUCTION I. A BARE AND CONFUSING DOCTRINE A. The Supreme Court Pre-2011 1. Whalen v. Roe 2. Nixon v. General Services Administrator B. The Supreme Court Speaks After Thirty Years in NASA v. Nelson II. The Nature of Informational Privacy A. Data Traits Conceal Harm from Judicial Detection B. Weakened Data Privacy Erodes Citizen-State Relations III. Any Role for NASA? A. NASA as Forming a Trilogy B. Resulting Flawed Balancing Test 1. The Individual's Interest 2. The Government's Interest C. Displacing Nixon: NASA as Forming a Sequel CONCLUSION INTRODUCTION Without her knowledge, a government clerk's blood is tested for HIV and pregnancy. (1) A police department asks an applicant about her off-duty sexual activities and for the name of the father of her miscarried child. (2) A public school posts a former employee's case of fibromyalgia on the internet and permits newspapers to broadcast the report. (3) Although data privacy (4) litigation and policy issues are increasing, (5) there is no consensus among the circuits as to the underlying privacy rights. They disagree broadly over which privacy interests are constitutionally protected, how to determine which interests are protected, and whether a right to informational privacy exists at all. (6) The Second, Third, Fifth, Seventh, and Ninth Circuits recognize a right to informational privacy and balance it against the state's interest; (7) the Sixth Circuit holds that the right only protects intrusions upon fundamental interests or those implicit in the concept of ordered liberty; (8) and the District of Columbia Circuit questions the existence of a constitutional right to privacy. (9) Thirty years ago, the Supreme Court began to parse privacy interests and recognize an interest in nondisclosure of personal information in Whalen v. Roe, a case addressing a state's collection of citizen medical records. (10) This opinion was followed months later by another informational privacy case as the issue of whether the federal government could take custody of President Nixon's papers and screen the papers for archival purposes reached the Court in Nixon v. General Services Administrator. (11) After these two cases, the Court fell into a long silence on the issue. However, in 2011, the Supreme Court decided a third case on the right to informational privacy when it considered the constitutionality of the 9/11 Commission's recommended background checks of federal contractors in NASA v. Nelson (12) In the intervening decades between Nixon and NASA, the circuits became increasingly divided in their data privacy jurisprudence. These divisions are not surprising given the scant guidance the Court provided in its initial foray into information privacy law. In both Whalen and Nixon the Court ruled in favor of the state, thereby avoiding setting a benchmark where protection for a right to nondisclosure might begin. NASA presented an opportunity for the Court to confront foundational questions in information privacy law and democratic governance. However, the Court again assumed that a privacy right of constitutional significance was implicated and concluded that the government did not violate the right. These overarching similarities make it seem as though NASA merely replicates the Court's previous exiguous approach, bringing into question the legal impact of the case. This Article examines the Supreme Court's information privacy jurisprudence, describing the complex characteristics of data and connecting these characteristics to the litigants' interests and the Court's difficulty in assessing those interests. The Article compares Whalen, Nixon, and NASA and finds that NASA is caught between conflicting precedents. Understanding NASA as responding to such a conflict leads to two principal interpretations of NASA's legal impact. These competing interpretations create different accounts of privacy law, which in turn suggest strikingly different consequences for the future of privacy law. …