Systematic Government Access to Private-Sector Data in the United States II: The US Supreme Court and Information Privacy

Privacy and Security and Innovation and Economic Growth

Article Snapshot


Fred H. Cate and Beth Cate


Bulk Collection: Systematic Government Access to Private-Sector Data, Fred H. Cate and James X. Dempsey, eds., Oxford University Press, pp. 193-218, 2017


The United States Supreme Court uses the term privacy in different ways. In conflicts between privacy and free speech, free speech tends to prevail. The Court’s Fourth Amendment rulings are inconsistent with the Court’s rulings on privacy under the Freedom of Information Act.

Policy Relevance

The Supreme Court’s view of privacy allows the government to use enormous amounts of data without Constitutional safeguards.

Main Points

  • The United States Supreme Court uses the term “privacy” in three distinct contexts, including:
    • Cases involving reproduction, marriage, education, and other fundamental liberties;
    • Fourth Amendment cases involving authorities’ attempts to access information when the consumer reasonably expects that the information will remain private;
    • Cases involving an individual’s interest in avoiding “disclosure of personal matters,” even when the information has been disclosed to third parties.
  • The Supreme Court recognizes that protection of privacy can support rights of free speech and freedom of association; for example, the Court ruled that a law requiring the NAACP to disclose its membership lists threatened the members’ freedom of association.
  • Privacy rights may conflict with free speech rights.
    • The Court ruled that the government may limit publication of information such as the names of a juvenile offenders only if the restriction is narrowly tailored to serve a compelling government interest.
    • The Court ruled that a Vermont law restricting the use of prescription data in marketing was unconstitutional, because it was not narrowly tailored and motivated in part by government disapproval of marketing.
  • One key limit on rights of privacy protected by the Fourth Amendment is the “third party doctrine,” that is, the rule that an individual’s information is not protected if the individual has shared that information with a third party, such as a bank.
  • Some Justices express concern that rapid changes in technology will require changes in how the Fourth Amendment is applied.
    • Generally, the police may search an individual when he is arrested.
    • The Court has ruled that the right of search “incident to arrest” does not allow the police to examine the contents of the individual’s cell phone without a warrant.
  • The Supreme Court has ruled that the press may not use the Freedom of Information Act (FOIA) to access FBI “rap sheets” derived from data collected from many public sources, because of individuals’ privacy interests.
  • The Supreme Court's privacy rulings are not consistent.
    • The Court acknowledges that the meaning of "privacy" under FOIA is not the same as "privacy" under the Fourth Amendment or tort law.
    • The Court's Fourth Amendment cases are not consistent with other constitutional privacy cases.
    • The Court's view of privacy is at odds with popular perceptions of privacy.
  • The Court's view of privacy threatens to allow government intrusions into vast collections of personal information without protection from the Fourth Amendment.

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