On July 8, in noting NTEU’s lawsuit over the OPM hack, I had questioned the suit’s claim that the government breach constituted a violation of their “constitutional right to informational privacy.”
Jennifer E. Canfield of Montgomery McCracken Walker & Rhoads LLP also picked up on that claim, and writes:
But does a “constitutional right to informational privacy” even exist? The alleged right stems from NASA v. Nelson, 562 U.S. 134 (2009), Whalen v. Roe, 429 U.S. 589 (1977) and Nixon v. Administrator of General Services, 433 U.S. 425 (1977). In NASA, federal contractors alleged a violation of the constitutional right to informational privacy, challenging the government’s right to collect certain background data (including data from forms NTEU alleges were hacked).
The majority in NASA explained that while there is no specific right to “privacy” guaranteed by the Constitution, the Supreme Court has “referred broadly to a constitutional privacy interest in avoiding disclosure of personal matters.” 562 U.S. at 138 (citations and quotation marks omitted). Citing Whalen and Nixon, the NASAmajority “assume[d] for present purposes that the Government’s challenged inquiries implicate a privacy interest of constitutional significance.” Id. at 147 (emphasis added). It held: “[I]n light of the protection provided by the Privacy Act’s nondisclosure requirement, and because the challenged portions of the forms consist of reasonable inquiries in an employment background check, we conclude that the Government’s inquiries do not violate a constitutional right to informational privacy.” Id. at 159.
Justice Scalia, joined by Justice Thomas, concurred in the judgment, but called out the majority for not resolving the case on a more basic ground: “A federal constitutional right to ‘informational privacy’ does not exist.” Id. at 160 (Scalia, J. concurring). He explained: “Like many other desirable things not included in the Constitution, ‘informational privacy’ seems like a good idea—wherefore the People have enacted laws at the federal level and in the States restricting government collection and use of information. But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them.” Id. at 159-60.
Read more on Montgomery McCracken Data Privacy Alert.