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The Yale Law Journal

Vol. 82: 1462, 1973

means something other than that which happens in private places, a Fourth Amendment rationale is inadequate to protect it.78

Both the Griswold doctrine and the narrower doctrines which go to make it up reflect the Supreme Court's concern with the protection of individual privacy, and all of them help to protect privacy to some extent. But each fails to provide an adequate concept of the nature of privacy: how it arises, and what its characteristics are. Until the Court can say what privacy is, at least in conceptual terms, constitutional protection of privacy will be haphazard.

IV

Although the First Amendment analysis of the public disclosure tort generates a conception of privacy which comes closer than the conceptions of current tort and constitutional law to describing what privacy is and to making it susceptible to the application of legal doctrine, the claim which results is limited. The analysis discovers only a constitutional interest in privacy, not a constitutional right to have it protected in all cases. It does not yield a "First Amendment right to privacy" which can be placed next to the constitutional privacy rights which already exist.79

The first drawback to asserting the interest as a "right" is the narrow boundary within which it can be applied. It arises only within the constitutional structure of a free expression system. And in every case of public disclosure, the publisher has access to free expression claims which also serve the system. Since the individual's privacy is secured only at the expense of the free speech right of the publisher, it cannot grow too large. The First Amendment privacy interest is only in preventing the identification of an individual with information published,

78. This proposition might appear to be contradicted by Katz v. United States, which extended protection to a public telephone booth. But the Court held that Katz was protected against being overheard in a public telephone booth because he “justifiably relied" on the booth to protect his privacy; in other words, he temporarily constituted a private space from an apparently public one. Id. at 352-53. The distinction is made clearer in United States v. White, 401 U.S. 745 (1971), in which the Court held that Katz did not apply to an informer who takes a concealed transmitter into a suspect's home. Though the suspect obviously relied on the privacy of his home in talking to the informer, the Court found his reliance unreasonable. Id. at 753. Under the Fourth Amendment, privacy seems to depend on what one ought to expect about the characteristics of one's surroundings. If, on the other hand, the Court in White was considering privacy to be the control of information about oneself, its holding means that limited dissemination of information about oneself is unprotected; if you tell one person, everyone has a right to know. But recall Fried's discussion of the value of being able to limit the sharing of private information, note 61 supra.

79. For a summary of the Court's many constitutional privacy rights, see Roe v. Wade, 93 S. Ct. 705, 726-27 (1973).

Privacy in the First Amendment

and even then only after weighing the net effect on the free expression

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83

The second drawback is a state action problem. Since it is a private publisher who most often threatens to infringe individual privacy through a publication, the individual probably cannot assert his constitutional claim against that publisher directly; 81 he must rely on the indirect protection of a common law tort suit,82 after the offending publication. Moreover, not all states recognize a public disclosure tort in their common law; 84 in those which do not, the individual would have no mechanism at all through which to assert his claim for protection. A "First Amendment right to privacy" would thus depend for its existence on state courts or legislatures, a situation which the Court-if it were to recognize the "right" at all-would be unlikely to find satisfactory.85

Though a First Amendment analysis does not by itself justify the enforcement of a constitutional right to privacy, it nevertheless underscores the weaknesses of existing constitutional privacy doctrine. The analysis directs attention to the one form of privacy which the law, both common and constitutional, has so far been unable to protect successfully: the non-corporeal, non-quantifiable right to control of information about oneself, based on the content of the information rather

80. See pp. 1470-72 supra.

81. If a state agency is the publisher, presumably the publication is state action. See, e.g., Burton v. Wilmington Parking Authority, 365 U.S. 715, 721-26 (1961). In that event, the individual could assert his First Amendment rights against the state directly, claiming state inhibition of his freedom of decision-making.

82. If the public disclosure tort were codified in state statute, it might be argued that a refusal by state courts to enforce the resulting state right of privacy might itself be sufficient state action to create federal jurisdiction. At present, however, the public disclosure tort exists only at common law. See generally W. PROSSER, THE LAW OF TORTS § 117, at 809-12 (4th ed. 1971).

83. Nothing in this discussion is intended to suggest the propriety of a prior restraint of the publisher. Cf. Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971); Near v. Minnesota, 283 U.S. 697 (1931). See also New York Times Co. v. United States, 403 U.S. 713 (1971).

The individual's dependence on state laws to protect his federal constitutional rights is less startling than it seems; even the right to free speech depends to an extent on state laws prohibiting, for example, assault and battery. If a speaker were not protected by state law against being pummeled every time he opened his mouth, or if a newspaper or radio station could not use state law to prevent its equipment from being destroyed by a displeased audience, freedom of speech and of the press would be effectively curtailed.

84. The number of states which recognize something like a public disclosure tort is uncertain. See note 3 supra. Some states, however, explicitly refuse to do so. New York, for example, has consistently refused to recognize such a right since the decision of Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.Ë. 442 (1902); instead the state legislature passed a statute, N.Y. Civ. RIGHTS LAW §§ 50, 51 (McKinney 1948), which more nearly fits the pattern of an appropriation tort. See Prosser, supra note 1, at 401. Cf. Time, Inc. v. Hill, 385 U.S. 374, 411-20 (1967) (Fortas, J., dissenting).

85. Cf. Rosenblatt v. Baer, 383 U.S. 75, 84 (1965), citing Pennekamp v. Florida, 328 U.S. 331, 335 (1946).

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The Yale Law Journal

Vol. 82: 1462, 1973

than the circumstances of its escape from one's control. Furthermore, the analysis suggests how privacy in that form might be integrated into a system of constitutional rights. The focus on the importance for privacy of information qua information, without regard to whether its content is specifically sexual or not, is perhaps the distinguishing contribution to privacy analysis of the First Amendment approach.

A First Amendment analysis of privacy teaches that an application of First Amendment guarantees exclusively to speakers will not adequately protect a free expression system; decision-makers must be sheltered, too. For the protection of privacy, the analysis yields a constitutional interest which cannot always be vindicated because it must compete with conflicting constitutional interests arising from the same logic. Yet it is the nature of privacy to be entangled with other social interests and values; 86 privacy in law cannot be less entangled with and compromised by other legal goals. The First Amendment analysis of privacy makes these entanglements and compromises explicit.

86. See, e.g., Simmel, supra note 58.

Law School of Harvard University

Cambridge, Mass. 02138

July 9, 1974

Senator Sam J. Ervin
Chairman, Committee on
Government Operations

United States Senate
Washington, D. C. 20510

Dear Senator Ervin:

Your letter of June 25 concerning S. 3418 and related bills dealing with privacy arrived at a time when I am too heavily committed on other matters to undertake a detailed analysis of the proposed legislation. This I very much regret, since I am most interested in the subject matter.

I enclose a copy of an article on the subject which
I published in the May, 1971, issue of the Texas Law Review.
I regret that I cannot possibly do more at this time.

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TEXAS LAW REVIEW

VOLUME 49

MAY 1971

Copyright 1971 By Texas Law Review, Inc.

NUMBER 5

THE DIMINISHING RIGHT OF PRIVACY: THE PERSONAL DOSSIER AND THE COMPUTER

VERN COUNTRYMAN⭑

Unreliability and abuse in data collection, and the irreducible
danger of illegal access to the growing, computerized personal
data files of private and public agencies, Professor Country-
man argues, pose control problems that defy conventional
regulation. He urges that preservation of privacy demands
sweeping congressional reevaluation of society's need for such
files and suggests that those not serving “an actual need for a
vital public purpose" be done away with.

The compiling of dossiers on individuals is not new in this country. The Federalists doubtless compiled dossiers on real and suspected Jacobins during the enforcement of the first Alien and Sedition Acts. After the prosecutions of suspects were completed, however, or at least when the Alien and Sedition Acts were repealed, those dossiers were apparently discarded.

As our numbers have increased and our society grown more complex, we have recognized ever more reasons-political, social, and economic-why one man has a "legitimate" interest in the affairs of another. For example, a company that contemplates extending credit to, insuring or employing John Doe asserts a "legitimate" interest in knowing something about his economic condition and often some of his other characteristics also. Responding to this asserted interest, an entire industry has developed to supply the needed information. And, because it is not efficient for a new compilation to be initiated every

• Professor of Law, Harvard University; B.A., University of Washington, 1939; LL.B., University of Washington, 1942. This article is derived from the fourth annual Orgain Lecture, delivered at the University of Texas Law School in March, 1971.

The Will E. Orgain Lectureship was established by the family and friends of the late Mr. Orgain as an endowment fund through the University of Texas Law School Founda tion. The annual lectureship consists of a single lecture on a subject related to law delivered by a distinguished scholar.

838

TEXAS LAW REVIEW

[Vol. 49:837 time a new need arises, this industry maintains permanent dossiers on each of its subjects-dossiers whose final entries probably reflect not the death of the subjects, but the closing of the probate of their estates. Law enforcement agencies also profess a "legitimate" interest in compiling dossiers on suspected law violators. Here again, efficiency is interposed as a justification for maintaining the dossiers even after the case is closed.

Since World War II it has become fashionable to utilize a variety of prophylactic measures both to identify potential criminals before crimes are committed and to frustrate supposed intentions of potential criminals. These efforts include various loyalty programs, a bewildering variety of laws defining sedition and other political crimes, and the antics of legislative committees. To meet the "legitimate need" for the protection of government, many government agencies have gone into the business of compiling dossiers on the political beliefs, expressions, and associations of all those characterized as "subversive." Here, too, it is more efficient that these dossiers be permanent.

But the demands of that outstanding of all American virtuesefficiency-do not end here. Just as it is efficient for any one dossier compiler to maintain a permanent record on each subject, it is inefficient for another compiler not to utilize previous compilations. The drive for efficiency has inexorably led to a considerable interchange of data between compilers both within the generous limits allowed by law and sometimes beyond those limits.

The computer has further facilitated the quest for efficiency. With its endless capacity to store data and to regurgitate it with lightninglike speed, it is inefficient not to use the computer to combine the various dossiers compiled on each individual. If the present trend continues, the day will come when the push of a button will produce a complete "data profile" on each citizen, from his departure from the womb (or perhaps sometime earlier) to some time after he enters his tomb. While we cannot yet predict the precise arrival of this glorious day, there is enough available information to indicate the actuality of this trend and to provoke every concerned citizen to demand more information about and more protection against this development.

I. PRIVATELY COMPILED DOSSIERS

Within the private sector, the compilation of data on individuals is most frequently undertaken for profit, although the motivation is

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