The U.S. Constitution has been largely ignored in the recent flurry of privacy laws and regulations designed to protect personal information from incursion by the private sector despite the fact that many of these enactments and efforts to enforce them significantly implicate the First Amendment. Questions about the role of the Constitution have assumed new importance in the aftermath of the September 11, 2001 terrorist attacks on the World Trade Center and the Pentagon. Recent efforts to identify and apprehend terrorists and to protect against future attacks threaten to weaken constitutional protections against government intrusions into personal privacy. However, these efforts vividly demonstrate the value of information collected in the marketplace and the need for such information in the future. While there is some suggestion that the First Amendment may be a source of privacy rights applicable to the collection and use of personal information by the private sector, it is clear that the First Amendment restrains the power of the government to enact and enforce privacy laws that curtail expression. The precise extent of that restraint depends on a number of factors, not all of which have been clearly resolved by the Supreme Court. But, as the events of September 11 starkly remind us, the price of privacy may be very high indeed. Legislators, regulators, and prosecutors who ignore the First Amendment when considering privacy laws threaten not only our constitutional rights, but our safety as well.
Fred H. Cate & Robert Litan,
Constitutional Issues in Information Privacy,
Mich. Telecomm. & Tech. L. Rev.
Available at: http://repository.law.umich.edu/mttlr/vol9/iss1/2