Privacy and the First Amendment

The following excerpt is taken from the Communications of the ACM (Association for Computing Machinery), August 2000. A longer version was published in The Future of Financial Privacy by the Competitive Enterprise Institute, 1001 Connecticut Avenue NW, Washington DC 20036. An even longer version, originally published in the Stanford Law Review, is available at http://www.law.ucla.edu/faculty/volokh/privacy.htm.

People constantly learn information about us: They see what we do, what we buy, and what we look at. If they know who we are, they can record this information under our name. If we engage in computerized transactions with them, such recording becomes very easy, as does combining this information with still other information that is tied to our names. If the transactions are personalized--if we voluntarily turn over information about ourselves that facilitates our business arrangement--then they will have even more information to record. And once they've recorded this information, they can sell it to others.

A lot of people don't like this. To be more specific, a lot of people don't like to have others learn information about themselves; they are usually quite happy to learn information about others, and sometimes resent it when legal barriers block them from learning such information. Nonetheless, many believe we should have a legal right to "control information about ourselves."

Current Law

Do we currently have such a legal right? The answer, as is usual in the law, is "sometimes."

First, the law protects our physical privacy in a variety of ways. The Fourth Amendment limits the government's power to search us, our homes, and our papers. Trespass law imposes even broader limits on the power of private parties to break into our homes and go through our papers. Computer trespass laws generally bar people from accessing our computers without our authorization.

All these may properly be called "privacy" rules, but they limit only others' ability to learn things about us by accessing our property. They do not limit others' ability to communicate things they have lawfully learned about us.

Second, the Supreme Court has suggested the Bill of Rights may prevent the government from revealing certain potentially embarrassing information that it might have about us; our medical histories, for example. This is closer to a right to information privacy, but it is limited in a critical way: Like virtually all other constitutional rights, it applies only to the government's actions. Whatever rights we might have against our business partners, none of these rights flows from the Constitution.

Third, a few laws genuinely do aim to stop certain private parties from disclosing certain information about people. Federal laws bar cable companies and video stores from disclosing information about customers' viewing habits. State professional-licensing laws bar lawyers, doctors, and other professionals from revealing certain confidential information learned from the relationship. These laws, though, apply to only a narrow range of revelations; none of them stops a business (either an e-business or a bricks-and-mortar business) from revealing which kinds of food, shoes, or books you bought from it.

Contracts Protect Information Privacy

People's search for legal protection of their information privacy cannot rely on some currently existing, broad "right to privacy"; American law just does not recognize such a thing. On the other hand, information privacy does get considerable protection from a source that to some is unexpected--the law of contract.

Contracts are tools for you and your business partners to make your own law for your own transactions. If you have a great new product idea and you tell it to me, there'd be nothing illegal in my revealing it to the whole world, even if you would lose a lot of money as a result. But if I promise to keep it secret, then my revelation becomes a breach of contract and opens me up to a damages lawsuit. By our contract, we have given you a right to insist that I keep certain information private.

Likewise, a customer and a seller can create a sort of right of privacy, if the seller promises not to communicate data about the customer, or promises to communicate it only under certain conditions. In a hotly competitive economy many companies would be happy to attract more customers by promising privacy. And such a privacy contract doesn't require any special formalities, like a signature on paper; if a business says "We promise to keep your data private," and people act in reliance on that promise, that promise becomes a binding contract.

Of course, some businesses may breach their contracts, but the law offers significant remedies. Customers can file a lawsuit, and can often ask the Federal Trade Commission (FTC) or other regulatory bodies to take action on their behalf. Moreover, the scandal created by a lawsuit can cause businesses more loss than the lawsuit itself would.

Expanding Information Privacy Law

So that's what the law is today; but what should it be?

To begin with, legislators could strengthen the protections offered by contract law. Most importantly, they can define default privacy-protection rules; for instance, they can say that sellers of medical supplies implicitly promise not to reveal information about their customers, unless they explicitly and prominently disclaim this default provision.

Congress could impose mandatory information-privacy rules that go beyond what parties explicitly or implicitly promised. To take an extreme example, Congress might bar any person from communicating any information about another's purchases or other transactions without the subject's permission.

Is it permissible, however, for Congress to do this? After all, there's another term for "barring any person from communicating any information about . . ."--and that's a speech restriction.

This is clearest if we start with one application of this hypothetical law: a newspaper reporting that someone--a politician or celebrity, perhaps--was seen buying some product or engaging in some transaction. The newspaper is communicating information about another's commercial transaction, and it's doing so for money. But stopping the newspaper from publishing such stories raises First Amendment problems.

To begin with, it's pretty clear that such sweeping information-privacy rules can't be justified on the grounds that "they don't restrict speech, they restrict only the sale of information." Speech often is the sale of information--consider The Wall Street Journal or Encyclopedia Britannica, the contents of which are fully constitutionally protected against government suppression.

Nor can information-privacy speech restrictions be defended on the grounds they merely create a "property right in personal facts." Under current intellectual-property and free-speech law, facts about people are owned neither by the subject nor by their gatherer; they are "free as the air to the common use." And that's a good thing--suppression of facts, whether done in the name of intellectual property or otherwise, is a troubling matter.

But isn't information about people's transactions of relatively low constitutional value? Isn't it something that's really not of legitimate public interest? After all, "Volokh bought a lawnmower" isn't "We hold these truths to be self-evident." It isn't commentary on political issues, or debate about high philosophy. Shouldn't we balance the rather modest constitutional value of this speech against the important interests supporting suppression of this speech?

This is a powerful point--but before we urge the legal system to accept it, we should think about all its implications. This, after all, is exactly the argument made in favor of the Communications Decency Act (CDA), which the Supreme Court struck down in 1997. Sexually themed speech (whether you call it "pornography" or "art"), the CDA's proponents argued, isn't really that constitutionally valuable, and the right to communicate such speech had to be balanced against the government's interests.

Similar arguments were made for a ban on flag-burning, which the court also struck down. Although it is politically themed, it's hardly of the highest constitutional value. If such expression were excluded from public discourse, the Republic wouldn't fall. Plenty of people have urged that the right to engage in such speech should be restricted.

If the Court were to accept the notion that personal information is of "low constitutional value," this would provide powerful precedent for further restrictions on other categories of speech which some (including some Justices) are prepared to call "low value." Conversely, if we think even pornography, profanity, and nonrational vituperation are speech, and as such deserve protection under the free-speech clause, we might ask why the same wouldn't apply to (accurate) speech about our neighbors' behavior, habits, and purchases.

The Value of Information

Information about what others are doing often can be of significant value. Sometimes, it can even be of political relevance--when it discusses the behavior of political figures, for example. In Europe, where the government generally has more power to restrict speech than it does in the United States, there is already talk about forbidding journalists from publishing supposedly "private" information about public officials' sexual affairs. I wouldn't care about such facts in deciding whether to vote for someone, but other voters might, and in a democracy the media shouldn't be gagged from informing them about it.

At other times, information about people can be valuable to us in our daily lives. Consider when someone--in the media or not--reveals that one of our acquaintances has a criminal record, or a bad credit history. Should we trust that acquaintance in business? Should we trust him to watch our children? We can't decide unless we're informed. Why should government have the power to ban people from speaking this information?

The experience of the private-facts tort is illustrative. Several cases have actually held that newspapers can be punished for revealing people's criminal pasts, even if the revelations are entirely accurate.

For instance, in one case a court held that a publication could be held liable for running a story that revealed that a particular person had committed an armed robbery 11 years before. Naming the criminal, the court said, served no "public purpose" and was not "of legitimate public interest." The person was "rehabilitated" and had "paid his debt to society." "[W]e, as right-thinking members of society, should permit him to continue in the path of rectitude rather than throw him back into a life of shame or crime" by revealing his past.

But appealing as the court's rhetoric might sound, there's considerable danger in the government deciding which speech is of "legitimate public interest" and which isn't, or which things "right-thinking members of society" would want to know and which only the wrong-thinking ones would care about. Maybe we shouldn't assume that someone who committed armed robbery 11 years before might still be dangerous. Maybe we ought to forgive and forget. But in a free society, we are entitled to decide this for ourselves.

And if we, and not the government, should be the ones who decide what is said and what is listened to about people's criminal records, perhaps the same should apply to other speech.

Perhaps certain kinds of speech--speech about someone's food or clothing purchases, for instance--aren't of legitimate interest. But freedom-of speech principles should be understood as leaving it to speakers and listeners to decide what information they should find interesting, and as denying the legal system the power to make this decision for us.

Unintended Consequences

More importantly, even if a narrow restriction on speech about a person's innocent shopping habits might do more good than harm, the danger with accepting any legally enforced system of control over factual information is that it may eventually go far beyond its roots.

Accepting the notion that certain facts may be suppressed because they are of "low value" or because they lack "legitimate public interest" creates a precedent in favor of broader suppression of other speech that determined to be of "low value."

One can argue that courts should carve out a new First Amendment exception to justify such restrictions, and perhaps the courts will be sympathetic to such arguments. But there are costs to such new exceptions.

In a legal and political system built on precedent and analogy, one speech restriction can easily lead to other, broader ones. Relying on admittedly imperfect contractual protections may ultimately prove to be the safer bet.

Eugene Volokh is professor of law at UCLA School of Law.