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Privacy Rights in the Digital Age

Unenumerated constitutional right, privacy as an

by Lawrence M. Friedman

The established principle that, although the term privacy is found nowhere in the text of the U.S. Constitution, the concept of privacy has a firm foundation in U.S. constitutional law. Privacy is defended as implicit in the constellation of rights and liberties protected by the Constitution and as a necessary corollary to the exercise of many of those rights and liberties. In general, constitutional privacy is recognized in two distinct, but connected, forms: First is the privacy related to freedom from unwanted intrusion in autonomous decision making; second is the privacy related to freedom from unwanted disclosure of personal information. The former is known as decisional privacy, the latter as information privacy. Both concern what famously has been described as the “right to be let alone.”

Decisional privacy

The modern origins of decisional privacy may be traced to a U.S. Supreme Court case called Griswold v. Connecticut, 381 U.S. 479 (1965). The case involved a challenge to a law that made it more difficult for married couples to obtain contraception. In the lead opinion, Justice William O. Douglas reasoned that individuals enjoy a “zone of privacy” recognized by the various provisions of the Bill of Rights: the First Amendment, which protects anonymous speech and association; the Third, which protects the sanctity of the home; the Fourth, which expressly protects from unwarranted government intrusion in an individual's home, person, and effects; and the Fifth, which protects the right to remain silent during a criminal investigation. Despite expressing doubts about this understanding of privacy, the Court's majority agreed that the Constitution protects a right to decide whether to bear or beget a child without governmental interference.

In Roe v. Wade, 410 U.S. 113 (1973), the Court confirmed that, regardless whether there exists a “zone of privacy” or whether due process protects an individual's interest in autonomous decision making about intimate matters, a woman has a constitutional right to determine whether she will bear a child, at least in the first trimester of pregnancy. A plurality of the Court modified Roe in Planned Parenthood v. Casey, 505 U.S. 833 (1992). The Casey plurality held that, prior to the viability of an unborn fetus, a woman has the right to terminate her pregnancy, and the state legitimately may regulate abortion to preserve its interests in maternal and fetal health as long as that regulation places no undue burden on a woman's right to choose.

In a more recent case, Lawrence v. Texas, 539 U.S. 558 (2003), a majority of the Court broadly stated that the due process clauses of the Fifth and Fourteenth Amendments protect individuals from “unwarranted government intrusions into a dwelling or other private places” and preserve “an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” This understanding of constitutional privacy limits government interference in personal decision making related to intimate matters such as procreation, marriage, family relationships, and child rearing.

When a law is alleged to undermine decisional privacy interests, courts approach the government's justification for the law critically, often demanding at least a compelling reason for the intrusion. Nonetheless, history shows courts have been sensitive to the legitimate needs of state and local governments to regulate various activities and conduct to promote the health, safety, and welfare of the citizenry, and thus have sought to limit constitutionally protected decisional privacy interests to those that are not only embedded in the nation's history and legal traditions but are also considered to be, as the Supreme Court put it, “implicit in the concept of ordered liberty” (Washington v. Glucksberg, 521 U.S. 702 (1997)).

Information privacy

In contrast to decisional privacy, information privacy concerns the interest of individuals in controlling access to, and dissemination of, information about themselves and their activities. This kind of privacy has been valued as necessary to the formation and maintenance of the personal and commercial relationship, as well as the informed exercise of decisional privacy rights. The Fourth Amendment notably protects individuals from the unwarranted search and seizure by the government of “persons, houses, papers, and effects,” but outside the context of criminal investigations, no enumerated right protects personal information from disclosure to the government.

In two cases, the U.S. Supreme Court has suggested that a constitutional right to information privacy exists. In Whalen v. Roe, 429 U.S. 589 (1977), the Court assumed that individuals possess a constitutionally based interest “in avoiding disclosure of personal matters” to the government. The case involved a challenge to a state law requiring that the names and addresses of persons who had obtained certain legal pharmaceuticals be recorded. The Court concluded that, assuming the existence of a constitutionally protected interest in the nondisclosure of this kind of information, that interest was not abridged by a law requiring the disclosure of such information as part of modern medical practice.

In a more recent decision, National Aeronautics and Space Administration v. Nelson, 131 S. Ct. 746 (2011), the Court again assumed that the Constitution protects an individual's interest in the nondisclosure of certain personal information to the government. On the facts of the case—which involved a challenge to portions of a government background check—the Court concluded there was no constitutional violation. The Court held the government's interests “as employer and proprietor in managing its internal operations,” combined with the federal statutory protection afforded personal information in the government's possession, mitigated any threat to an individual's interest in not disclosing personal information.

Although the Constitution does not enumerate a right to privacy per se, the Supreme Court has held that individuals have a constitutional interest in decisional privacy when it comes to certain intimate matters. The Court has also assumed that, in an appropriate case, individuals may have a constitutionally protected interest in not being compelled to disclose personal information to the government. Clarification of the scope of this interest awaits further judicial attention.

Further Reading

1 

Fried, Charles. “Privacy.” Yale Law Journal 77 (1968): 475.

2 

Rubenfeld, Jed. “The Right to Privacy.” Harvard Law Review 102 (1989): 737.

3 

Warren, Samuel, and Louis Brandeis. “The Right to Privacy.” Harvard Law Review 4 (1890): 193.

4 

Westin, Alan F. Privacy and Freedom. New York: Atheneum, 1967.

See also: Douglas, William Orville; Fifth Amendment to the U.S. Constitution; First Amendment to the U.S. Constitution; Fourth Amendment to the U.S. Constitution; Griswold v. Connecticut; Lawrence v. Texas;; Right to be let alone; “The Right to Privacy”; Supreme Court of the United States; Washington v. Glucksberg

Citation Types

MLA 9th
Friedman, Lawrence M. "Unenumerated Constitutional Right, Privacy As An." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0218.
APA 7th
Friedman, L. M. (2016). Unenumerated constitutional right, privacy as an. In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.
CMOS 17th
Friedman, Lawrence M. "Unenumerated Constitutional Right, Privacy As An." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed May 30, 2026. online.salempress.com.