Approximately thirty years ago, Sogen Kato became involved in an argument with his relatives, and then retreated into his bedroom to sleep. He never came out. Evidently none of the family members who shared his apartment went in to disturb him. This past July, after Kato ostensibly became Tokyo’s oldest living man, Japanese government officials sought to contact him to congratulate him on his longevity. After being given the run-around by his nervous relatives as to his availability, government officials eventually showed up at Kato’s apartment and discovered his mummified remains in the bedroom. His reprehensible relatives, who collected more than $100,000 in pension benefits in Kato’s name during his “lifetime,” are in very hot water.
The constitutional right to information privacy is the law’s equivalent of Sogen Kato. It has been thirty-three years since the Supreme Court hinted that such a right exists under the Constitution, and the Court has been as silent as Kato in the interim about this subject. The lower courts have had much more to say, with most circuit courts holding definitively that the Constitution protects a right to informational privacy and developing multi-part tests to determine when it has been infringed. The D.C. Circuit has expressed skepticism about whether the constitutional right lives on, and the Sixth Circuit has held that until the Supreme Court says otherwise, the constitutional right to information privacy is dead. On October 5, the U.S. Supreme Court is going to be opening the bedroom door, and considering oral argument in its first constitutional right to information privacy case in a generation, NASA v. Nelson.
In Nelson the Court will take up the issue of whether the constitutional right to information privacy prohibits the Jet Propulsion Laboratories (JPL) from asking open-ended questions about whether longtime JPL employees have done anything that might reflect negatively on their ability to continue performing their jobs. My view of Nelson, which I develop at much greater length in Reunifying Privacy Law (forthcoming in the California Law Review), is that the Court ought to hold in Nelson that there is no such thing as a constitutional right to information privacy. My primary basis for concluding that the constitutional right ought to simply go away is that the constitutional right to information privacy is largely redundant with privacy tort law. Because the Solicitor General decided not to argue that the Supreme Court should follow the Sixth Circuit’s approach, the briefs in Nelson have largely ignored the question of what happens if the Court holds that this constitutional right should disappear. But it would be very fruitful for the Justices to ask counsel hard questions along these lines next month. The answer in Nelson itself appears to be that abolition of the constitutional claim would leave the plaintiffs with robust remedies under tort law.
Let us begin with some case background on Nelson. The plaintiffs represent a class of JPL scientists, engineers, and administrators who are classified by NASA as “low risk” employees because their jobs “do not involve policymaking, major program responsibility, public safety, duties demanding a significant degree of public trust, or access to financial records with significant risk of causing damage or realizing personal gain.” Under new federal regulations, even longtime JPL employees were to be subjected to background checks in which government agents would ask employees, their references, their prior employers, and their landlords questions about whether they had used drugs or undergone treatment or counseling for drug addiction in the last year; whether they had used abusive language, been involved in personality conflicts, developed mental, emotional, psychological, or psychiatric issues, or had engaged in sex acts that might subject them to blackmail. In addition, third parties would be asked whether they knew anything, good or bad, about the JPL employees that would be relevant to their ability to work for the government.
The district court denied the plaintiff’s request for an injunction, but the Ninth Circuit reversed with respect to the government’s inquiries about drug treatment (as opposed to drug use) and open-ended “investigation[s] of the most private aspects of class members’ lives.” While the court held that the government’s inquiries into its employees’ backgrounds were legitimate, it applied intermediate scrutiny and held that the government’s investigations were not narrowly tailored to further these legitimate interests.
It turns out that the harms alleged by the plaintiffs in Nelson were remediable under tort law. California, where the JPL is located, is somewhat unique in that privacy tort law has largely merged with state constitutional privacy law. The California Constitution has a privacy clause that lacks a state action requirement. If you look at the state constitutional cases, you see results largely consistent with the Ninth Circuit’s ruling in Nelson. For example, in 1986 the California Supreme Court held in Long Beach City Employees Association v. City of Long Beach that requiring public employees to submit to polygraph testing in order to investigate a specific crime violated the employees’ privacy rights under the state constitution. Similarly, another 1991 intermediate appellate court case, Soroka v. Dayton Hudson Corporation, held that Target’s use of a psychological profiling device that required job applicants to answer questions about their religious beliefs and sexual orientation, violated the applicants’ rights under the state Constitution. Such acts, which violate the state constitution, almost certainly qualify as tortious intrusions upon seclusion under California tort law as well. A suit by Nelson against JPL thus would be able to proceed via the Federal Torts Claims Act, which waives sovereign immunity in cases involving tortious invasions of privacy. So held the Ninth Circuit in a 2000 case called Nurse v. United States.
If a winning tort claim exists, is there any reason why the law should recognize a redundant constitutional claim as well? Perhaps. We can imagine circumstances where having overlapping causes of action are desirable. If a police officer clubs a political dissident to prevent him from making an unpopular speech, it is a tort as well as a First Amendment violation. But most First Amendment violations will not be torts. By contrast, for reasons I explore here virtually all infringements of the constitutional right to information privacy will be either tortious intrusions upon seclusion or tortious public disclosures of private facts. As it happens, the common law courts have developed a sensible framework for deciding whether an invasion of privacy amounts to a tort. The applicable frameworks for deciding whether the government’s conduct violates the constitutional right to information privacy are by no means sensible. Courts commonly apply a seven-factor test, the overlap of the seven factors results in inevitable double-counting, and the results that emerge under the framework are very difficult to predict ex ante.
To be sure, the constitutional right to information privacy is not completely redundant. There are some jurisdictions outside California where suing the state for tortious invasions of privacy is impossible because of sovereign immunity or the weakness of state tort law protections. But the desire to fill these occasional gaps in the law, or an interest in helping plaintiffs recover attorney’s fees, hardly justifies the development of a convoluted body of constitutional law. Rather, the jurisdictions at issue should simply consider whether they ought to change their state tort claims acts and substantive tort provisions to deal with serious injuries that might otherwise go unremedied.
For more reading on NASA v. Nelson, see Dan Solove’s posts here (arguing that the Court should recognize a constitutional right to information privacy), and here (addressing the merits), as well as Eugene Volokh’s discussion of the implications of the Ninth Circuit’s holding here.
Cross-Posted at Prawfsblawg.