Privacy Law and Policy Reporter
The US Supreme Court has handed down a decision which may make it slightly less likely that information privacy legislation by a US State (or federal legislation) will be held unconstitutional on the basis that it conflicts with First Amendment protections of freedom of speech. However, it also indicates the types of constitutional difficulties that any US information privacy law will face.
The decision upheld by a majority (Stevens and Kennedy JJ dissenting) an amendment to a California law. The amendment required that a person requesting the address of an arrested person from a California law enforcement agency must declare (with penalties for false declarations) that the information is being used for one of five prescribed purposes (a ‘scholarly, journalistic, political or governmental purpose, or ... for investigation purposes by a licensed investigator’) and will not be used directly or indirectly to sell a product or service.
Until the California law was amended as described above, United Publishing’s business included obtaining the names and addresses of recently arrested individuals from California State agencies, and providing that information to its customers, who included attorneys, insurance companies, drug and alcohol counsellors, and driving schools. United Publishing therefore sought to have the amendment declared unconstitutional.
The constitutional challenge was dismissed by a majority of the Court, but primarily on narrow technical grounds concerning ‘facial attack’ (who has standing to sue in a First Amendment challenge to legislation on the grounds of its effect on others) that did not go to the substance of the issues. However, the majority judges’ reasons for refusing to allow a facial attack included that the amendment:
... is not an abridgment of anyone’s right to engage in speech, be it commercial or otherwise, but simply a law regulating access to information in the hands of the police department. ... This is not a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses.
The dissenting judges agreed that California could decide not to give out arrestee information at all, or could ‘release the information on a selective basis to a limited group of users who have a special, and legitimate, need for the information’. However, they thought that this case presented a more difficult situation ‘when the State makes information generally available but denies access to a small disfavoured class ... solely because they intended to use the information for a constitutionally protected purpose’. In their view this was unconstitutional discrimination because it was based on the desire to prevent the information being used for commercial speech purposes (a constitutionally protected purpose). The problem here was that the ‘vague criteria’ on which access was allowed (particularly the allowance of ‘journalistic’ purposes) undermined any rational argument that the purpose of the amendment was the protection of privacy.
The decision is interesting for a number of reasons.
It will be very interesting to see what US privacy experts and constitutional lawyers consider are the implications of the case, particularly for privacy legislation affecting the private sector.
Graham Greenleaf, General editor.