Special Project+ Privacy

Article excerpt

Privacy has long been a matter of particular concern in the minds of Americans. Indeed, privacy concerns were at the crux of the American Revolution. The earliest days of colonial life saw creation of laws protecting the individual against eavesdropping, and the sanctity of one's home.1 The Bill of Rights also reflects privacy interests.2 As America grew, technological advances in the dissemination of information caused public demands for protection of privacy rights; contemporary debates echo these demands.3 For example, as early as the Civil War, telegraph-tapping technologies emerged. Soon afterward, Congress sought to obtain certain messages directly from Western Union. This resulted in debate in both public fora and the halls of Congress over the sanctity of personal communications.4 A familiar pattern has emerged over decades. Although there have been slight variations in the privacy debate, the fundamental tension has always been among the needs of the government, the desire of the public to consume information through mass media, and the right of an individual to her private world.

In today's rapidly advancing technological age, it seems as though privacy has increasingly fallen by the wayside. From private personal information stolen by hackers, to information lost through careless transfer online (and sometimes even openly disclosed by private entities or the government), today's newspapers are full of stories about the loss of personal privacy in the Information Age.5 The ubiquity of information today has certainly brought the privacy of individuals into the forefront of the national consciousness. Today, there exist hundreds of different laws pertaining to privacy.6

Against this background, policymakers, academics, and the public continue to examine these centuries-old questions regarding whether Americans have a constitutional right to privacy. If so, where in the Constitution is the specific source of that right? If not, to what extent should privacy be protected by statute or common law? These questions remain unanswered to any satisfactory degree. Looking back, however, it seems that the Framers intended some form of constitutional protection of privacy. How much protection they intended and whether their goal has been accomplished remain elusive.7 As a result, definitions and sources of a right to privacy continue to vary widely among scholars, the judiciary, and the public in general.8

Louis Brandeis and Samuel Warren were the first scholars to describe privacy as a systemic legal right.9 Their seminal article grounded a right to privacy in the Constitution.10 As this article gained recognition, privacy rights became accepted as part of American constitutional law. At its most basic, this right was simply conceived as "the right to be left alone;" from that concept two primary branches of privacy rights developed, physical privacy and decisional privacy.11

The idea of a right to "informational privacy" has more recently emerged as a branch of the right to privacy12 Constitutional doctrine and the common law have been slow to respond to claimed invasions of informational privacy-when private information that one gives out to third parties such as a health care provider, a bank, or the government is stolen, misused, or wrongfully disclosed.13 The rapid advancements of the technological age, which add to the already unfilled holes in privacy rights law, have only resulted in more questions for the courts to answer.

This Special Topic issue of the Vanderbilt Law Review explores the right to privacy from several angles. The first Note examines the Health Insurance Portability and Accountability Act's ("HIPAA's") Privacy Rule, an attempt by Congress to restrict sharing of an individual's private medical records to the minimum disclosure necessary for the functioning of the health care system. HIPAA's intent to address current privacy concerns is laudable, but the author points out that the unavailability of a private right of action presents a classic enforcement problem. …