University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 1991 Sunlight, Secrets and Scarlet Letters; The Tension Between Privacy and Disclosure in Constitutional Law Seth F. Kreimer University of Pennsylvania Carey Law School Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Common Law Commons, Constitutional Law Commons, Courts Commons, First Amendment Commons, Fourth Amendment Commons, Jurisprudence Commons, Legal Commons, and the Privacy Law Commons Repository Citation Kreimer, Seth F., "Sunlight, Secrets and Scarlet Letters; The Tension Between Privacy and Disclosure in Constitutional Law" (1991). Faculty Scholarship at Penn Law. 1409. https://scholarship.law.upenn.edu/faculty_scholarship/1409 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 140 NOVEMBER 1991 No. 1 ARTICLES SUNLIGHT, SECRETS, AND SCARLET LETTERS: THE TENSION BETWEEN PRIVACY AND DISCLOSURE IN CONSTITUTIONAL LAW SETH F. KREIMERt This is far more dangerous than McCarthyism. At least McCarthy was elected. 1 -Justice Clarence Thomas t Associate Professor of Law, University of Pennsylvania. I would be gravely remiss in failing to acknowledge with thanks the support, insight, advice, and encouragement I have received on this project from Michael Ausbrook, Ed Baker, Charles Bosk, Owen Fiss, Michael Fitts, George Fletcher, Nancy Fuchs-Kreimer, Frank Goodman, Howard Lesnick, Steven Morse, Gerry Neuman, Robert Post, and Linda Wharton. Able research assistance from Gus Arnavat and Sean Halpin aided my efforts immeasurably. Any errors of fact orjudgment, of course, remain my own. 1 Hearing of the Senate Judiciay Comm. on Thomas Supreme Court Nomination, FEDERAL NEws SERV., Oct. 11, 1991 available in LEXIS, Genfed Library, Nomine file [hereinafter Hearing on Thomas]. 2 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 140: 1 TABLE OF CONTENTS INTRODUCTION ............................................... 3 A. The Constitution in an Age of Information ............ 3 B. The Memory of McCarthyism ...................... 13 1. The Political Legacy ........................ 15 2. The Judicial Heritage ....................... 22 I. THE STING OF THE SCARLET LETTER: DISCLOSURE AS AN EFFECTIVE SANCTION ............................ 25 A. DoctrinalDoubts .............................. 26 1. The McCarthy Era ........................ 26 2. The Modern Split: The Necessity of Concrete Impacts .......................... 30 B. The Doubts Clarified and Allayed .................. 34 1. The Impact of Disclosures ................... 35 a. Disclosure as the Basis for Other Public Sanctions ................. 35 b. The Varieties of PrivateReactions ......... 39 i. Material Sanctions .............. 39 a. Violence ................ 39 b. Economic Sanctions ........ 42 ii. Social Sanctions ............... 51 2. The Significance of the Impacts .............. 54 a. The Import of PrivateActions ............ 54 b. The Constitutionally Protected Status of Social Pressure and the Constitutional Values of Privacy ............................ 62 II. IN PRAISE OF SUNLIGHT: THE ARGUMENTS FOR OPENNESS . 72 A. The Virtues of Knowing ........................ 73 1. Accurate Decision-Making on Public Issues ...... 73 2. You Can't Tell the Players Without a Scorecard: Consumer Protection in the Marketplace of Ideas . 78 B. The Virtues of Being Known: Purificationby Publicity ... 89 1. Liberalism and Disclosure ................... 91 a. Liberal Arguments for Disclosure .......... 91 b. Liberal Limits on Disclosure ............. 94 2. Authenticity, Virtue, and Community .......... 98 3. Common Ground ......................... 107 III. SEEKING SUNLIGHT AND AVOIDING SUNBURN: BALANCING AND ITS ALTERNATIVES .................. 108 A. Clean Answers That Abandon the Field ............. 110 1. The Doctrine of Waiver ................... 110 1991] SUNLIGHT, SECRETS, AND SCARLET LETTERS 2. "Words Aren't Laws"...................... 115 B. Clean Answers That Set Boundaries ............... 126 1. Intent as a Boundary ..................... 127 2. Boundaries Based on Character of Information .. 130 a. Constitutionally Shielded Activities ........ 131 i. Deterrent Effects ............. 131 ii. Privacy as an Element of the Right. 132 b. Intimate Information ................. 136 CONCLUSION: BACK TO BALANCING ................... 143 INTRODUCTION A. The Constitution in an Age of Information The night watchman state is dead in America, if indeed it ever lived. Modern American government, like governments elsewhere, has taken progressively greater responsibility for functions that previously had been left to the market or other social structures. In the late twentieth century, the bureaucrat-who dispenses benefits and licenses, who hires and fires, who plans health care programs or fiscal policy-has replaced the police officer, judge, or soldier as the icon of government. In the course of her job, the bureaucrat learns more intimate details about citizens than would the police officer or the judge. Implementation and .planning personnel have voracious appetites for information, and every license, benefit, or exemption makes the government privy to the details of a citizen's life. Information gathered in one arena is available for use in others. Similarly, the increasing rationalization and routinization of the private sector has generated stores of information potentially available to the government. Every employer accumulates information about her employees, every granter of credit files data about her customers, every transfer of funds leaves an increasingly accessible data trail, all of which is susceptible to government subpoena or request.2 The 2 See GARY I. MARX, UNDERCOVER: PoLicE SURVEILANCE IN AMERICA 208-11 (1988) (describing growth of data banks in credit card companies, insurance companies, and fimancial institutions and the efforts of government to take advantage of the fact that "[b]its of scattered information that in the past did not threaten individual's privacy and anonymity now can be joined" by matching programs). AT&T estimated in 1977 that it receives 100,000 subpoenas for toll call records annually from law enforcement agencies alone. See PRIVACYJ., Nov. 1987, at 2. The 4 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 140: 1 farther pieces of data stray from an origin in personalized interac- tion, the less incentive the holders of data have to resist government inquiry. Indeed, the government often intervenes to facilitate the s process by requiring private parties to compile records. These trends have been accentuated by changes in information technology. The capacities to gather, store, correlate, and retrieve data have increased by orders of magnitude, as both public and private data manipulation and storage has mushroomed. The ability to uncover and manipulate the "informational traces of citizens has exploded as government combines its own information with data 4 subpoenaed or scavenged from private sources. rate has doubtless increased since that time. See Jeffrey Rothfelder, Is Nothing Private?, Bus. WK., Sept. 4, 1989, at 74 (describing the 1987 Federal Bureau of Investigation (FBI) proposal to modernize the National Crime Information Center (NCIC) by linking the FBI criminal data banks with the computerized records of airline reservation systems, car rental companies, creditors, credit bureaus, insurance companies, and phone companies); John Shattuck, In the Shadow of 1984: National IdentificationSystems, Computer-Matching and Privacy in the United States, 35 HASTINGS L.J. 991 (1984) (noting the introduction of increasingly intrusive computer matching and identification systems). 3 See, e.g., Dole v. United Steelworkers, 110 S. Ct. 929 (1990). The Dole court noted: Typical information collection requests include tax forms, medicare forms, financial loan applications, job applications, questionnaires, compliance reports and tax or business records. These information requests share at least one characteristic: The information requested is provided to a federal agency, either directly or indirectly. Agencies impose the requirements on private parties in order to generate information to be used by the agency in pursuing some other purpose. For instance, agencies use these information requests in gathering background on a particular subject to develop the expertise with which to devise or fine-tune appropriate regulations, amassing diffuse data for processing into useful statistical form, and monitoring business records and compliance reports for signs or proof of nonfeasance to determine when to initiate enforcement measures. Id. at 933 (citations and footnote omitted); see also Chrysler Corp. v. Brown, 441 U.S. 281, 285 (1979) ('The expanding range of federal regulatory activity and growth in the Government sector of the economy have increased federal agencies' demands for information about the activities of private individuals and corporations."). 4 See DAVID H. FLAHERTY, PRIVACY AND GOVERNMENT DATA BANKS, AN INTERNATIONAL PERSPECTIVE 258-59,266-67,271-76 (1979); GOVERNMENT INFOSTRUC- TURES: A GUIDE TO THE NETWORKS OF INFORMATION RESOURCES AND TECHNOLOGIES AT THE FEDERAL,