A. Michael Froomkin
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532. Andresen v. Maryland, 427 U.S. 463, 470-71 (1976) (holding that business records are outside the Fifth Amendment privilege) (quoting United States v. White, 322 U.S. 694, 701 (1944)). Back to text
533. "Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial." United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990) (citations omitted). Back to text
534. Fisher v. United States, 425 U.S. 391, 399 (1976) (citations omitted). Back to text
535. See, e.g., Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 459 & n.22 (1977) (noting that the most personal of documents are entitled to special protection). The protection is from subpoenas only, not search warrants. Back to text
536. The required records doctrine came into full flower in Shapiro v. United States, 335 U.S. 1, 32-33 (1948), which upheld a subpoena for incriminatory records that were required under a wartime price control statute. Later cases made clear, however, that there are limits to the government's power to define records as "required" and hence outside the protections of the Fifth Amendment. See Marchetti v. United States, 390 U.S. 39, 48-49 (1968) (holding that a registration requirement violated the Fifth Amendment because it materially increased the chances of prosecution); Grosso v. United States, 390 U.S. 62, 64-67 (1968) (holding that a statute requiring the reporting of, and payment of an excise tax on, earnings from wagering violated the Fifth Amendment because it was inherently self-incriminatory). Other cases have cast doubt on the firmness of these limits. See, e.g., California v. Byers, 402 U.S. 424, 434 (1971) (plurality opinion) (requiring that a hit-and-run motorist identify himself). One thing beyond dispute, however, is that the government needs a court order to get access to required records. Because the point of a mandatory key escrow scheme would be to get access to the keys without a court order, the required records exception is irrelevant. Back to text
537. 116 U.S. 616 (1886). Back to text
538. Id. at 627-28. Back to text
539. Id. at 632. Judge Friendly criticized this statement as "ringing but vacuous" because it "tells us almost everything, except why." Henry J. Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L. Rev. 671, 682 (1968). Back to text
540. 417 U.S. 85 (1974). Back to text
541. Id. at 91 (quoting Couch v. United States, 409 U.S. 322, 327 (1973)). Back to text
542. See Samuel A. Alito, Jr., Documents and the Privilege Against Self-Incrimination, 48 U. Pitt. L. Rev. 27, 29 (1986) (examining the new framework used by the Supreme Court in applying the Fifth Amendment privilege against self-incrimination to compulsory process for documents); Note, Formalism, Legal Realism, and Constitutionally Protected Privacy Under the Fourth and Fifth Amendments, 90 Harv. L. Rev. 945, 964-85 (1977) (detailing the modern approach to the Fourth and Fifth Amendments). Back to text
543. See United States v. Doe, 465 U.S. 605, 613-14 (1984) (finding that the act of producing the documents at issue would involve testimonial self-incrimination, and that requiring such production therefore violated the Fifth Amendment); Fisher v. United States, 425 U.S. 391, 398-99 (1976) (holding that requiring relinquishment of the documents at issue was not a Fifth Amendment violation because no testimonial incrimination was compelled); see also Doe, 465 U.S. at 618 (O'Connor, J., concurring) (contending that "the Fifth Amendment provides absolutely no protection for the contents of private papers of any kind").
In Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549, 561 (1990) (holding that a mother could not invoke her Fifth Amendment privilege against a court order to produce the child she had allegedly abused), the Supreme Court, analogizing the mother's care of the child to a required record, held that producing a child was not testimonial, and therefore the Fifth Amendment did not apply. Id. at 556-60. In light of this decision it is fair to ask whether the Fifth Amendment applies to anything other than oral testimony. Back to text
544. See, e.g., Braswell v. United States, 487 U.S. 99, 109-10 (1988) (holding that a custodian of corporate records may not withhold them on the grounds that such production will incriminate him in violation of the Fifth Amendment); Andresen v. Maryland, 427 U.S. 463, 472-73 (1976) (holding that a legal search of the petitioner's office resulting in the seizure of voluntarily recorded business records authenticated by a prosecution witness was not a violation of the Fifth Amendment); Bellis v. United States, 417 U.S. 85, 101 (1974) (holding that a dissolved law partnership had its own institutional identity, and its records were held in a representative capacity; therefore a grand jury subpoena for those records could not be ignored on Fifth Amendment grounds); United States v. White, 322 U.S. 694, 698-99 (1944) (holding that an officer of an unincorporated labor union could not refuse, based on Fifth Amendment [**PAGE 836**]protections, to produce the union's records); Hale v. Henkel, 201 U.S. 43, 56-58 (1906) (holding that a witness who, because of statutory immunity, cannot invoke the Fifth Amendment as to oral testimony cannot invoke it against the production of books and papers). Back to text
545. See Couch v. United States, 409 U.S. 322, 335-36 (1973) (holding that petitioner had no legitimate expectation of privacy when she handed her papers over to her accountant); Bellis, 417 U.S. at 92-93 (same, when papers were handed to a partner in a small law firm). The attorney-client privilege is an exception to this general rule. Back to text
546. See supra note 536 (discussing Shapiro v. United States, 335 U.S. 1 (1948). Back to text
547. See Gilbert v. California, 388 U.S. 263, 266-67 (1967). This rule has also been applied to voice samples, see United States v. Wade, 388 U.S. 218, 222-23 (1967), and blood samples, see Schmerber v. California, 384 U.S. 757, 767 (1966). Back to text
548. See Johnson v. Eisentrager, 339 U.S. 763, 771, 782-83 (1950); cf. United States v. Tiede, 86 F.R.D. 227, 259 (D. Berlin 1979) (holding that friendly aliens have Fifth Amendment rights when charged with civil offenses in a U.S. court outside the territory of the United States). U.S. citizens abroad, however, do have Fifth Amendment rights. See Reid v. Covert, 354 U.S. 1, 5 (1957) (rejecting the idea that "when the United States acts against citizens abroad it can do so free of the Bill of Rights"). Back to text
549. See LaFave & Israel, supra note 524, § 8.12, at 701-02. Back to text
550. Marchetti v. United States, 390 U.S. 39, 48 (1968) (holding that requiring a frequent gambler to report illegal gambling income created a reasonable basis for fear of incrimination). Back to text
551. 401 U.S. 601 (1971). Back to text
552. See id. at 606. Back to text
553. Recall that for the purposes of this discussion "chip key" means either the hardwired chip's unique key in a Clipper Chip (which can lead the government to the encrypted session key buried in a LEAF) or the information needed to decrypt the equivalent information generated by a software package. Back to text
554. See Hoffman v. United States, 341 U.S. 479, 486 (1951) (noting that a witness's response is incriminating if it might furnish a link in the chain of evidence needed to prosecute). Back to text
555. See, e.g., Doe v. United States, 487 U.S. 201, 208 n.6 (1988) (noting that a communication does not become privileged just because "`it will lead to incriminating evidence'" (quoting In re Grand Jury Subpoena, 826 F.2d 1166, 1172 n.2 (2d Cir. 1987) (concurring opinion))). Back to text
556. That at least was Justice Harlan's view in Griswold v. Connecticut, 381 U.S. 479, 499-500 (1965) (Harlan, J., concurring) (stating that privacy derives not from penumbras in the Bill of Rights, but from fundamental ideas of ordered liberty); cf. Roe v. Wade, 410 U.S. 113, 152 (1973) (relying on penumbras in the Bill of Rights). Back to text
557. For a taxonomy of taxonomies, see Tribe, supra note 434, § 15-1, and Ken Gormley, One Hundred Years of Privacy, 1992 Wis. L. Rev. 1335, 1340. For an argument that the three strands of the right to privacy are actually inimical to each other, at least in the eyes of their advocates on the Supreme Court, see generally David M. Smolin, The Jurisprudence of Privacy in a Splintered Supreme Court, 75 Marq. L. Rev. 975 (1992). Back to text
558. See supra parts III.A-C. Back to text
559. See, e.g., Hampton v. Mow Sun Wong, 426 U.S. 88, 103 (1976) (holding the federal government's denial of a resident alien's right to work unconstitutional under the Fifth Amendment); Lamont v. Postmaster General, 381 U.S. 301, 305 (1965) (invalidating, under the First Amendment, a statutory requirement that persons wishing to receive "communist propaganda" identify themselves to the post office); Shelton v. Tucker, 364 U.S. 479, 490 (1960) (striking down a statute requiring teachers at state-supported schools and colleges to list every organization they had joined during the prior five years); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958) (holding that the NAACP had the right to refuse to disclose its membership list on behalf of its members' rights to prevent the State from compelling them to reveal their affiliation with the group); see also, e.g., John H. Ely, Democracy and the Right to Be Different, 56 N.Y.U. L. Rev. 397, 405 (1981) (arguing that the right to be different is not constitutionally protected, but that the lack of protection is not a problem because the right generally will be invoked by those who do not need protection). Back to text
560. See supra part III.D. Back to text
561. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); see also Stanley v. Georgia, 394 U.S. 557, 564 (1969) (finding a constitutional right to "receive information and ideas, regardless of their social worth"). Back to text
562. Whalen v. Roe, 429 U.S. 589, 598-99 (1977) (acknowledging the existence of the right, but finding that it could be overcome by a narrowly-tailored program designed to serve the state's "vital interest in controlling the distribution of dangerous [prescription] drugs"); see Gary R. Clouse, Note, The Constitutional Right to Withhold Private Information, 77 Nw. U. L. Rev. 536, 547-57 (1982) (collecting and dissecting inconsistent circuit court cases dealing with the right to withhold private information). The right to be left alone, however, is insufficiently compelling to prevent a large number of physical intrusions to bodily integrity when the police seek forensic evidence relating to a criminal investigation. See Tribe, supra note 434, at 1331 nn.4-11 (collecting cases); supra note 546 (same). Back to text
563. See, e.g., Francis S. Chlapowski, Note, The Constitutional Protection of Informational Privacy, 71 B.U. L. Rev. 133, 155 (1991) (concluding that because most theories of personhood assume personal information is a crucial part of a person's identity, there must be a recognized "right to informational privacy based on personhood" and that information is property protected by the Fifth Amendment); Clouse, supra note 562, at 541-47 (tracing the development of the right to informational privacy, and noting the Supreme Court's use of a balancing test to determine whether an individual's [**PAGE 840**]constitutional rights have been infringed by a government-mandated disclosure of information). Back to text
564. 429 U.S. 589 (1977). Back to text
565. See id. at 593, 603-04. Back to text
566. Id. at 598. Back to text
567. See id. at 601-04. Back to text
568. An extreme statute, requiring broad data collection combined with a requirement that reports be available to the public, was held unconstitutional in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986). What limits there might be to data collection and the safeguards required against disclosure were issues left open in Whalen: "We . . . do not[] decide any question which might be presented by the unwarranted disclosure of accumulated private data--whether intentional or unintentional--or by a system that did not contain comparable security provisions." 429 U.S. at 605-06. Back to text
569. 429 U.S. at 605. Back to text
570. Paul v. Davis, 424 U.S. 693, 713 (1976); see also Roberts v. United States Jaycees, 468 U.S. 609, 618-22 (1984) (describing types of "personal bonds" and relationships entitled to heightened constitutional protection); Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977) (plurality opinion) (recognizing a right to choose which relatives to live with); Roe v. Wade, 410 U.S. 113, 152 (1973) (protecting the reproductive decisions of women); Doe v. Bolton, 410 U.S. 179, 197-98 (1973) (recognizing the right to make reproductive decisions without interference from a hospital committee); Eisenstadt v. Baird, 405 U.S. 438, 452-55 (1972) (protecting the procreative decisions of unmarried opposite-sex couples); Loving v. Virginia, 388 U.S. 1, 12 (1967) (endorsing the right to engage in an interracial marriage); Griswold v. Connecticut, 381 U.S. 479, 482-86 (1965) (establishing the right of married opposite-sex couples to make procreative decisions); Poe v. Ullman, 367 U.S. 497, 551-54 (1961) (Harlan, J., dissenting) (arguing that the Constitution protects the procreative decisions of married opposite-sex partners); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (recognizing the right not to be sterilized); Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (holding that parents have the right to determine the schooling of their children); Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923) (recognizing a parental right to determine what language children may learn); Kenneth L. Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 637-38 (1980) (arguing that divorce--the freedom of disassociation--is a fundamental privacy right). Back to text
571. See Cleveland v. United States, 329 U.S. 14, 18-20 (1946) (rejecting an argument that polygamous practices should be excluded from the prohibitions of the Mann Act); Reynolds v. United States, 98 U.S. 145, 165-67 (1878) (rejecting a First Amendment challenge to a statute forbidding polygamy). Both decisions remain good law. Back to text
572. See supra note 570 and accompanying text (discussing cases defining zones of privacy). In addition, many states have laws prohibiting adultery that remain on the books. These laws are not currently enforced, but there is reason to believe that if they were enforced they could survive a constitutional challenge based on privacy principles. See Commonwealth v. Stowell, 449 N.E.2d 357, 360 (Mass. 1983) (rejecting constitutional attack against a Massachusetts adultery statute). But see Martin J. Siegel, For Better or for Worse: Adultery, Crime & the Constitution, 30 J. Fam. L. 45, 58-86 (1991/1992) (arguing that laws criminalizing adultery are unconstitutional). Back to text
573. 478 U.S. 1039 (1986). The Supreme Court refused to extend the vision of privacy set out in the cases above to protect the sexual choices of an unmarried same-sex couple in Bowers and did so in a way that casts doubt on the entire strand of privacy protection for intensely personal and intimate associations. Professor Tribe describes the decision in Bowers as erroneous and unprincipled and predicts that it[**PAGE 842**]will not be followed. See Tribe, supra note 434, § 15-21. For a thoughtful reformulation of privacy doctrines after Bowers, see Rubenfeld, supra note 4, at 750-807. Back to text
57450. See Planned Parenthood v. Casey, 112 S. Ct. 2791, 2824-33 (1992) (allowing certain state restrictions on abortion); Rust v. Sullivan, 500 U.S. 173, 196 (1991) (allowing government to ban the use of federal public funds for abortions and related activities). Back to text
575. On the psychological and moral importance of allowing individuals to make voluntary choices in matters vitally affecting them, see Bruce J. Winick, On Autonomy: Legal and Psychological Perspectives, 37 Vill. L. Rev. 1705, 1755-68 (1992); see also Bercu, supra note 90, at 402-03 (asserting that "information privacy is essential to our development and self-fulfillment as individuals"). Back to text
576. Tribe, supra note 434, § 15-21. Back to text
577. See, e.g., Planned Parenthood, 112 S. Ct. at 2831 (striking down a statutory provision that required spousal notification prior to abortion, but upholding the statute's informed consent and reporting requirements), overruling Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) (invalidating the informed consent and reporting requirements of a statute restricting abortions). Back to text
578. E-mail also allows people to meet and exchange ideas, thus increasing their chances of forming lasting relationships. See Steve Lohr, Therapy on a Virtual Couch, N.Y. Times, Aug. 28, 1994, at C7 (interviewing psychiatrist and novelist Avodah Offit). Indeed, in a few cases e-mail apparently has become a substitute for sex, as some of Dr. Offit's patients have consulted her about their "E-mail love relationships." Id. Back to text
579. But see Lovisi v. Slayton, 539 F.2d 349, 351-52 (4th Cir.) (en banc) (holding that a marital couple's right to bring a privacy challenge to a conviction under a Virginia sodomy statute was waived due to the presence of an invited third party), cert. denied, 429 U.S. 977 (1976). The majority conceded, however, that the Lovisis "would [have] remain[ed] protected in their expectation of privacy" if they had only spoken or[**PAGE 843**]written about their activities to third parties. Id. at 351. Back to text
580. The even thornier problem of the intimate, international, interspousal e-mail is beyond the scope of this Article. The question is complex because it will turn on the citizenship of the parties, their location, and other factors. Back to text
581. "Certain intimate personal documents--a diary is the best example--are like an extension of the individual's mind. They are a substitute for the perfect memory that humans lack. Forcing an individual to give up possession of these intimate writings may be psychologically comparable to prying words from his lips." Alito, supra note 542, at 39. Back to text