Special Project+ Privacy

Privacy has long been a matter of particular concern in minds of Americans. Indeed, concerns were at crux of American Revolution. The earliest days of colonial life saw creation of laws protecting individual against eavesdropping, and sanctity of one's home.1 The Bill of Rights also reflects interests.2 As America grew, technological advances in dissemination of information caused public demands for protection of rights; contemporary debates echo these demands.3 For example, as early as 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 halls of Congress over sanctity of personal communications.4 A familiar pattern has emerged over decades. Although there have been slight variations in debate, fundamental tension has always been among needs of government, desire of public to consume information through mass media, and right of an individual to her private world. In today's rapidly advancing technological age, it seems as though has increasingly fallen by wayside. From private personal information stolen by hackers, to information lost through careless transfer online (and sometimes even openly disclosed by private entities or government), today's newspapers are full of stories about loss of personal in Information Age.5 The ubiquity of information today has certainly brought of individuals into forefront of national consciousness. Today, there exist hundreds of different laws pertaining to privacy.6 Against this background, policymakers, academics, and public continue to examine these centuries-old questions regarding whether Americans have a constitutional right to privacy. If so, where in Constitution is specific source of that right? If not, to what extent should be protected by statute or common law? These questions remain unanswered to any satisfactory degree. Looking back, however, it seems that 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 continue to vary widely among scholars, judiciary, and public in general.8 Louis Brandeis and Samuel Warren were first scholars to describe as a systemic legal right.9 Their seminal article grounded a right to in Constitution.10 As this article gained recognition, 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 rights developed, physical and decisional privacy.11 The idea of a right to privacy has more recently emerged as a branch of right to privacy12 Constitutional doctrine and 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 government is stolen, misused, or wrongfully disclosed.13 The rapid advancements of technological age, which add to already unfilled holes in rights law, have only resulted in more questions for courts to answer. This Special Topic issue of Vanderbilt Law Review explores right to from several angles. The first Note examines 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 minimum disclosure necessary for functioning of health care system. HIPAA's intent to address current concerns is laudable, but author points out that unavailability of a private right of action presents a classic enforcement problem. …