Author:Rochelle C. Dreyfus, David W. Leebron

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The rapid advance of computer technology has drastically expanded our ability to store, analyze, and disseminate information. This development has implications for three areas of constitutional doctrine: the RIGHT OF PRIVACY, PROCEDURAL DUE PROCESS OF LAW, and the FREEDOM OF SPEECH and FREEDOM OF THE PRESS.

Because the field is so new, the Supreme Court has not yet had many opportunities to confront these issues. An account of the Court's JURISPRUDENCE so far reveals that it is only slowly beginning to recognize in computer technology a danger different in kind from that presented by information technologies supplanted. Thus, in LAIRD V. TATUM (1972), the earliest of the Court's computer cases, the question presented was whether the Constitution limits the government's right to store publicly available information in computerized form. One of the complaints in Laird was that the storage of such information in army-intelligence data banks for undefined subsequent use had a CHILLING EFFECT on the expression of those targeted for observation. In finding that the effect was so speculative that the controversy was not ripe for adjudication, the Court in effect held that government storage of personal

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information in a computer does not in itself give rise to a constitutionally based complaint.

WHALEN V. ROE (1977) was the first opinion expressly addressing the right of privacy in a computer context. A New York law required centralized computer storage of the names and addresses of persons prescribed certain drugs. The Court acknowledged "the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks." In a CONCURRING OPINION, Justice WILLIAM J. BRENNAN noted that the potential for abuse of computerized information might necessitate "some curb on such technology." Nonetheless, the Court analyzed the law under the same BALANCING TEST used in other cases involving government invasions of privacy, balancing the state's interest in collecting drug-use information against the interest in privacy, and upheld the statute. Although the Court emphasized the stringent security measures taken to prevent unnecessary or unauthorized access to New York's computer files, lower courts have given Whalen a narrow reading and placed few constitutional restrictions on government use of computerized data banks. These lower courts have given greater weight to the earlier...

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