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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 farther pieces of data stray from an origin in personalized interaction, the less incentive the holders of data have to resist government inquiry. Indeed, the government often intervenes to facilitate the process by requiring private parties to compile records.(3)
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 subpoenaed or scavenged from private sources.(4)
The expansion of government knowledge translates into an increase in the effective power of government.(5) At its most mundane, an increase in government knowledge means an increase in the ability to deploy existing government sanctions effectively. At the time of Roe v. Wade,(6) for example, the ability to prosecute abortions was limited by the capacity of the government to identify abortions and abortion providers. Even in states that sought to enforce prohitions actively, the transaction costs of identifying violations produced a friction that softened the prospect of legal enforcement. Today, with the proliferation of health care records, insurance records, medicare records, and tax records, all subject to computerized retrieval and cross-reference, the zone of anonymity that formerly protected reproductive autonomy has shrunk considerably. A crusading prosecutor in a world without Roe stands a greater chance of stamping out abortions than did her predecessor a generation before.(7)
Information controlled by government provides a second, less straightforward, means of exerting government power. Even if formal prosecution of abortions remains beyond the constitutionally permitted power of the state, a health department official who is able to obtain and publish the names of women seeking abortions can exercise a deterrent almost as effective as prosecution. From Brandeis's advocacy of "sunlight as a disinfectant"(8) to the hearings conducted by Senator Joseph McCarthy and his colleagues, the spotlight of "pitiless publicity"(9) has been valued, not only for its light, but for its heat. The power of public opprobrium, once evoked, is often more pervasive and more penetrating than criminal punishment. As the volume of information controlled by the state increases, so too does the government's ability to sanction disfavored activities by the simple act of public disclosure.(10)
From the vantage point of constitutional law, this second aspect of the information explosion is the more intriguing, for it brings the ideal of rational and informed public decisions into conflict with the mistrust of government power at the heart of American constitutionalism. In many aspects of constitutional law the dissemination of information is applauded. Information is the currency of the "marketplace of ideas," the prerequisite for political self-determination, and a security against usurpation by secret cabals. Secrecy interferes with rational decision-making, accountability, and the choice of national goals. In general, scholarly analysis of the First Amendment disposes us toward the proposition that more information is better.(11) We esteem "sunlight" because it illuminates.
But constitutional law is also concerned with protecting sanctuaries of private liberty from state intervention. In this enterprise we acknowledge the necessity for shadows as well as sunlight upon the landscape of our republic. The use of exposure as a punishment and a deterrent is rooted in literature and political folklore. No one doubts that Hester Prynne's scarlet letter provided more than neutral information,(12) or that the effort of Senator Joseph McCarthy to "expose" the background of his political opponents was not simply public education.
This tension is not simply a matter of literary or historical interest, for the contemporary scene teems with constitutional issues linked to the government's dissemination of information. Although the end of the Cold War has made efforts to suppress Communists and fellow travellers in America seem quaint, hostility toward other exercises of First Amendment liberties makes the threat of exposure an effective contemporary sanction.
For this reason, political groups continue to seek exemptions from obligations to disclose their membership and supporters,(13) even as the FBI seeks to gather information about the identity of patrons of public libraries and their reading habits.(14) A presidential commission has called on citizens' groups to boycott makers and distributors of "pornography,"(15) and has threatened to issue lists identifying boycott targets.(16) Universities claim immunity from disclosure of their tenure files on grounds of academic freedom,(17) while church hierarchies seek shelter from discovery requests on the basis of free exercise of religion.(18)
Reaction to the modern recognition of liberty interests in reproductive autonomy has occasioned efforts to require disclosure where criminal regulation is banned. Recent initiatives attempt to require the disclosure to parents of minors' birth control prescriptions and abortions(19) and notice to spouses of womens' efforts to seek abortions.(20) Public identification of abortion providers increasingly subjects them to the threat of organized harassment.(21)
Disclosure is also problematic where informational privacy is valued for its own sake. In recent Terms, the Court has grappled with questions arising from dissemination of law enforcement records,(22) official papers,(23) medical records,(24) and personnel files.(25) Although not yet before the Court, treatment and testing for HIV infection is embroiled in controversy over questions of confidentiality and disclosure.(26)
The tension between the attraction of sunlight and the fear of the scarlet letter reflects deep-seated conflicts in our intuitions. We know that the scarlet letter is a punishment not to be trifled with, and like Justice Brandeis, we consider "the right to be let alone" one of the prizes of civilization.(27) Yet we also believe, as did Brandeis, that "[s]unlight is ... the best of disinfectants."(28)
The article that follows parses those intuitions. Believing that constitutional argument is best conducted with an eye on concrete historical paradigms, I begin by situating the problem of disclosure in the McCarthy era, when governments at both state and federal levels sought to use the "spotlight of public opinion" to discourage activities apparently beyond the reach of direct criminal sanction.
I then map the contours of the scarlet letter by reviewing the forces that made the McCarthyite efforts efficacious. Section IA is a study of judicial treatment of constitutional challenges to efforts by government to wield the sanction of exposure. Section IB analyzes the mechanisms, both official and unofficial, by which government disclosures affect their victims and evaluates the objections to recognizing these effects in constitutional analysis. I argue that courts should neither doubt the impact of informational sanctions, nor the constitutional relevance of those impacts. Although the precise effects of disclosure will vary with context, our liberties are at risk when our constitutional law ignores the power of information to punish.
The affirmative claims of sunlight, however, cannot be easily dismissed. Disclosure may improve the choices of those who receive information, and can be argued to purify the character and choices of subjects whose actions and views become known. Section II reviews the liberal and civic republican arguments for disclosure, as exemplified by the claims advanced during the McCarthy era. Both theoretical frameworks yield a common conclusion. The attraction of sunlight is strongest within a relatively narrow set of boundaries: where the activities disclosed are matters of public trust, where the prospects of concrete retaliation are small, and where the freedom of intimate self-definition is not implicated.
In Section III of the article, I close with an analysis of the available methods of adjusting the tension between the costs and virtues of disclosure. I argue for three conclusions. First, courts cannot avoid the tension. Claims that citizens have waived constitutional protection are usually inappropriate. Questions of institutional competence can often be elided by relying on sub-constitutional doctrines and are...