Federal Dataveillance: Implications for Constitutional Privacy Protections (Law and Society)

Kuhn explains how new data technologies, particularly knowledge discovery in databases (KDD) applications, will force courts to reconceptualize constitutional privacy rights. Privacy conceptualizations in the First and Fourth Amendments and information privacy jurisprudence (privacy as space, privacy as secrecy, and privacy as information control) offer inadequate protection against federal dataveillance programs. Utilizing a theoretical perspective from which privacy law functions to balance personal privacy and national security by limiting the government s ability to access, manipulate, and control personal information, Kuhn introduces two new conceptualizations of constitutional privacy. The privacy-as-confidentiality conceptualization is now emerging from circuit court information privacy cases, and the privacy-as-knowledge-control conceptualization is needed to provide protection for federally created knowledge about specific individuals. Kuhn also suggests an information privacy calculus that will assist future courts when balancing individual privacy interests against the government s interests in disclosure.