Moving from Nixon to NASA: Privacy's Second Strand--A Right to Informational Privacy

Abstract

The Supreme Court’s data privacy jurisprudence consists of only two cases, yet these cases have fueled a circuit split on data privacy rights. The Court’s hesitance to foray into data privacy law may be because the nonrival, invisible, and recombinant nature of information causes plaintiffs’ harms to elude courts. Such harms threaten the democratic relationship between citizen and state. However, the Court renewed its attention to data privacy in NASA v Nelson, in which the Court may have recognized a tension in its jurisprudence and rejected one of its precedents to better account for the harms and interests at stake.