Privacy and State Action
While the “State Action” doctrine is a troublesome obstacle to protecting many of the ideals embodied in Constitutional Rights, it is particularly problematic in the area of privacy. When people are victim of private discrimination, for example, they are still theoretically equal in the eyes of the law under the Fourteenth Amendment. Even as non-governmental entities acquire expansive spheres of control over health care, education, and the workplace, the individual retains her right to equal protection of the laws. In the case of privacy violations, however, there is more of an “all or nothing” effect. When a breach of privacy exposes the individual’s personal information to society at large, the damage is the same, and equally irremediable, whether caused by the state or a private actor.
It might make more sense, then, to construe privacy as an inalienable right of the individual against all of society, rather than as a negative right against the government. Besides solving the “state action” question, this conception would provide individuals with a baseline level of protection across all areas of life. The inquiry would more closely resemble Thirteenth Amendment jurisprudence rather than that of the Fourteenth, Fifth, or Fourth Amendments. A person cannot be a slave in the United States, regardless of whether it is a government-imposed condition or one simply resulting from the dealings of private parties. The Thirteenth Amendment advances a certain conception of personhood which is inviolate, and thus obviates the “state action” inquiry. Similarly, we might collectively believe that the sanctity of a person’s mind and body is inherent in our concept of humanity and liberty. Under this conception, the State would be bound to protect the privacy of its citizens, as contrasted with the current regime in which the citizens have certain privacy rights against the State.
The State Constitutions of California and Alaska, as well as legislation in many other States, are evidence that this conception has some merit. Under the Fourth Amendment, the Court has to decide how tightly bound a particular private actor’s behavior is with the state (e.g., the drug testing cases), and if the actor is sufficiently differentiated from the state, the Constitutional inquiry is over. Under State Constitutional regimes which protect privacy against private actors, however, a more interesting balancing test usually occurs, as in Hill v. NCAA. Although the balancing test doesn’t always provides strong privacy protection, at least it focuses on an important issue which is more relevant than the state action question.
As privacy invasive practices by private corporate and educational institutions increase, plaintiffs will seek protection under State Constitutions absent federal rights in this area. Just as in the United States before the Civil War, the parameters of personhood may thus vary haphazardly from state to state, if we accept the proposition that privacy is intrinsically tied up with the definition of the person. A uniform national standard would be a preferable result, but a patchwork of local protections appears more likely to occur.