Access and Aggregation: Privacy, Public Records, and the Constitution

In this article, Professor Solove develops a theory to reconcile the tension between transparency and privacy in the context of public records. Federal and state governments maintain public records containing personal information spanning an individual\u27s life from birth to death. The web of state and federal regulation that governs the accessibility of these records generally creates a default rule in open access to information. Solove contends that the ready availability of public records creates a significant problem for privacy because various bits of information when aggregated paint a detailed portrait of a person\u27s life that Solove refers to as a digital biography. A growing number of private sector organizations assemble these digital biographies, which are used in a number of disturbing ways that are not in line with the purposes of freedom of information laws. To combat this problem, Solove argues, commercial access and use restrictions must be imposed on public record systems, and a federal baseline of protection must be established. Information privacy must be reconceptualized to abandon the secrecy paradigm, the longstanding notion that there is no claim to privacy when information appears in a public record. Privacy must be understood as an expectation of a limit on the degree of accessibility of information. Engaging in an extensive analysis of the applicability of the Constitution to public record systems, Solove contends that attempts to limit the use and accessibility of public records do not run afoul of the First Amendment rights to access government information and to freedom of speech and press. Therefore, viewed in light of Solove\u27s theory of information privacy, the regulation of public record regimes must be substantially rethought