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6 Duke J. Const. L. & Pub. Pol'y Sidebar 1 (2011)

handle is hein.journals/dukjppsid6 and id is 1 raw text is: THE CONSTITUTIONAL RIGHT TO
INFORMATIONAL PRIVACY:
NASA v. NELSON
RUSSELL T. GORKIN *
I. INTRODUCTION
Modern substantive due process' was borne in the landmark case
Griswold v. Connecticut when the Supreme Court recognized that
specific guarantees within the Bill of Rights protect various zones
of privacy.3 Since then, the Court has guarded against interpretations
of the Due Process Clause of the Fifth and Fourteenth Amendments
that merely reflect the policy preferences of the Members of [the
Supreme] Court,4 by limiting meaningful protection to those privacy
interests so deeply rooted in our Nation's history and tradition that
they are deemed fundamental.'
NASA      v. Nelson'     presents    the   Supreme      Court    with    the
opportunity to recognize another, more general privacy interest-the
right to informational privacy. Due, however, to the evolving nature
2012 J.D. Candidate, Duke University School of Law.
1. This framework provides the foundation for the protection afforded to the liberty
interest contained within the Due Process Clause of the Fifth Amendment.
2. Griswold v. Connecticut, 381 U.S. 479 (1965).
3. Id. at 484. See Roe v. Wade, 410 U.S. 113, 153 (1973) (grounding the protection of these
privacy interests in the Due Process Clause).
4. Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
5. Id. at 721; of course, one may allege infringements of other liberty interests not deemed
fundamental rights, but little real protection is afforded such interests since they are subject
only to rational-basis review. See Francis S. Chlapowski, The Constitutional Protection of
Informational Privacy, 71 B.U. L. REV. 133, 144 45 (1991) (stating that the finding of whether a
right is fundamental is often outcome-determinative because alleged infringements of rights
subjected to a strict scrutiny analysis are almost always found to be impermissible, while alleged
infringements of rights subjected to a rational basis review are almost always found to be
justifiable).
6. Nelson v. NASA (Nelson 1), 530 F.3d 865 (9th Cir. 2008), cert. granted, 130 S. Ct. 1755
(2010).
7. This term has come to represent the privacy interest in avoiding disclosure of personal
matters first alluded to in Whalen v. Roe, 429 U.S. 589, 599 (1977); see infra Section III (A).

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