The legitimate expectation of confidentiality is a concept the Commission endorses for several of the record-keeping relationships examined in this report. The policy objective is that when the relationship is one involving confidentiality of records, the record keeper shall be constrained from disclosing information about an individual without his authorization, either voluntarily or in response to a demand for it. The Commission recognizes that recommending any restriction on the free flow of truthful information raises serious questions in a democratic society, and sought ways to avoid conflict with both the goals of the First Amendment to the Constitution, and with the policy of broad access to public information articulated in statutes like the Freedom of Information Act.
When the Commission recommends rules to govern a record keeper's voluntary disclosure of a record about an individual, it does not attempt to specify, nor does it assign to either government or the individual the responsibility of determining which information in the record may or may not be disclosed. Neither does the Commission recommend any liability for third parties who merely receive information or records generated by a confidential relationship. The Commission's recommendations simply specify to whom information may be disclosed without the individual's consent. The role of government in the enforcement of a recommended expectation of confidentiality would be simply to act, through the courts, as referee in disputes between a record keeper and an individual about whether an expectation is legitimate and whether it has been violated. Government would have no independent interest to enforce, and would take no enforcement initiative, except where deception or misrepresentation is used to acquire medical records without the patient's consent. Only the individual would have an enforceable interest.
The Commission takes great care to avoid recommendations that would amount to regulating the content of records collected, maintained, or disclosed by private-sector organizations because of two related considerations, one abstract, the other concrete. The first consideration is that a democratic society must keep governmental intrusion into the flow of information to a minimum; the second is that the First Amendment sharply limits such government intrusion. Of importance here are the recent decisions of the U.S. Supreme Court that have found private commercial information flows as deserving of First Amendment protections as the personal exercise of the right of free speech.
In simplified terms, the First Amendment prohibits the Federal government (and through the Fourteenth Amendment, the States) from enacting any law which would abridge the right to communicate information to others or to receive information from others.8 Broad as it is, this interpretation of the right to free speech does not mean the right is unlimited. It allows for such familiar strictures on the content of information exchanges as prohibiting slanderous or libelous communications, and, more pertinent to the question here, it allows for certain regulation of the process of communication when it occurs in a public forum. In other words, government may properly regulate the flow of information to the extent its regulations apply only to the process of communication in public places.
In addition, the Supreme Court has been willing to accept some government actions which require private organizations to comply with the decision an individual has made regarding the communications he does not want to receive. In Lamont v. Postmaster General,9 for example, the issue was the constitutionality of a Federal statute requiring the Postal Service to prevent firms from mailing material to individuals who have indicated that they do not want it because they consider it obscene. Because the statute leaves all determinations about content to the individual and requires the Postal Service only to see that the individual's wishes are respected, the Supreme Court held the statute constitutional. In other words, it is not unconstitutional to give an individual standing to assert his own interest in the flow of communication between private parties.
Individuals and organizations that do not engage in commercial activities have traditionally enjoyed the full range of constitutional free speech protections. For commercial entities, however, First Amendment protections have been virtually nonexistent10 until a few years ago when the U.S. Supreme Court, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council,11 declared that the doctrine denying First Amendment protection to commercial speech had been swept away. In sweeping it away, the Court did, however, indicate that some restrictions on commercial communications are legitimate, though it left the standards for such restriction unclear.
The Court in the Virginia case stressed that the decision did not mean that a regulation prohibiting the advertising of an illegal activity would be unconstitutional. In 1974, in Pittsburgh Press v. Human Relations Commission,12 there was a challenge to a municipal ordinance prohibiting the publication of lists of job openings by sex unless the designations were based on bona fide occupational considerations. The Court rejected the First Amendment challenge and sustained the ordinance. The majority opinion described the advertisements as "classic examples of commercial speech" and went on to note that commercial advertising ordinarily enjoys some First Amendment protection. What made this particular advertising susceptible to regulation was the illegitimacy of the activity advertised. In effect, the Court argued that if a commercial activity is illegal, then speech which promotes or assists in effecting such activity may be prohibited.
Such a rationale is not entirely satisfactory. Is the decision of the legislature that a certain commercial activity is illegal enough to deny communication concerning that activity free speech and free press protections? If the illegal activity is in part a result of the mere communication of information or ideas, should First Amendment analyses apply? Or should some other standard be employed to test the propriety of the legislative determination restricting communication? In any case, since the illegal-activity standard of Pittsburgh Press applies only to commercial communication, this test appears to establish that commercial speech remains doctrinally outside the mainstream of the First Amendment in some ways.
The Commission believes that the extension of First Amendment protections to commercial communication as defined in these recent Supreme Court cases, which almost exclusively concern advertising, does not pose any obstacle to the establishment of legitimate expectations of confidentiality for individuals in the private sector. The Commission is in no instance recommending an absolute restriction on the communication of information; rather, it recommends that an individual be informed at the beginning of a relationship what information may be disclosed from records about him and for what purposes. Following Lamont, it also recommends that an individual be given an opportunity to participate in any change that would materially affect his legitimate expectation.
Protection of privacy against government intrusions is a complementary limitation to protection of communications from government interference. Therefore, the Commission further recommends that if the requestor of records is a government agency, such agency bear the burden of notifying the individual, and that laws be enacted to allow the individual standing to assert his interest as defined in the recommended measures. This clearly raises no First Amendment issues.