As an adjunct law professor, I taught Computer Law at South Texas College of Law Houston (Computer Law, 1998-99), which covered on issues such as online contracts, e-commerce, privacy, intellectual property/copyright, computer trespass, liability of ISPs for defamation or copyright infringement by users, the Digital Millennium Copyright Act, Y2K, antitrust, and so on. 1 Related courses taught at the time in law schools included intellectual property law and “Internet law.” (See Syllabus below.)
One topic we covered concerned state aggregations of data—when the collection of data by the state violates constitutional rights (e.g. Fourth Amendment concerns), and when it may or must or must not release data e.g. in response to FOIA requests. Two of the main cases we covered in this regard were United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) and Whalen v. Roe, 429 U.S. 589 (1977). These are still apparently two key cases that factor into the current controversy about Flock cameras.
I asked Grok to summarize and consider the relevance of these cases to the current debate:
Two Cases on Government Data Compilation: Whalen and Reporters Committee
Two Supreme Court cases—Whalen v. Roe and United States Department of Justice v. Reporters Committee for Freedom of the Press—are the classic pair on government compilation of data that, piece by piece, was already known or public. Together they frame the current fight over Flock and other ALPR networks: whether aggregating individually innocuous facts (a prescription, a plate on a public road) into a searchable government file changes the privacy analysis.
1. Whalen v. Roe, 429 U.S. 589 (1977)
Argued Oct. 13, 1976; decided Feb. 22, 1977. Unanimous opinion by Justice Stevens; Brennan and Stewart concurred.
Links
- Cornell LII: https://www.law.cornell.edu/supremecourt/text/429/589
- Justia: https://supreme.justia.com/cases/federal/us/429/589/
- Oyez: https://www.oyez.org/cases/1976/75-839
- U.S. Reports: https://www.govinfo.gov/app/details/USREPORTS-429/USREPORTS-429-589
Facts and holding. New York’s 1972 Controlled Substances Act required doctors and pharmacies to report, on official forms, the name, address, and age of every patient prescribed a Schedule II drug, plus the drug, dosage, physician, and pharmacy. The state stored that identifying information in a computerized file for five years, with statutory limits on access and a ban on public disclosure. Patients and doctors sued, claiming the scheme invaded a constitutional “zone of privacy” around the doctor-patient relationship and would deter legitimate treatment. A three-judge district court agreed and enjoined the patient-identification rules.
The Supreme Court reversed. The program was a reasonable exercise of the state’s police power to prevent diversion of lawful drugs into the illicit market. The Court identified two privacy interests that might receive constitutional protection:
- avoiding disclosure of personal matters, and
- independence in making certain important decisions.
Neither was sufficiently invaded. Security measures made unauthorized disclosure only a “remote possibility”; the scheme did not actually deprive patients of needed medication; and the state did not have to prove the database was indispensable—only that it was a rational means of addressing a legitimate problem. No Fourteenth Amendment violation.
2. United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989)
Argued Dec. 7, 1988; decided March 22, 1989. Opinion by Justice Stevens (Rehnquist, White, Marshall, O’Connor, Scalia, and Kennedy joined). Blackmun, joined by Brennan, concurred in the judgment.
Links
- Cornell LII: https://www.law.cornell.edu/supremecourt/text/489/749
- Justia: https://supreme.justia.com/cases/federal/us/489/749/
- Oyez: https://www.oyez.org/cases/1988/87-1379
- U.S. Reports: https://www.govinfo.gov/app/details/USREPORTS-489/USREPORTS-489-749
- First Amendment Encyclopedia: https://firstamendment.mtsu.edu/article/department-of-justice-v-reporters-committee-for-freedom-of-the-press/
Facts and holding. A CBS correspondent and the Reporters Committee sought, under FOIA, the FBI “rap sheet” (compiled criminal identification record) of Charles Medico. Individual arrests and convictions were public in scattered local courthouses; the request was for the FBI’s centralized compilation. The FBI withheld it under FOIA Exemption 7(C) (law-enforcement records whose disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy”).
The Court held that disclosure of a rap sheet to a third party is categorically an unwarranted invasion of privacy under 7(C) when the subject is a private citizen and the requester seeks only information the government happens to be storing, not information about “what the Government is up to.” The FOIA public-interest side of the balance is at its nadir; the privacy interest is at its apex. The press gets no special FOIA access.
The key phrase is “practical obscurity.” Even if bits of data are already public in scattered places, assembling them into a single, easily searchable government file creates a distinct privacy interest. The Court built expressly on Whalen’s interest in “avoiding disclosure of personal matters” and on the idea that privacy includes control over information about oneself.
How the two cases fit together
| Whalen v. Roe (1977) | Reporters Committee (1989) | |
|---|---|---|
| Legal source | Constitutional (14th Amendment privacy) | Statutory (FOIA Exemption 7(C)) |
| Data | Prescription identities stored by the state | FBI rap sheets compiled from public local records |
| Question | May the government keep the compiled file? | Must the government release the compiled file to the public? |
| Outcome | Yes—police power + safeguards | No—compilation itself is an unwarranted privacy invasion |
| Core idea | Aggregation for a legitimate regulatory purpose, with security limits, is not a constitutional violation | Aggregation creates a privacy interest (“practical obscurity”) even when the underlying facts were public |
Whalen is the government’s favorite: the state may collect and store a bulk file if the purpose is traditional police power and there are formal access limits. Reporters Committee is the privacy side’s favorite: the fact that each datum was public does not mean the mosaic is public.
Relevance to Flock / ALPR cameras
License plates on public roads, like individual arrest records or individual prescriptions, are visible one at a time. A multi-year, multi-jurisdiction, queryable network of every plate at every camera is the modern analogue of both the New York prescription file and the FBI rap sheet: a compilation that strips away practical obscurity and can reveal patterns of association, worship, medical visits, and travel.
- Defenders of Flock lean on Whalen: plates on public roads lack a reasonable expectation of privacy; the state may aggregate what was already visible, especially with retention limits and purported law-enforcement purposes (stolen cars, AMBER alerts).
- Critics lean on Reporters Committee (and later Carpenter v. United States, 2018, on cell-site location data): long-term comprehensive aggregation of movement is qualitatively different from any single public sighting. Reporters Committee is why they say “the mosaic is not the same as the tiles.”
Neither case is a Fourth Amendment holding about whether police querying such a network is a “search.” That question is now framed by Carpenter and the still-developing ALPR and geofence litigation. Whalen and Reporters Committee remain the starting pair for the narrower but foundational issue: does government compilation of otherwise-public or already-known facts itself change the privacy analysis? The Court has said yes as a matter of FOIA statute (Reporters Committee) and has left the constitutional door open while upholding one particular compiled file (Whalen).
COMPUTER LAW
South Texas College of Law
Fall 1999
Professor Kinsella
Syllabus
(tentative: subject to change)
Text: Maggs, Soma and Sprowl, Computer Law (1992) & 1996 Supplement
Examination: The examination will be closed book, 2-hour, multiple choice.
Date Pages Topics
8-17 — Introduction: the Computer, the Computer Industry, Intellectual Property Concepts
8-24 Copyright Concepts
8 Apple Computer, Inc. v. Franklin Computer Corp.
18 NEC Corp. and NEC Electronics, Inc. v. Intel Corp.
33 Williams Electronics, Inc. v. Artic International, Inc.
75 Feist Publications, Inc. v. Rural Telephone Service Company, Inc.
handout Proposed legislation: H.R.1858 (Bliley), Consumer and Investor Access to Information Act of 1999 (excerpts); H.R.354 (Coble), Collections of Information Antipiracy Act (summary)
handout Protection of Trade Secrets
8-31 “Look and Feel”
37 Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc.
55 Lotus Development Corp. v. Paperback Software International
S1 Computer Assocs., Inc. v. Altai, Inc.
S34 Lotus Development Corp. v. Borland International, Inc.
9-7 Exclusive Rights and Limitations Thereof
101 Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.
S46 Atari Games Corp. v. Nintendo of America, Inc.
S57 Sega Enterprises Ltd. v. Accolade, Inc.
S71 Aymes v. Bonelli
9-14 Infringement
138 E.F. Johnson Co. v. Uniden Corp. of America
149 Atari, Inc. v. North American Philips Consumer Electronics Corp.
158 Data East USA, Inc. v. Epyx, Inc.
164 NEC Corp. and NEC Electronics, Inc. v. Intel Corp.
Date Pages Topics
9-21 Infringement (cont.)
S76 MAI Systems Corp. v. Peak Computer, Inc.
S82 Playboy Enterprises, Inc. v. Frena
S85 Religious Technology Center v. Netcom On-Line Communication Services, Inc.
handout Digital Millennium Copyright Act, H.R. 2281, Public Law 105-304 (10/28/98) (Online Copyright Infringement Liability Limitation Act): legislation addressing on-line and Internet service provider (OSPs and ISPs) liability for contributory copyright infringement
9-28 Patent Law
222 Parker v. Flook
241 Diamond v. Diehr
283 Pennwalt Corp. v. Durand-Wayland, Inc.
S100 In re Alappat
S109 In re Warmerdam
handout State Street Bank & Trust Co. v. Signature Financial Group, Inc. (Fed. Cir. July 23, 1998)
10-5 Misappropriation of Computer Technology
305 University Computing Co. v. Lykes-Youngstown Corp.
308 Minuteman, Inc. v. L.D. Alexander
314 Healthcare Affiliated Services, Inc. v. Lippany
320 Synercom Technology, Inc. v. University Computing Co.
328 Vault Corp. v. Quaid Software Limited
332 State v. Tanner
10-12 Computer Contracts
353 Neilson Business Equipment Center, Inc. v. Monteleone
357 Communications Groups, Inc. a/k/a CGI v. Warner Communications Inc.
361 Clements Auto Co. v. Service Bureau Corp.
374 Glovatorium, Inc. v. NCR Corp.
S122 ProCD, Inc. v. Zeidenberg
S135 Apple Computer, Inc. v. Microsoft Corp.
S146 Clayton X-Ray Co. v. Professional Systems Corp.
10-19 Computer Crimes
430 United States v. Goss
S149 United States v. LaMacchia
438 United States v. Robert J. Riggs
450 United States v. Brown
456 Schalk v. State
Date Pages Topics
10-26 Privacy
490 Merriken v. Cressman
504 Whalen v. Roe
509 United States Department of Justice v. Reporters Committee for Freedom of the Press
S155 Steve Jackson Games, Inc. v. United States Secret Service
S165 Steve Jackson Games, Inc. v. United States Secret Service
11-2 Accuracy of Computer Information; Jurisdiction in Cyberspace
524 Thompson v. San Antonio Retail Merchants Ass’n
529 Rogan v. City of Los Angeles
541 Lowery v Credit Bureau, Inc. of Georgia
S173 Cubby, Inc. v. Compuserve Inc.
S181 Stratton Oakmont, Inc. v. Prodigy Services Co.
S189 “Good Samaritan” blocking legislative liability exemption
555 People v. Versaggi
564 United States v. Morris
handout: Spamming case: CompuServe Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio, 1997)
Article: Spam outlawed by Second state??
handout: Articles on Internet jurisdiction (not tested)
handout: Y2K law article by Grossman (not tested)
11-9 Access to Information and the “Information Highway”
579 United States v. Liebert, III
586 National Union Electric Corp. v. Matsushita Electric Industrial Co., Ltd.
592 Adams v. Dan River Mills, Inc.
596 Hermes v. Pfizer, Inc.
598 Akins v. District of Columbia
11-16 Review of Course
- I’ve written on many of these topics, including IP law and other legal topics as well as libertarian theory as it relates to IP policy and other policy issues. See, e.g., Trademark Practice and Forms, editor (Oxford University Press, 2001-2011; West/Thomson Reuters 2011-2013); Online Contract Formation, co-editor (with Andrew Simpson, Hong Kong) (Oxford University Press, August 2004); “The Title-Transfer Theory of Contract,” ch. 16 in David Howden, ed., The Palgrave Handbook of Misesian Austrian Economics (Palgrave, forthcoming 2026), part of the Palgrave Studies in Austrian Economics Book series; “Defamation as a Type of Intellectual Property,” in A Life in Liberty: Liber Amicorum in Honor of Hans-Hermann Hoppe, edited by Jörg Guido Hülsmann & Stephan Kinsella (Houston, Texas: Papinian Press, 2024); etc. [↩]
