This Article seeks to map contemporary relational privacy issues in the context of the evolving ‘right of privacy’ in the United States. Generally, the Article explains why the so-called ‘personal’ right of informational privacy, whatever its legal foundations, cannot be realistically confined to an individual right given the dramatic scientific and technological developments in the twenty-first century. In particular, the Article proposes that both state and federal law must grapple with the inherently relational nature of privacy interests with respect to DNA profiles, which inherently implicate the privacy interests of one’s biological relatives, whether known or unknown.
Part I summarizes the historical development of the right of privacy in the United States, as well as its relational aspects that predate recognition of the ‘personal’ right of privacy. Part II explores the early recognition of the relational aspects of tortious invasion of privacy. Part III addresses the nature and scope of ‘personal privacy’ interests expressly recognized in federal statutes regulating freedom of information and privacy with respect to public records. Part IV explains the constitutional foundations of the American right of privacy, including the conceptual relationship between informational privacy and autonomous decision-making privacy. Part V discusses relational privacy interests in the context of DNA databanks, whether used for criminal investigations or genealogical research. The Article concludes by conceptualizing the ever-expanding American right of privacy to encompass at least close family members whose privacy may be implicated when sensitive information about a relative is at risk of public disclosure without family members’ knowledge or consent.
J Lyn Entrikin, Family Secrets and Relational Privacy: Protecting Not-So-Personal, Sensitive Information from Public Disclosure, 74 University of Miami Law Review 781 (2020).