Your Informational Privacy Protected by the Constitution

Child protective services (CPS) and its authority to put your name in the Central Child Abuse Index (CACI) is something that flies in the face of the constitution.

Allow us to explain:

A CPS investigator can claim that an abuse allegation against you is substantiated. From there, your name will end up in the CACI without due process. You could be proven factually innocent, exonerated of all charges, and still have your name listed in the database.

This systemic issue is something that can hurt your professional and personal life. You can be prevented from working or volunteering with children in any capacity.

The listing of your name in the CACI infringes on your right to “informational privacy,” which we will be further explaining in this article. Throughout, I'll be referencing information from the following journal article: Wayne A. Logan. “Liberty Interests in the Preventive State: Procedural Due Process and Sex Offender Community Notification Laws.” 89 J. Crim. L. & Criminology 1167. Summer, 1999.

It's stated explicitly in the U.S. constitution that no citizen should be deprived of "life, liberty, or property" by the government without due process of law, which includes notice and the chance to be heard.

This notion pertains to the topic we’re discussing because your right to informational privacy has been firmly established in the constitution. The courts have described your right to informational privacy as the “individual interest in avoiding disclosure of personal matters.”

Contrast this with child abuse notification laws. These mandates make delicate information about alleged child abuse offenders available to many categories of individuals and organizations. The reasoning behind this is centered around protecting children from a potential repeat of abusive behavior.

This brings into question whether the liberty of alleged child abuse offenders is being trampled on. Federally, at least there has been a failure to clarify what type of protections these individuals deserve. As someone who has been falsely accused of child abuse yourself, the answers to these questions are important to you. More specifically, when should you have a chance to have your say on the matter? Do you have any input on whether notifications are necessary, and how much information is offered to the other members of the public?

While we do know the right to prevent the future disclosure of personal information exists to some degree, the nuances of this law haven't been adequately ironed out in our legal system.

In one case - Whalen v. Roe - a New York law was brought under scrutiny, with questions over if it violated patients' rights. The law required that personal physicians let a state agency know patients' names if they received specific drugs. The courts that were deciding whether the law violated patient rights decreed that there was a privacy right for patients regarding medical data. In other words, patients have a privacy right as to their medical information. However, because the law had strict security measures that prevented unwarranted disclosure of the patient medical information by the state to third parties, the court held that the law did not breach patients’ liberty interests.

A crucial differentiation was made—this law merely required the state to compile the information, not disclose the information to third parties.

When the United States Department of Defense was faced against the Federal Labor Relations Authority, it was related to the disclosure of the home addresses of non-unionized federal employees. The courts held that disclosure of the addresses to the unions would violate the employees' privacy rights arising under both the federal Privacy Act of 1974 and FOIA.

It was ruled that the non-union employees’ addresses must be kept private. The reasoning was that disclosure could leave employees open to unwarranted home intrusions such as unsolicited mailings, phone calls, or visits.

While the employees’ home address is actually already available to the public (in public utility records), this played no bearing in the court’s final decision. Just because personal info is out in the open already doesn't mean the government can disseminate it whenever it wants and that the information isn’t still private.

The court’s decision, however, left open the issue of whether the employees’ privacy rights came not just from the federal statutes, but also from the federal Constitution.

The two above court cases were about the non-disclosure of personal information to third parties, whereas this case focuses more on a person’s reputation and stigma to that reputation.

In Wisconsin v. Constantineau, the state's statute made it so local officials could post in liquor stores the names of those who excessively drank. This could be done without any notice to the people whose names were being posted, nor hearing to allow the people a chance to dispute the posting of their names in the liquor stores. The purpose of the law was to prohibit the selling of alcohol to the people on the list.

Eventually, “posting” was condemned by the court on the grounds of due process because it attached to the people on the list a “badge of infamy” that put at stake a person's “good name, reputation, honor, or integrity.” Any time a government is going to impose such a “badge of infamy” on a person, it must give the person notice of it and an opportunity to dispute it. The court decided that those people whose names were posted deserved a chance to be heard.

This case was similar to the “posting” that occurred in Wisconsin but it dealt with those arrested (but not convicted) for shoplifting. Interestingly, it was decided that no constitutional rights were being infringed upon. The court held that damage and stigma to one’s reputation alone, by itself, was not enough to deserve the protections of notice and an opportunity to be heard under the due process clause of the Constitution.

The difference between Constantineau and Paul v. Davis is that those whose names were posted in liquor stores were also prevented the right to purchase alcohol, but the people whose names were listed among alleged shoplifters were not prohibited the right to make a purchase at the stores.

When it comes to a CACI listing, courts have decided that because 1) the state of California is compiling a list of alleged child abusers, and 2) the state discloses that information to third parties such as employers, and 3) being on the CACI can prevent you from exercising other rights that you have (such as gaining employment, obtaining a state license, or being a foster parent), then:

• Putting your name on the CACI does infringe on your privacy interest, namely informational privacy
• This invasion of your privacy does cause you reputational harm and stigma
• The government must provide you with notice that it has put you on the CACI and must give you an opportunity to dispute your CACI listing to safeguard your reputation and your rights

If you are on the CACI, it’s time to protect your rights and your reputation and set the record straight by defending your right to privacy and getting your name off the Child Abuse Central Index.