Volume 90, Number 4

October 2015

Nonjudicial Fangs

Joshua A. Rubin

Defending the Privacy Act’s Complete Civil Remedies Exemption

The Privacy Act of 1974 places limitations on what federal agencies may do with the personal information they collect from the public. As its name suggests, a primary purpose of the law is to protect the privacy of individuals by mandating that agencies’ systems of records be maintained in particular ways. At the same time, the Act preserves the ability of agencies to pursue their statutory goals by permitting law enforcement agencies to exempt their systems of records from select provisions of the Act. This Note concerns the scope of one of those exemptions, referred to as the “general exemption.” Specifically, it addresses a statutory ambiguity surrounding whether these agencies may completely exempt their records from the Act’s civil remedies provision, thereby foreclosing civil liability for all violations of the Act. This Note answers that question in the affirmative, and it supports that answer through two independent modes of analysis. First, the Note argues that, using traditional tools of statutory interpretation, the best reading of the portions of the Privacy Act in question is one that recognizes the complete exemption. Second, the Note meets a particular objection to that reading: that permitting a complete civil remedies exemption would authorize and encourage widespread violations of the Privacy Act, thereby “defanging” the Act. The Note maintains that civil remedies are not theoretically necessary to protect substantive rights, and that the particular context of the Privacy Act is replete with examples of nonjudicial institutions serving as effective checks—or fangs—on agency compliance with the law.