by Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, The Ohio State University
* Author's Note: I had the privilege on April 4 of delivering the following remarks as part of a panel on "Creating the Politics of Privacy," a session of the capstone conference for Ohio State's 2013-14 series of campus-wide programs on the distinction between public and private.
America's cultural turn in recent decades toward a glorification of the private and a denigration of the public has coexisted with what quite obviously is a deterioration in privacy. As individuals, we have dramatically less capacity than in earlier decades to control information about even the most personal aspects of our lives. This is not just historical coincidence. The cultural turn to the "private" has actually hurt privacy.
What I mean by a cultural turn is that, for the last 35-ish years, U.S. law and politics have moved away from the public-regarding orientation of the New Deal and its programmatic outgrowths and toward the individualist orientation of Reaganite small-government conservatism. We can see these moves in a variety of ways that implicate the private/public distinction. For example, we know that public institutions, such as schools, simultaneously create both public value and private value. They help both to benefit society through an educated citizenry and to prepare individuals for economic self-sufficiency. Yet our public policy toward schools has increasingly emphasized only their private value as providing persuasive reasons for their support.
Likewise, private action simultaneously has both private and public impacts. What I do as an individual both serves my personal needs and gratifications and imposes externalities on others. Not all externalities are positive. Yet courts and politicians have increasingly resisted treating negative externalities as a sufficient justification for regulation. Supreme Court decisions limiting Congress' powers to keep guns away from schools or to provide federal remedies for domestic violence are perfect examples. The court's 2012 decision that Congress lacked power under the Commerce Clause to compel the private purchase of health insurance was based on legal arguments that earlier courts would have rejected out of hand.
The Justice Department has accused the Albuquerque Police Department of “a pattern or practice of use of excessive force that routinely violated people’s constitutional rights.” Fernanda Santos at The New York Times reports on the 16-month investigation which found that “too often, the officers kicked, punched and violently restrained nonthreatening people … many of whom suffered from mental illnesses,” while other victims “were disabled, elderly or drunk.”
Last week, the U.S. Court of Appeals for the Tenth Circuit heard oral arguments in Kitchen v. Herbert, a case challenging Utah’s ban on same-sex marriage. State officials filed an appeal after the U.S. District Court for the District of Utah held the ban to be unconstitutional last December. Writing for Jost on Justice, Kenneth Jost comments on the legal and “unmistakably personal” implications of the case.
The Federal Trade Commission won an important victory in a case that challenged its authority to “regulate data security under the FTC Act.” Daniel Solove at Concurring Opinions breaks down Federal Trade Commission v. Wyndham Worldwide Corporation, et al.
In a study conducted by the Center for American Progress, Jenny DeMonte and Robert Hanna reveal that in some areas, impoverished students are “less likely to receive highly effective teaching.” In their report, DeMonte and Hanna provide ways to combat this troubling inequality.
In an excerpt from Six Amendments: How and Why We Should Change the Constitution highlighted in The Washington Post, former Supreme Court Justice John Paul Stevens discusses the recent shooting massacres, the influence of the National Rifle Association and “the five extra words that can fix the Second Amendment.”
The Snowden revelations about NSA activities have brought government access to online data into the public eye over the past year. Allegations that surveillance programs may have impacted American citizens have led to public outrage. In response, the president has promised to reform the U.S. government surveillance apparatus to “provide greater transparency to our surveillance activities and fortify the safeguards that protect the privacy of U.S. persons.”
Long before the Snowden revelations, enhancing the privacy of U.S. persons was the focus of less-visible efforts to reform the Electronic Communications Privacy Act (ECPA), a law enacted well before the Internet era that allows law enforcement access to a panoply of electronic information held by third-party information service providers without first obtaining a warrant.
In December 2013, more than 100,000 Americans signed an online petition calling on the Obama administration to support ECPA reform. Although a warm spring finally is emerging in Washington, D.C., the White House has remained silent as reform bills (e.g.,S. 607 and H.R. 1847) remain frozen in Congress.
Yesterday, the Supreme Court struck down a limit on the aggregate financial contribution an individual can make to candidates and party committees in McCutcheon v. Federal Election Commission. Democracy 21 discusses the “consequences of the disastrous decision” while the Brennan Center for Justice’s David Earley explains how the case reflects the “justices’ troubling vision of democracy.” At Demos, Alex Amend notes how the “McCutcheon Money” will discourage whatever “level-playing field” was left after Citizens United v. FEC. For more coverage of McCutcheon v. FEC, please visit ACSblog.
James Clapper, the U.S. Director of National Intelligence, confirmed that “the National Security Agency has used a ‘back door’ in surveillance law to perform warrantless searches on Americans’ communications.” Writing for The Guardian, Spencer Ackerman and James Ball report on the political outcry surrounding this controversial “secret rule change.”
Last week, the Supreme Court heard oral argument for Wood v. Moss, a case asking whether Secret Service agents can be sued for treating protestors differently in a 2004 presidential visit to Oregon. At the Constitutional Law Prof Blog, Ruthann Robson—Faculty Advisor for the CUNY School of Law ACS Student Chapter—discusses how and if this case, along with the recent scandal surrounding President Obama’s personal security detail, should influence the “qualified immunity” the Supreme Court bestows on the Secret Service.
At The Huffington Post, former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter as well as Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter Geoffrey R. Stone explains why the “NSA deserves the respect and appreciation of the American people. But it should never, ever, be trusted.” More analysis on the NSA from Professor Stone can be found here.
Delaware Superior Court Judge Jan Jurden granted probation for a man convicted of sexually abusing his three-year-old daughter. Slate’s Emily Bazelon argues why this “mind boggling” case is “a part of a disturbing pattern of late in which judges treat sexual assault crimes as worthy only of a slap on the wrist.”
At the Brennan Center for Justice, Lauren-Brooke Eisen describes how Attorney General Eric Holder is combating the troubling effects of America’s ‘tough on crime legacy’ by “lowering the suggested penalties for certain drug crimes.”
At Education Week’s School Law blog, Mark Walsh discusses the Supreme Court’s denial of certiorari to a Roman Catholic school’s challenge to the Affordable Care Act.
At Bloomberg ViewCass R. Sunstein picks the “the all-time greats” of the Supreme Court.