Privacy rights

  • November 7, 2011
    Guest Post

    By Daniel J. Solove. Solove is the John Marshall Harlan Research Professor of Law and the George Washington University Law School. He is the author of Nothing to Hide: The False Tradeoff Between Privacy and Security (Yale 2011).


    The Supreme Court has long held that there is no expectation of privacy in public for the purposes of the Fourth Amendment.  Because the Fourth Amendment turns on the existence of a reasonable expectation of privacy, the Court’s logic means that the Fourth Amendment provides no protection to surveillance in public.  In United States v. Jones, the Court will confront just how far this logic can extend.  FBI agents installed a GPS tracking device on Jones’ car and monitored where he drove for a month without a warrant.  Jones challenged the warrantless GPS surveillance as a violation of the Fourth Amendment.  The D.C. Circuit agreed with Jones.  United States v. Jones, 615 F.3d 544 (D.C. Cir. 2010).  Other federal circuit courts have reached conflicting conclusions on GPS, and now the Supreme Court will resolve the conflict. 

    Will the Court revisit its view about the lack of privacy in public given the changing capabilities of technology?  Or will it follow its tortured logic to the end, and maintain its wooden and antiquated rule of no expectation of privacy in public? 

    On its face, the D.C. Circuit opinion appears to clash with the Supreme Court’s decision in United States v. Knotts, 460 U.S. 276 (1983), where the police installed a much simpler tracking device (referred to as a “beeper”) to a person’s car.  The Court concluded that the Fourth Amendment did not apply to the beeper because a “person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements.”

    The D.C. Circuit distinguished Knotts because the Supreme Court noted in Knotts that the beeper surveillance was limited and explicitly noted that more pervasive surveillance might be treated differently.   In concluding that the Fourth Amendment requires a warrant to engage in extensive GPS surveillance, the D.C. Circuit noted that “[w]hen it comes to privacy . . . the whole may be more revealing than the parts.”  As the court reasoned:

    It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine.

    The Supreme Court will determine if it agrees with this theory. 

    The problem with the Court’s existing view of no privacy in public is that people often do expect privacy in public.  The Court’s conception of privacy wrongly views privacy as total secrecy and fails to recognize that people often have practical obscurity in public.  

  • October 20, 2011
    Guest Post

    By Andrew Guthrie Ferguson, a professor at the University of the District of Columbia’s David A. Clarke School of Law


    In an effort to educate law students, the American Bar Association’s Criminal Justice Section has established “The Citizen Amicus Project” which invites current law students to contribute their own insights to a current Supreme Court case now being decided. The goal of this brand new project is to encourage law students to contribute to a national dialogue on constitutional issues that are relevant to their lives.

    The project exists as a web-based constitutional debate about ongoing Supreme Court casesSimilar to formal amicus briefs, the Citizen Amicus Project seeks input from interested parties to help resolve constitutional issues. The goal is to provide a focused opportunity for law students to contribute to a national legal question that affects law students. 

    This first iteration of the Citizen Amicus Project focuses on the Fourth Amendment. Under current Fourth Amendment doctrine many of the Supreme Court’s determinations turn on what society considers objectively “reasonable.” What is objectively reasonable, of course, is a contested issue, and law students can weigh in on this standard as well as any other subset of Americans.

    More specifically, the 2011-2012 Project focuses on the Fourth Amendment questions arising out of warrantless GPS surveillance. Almost all law students own cell phones, computers, and GPS devices that can be tracked and, thus, personally can understand the liberty interests at stake in warrantless tracking. 

    In November, the Supreme Court will hear United States v. Jones a case that raises questions of whether warrantless GPS tracking violates the Fourth Amendment. In Jones, the Supreme Court will review two specific questions:

  • October 4, 2011

    The National Women’s Law Center (NWLC) and Law Students for Reproductive Justice are reprising the “Webinar Wednesdays” series, If you care about…, then you should also care about Reproductive Justice  . Each Wednesday in October, between 6-7 p.m., EDT, the groups   will highlight the intersection between reproductive justice and four other critical social justice issues.

    Tomorrow, the first webinar in the series will feature ACS Student Board Member Ashland Johnson (pictured), who is currently the Reproductive Law Fellow at the NWLC. Johnson will be joined by Maya Rupert, the Federal Policy Director at the National Center for Lesbian Rights. Together, they will explore the juncture of LGBT equality and reproductive justice.

    The three subsequent webinars will feature representatives of NWLC, the Reproductive Health Technologies Project, Sistersong, and National Advocates for Pregnant Women. They will explore where reproductive justice meets environmental justice, racial discrimination, and criminal justice.

    To register for the webinars and for more information, click here.

    For analysis of these important concerns, see the University of North Carolina Law Professor Maxine Eichner’s ACS Issue Brief, as she presses for the passage of the Employment Non-Discrimination Act, which would extend discrimination protection to employees on the basis of sexual orientation or gender identity. Also see the ACSblog’s interview with the ACLU’s Louise Melling as she summarized attacks on reproductive rights during the past year.

  • September 19, 2011
    Guest Post

    By Jon Davidson, legal director of Lambda Legal


    On Tuesday, September 20th, we will celebrate the long overdue and unlamented end of Don’t Ask, Don’t Tell (DADT), the destructive and discriminatory law that prevented lesbian, bisexual and gay service members from serving their country openly. This is an amazing achievement, and one for which we need to salute the many brave LGB service members and veterans who, often at great sacrifice, stood up to institutionalized discrimination and argued that their private intimate relationships have no bearing on their fitness for military service and their willingness to make the ultimate sacrifice for our country. We also owe a debt of gratitude to the many organizations, LGBT and allied activists, and politicians who relegated this ignoble law to history.

    Lambda Legal has long battled antigay discrimination in the military, filing our first lawsuit in 1975 and representing many service members since then. In 1992, together with Northwest Women's Law Center (now known as Legal Voice) and with assistance from the National Lawyers Guild's Military Law Task Force,  Lambda Legal filed a lawsuit on behalf of decorated Army and National Guard veteran Col. Margarethe Cammermeyer who was discharged under pre-DADT regulations because of her sexual orientation. We won a favorable judgment two years later from a federal district judge who held the military’s ban violated the equal protection and due process guarantees of the U. S. Constitution. Col. Cammermeyer’s case was dramatized in the film Serving in Silence. With the ACLU, Lambda Legal also filed the first challenge to DADT, which succeeded at the trial court only to be wrongly upheld on appeal.  Most recently, Lambda Legal filed two different amicus briefs in the Log Cabin Republicans v. United States of America, a case that there can be no doubt rushed along the repeal of DADT. On Sept. 1, the Ninth Circuit heard oral argument of the appeal of the trial court’s ruling in that case finding that DADT unconstitutionally burdened the right of liberty established by our seminal Lawrence v. Texas case, by limiting service members’ freedom to engage in intimate relationships if they wanted to keep their jobs. The argument chiefly focused on whether the appeal would become moot once DADT is fully repealed, one of the principal issues addressed by our last amicus brief in the case. While I firmly believe that the district court’s declaratory judgment that DADT is unconstitutional should stand after the repeal of DADT, in light of the tenor of the questions and comments at the argument, it is possible that the Ninth Circuit will vacate that judgment or remand the case to the district court for consideration of whether the judgment should be vacated.

  • July 29, 2011
    Video Interview

    by Jeremy Leaming

    Right-wing policy makers have spent more than a year bemoaning, as a serious affront to liberty, the Affordable Care Act’s (ACA) provision that requires people to carry, starting in 2014, a minimum amount of health care insurance or pay a penalty. Supporters of the health care law point out, however, that without the minimum coverage provision, the landmark health care reform law would be ineffective, allowing insurance companies to discriminate against people with pre-existing conditions, thereby undercutting a main impetus of the law, which is to make sure that the vast majority of Americans are able to carry health care insurance.

    Despite the hue and cry from the Right over the ACA’s minimum coverage provision, government mandates on abortion continue to proliferate in the states, especially those states with legislative bodies controlled by right-wing policy makers.

    Yesterday, the North Carolina Senate successfully enacted a law that will require women seeking abortions to wait 24 hours, receive state-mandated “counseling,” and a state-mandated ultrasound before receiving the medical procedure. Both chambers of the North Carolina General Assembly overrode Gov. Bev Perdue’s veto of the measure. Twenty-five states now require government-mandated “counseling” and waiting periods before women can receive abortions.

    Following the Assembly’s action, Gov. Perdue issued a brief statement saying, “The Republican’s social agenda has, with this bill, invaded a woman’s life as never before – by marching straight into her doctor’s office and dictating the medical advice and treatment she receives.”

    The Center for Reproductive Rights President and CEO Nancy Northup ripped the new law as politically motivated and constitutionally suspect.

    “It is extremely disheartening that the North Carolina legislature would go out of its way to enact a law that uses the doctor-patient relationship to advance a political agenda,” Northup said in a press statement. “When women go to the doctor, they don’t expect to be held hostage in an attempt to change their minds. They rightfully expect to be treated as an adult capable of making their own personal decisions. This law is an affront to a woman’s dignity and a violation of her constitutional rights.”

    At the ACS 10th Anniversary National Convention, former Acting Solicitor General Walter Dellinger, a partner at O’Melveny & Meyers, blasted the Right’s rhetorical and legal attacks on the health care law’s minimum coverage provision, saying he’s had enough of the lectures about government encroachment on liberty.

    “We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty,” Dellinger (pictured) said during a panel discussion on the constitutionality of the ACA. “And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about [a] government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”

    Louise Melling, director of the ACLU’s Center for Liberty, in an interview with ACSblog, said this year has been an especially bad one for reproductive rights. (And this interview came before the action in N.C. She talked with ACSblog following a panel at its national convention on reproductive rights.)

    The bills passed are making it more and more difficult for women to find physicians who can perform abortions, and having a stigmatizing effect as well, Melling said.

    “It is also a way of stigmatizing to say ‘women can’t make these decisions,’ we’re not … trusted decision-makers, and we need assistance as we make this decision,” she said.

    And what is awfully “scary,” Melling said was that politicians are not paying a price for supporting the draconian laws.

    “Nobody is really standing up to say this is not ok, these laws are just rolling right through,” she said.

    Watch her entire interview below or download a video podcast of it here. The video is also available at this site.