Privacy rights

  • 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.

  • July 28, 2011
    The Rights of the People
    How Our Search for Safety Invades Our Liberties
    David K. Shipler

    By David K. Shipler, a former New York Times journalist and Pulitzer Prize-winning author who writes online at The Shipler Report.

    The Supreme Court has an opportunity next term to play catch-up in applying the Fourth Amendment to the advanced technology of surveillance. The Court has granted the Obama administration’s cert. petition seeking to overturn a well-reasoned opinion by the Court of Appeals for the D.C. Circuit requiring law enforcement to obtain warrants when secretly installing GPS tracking devices on vehicles.

    This could be a mundane case or a landmark, depending on which way the justices go. The Fourth Amendment has been seriously eroded in recent decades, as documented in my book The Rights of the People: How Our Search for Safety Invades Our Liberties. The Court’s majority could continue the pattern by ruling with the government, carving out yet another exception to the warrant requirement. Or, the Court could decide to set broad new standards to redefine the “reasonable expectation of privacy” in a digital age.

    The expectation of privacy is a key legal concept. The courts have ruled that where no such expectation exists, no “search” within the meaning of the Fourth Amendment occurs, and therefore no probable cause or judicial oversight is required.

  • July 18, 2011
    Guest Post

    By Sarah Berlin of the Bill of Rights Defense Committee. This is a cross-post from the People’s Blog for the Constitution.

    Documents recently revealed by the FBI show that the Bureau played a significant role in developing the controversial Secure Communities (S-Comm) program. The secrecy underlying this program — and the FBI’s documented strategy to extend it beyond immigrants to include all Americans in the future — is the latest demonstration of the FBI’s continued disregard for civil liberties.

    Many organizations, individuals, and even state governments have already spoken out against S-Comm, a program that allows Immigration and Customs Enforcement (ICE) access to arrest records such as fingerprint data even before the subject is tried or convicted of any crime. While the program was supposedly created to deport undocumented criminals, it has in fact deported hundreds of thousands of undocumented Americans who have never committed a crime, breaking up families (many of which include children or spouses who are US citizens) over mere suspicion of offenses as trivial as a broken taillight.

    The controversy over whether states and communities can opt-out of S-Comm heightened two weeks ago when the news broke that the FBI had been pushing S-Comm as a way to build public acceptance of its “Next Generation Identification” (NGI) project, which would create a database of biometric information such as fingerprints, iris scans, and facial recognition data — of not only immigrants, but all Americans. In other words, the FBI designed this program to use immigrants as the guinea pigs for a national biometric ID system that will eventually include all Americans. In such a system, there would be no ID cards — our bodies would be our IDs.

    According to Jessica Karp of the National Day Laborer Organizing Network (NDLON):

  • June 16, 2011
    Losing Twice
    Harms of Indifference in the Supreme Court
    Emily M. Calhoun

    By Emily M. Calhoun, Professor of Law, University of Colorado School of Law

    In Gonzales v. Carhart, a challenge to the federal Partial-Birth Abortion Ban Act, Justice Kennedy had an opportunity to reaffirm that women are persons of full constitutional stature, possessing the capacity to make responsible choices about spiritual imperatives.  This was how women were portrayed in an opinion joined by Kennedy in Planned Parenthood v. Casey. Instead, in Carhart, Kennedy described women as vulnerable persons needing State protection against decisions they might come to regret. Moreover, while the capacity for regret is generally associated positively with moral agency, Kennedy defined the regret that women might experience after deciding to have an abortion as a psychological phenomenon associated solely with depression and low self-esteem, psychological states that might justify state regulation of women’s liberty. 

    The Supreme Court’s refusal to entertain a facial constitutional challenge to the Partial-Birth Abortion Ban Act was an obvious loss for women seeking to preserve their right to make choices about pregnancy. That refusal, however, was based on an assertion that there was, as yet, no evidence that the statute would prohibit “the vast majority of D&E abortions,” or would be “a substantial obstacle to late-term, but previability, abortions,” or would subject women to significant health risks. Far more significant was Kennedy’s framing of regret as a sign of vulnerability rather than as evidence of a capacity for moral agency that undergirds and should be protected as a key component of personal liberty.  His suggestion that protecting women from regret is a legitimate basis for state incursions on women’s liberty inflicts a serious harm. (Imagine, for example, the likely uproar were the Supreme Court to suggest that government has a legitimate interest in regulating guns because of the possibility that a gun owner might suffer regret – defined as low self-esteem and depression – after lawfully using his weapon to shoot another.) Carhart thus serves up a second loss, to all women.  

  • June 2, 2011
    Nothing to Hide
    The False Tradeoff between Privacy and Security
    Daniel J. Solove

    By Daniel J. Solove, John Marshall Harlan Research Professor of Law at the George Washington University Law School. Solove will have a signing of his book at Politics & Prose in Washington, D.C. on July 9 at 6 p.m.

    A battle is raging in Congress and the courts about various forms of government surveillance. Federal courts have reached conflicting conclusions about whether the Fourth Amendment provides any protection against GPS surveillance by the government. The government is pressing Congress to allow broad access to location information. And Senator Leahy recently introduced a bill to update the Electronic Communication Privacy Act (ECPA), the law that regulates government access to our Internet records, among other things. 

    The debate between privacy and security remains vigorous, and the outcome of this debate will have profound effects on the scope of government power for years to come. My book, Nothing to Hide: The False Tradeoff Between Privacy and Security, is about how we should have this debate. For a long time, pro-security proponents have been using a set of arguments that are skewing the debate toward the security side. My book is written to put some of these arguments to rest.

    One of the prime examples of these arguments is one I refer to as the “All-or-Nothing Fallacy.”  Many people contend that “we must give up some of our privacy in order to be more secure.” In polls, people are asked whether the government should track people with GPS or wiretap people’s communications if it will help catch terrorists. Many people readily say yes. They conduct a balancing between the government having powers to monitor terrorists and privacy. “We certainly want the government to be listening,” people say. “If there’s a terrorist running around, we want the government to be tracking that person.” It’s hard to disagree. In the balance, privacy loses. 

    But this is the wrong way to conduct the balance. Rarely does protecting privacy involve totally banning a security measure. So when civil libertarians call for greater protections against government access to Internet use records or when they argue the Fourth Amendment should protect against GPS surveillance, they are not proposing that the government can never get its hands on the records or can never use GPS to monitor people. It’s not all-or-nothing. Instead, privacy protection merely means that these forms of surveillance should be regulated by requiring the government to justify before a court that it has probable cause to believe the surveillance will reveal evidence of criminal activity. 

    What does this mean for balancing privacy and security?