Privacy rights

  • November 17, 2011
    Unpopular Privacy
    What Must We Hide?
    Anita L. Allen

    By Anita L. Allen, a law and philosophy professor at the University of Pennsylvania.

    An expanding library of books addresses the fate of privacy in the Era of Revelation. The central theme of my contribution to the genre sets it apart. My book’s focus is “unpopular” privacy, rather than the “popular” privacy people in the United States, Canada and Europe tend to want and expect government to secure. I define as “unpopular” privacy that is unwanted, disliked, not preferred, and resented by the people it is suppose to benefit or constrain.

    Testing the plausibility ofprivacy paternalism for liberal societies, I engage readers in a wide-ranging discussion of physical privacies of seclusion, isolation, and bodily exposure; and then informational privacies of confidentiality and data protection. Specifically, under the rubric of unwanted physical privacies, I discuss nude dancing, Muslim attire, public health quarantine and super max prison cells; under informational privacies, I take up whether “race” counts as sensitive data, the confidentiality obligations of lawyers, health care providers and other workers, electronic social networking, and online commerce and self-exposure.

    Should youthful Internet users be blocked from websites that collect sensitive personal information, for their own good? Should the law oblige us to forego since the giant consumer goods seller keeps track of our purchases and makes recommendations, or gmail because it pitches ads to us based on words that appear in our private messages to family and friends? Should adults with intimate secrets be banned from publishing them? Is there a possible justification for laws that ban Apps that monitor and store health information in the “cloud”?  

    Unpopular Privacy explores the normative underpinnings of laws that promote, require, and enforce physical and informational privacies. My book struggles to understand the values that prompt real and imagined unpopular privacy mandates.  Persuading libertarians and feminists with whom I identify to endorse regimes of imposed privacy is a significant intellectual challenge; both groups famously caution against the subordinating potential of compulsory privacies.

  • 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.