Privacy rights

  • April 7, 2011

    The Supreme Court of Arkansas’s rejection of a voter approved ballot measure barring gay couples from adopting is a being widely hailed as a victory for equality, but derided by a lone Religious Right outfit as creating a threat to the state’s youth.

    In Arkansas Department of Human Services v. Cole, a unanimous high court upheld a lower court ruling that concluded the ballot measure, Act 1, violated privacy rights protected by the Arkansas Constitution.

    The measure approved by 57 percent of voters in 2008 bars children from being adopted by a parent who is “cohabiting with a sexual partner outside of a marriage that is valid under the Arkansas Constitution and the laws of this state.” The American Civil Liberties Union (ACLU) represented several couples in a lawsuit challenging the measure’s constitutionality.

    Associate Justice Robert L. Brown cited state court precedent that the “Arkansas Constitution does guarantee citizens certain inherent and inalienable rights, including enjoyment of life and liberty and the pursuit of happiness, and … the right of citizens to be secure in their own homes.” Moreover, Brown noted that “privacy is mentioned in more than eighty statutes enacted by the Arkansas General Assembly, thereby establishing ‘a public policy of the General Assembly supporting a right to privacy.’”

    Brown concluded that Act 1 was indeed a violation of privacy rights. Under the act, “the exercise of one’s fundamental right to engage in private, consensual sexual activity is conditioned on foregoing the privilege of adopting or fostering children. The choice imposed on cohabiting sexual partners, whether heterosexual or homosexual, is dramatic. They must choose either to lead a life of private, sexual intimacy with a partner without the opportunity to adopt or foster children or forego sexual cohabitation and, thereby, attain eligibility to adopt of foster.”

    Christine P. Sun, senior counsel for the ACLU Lesbian Gay Bisexual and Transgender Project, hailed the opinion, saying the “ban did nothing positive. It required the government to intrude into the private lives of Arkansans for no child welfare purpose at all. We are relieved that the court agreed that the law is unconstitutional.”

    Human Rights Campaign (HRC) President Joe Solmonese said the Arkansas high court had “removed a discriminatory barrier for loving gay and lesbian couples who, child welfare experts agree, are equally able parents.”

    Jerry Cox head of the Family Council, a Religious Right group that helped push passage of Act 1, complained that the Supreme Court had belittled state voters with the ruling, and said his organization would urge lawmakers to amend the constitution to ban same-sex couples from adopting, the Arkansas Democrat Gazette reported.

    The Huffington Post’s Amanda Terkel noted that “Mississippi and Utah are now the only two states with an explicit ban on unmarried, co-habitating couples adopting. Other states have implicit bans that don’t necessarily outlaw gay adoption but make it very difficult in practice. One such state is Virginia, where Gov. Bob McDonnell (R ) is currently considering whether to derail a proposal, recommended by his Democratic predecessor, that would amend state regulation to allow same-sex couples to adopt.”

  • March 22, 2011
    Guest Post

    By Anthony Renzo, Professor of Law, Vermont Law School. Professor Renzo specializes in constitutional law and litigation.
    In an opinion framed in terms of the majestic First Amendment principles of informed decision-making and debate on matters of public concern, the Supreme Court in Snyder v. Phelps ruled that the First Amendment protects picketing that targeted the funeral of Lance Corporal Matthew Snyder, killed in action in Iraq. The pickets were members of the Westboro Baptist Church, who chose Matthew's funeral to generate media attention for their message that God killed Matthew Snyder "in shame, not honor" because his parents and America tolerate homosexuality, divorce, and adultery. Under First Amendment cover, the Court ruled that this was speech on matters of public concern and was immune from state tort liability, however personally painful to the family of the deceased.

    In 2007, Westboro's founder, Fred Phelps, and several members of his family traveled from Kansas to Maryland to picket Matthew's funeral. Their signs carried their message: "God Hates Fags," "Thank God for Dead Soldiers," "You're Going to Hell," and "God Hates You." Westboro targeted Matthew Snyder, a private figure whose views on these issues were unknown, for the purpose of generating a national audience for their message. In the process Westboro hijacked the narrative that would accompany the Snyder family's burial of their son. Unfortunately, the theft of Matthew's memory by Westboro did not end with the publicity generated by the funeral picketing. Following the funeral, Westboro posted an online account of the meaning of their funeral picket, a self-described "epic" entitled "The Burden of Marine Lance Cpl. Matthew A. Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants Connect the Dots!" In this "epic," interspersed among lengthy Bible quotations, Westboro denounced Matthew and his parents by name:

    "Mr. and Mrs. Snyder ... raised him (Matthew) for the devil.

    "Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity...They also, in supporting Catholicism, taught Matthew to be an idolater."

    Albert Snyder, Matthew's father, filed a lawsuit for damages against Westboro and the Phelps, claiming that this campaign to demonize the Snyders during a time of grief and vulnerability inflicted emotional distress and invaded their privacy. A federal district court jury found the defendants liable for three torts: intentional infliction of emotional distress (IIED), intrusion upon seclusion, and civil conspiracy, awarding Snyder $2.9 million in compensatory damages and $8 million in punitive damages. The trial court reduced the punitive damages to $2.1 million, but otherwise denied Westboro's post-trial motions.

    Westboro appealed to the Fourth Circuit, which reversed. The circuit court concluded that Westboro's speech, including the Web site epic, was protected by the First Amendment as speech on matters of public concern. A majority of the three judge appeals' court panel ruled that Westboro's personal attacks on the Snyders were made in the context of expressing its religious opinions on controversial issues of broad public interest that could not reasonably be interpreted as expressing verifiable facts about Albert Snyder. As such, according to the Fourth Circuit, this public-concern speech could not be penalized by any form of state tort liability.

    In an opinion by Chief Justice Roberts, an eight Justice majority of the Supreme Court affirmed the Fourth Circuit, but only after limiting the scope of its ruling to the funeral picketing. The Court refused to consider the online epic, claiming that Snyder had failed to include the epic within the scope of his petition for certiorari. Dissenting Justice Alito referred to the Court's refusal to consider the epic as "strange," pointing out that the epic was "not a distinct claim but a piece of evidence that the jury considered in imposing liability." Agreeing with the Fourth Circuit that the epic could not be divorced from the general context of the funeral message, Alito chastised the Court for not making an "independent examination of the whole record" as required when appellate courts review cases raising First Amendment issues.

  • March 15, 2011
    The cyberspace advertising and search engine behemoth Google is increasingly drawing the attention of Congress.

    As noted by The Wall Street Journal, Sen. Herb Kohl, chairman of the Senate Judiciary Antitrust Subcommittee "may hold hearings on Google this legislative session to examine whether the company is abusing its dominance in the Internet search market."

    In a press release, Kohl lays out the agenda for the subcommittee's work during this congressional session, including an examination of "Competition in Online Markets/Internet Search Issues."

    The statement continues:

    In recent years, the dominance over Internet search of the world's largest search engine, Google, has increased and Google has increasingly sought to acquire e-commerce sites in myriad businesses. In this regard, we will closely examine allegations raised by e-commerce websites that compete with Google that they are being treated unfairly in search ranking, and in their ability to purchase search advertising. We also will continue to closely examine the impact of further acquisitions in this sector.

    Google is already facing official scrutiny over its search-engine tactics in Europe.

    The New York Times reported in February that the European Commission "began a formal antitrust investigation of Google three months ago looking for evidence that Google had the power to shut out competition and restrict advertisers from doing business with other search engines."

  • February 25, 2011
    Google's massive effort to create a digital database of books is still tangled in a class action lawsuit, and as Marc Rotenberg, executive director of the Electronic Privacy Information Center (EPIC) tells Politico Pro, a subscriber-based service, was "entirely based on giving Google control over many of the nation's historic library resources and then be a gatekeeper for who could get access to those materials."

    In his interview with Politico Pro, Rotenberg expounded on the legal battle over the Google books project, adding that it was "taking materials that were freely available and now seeking to charge for them. And also was hoping to collect a great deal of information from people wanting to get access to the materials."

    In an ACS Issue Brief, James Grimmelmann, a law professor at New York Law School's Institute for Information Law and Policy, outlined similar concerns, writing that "Google has been systematically making digital copies of books in the collections of many major university libraries. It made the digital copies searchable through its web site - you couldn't read the books, but you could at least find out where the phrase you're for appears within them. This outraged copyright owners, who filed a class action lawsuit to make Google stop." The settlement of the class action has not been resolved, but in his Issue Brief Grimmelmann asserted that the settlement "would give Google a license not only to scan books, but also to sell them."

    Rotenberg also told Politico Pro that he believes "Google is posing the greatest privacy challenges to the future of the Internet. The reason for that is simple: Google exercises a dominant position over most of the essential Internet services. That includes search, e-mail, advertising, online video and increasingly the Web browser. Each one of those activities involves intensive data collection. The risk associated with Google's dominance of the Internet leads very directly to growing concerns about the privacy."

  • November 11, 2010
    Google's Street View project may not have greatly troubled the Federal Trade Commission (FTC), but as The Washington Post reports the Federal Communications Commission (FCC) is taking a different tack. The FCC, the newspaper reports, has launched an investigation into whether the Street View mapping program violated any communications laws when it apparently inadvertently sucked up personal information such as e-mails and passwords from unsecure Wi-Fi networks.

    The announcement follows the FTC's decision to close an inquiry into the Street View project, and news of international governments ramping up their criticism of the mapping program, which was launched in 2007 to gather street-level images from the U.S. and 30 other countries.

    The New York Times reports, Google cars "were also recording information about Wi-Fi networks in nearby homes and businesses, data that can be used to help mobile devices determine their locations. But Google went beyond noting the existence of such networks and recorded information that was sent over them."

    In a statement regarding its investigation, Michele Ellison, chief of the FCC's enforcement bureau, said, "Last month, Google disclosed that its Street View cars collected passwords, e-mails and other personal information wirelessly from unsuspecting people across the country."

    But, as The Post notes, the FCC has not provided much more about its investigation. Marc Rotenberg, head of the Electronic Privacy Information Center (EPIC) told the newspaper, "Intercepting communications traffic is a serious crime in the United States."

    Earlier this year, EPIC urged the FCC to open an investigation into Google's Street View program. In its letter, EPIC asserts that Google's collection of personal information "could easily" amount to a violation of a federal wiretap law. Rotenberg told The Post that the act is "one of the strongest privacy laws we have because of the strong privacy presumption in network communications."

    Authorities in Britain, Germany and Canada have raised concerns about the Street View program and violations of privacy.

    Google issued a statement yesterday saying it was "profoundly sorry for having mistakenly collected payload data from unencrypted networks."