Category: Privacy

15

NYC Subway Searches Upheld: A Critique of the Court’s Decision

nyc-subway-search2.jpgIn a recently issued opinion, Judge Berman of the U.S. District Court for the Southern District of New York upheld New York’s subway searching policy. Back in July, New York began randomly searching people’s bags at NYC subways. I criticized the policy:

It is another big waste of money and time, as well as a needless invasion of civil liberties — all for a cosmetic security benefit. There are 4.5 million passengers each day on the NYC subways. What good could a few random checks do? The odds of the police finding the terrorist with a bomb this way are about as good as the odds of being hit by lightning. I doubt it will have much of a deterrent effect either.

This landed me in a debate with co-blogger Dave Hoffman, with Hoffman’s views here and my reply here.

Now, in response to an ACLU challenge under the Fourth Amendment, District Court Judge Richard Berman concludes that the policy is constitutional. The court analyzes the checkpoints under a “reasonableness” balancing test, in which the governmental interest is weighed against the invasion of privacy. But in doing so, the court begins by already tilting the scale toward the government’s side — even before the balancing has begun:

Because the threat of terrorism is great and the consequence(s) of unpreparedness may be catastrophic, it would seem foolish not to rely upon those qualified persons in the best position to know. (See Pre-Trial Amici Brief, at 14 (“[I]t would be inappropriate for courts to second-guess the judgments of law enforcement and other public officials who are charged with protecting the public and making difficult choices of resource allocation.”).)

I believe that this deference is inexcusable. The courts are charged with determining the constitutionality of the search policy, which depends upon reasonableness. The reasonableness of the policy, of course, depends upon balancing the efficacy of the searches against their intrusiveness, and if the court defers to the government in this regard, it is essentially rubber-stamping the goverment in this determination.

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1

I can’t drive (over) 55.

Canada is testing technlogy that will make it difficult or impossible to speed:

The system being tested by Transport Canada, the Canadian equivalent of the U.S. Department of Transportation, uses a global positioning satellite device installed in the car to monitor the car’s speed and position. If the car begins to significantly exceed the speed limit for the road on which it’s travelling the system responds by making it harder to depress the gas pedal, according to a story posted on the Toronto Globe and Mail’s Website.

This seems wrong on so many levels it’s hard to list them all. It is very much within a nebulous zone as far as privacy. It is a very troubling kind of search-and-seizure (with immediate sanctions). It vastly increases the power of the nanny state, all to add a negligible benefit. (Oooh! People will be driving no more than 25 in a 25 zone! That’s high on my priority list! We can catch terrorists later.)

Worse, I have to wonder about the inevitable mistakes that will creep in. What happens when a software bug turns the freeway into a 35 zone? And how will a population of hanicapped cars mesh with the population of unhanicapped cars?

Finally, this one-size-fits-all solution ignores the very real instances in which speeding is acceptable. The system leaves no room for the proverbial rush-to-the-hospital-she’s-having-a-baby. Other medical emergencies are likewise ignored. If my wife or child is bleeding in the back seat with a severe wound, or suffering a seizure, or burning with a 106 degree fever, you had better believe I’ll be speeding.

Maybe even worse, this opens some drivers up to be easier targets for criminal activity. If I’m driving a handicapped car in a rough part of town or a sparsely-used section of highway, I may be targeted by carjackers or worse, who will know that I can’t simply put pedal to the metal to escape them. If they drive old-fashioned un-handicapped cars (which can exceed the speed limit, while I can’t), then I’ll be easy prey. (Would I have a claim against the government?)

All in all, it seems like a change that introduces an awful lot of negatives, just to cut down on speeding.

11

Telling Tales Out of School: When Principals Out Their Students

school2.jpg

From the New York Times:

In a case involving a California high school girl who was openly gay at school, a federal judge has ruled that the girl, Charlene Nguon, may proceed with a lawsuit charging that her privacy rights were violated when the principal called her mother and disclosed that she is gay.

Ms. Nguon filed suit in September after a year of run-ins with Ben Wolf, the principal of Santiago High School in Garden Grove, Calif., over her hugging, kissing and holding hands with her girlfriend. Ms. Nguon was an all-A student ranked in the top 5 percent of her class, with no prior record of discipline. But last year, after Mr. Wolf said he wanted to separate her from her girlfriend, she transferred to another school. Her grades slipped, and her commute grew from a four-block walk to a four-and-a-half mile bike ride.

Judge James V. Selna of the Central District Court of California ruled Monday that Ms. Nguon had “sufficiently alleged a legally protected privacy interest in information about her sexual orientation.”

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0

ChoicePoint Wants Your Motor Vehicle Records

choicepoint2.jpgFrom the LA Times:

In recent months [ChoicePoint] has been meeting with officials of the California Department of Motor Vehicles in an effort to add the state’s nearly 30 million vehicle registration records to its existing database of 19 billion nuggets of personal information — a hoard that is already the biggest in the industry.

ChoicePoint says it requested the DMV records for a client, the U.S. Department of Homeland Security. That suggests it may ask the state to waive the normal fee of 10 cents per record, or about $3 million. By state law, government agencies can access DMV records for free.

The article has some interesting facts about ChoicePoint’s prior accessing of DMV records from other states:

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2

Sex + Open Window = Photos + Internet

camera3a.jpgA simple equation of modern life. This story has an interesting set of ingredients: sex photos, privacy, email, websites, and free speech. From the Chronicle of Higher Education:

The University of Pennsylvania has charged at least one student with sexual harassment and misuse of electronic resources after he posted pictures on the Internet that show students apparently having sex while standing beside a large window in one of the university’s high-rise dormitories.

Pictures of the nude students were taken by more than one photographer. The images made the rounds through e-mail messages and various Web sites, and at least one of the photographers posted the pictures on his personal Penn Web site at the end of September. Pictures taken by a different photographer were posted, and widely viewed, on collegehumor.com.

Although the subjects’ faces are not clearly seen in the photographs, Penn students eventually found out who they were. At least one of the students in the pictures filed a sexual-harassment complaint with the university’s Office of Student Conduct, naming the student who posted the images on his Penn Web site.

Student-conduct officials completed their investigation early in November. They recommended that the student, identified only as a junior majoring in engineering, write a letter of apology, write an essay explaining why what he did was wrong, and be placed on disciplinary probation until graduation, a penalty that would create a permanent record of the incident.

Those coming to the defense of the student note that the couple was having sex in public view and wasn’t entitled to privacy and that the University’s attempt to sanction the student was chilling of free speech.

According to another article, the University subsequently dropped the charges against the student, but still noted that it strongly disapproved of the student’s behavior.

Thanks to Orin Kerr for pointing out this story.

10

Fake Biographies on Wikipedia

Wikipedia.jpgMost of us would be quite flattered to find an entry about us on the Wikipedia, an online encyclopedia where anybody can create or edit an entry. Not so for John Seigenthaler. His Wikipedia bio said:

John Seigenthaler Sr. was the assistant to Attorney General Robert Kennedy in the early 1960’s. For a brief time, he was thought to have been directly involved in the Kennedy assassinations of both John, and his brother, Bobby. Nothing was ever proven.

In a USA Today editorial Seigenthaler begins by quoting the false bio and then writes:

I have no idea whose sick mind conceived the false, malicious “biography” that appeared under my name for 132 days on Wikipedia, the popular, online, free encyclopedia whose authors are unknown and virtually untraceable. . . .

At age 78, I thought I was beyond surprise or hurt at anything negative said about me. I was wrong. One sentence in the biography was true. I was Robert Kennedy’s administrative assistant in the early 1960s. I also was his pallbearer. It was mind-boggling when my son, John Seigenthaler, journalist with NBC News, phoned later to say he found the same scurrilous text on Reference.com and Answers.com.

Seigenthaler explains how he tried to track down the person who posted the information:

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17

Google’s Empire, Privacy, and Government Access to Personal Data

google-priv.jpgA New York Times editorial observes:

At a North Carolina strangulation-murder trial this month, prosecutors announced an unusual piece of evidence: Google searches allegedly done by the defendant that included the words “neck” and “snap.” The data were taken from the defendant’s computer, prosecutors say. But it might have come directly from Google, which – unbeknownst to many users – keeps records of every search on its site, in ways that can be traced back to individuals.

This is an interesting fact — Google keeps records of every search in a way that can be traceable to individuals. The op-ed goes on to say:

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11

The End of Shame

With talk these days about the decline of privacy, the disappearance of shame deserves attention. People have become less self-conscious—more willing to let the world into their intimate spaces without any sense of embarrassment. Webcams, whose operators actually invite voyeuristic strangers to observe their every move, are just one example.

The past few years have also seen a marked rise in the number of people who believe it is acceptable to take care of personal hygiene and grooming in public. Every morning I ride the subway, professional women in my car are busy applying makeup. I don’t mean making last minute touch-ups—with makeup kits perched on their knees, they’re painting a blank canvas.

I frequently also see otherwise normal looking subway riders filing and trimming their fingernails. I’ve seen eyelashes curled, eyebrows plucked, and nose hairs removed with little tweezers. (Where do these people suppose all their personal droppings end up?)

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3

More on Pseudonymous Litigation

redact1.jpgHoward Bashman offers these further thoughts about the issue of pseudonymous litigation and the sex tape case I blogged about earlier today:

In terms of assessing blame, however, in my view it is the attorney for the pseudonymous party who bears the responsibility to ensure that the appellate briefs posted online — and surely the Seventh Circuit’s practice of posting briefs online comes as a surprise to no one — does not reveal the actual identity of the lawyer’s pseudonymous client. . . .

There is no way that an appellate court’s clerk’s office can review filings for the purpose of making appropriate redactions; that is the job of counsel for the parties.

While I don’t believe that the court should be held blameless, I definitely agree with Bashman that the lawyers are also to blame in this case.

Lawyers often are not devoting adequate attention to the issue of client privacy interests in the course of litigation. One reason why many privacy cases involve the real names of plaintiffs is because many lawyers don’t even think of raising the issue of the plaintiff proceeding pseudonymously. Courts often will deny plaintiffs the right to proceed under a pseudonym, but this doesn’t mean it isn’t worth trying. You rarely get anything without at least asking.

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7

Of Sex Tapes, Pseudonymous Litigation, and Judicial Bungling

videocamera1a.jpgLior Strahilevitz (law, Chicago) has a wonderful post over at the Chicago Law Faculty Blog about a very problematic Seventh Circuit opinion — and blunder. The case, Doe v. Smith, involves a teenage girl whose boyfriend secretly videotaped them having sex and then emailed the video to his friends. The issue is whether the plaintiff could proceed on federal Wiretap Act claims. The court said yes. But then the court stated:

On remand, the district judge must revisit the question whether the plaintiff should be allowed to proceed anonymously. The judge granted her application to do so without discussing this circuit’s decisions, which disfavor anonymous litigation. The public has an interest in knowing what the judicial system is doing, an interest frustrated when any part of litigation is conducted in secret. Plaintiff was a minor when the recording occurred but is an adult today. She has denied Smith the shelter of anonymity – yet it is Smith, and not the plaintiff, who faces disgrace if the complaint’s allegations can be substantiated. And if the complaint’s allegation’s are false, then anonymity provides a shield behind which defamatory charges may be launched without shame or liability.

Lior Strahilevitz persuasively attacks the court’s reasoning:

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