Tagged: Privacy

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FAN 200 (First Amendment News) Jasmine McNealy, Newsworthiness, the First Amendment, and Platform Transparency

Jasmine McNealy is an assistant professor in the Department of Telecommunication, in the College of Journalism and Communications at the University of Florida, where she studies information, communication, and technology with a view toward influencing law and policy. Her research focuses on privacy, online media, and communities. She holds a PhD in Mass Communication with and emphasis in Media Law, and a J.D. from the University of Florida. Her latest article is “Spam and the First Amendment Redux: Free Speech Issues in State Regulation of Unsolicited Email,” Communication Law & Policy (2018).

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Professor Jasmine McNealy

As of late the controversy, unrelated to the government, of most attention is the banning of Infowars founder and host Alex Jones from various social media sites including Facebook, YouTube, and Vimeo. Jones, purveyor of all manner of racist, sexist, you-name-it conspiracy theories, has drawn ire for spreading a conspiracy theory about the parents of children and teachers killed in the Sandy Hook mass shooting. He is currently being sued by a group of parents who assert that Jones defamed them by claiming that they and their children were crisis actors and not actual victims.

The Jones social media content cull, though some say belated, is interesting for sparking a larger discussion. In a decision met with outrage Twitter, a site now notorious for making controversial decisions about the kinds of content it will allow, had decided not to ban Jones. He would be banned a few days later. Twitter CEO Jack Dorsey, explained that Jones had not violated it rules against offensive content, a contention that has been challenged. But of more significance is the lack of definition of what actually is considered offensive content, not just for Twitter, but across the various social media sites.

Alex Jones (credit: Political Dig)

Of course, Twitter and other social media sites are private organizations, therefore claims that sites are violating freedom of expression by banning offensive speech are based less in law and more on, at most, ethical considerations. But social platforms play an increasingly significant role in how individuals seek, send, and receive information. In a study published in 2017 by Pew Research Center of American adults who get news from online sources, 53% of participants self-reported getting news from social media. Sixty-two percent reported getting news from search engines, which may lead to social sites. These numbers point to social media sources as playing an important role in the information that people encounter.

How, what, and the volume of information people encounter is important for decision-making. Platform decision about content users see is an issue of concern as more platforms move to algorithmically generated timelines that curate what we see. Zeynep Tufekçi has written that algorithmic timeline curation disrupts the potential for users to choose for themselves the value of the content they encounter, also asserting that YouTube’s algorithm-based recommendation system could be “one of the most powerful radicalizing instruments of the 21stcentury,” for its recommendations of extreme content. Companies like YouTube offer little, if any, insight into how their algorithms work.

The decision by social platforms – algorithmically or not – about whether users are able to see posts and the kinds of content acceptable for posting is a value judgment. Under a traditional rubric, offensive speech, presumably, would have little to no value and could, therefore, be either banned or hidden from other users. But platforms like Facebook and Twitter, however, have rejected offering a concrete definition of what they define as offensive, when said by whom, and in what context. Instead the platforms, though offering written statements as well as having their individual CEOs offer vague explanations, have left offensiveness open to interpretation.

A recent study from Caitlin Carlson and Hayley Rousselle at the University of Seattle testing Facebook’s offensive speech reporting mechanism found that though Facebook would remove some of the posts reported during their study, a significant number of racist, sexist, and otherwise offensive materials were allowed to remain visible, and that there was no discernible rationale for these content moderation decisions. Even after Facebook revealed the community standards its content moderators use in April 2018, investigative reports revealed that moderators have been told to temper their content removal efforts. So while a platform may reveal its objectionable content standards, in practice, offensiveness decisions are a black box– lacking transparency into how both human and algorithmic content moderation value judgments are made.

That an organization would make a judgement about the value of information is not novel. What we consider traditional news organizations have always made judgments about the value of information, and these gatekeeping decisions about what is newsworthy are many times bolstered by First Amendment jurisprudence. The Supreme Court has of declined to enforce laws mandating that news organizations (outside of broadcast) publish certain information. In Miami Herald v. Tornillo, for instance, in which the newspaper argued that a Florida statute requiring it to publish candidate responses to criticism infringed on press freedom, the Court agreed, finding that such a requirement was an “intrusion on the function of editors.”

(credit: Heartland Newsfeed)

Of course, the judgement of newsworthiness by the press is found most often in cases against news organizations for invasion of privacy. The newsworthiness of information is a First Amendment-based defense against privacy actions seeking redress for the publication of information highly offensive to a reasonable person. In these cases, if the information is of a legitimate public interest, the publisher will not be found liable for injury. And the courts have used many different tests for newsworthiness.  A prominent newsworthiness test “leaves it to the press” to decide the bounds of what is of a legitimate public interest. Perhaps the most common of the tests, used in Virgil v. Time and enshrined in the Restatement of Torts, considers the “customs and conventions of the community” for a newsworthiness determination. For a news organization this would be a consideration of the community in which it is centered. For social media this could mean the community that it has created.

Therefore, while calls exist for policymakers and legislators to do something about the massive platforms that significantly influence the information that individuals encounter, First Amendment jurisprudence demonstrates that such incursions would most likely violate the exercise of freedom of the press. Social media users in the U.S., then, will have to find an alternative way of persuading platforms to act on objectionable content. So far, public outcry is beginning to work particularly when it targets commercial interests.

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FAN 200 (First Amendment News) Margot E. Kaminski, “The First Amendment and Data Privacy: Between Reed and a Hard Place”

Margot E. Kaminski is an associate professor of law at the University of Colorado Law School. She specializes in the law of new technologies, focusing on information governance, privacy, and freedom of expression. Her forthcoming work on transparency and accountability in the EU’s General Data Protection Regulation (GDPR) stems from her recent Fulbright-Schuman Innovation Grant in the Netherlands and Italy.

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Professor Margot Kaminski

The Supreme Court’s recent Fourth Amendment cases show a strong awareness that privacy can implicate First Amendment values. In June 2018 in Carpenter v. United States, a case addressing warrantless location tracking through cell phone records, the majority noted that a lack of privacy can reveal (and presumably chill) “familial, political, professional, religious, and sexual associations.” In Riley v. California, a 2014 Fourth Amendment case addressing cell-phone searches, the majority recognized that while “[m]ost people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read,” a cell phone can store all of these things. With these comments, the Court observed that free expression often relies on privacy, and implied that absent privacy protections, people may conform in their choice of reading material, their political affiliations, and ultimately, their speech. In other words, privacy protections often also protect First Amendment rights.

But at the same time, the Court’s recent First Amendment decisions have created additional obstacles for those who seek to draft an American data privacy law.

The United States famously does not have omnibus federal privacy protection. Instead, U.S. privacy law is a patchwork of sectoral protections (like protections for video records, consumer protection at the FTC, state privacy torts, and state AG enforcement). Legislators reading Carpenter may conclude that a number of Justices in that case (including Justice Samuel Alito, who explicitly calls for privacy lawmaking in his dissent) understand the need for omnibus data privacy law. But even as the Court in Carpenter seems to point to the need for privacy legislation, its First Amendment decisions in Reed v. Gilbert and NIFLA v. Becerra threaten to tie legislators’ hands.

Reed treats content-based regulation with suspicion; Becerra does the same with disclosure requirements. In Reed, which addressed a town’s rules for the placement of signs, the Court held that “regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” All content-based regulation is subjected to strict scrutiny. Thus, a regulatory scheme that treated Political Signs differently from Temporary Directional Signs was content-based, and subject to strict scrutiny, and because it failed strict scrutiny, unconstitutional.

Becerra, decided this year, limits legislators’ ability to require truthful disclosures. The Court preliminarily enjoined California’s disclosure requirements for crisis pregnancy centers—centers that often pretend to provide abortion services but in practice discourage women from getting abortions. While claiming to be narrow and fact-bound, the majority in Becerra applied Reed’s broad understanding of content-based regulation to disclosure laws. The majority of the Court in Becerra explained that California’s disclosure law was “content-based regulation of speech” because “[b]y compelling individuals to speak a particular message, such notices ‘alte[r] the content of [their] speech.”

Why, in a discussion of data privacy, do I focus on Reed and Becerra and not on an earlier line of cases that directly address privacy laws? Because to an extent many Americans do not realize, data privacy protections are actually about increasing speech, not decreasing it. And at least as enacted elsewhere in the world, the efficacy of data privacy regimes as good policy often depends on being able to calibrate the law differently for different actors or scenarios. The first implicates Becerra on disclosures; the second implicates Reed and content-based analysis.

The Fair Information Practices, which were originally formulated in the United States, are the basis for data privacy laws around the world and are largely built around a concept that should be complimentary to the First Amendment: transparency. Take the EU’s General Data Protection Regulation (GDPR) as an example. Individuals are supposed to be notified when companies obtain their information. They have a right to access their data, and to find out to whom it has been disclosed. They have a right to find out where data has come from. Companies have to explain the purpose of data processing, and how profiling and automated decision-making work. All of these transparency rights and obligations attempt to correct, or at least expose, very real power imbalances between individuals and the companies that profit from their data. The GDPR is a disclosure law, as much as it is a right to stop other people from speaking about you.

Today’s paradoxical privacy problem, then, is that even as data privacy regimes rely in large part on increasing, not decreasing, speech by requiring disclosures to users, the Court’s recent First Amendment cases now shut down disclosure as a regulatory tool. Under Becerra’s reasoning, anydisclosure requirement could potentially be characterized as content-based (or, per Justice Stephen Breyer, “[v]irtually every disclosure law requires individuals ‘to speak a particular message’). The GDPR’s requirement that companies disclose the source of their data? Content-based compelled speech. The GDPR’s requirement that companies reveal to individuals the information held about them? A “particular message,” and thus content-based compelled speech.

The majority in Becerra attempts to cabin the impact of its opinion both (1) by pointing to the possibility of regulating speech incidental to regulated conduct (as it alleges was done by the majority in Planned Parenthood v. Casey, a case addressing compelled disclosures by doctors to patients seeking abortions), and (2) by carving out existing disclosure laws (“we do not question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products”). The problem is that data privacy does not fit squarely within either of these potential exceptions. It regulates information flow, not conduct, or at least conduct that’s nearly inextricable from information flow (though I’ve argued elsewhere that some forms of privacy violations are actually framed in First Amendment law as conduct-like). And because the U.S. lacks omnibus data protection law, privacy doesn’t readily fall into the Court’s attempt to exempt existing consumer protection law. By virtue of its very newness, data privacy may be more heavily scrutinized than other accepted areas of consumer protection.

Justice Stephen Breyer (credit: The Nation)

As Justice  Breyer notes in his dissent, “in suggesting that heightened scrutiny applies to much economic and social legislation,” Becerra jeopardizes legislators’ judgments in areas long left to legislative discretion. Reedcompounds this problem.Some kinds of information, and some behaviors, create greater privacy harms than others. For example, the GDPR, like many American privacy laws, puts in place added protections for “special categories” of data—or what we would call “sensitive information.” Is this content-based discrimination? Does it apply “to particular speech because of the topic discussed?” If so, this would potentially implicate even our current sectoral approach to privacy, not to mention hundreds of behavior-or-information-type-specific state privacy laws. The GDPR also, in many places, distinguishes between categories of companies. Take, for example, the GDPR’s derogation for small and medium-sized enterprises, which are subject to less onerous record-keeping provisions, presumably because smaller companies pose less of a risk of inflicting privacy harms. A government may also want to create an exception to, or less onerous version of, privacy law for smaller companies as a matter of innovation or competition policy, to encourage the growth of startups. Under Reed —and its predecessor, Sorrell v. IMS — identifying particular topics or speakers, or categories of information flow, could give rise to a challenge of regulation as content-based or even viewpoint-based. On paper at least, as Justice Elena Kagan noted in her concurrence, Reed’s broad take on content-based regulation “cast[s] a constitutional pall on reasonable regulations” and puts in place judicial second-guessing of matters that legislatures are likely institutionally better situated to assess.

One potential loophole, or at least limiting principle, to explore is Justice Samuel Alito’s strangely confident conviction in his concurrence, joined by both Justice Sonia Sotomayor and Justice Anthony Kennedy, that “Rules imposing time restrictions on signs advertising a one-time event” would not be considered content-based. This suggests that it may be possible for legislators to continue to name things in information-related legislation, when the restriction is the kind of restriction (e.g. time place and manner) that the First Amendment allows. But how to line-draw between a law that imposes temporal restrictions on “signs advertising a one-time event” and a law that restricts, in other ways, “Temporary Direction Signs” is frankly beyond me.

Thus legislators wanting to write—or in the case of California, that have recently written and passed—data privacy law may find themselves stuck between Reed and a hard place. To some extent, this can be understood as one example of what some have described as the Lochnerization of the First Amendment: its use for deregulatory purposes. But in the context of privacy, things are perhaps uniquely complicated. Speech values fall squarely on both sides. By regulating speech to protect privacy, you both restrict and protect speech. As the Court noted in Bartnicki v. Vopper, “the fear of public disclosure of private conversations might well have a chilling effect on private speech. . . . In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively.” And as the Court has increasingly recognized in its Fourth Amendment jurisprudence, personal information beyond communicative content—such as location data, or reading material or pictures stored on a cell phone—can implicate First Amendment concerns as well, by revealing your associations, your political affiliations, your opinions, your innermost thoughts.

In some ways, Carpenter and other cases move the United States closer to Europe on privacy. There is increasing convergence on what counts as sensitive information: the GDPR includes location data in its definition of “personal data;” and the Court in both Jones and Carpenter recognized an expectation of privacy in publicly disclosed location information. The Court in Carpenter continued a recent theme in Fourth Amendment jurisprudence of referring to what might be understood as First Amendment harms; the GDPR, too, addresses speech-related privacy. Even more significantly, Carpenter begins to undermine a central premise of U.S. privacy law: that you don’t have an expectation of privacy in information you have shared. This suggests that privacy protections might travel with private information, and pop up later in information flows—in other words, that a data privacy model may now be more palatable in the United States. And a disclosure-based privacy law targeting third parties (data brokers) is exactly what California recently passed.

But the First Amendment, once again, may be the context that ultimately defines, through constraints, American privacy law. Determining how to navigate the roadblocks of the Court’s recent First Amendment jurisprudence may—even more than legislative inertia—be the central problem U.S. data privacy now faces.

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FAN 125.1 (First Amendment News) 11 First Amendment experts comment on legality of NYT release of Trump’s tax returns

“[A] lawyer for Mr. Trump, Marc E. Kasowitz, emailed a letter to The Times arguing that publication of the records is illegal because Mr. Trump has not authorized the disclosure of any of his tax returns. Mr. Kasowitz threatened ‘prompt initiation of appropriate legal action.’”

“Trump himself tweeted early Sunday: ‘I know our complex tax laws better than anyone who has ever run for president and am the only one who can fix them.’ Again, he did not deny or dispute the Times‘ findings.”

The headline in the New York Times read: “Trump Tax Records Obtained by The Times Reveal He Could Have Avoided Paying Taxes for Nearly Two Decades.” Here is how that story began: Donald J. Trump declared a $916 million loss on his 1995 income tax returns, a tax deduction so substantial it could have allowed him to legally avoid paying any federal income taxes for up to 18 years, records obtained by The New York Times show. . . . The documents were the first page of a New York State resident income tax return, the first page of a New Jersey nonresident tax return and the first page of a Connecticut nonresident tax return. . . .”

Here is how The Times says those documents were obtained: “The three documents arrived by mail at The Times with a postmark indicating they had been sent from New York City. The return address claimed the envelope had been sent from Trump Tower.”

Susanne Craig, The Time I Found Donald Trump’s Tax Records in My Mailbox, New York Times, Oct. 2, 2016 (“I walked to my mailbox and spotted a manila envelope, postmarked New York, NY, with a return address of The Trump Organization. My heart skipped a beat.”)

Trump Reply: According to Eli Stokols writing in Politico: “A statement from Trump’s campaign neither confirmed nor denied that he filed a $916 million loss in his 1995 tax returns, but charged that the documents were ‘illegally obtained’ in what it said was “a further demonstration that the New York Times, like establishment media in general, is an extension of the Clinton Campaign, the Democratic Party and their global special interests.'”

As reported Dylan Stableford in Yahoo: “‘Mr. Trump is a highly skilled businessman who has a fiduciary responsibility to his business, his family and his employees to pay no more tax than legally required,’ the Trump campaign said in a statement. ‘That being said, Mr. Trump has paid hundreds of millions of dollars in property taxes, sales and excise taxes, real estate taxes, city taxes, state taxes, employee taxes and federal taxes, along with very substantial charitable contributions.'”

Federal & State Laws

26 U.S. Code § 7213 (a) (1): “It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution. . . .”

“(3) Other persons. It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution.”

Marc Kasowitz

Marc Kasowitz

Trump’s Lawyer: According to The Times, Marc Kasowitz, a lawyer for Mr. Trump, has threatened “appropriate legal action.” Here is how Mr. Kasowitz is described on his firm’s biographical page:

  • “Described by CNBC as the ‘toughest lawyer on Wall Street’ and by Bloomberg Financial News as an ‘uberlitigator'”
  • “[He] is widely regarded as one of the preeminent trial lawyers in the country.”
  • “He has been honored as a ‘Litigation Trailblazer’ by the National Law Journal.” 
  • “Opponents cited by The American Lawyer have acknowledged Marc as a ‘powerhouse’ and ‘the toughest of the tough guys,’ and a foreign publication has referred to him as ‘one of the most prominent and feared lawyers in the United States.'”

Related items

10 First Amendment Experts Respond

In light of what was written in the New York Times, I invited several First Amendment experts (practicing lawyers and noted scholars) to respond to the purported threat of litigation. Their comments are set out below. Following this post, I sent an e-mail to Mr. Kasowitz inviting his response.

Floyd Abrams:  The relevant body of First Amendment law that would be applied is not that of prior restraint –the Times has already published so there’s nothing to restrain any more — but cases relating to efforts to punish the publication of truthful information about matters of public interest. Those are cases that have held unconstitutional, on First Amendment grounds, statutes such as the following: barring publication of charges before a judicial panel passing on the alleged  misbehavior of judges; barring publication of the names of juveniles before juvenile courts (I argued those two cases in the Supreme Court); and barring publication of the names of rape victims. None of those cases laid down absolute rules. Neither did the most recent case in this line–the Bartnicki v. Vopper case. Taken together, however, all the cases make it extremely unlikely that the Times could constitutionally be held liable for publishing such a newsworthy story, a month before a presidential election, about a candidate for President.

Robert Corn-RevereThe assertion that the press cannot analyze the tax returns of a presidential candidate without first getting the candidate’s authorization is preposterous. It reveals a depth of ignorance that is unprecedented even in this election cycle. 

Jane BambauerDonald Trump’s arguments are foreclosed by Bartnicki v. Vopper, where the Supreme Court said that the dissemination of information about a matter of public concern could not be penalized even if it was obvious that the information was originally obtained illegally. (Bartnicki involved the broadcast of a private phone conversation that was captured by third party using an illegal wiretap.) For hard cases, reasonable minds may differ about whether speech pertains to matters of public concern (e.g. Hulk Hogan’s sex tape), but the public interest in Trump’s tax records is not a hard case.

This episode also illustrates the tension between free speech and privacy, and shows why courts will tip the scales toward speech even if a generally applicable privacy law has been broken somewhere along the chain. Privacy scholars and advocates have done a very good job showing why privacy is important even if we have nothing to hide. But Donald Trump exposes the costs of privacy: sometimes those who take refuge in claims of privacy do in fact have something to hide. The Bartnicki rule lets us cheat the consequences of our own privacy rules. Privacy law may prohibit certain types of intrusions people’s private affairs, but when the intrusion has happened and produces something valuable, the public will get to reap the benefits of that transgression.

Robert Corn-RevereThe assertion that the press cannot analyze the tax returns of a presidential candidate without first getting the candidate’s authorization is preposterous. It reveals a depth of ignorance that is unprecedented even in this election cycle.

Burt NeuborneThere is no conceivable basis for an action against The New York Times for publishing the income tax returns of a candidate for President. That’s why we have a First Amendment. Trump’s First Amendment privacy interest in whether he pays his taxes went out the window when he decided to run for the office of chief law enforcer. Why should anyone pay taxes if the President refuses to pay his fair share? Trump’s so used to bullying people into silence that he thinks he can do it to The New York Times. Fat chance. Remember the Pentagon Papers. 

Martin RedishIf the Pentagon Papers established anything, it’s that no prior restraint can be imposed on the Times in this situation to prevent them from publishing the tax records. If no criminal action was involved in obtaining the records, it is clear that no subsequent punishment can be imposed, either.

Where there may exist some doctrinal ambiguity (flowing, I believe, from the widespread and misguided assumption that prior restraints are somehow more invidious to First Amendment interests than subsequent punishment) is if the party providing the records to the Times obtained them illegally and subsequent punishment is sought. Purely as a normative matter, I have no doubt that under no circumstances should the act of publication of the records, in and of itself, be punishable. 

However, if The Times was actively involved in a criminal conspiracy to unlawfully acquire the records in the first place, I see no First Amendment bar to criminally punishing them for those acts. The First Amendment does not shield non-communicative criminal acts. For example, one is not constitutionally immune to prosecution for battery, merely because the battery was in an effort to coerce the victim to reveal information that is subsequently punished.

Steven R. Shapiro: The voters can decide what weight to attach to any information contained in Trump’s tax returns – or the returns of any other political candidate – but there can be no serious question about the right of the Times to publish that information. The Supreme Court has clearly and repeatedly held that the First Amendment protects the right of the press to publish information on matters of public concern, and that is true even if the information was unlawfully obtained by someone who then gave it to the press.

Steven Shiffrin: Except in very rare circumstances, newspapers are legally free to publish information provided by confidential sources. A politician may not want his financial records subject to public scrutiny, but he has no power to prevent or punish a newspaper for publishing records he would like to keep from public view. The protection of such a newspaper publication is part of the central meaning and purpose of the First Amendment. The suggestion of Mr. Trump’s counsel that this publication of the New York Times is not protected by the First Amendment is both idle and ignorant.

Geoffrey StoneThis is open-and-shut. As the Supreme Court made clear in the Pentagon Papers decision, the press cannot be held liable for publishing truthful information that is relevant to the public interest in the absence of a clear and present danger of grave harm. There is the question of invasion of privacy, but that tort applies only to information that is not “newsworthy.” That is hardly the case here. The First Amendment unquestionably protects the publication of Trump’s tax returns.

Nadine Strossen: The New York Times clearly has the right to publish Trump’s tax returns, and its readers have the right to read those returns, even absent Trump’s authorization.  The only authorization that is required is provided by the First Amendment, as well as multiple Supreme Court precedents.  The Court has consistently held that the First Amendment shields the publication of true information of public concern, including information that could be considered private, so long as the publisher did not act unlawfully in obtaining the information. The Court has upheld this right even when the parties who obtained the information and provided it to the publisher did act unlawfully. For example, the Court upheld the Times’ right to publish the Pentagon Papers regardless of whether Daniel Ellsberg acted unlawfully by providing these classified documents to the Times.  The Court also has upheld this principle when the information was illegally obtained from a private, non-governmental source.  As the Court explained: “[P]rivacy concerns give way when balanced against the interest in publishing matters of public importance….One of the costs associated with participation in public affairs is an attendant loss of privacy. . . . [A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” 

The Court has repeatedly held that the First Amendment trumps various state and federal laws that impose criminal or civil liability for publishing truthful information about matters of public concern.  Although the Court has declined to rule categorically that the First Amendment defense will always prevail, it has stressed that “where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order.”  (emphasis supplied) This is a very demanding standard, which the Court has never found to be satisfied, even in factual situations involving more pressing privacy concerns, and less compelling public information concerns, than those involved in the current situation.

Laurence Tribe: The idea of suing The New York Times to prevent or penalize publishing Mr. Trump’s tax returns is ludicrous. Regardless of who leaked that information to The Times, the First Amendment flatly forecloses any such use of judicial power to deprive the public of truthful information, especially given its relevance to a national election. [Twitter handle: @tribelaw]

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The authors of the New York Times story were:

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FAN (First Amendment News, Special Series #2) FBI to Continue Working with Hackers to Fight Terrorism . . . & Crime?

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The F.B.I. defended its hiring of a third party to break into an iPhone used by a gunman in last year’s San Bernardino, Calif., mass shooting, telling some skeptical lawmakers on Tuesday that it needed to join with partners in the rarefied world of for-profit hackers as technology companies increasingly resist their demands for consumer information. — New York Times, April 19, 2016

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This is the second FAN installment concerning the ongoing controversy over national security and cell-phone privacy. As with the first installment, the legal focus here is on First Amendment issues. It is against that backdrop that the Newseum Institute in Washington, D.C. will host a public event on June 15, 2016.

I am pleased to be working with Gene Policinski (the chief operating officer of the Newseum Institute) and Nan Mooney (a D.C. lawyer and former law clerk to Chief Judge James Baker of the U.S. Court of Appeals for the Armed Forces) in organizing the event.

Information concerning that upcoming event is set out below, but first a few news items.

Recent News Items

“FBI Director James Comey said the U.S. paid more than he will make in salary over the rest of his term to secure a hacking tool to break into a mobile phone used by a dead terrorist in the San Bernardino . . . . The law enforcement agency paid ‘more than I will make in the remainder of this job, which is 7 years and 4 months,’ Comey said . . . at the Aspen Security Forum in London. . . . Comey’s pay this year is $185,100, according to federal salary tables, indicating the tool cost the agency more than $1.3 million. FBI directors are appointed to 10-year terms.”

“[Ms. Amy Hess, the Federal Bureau of Investigation’s executive assistant director for science and technology,] did not answer directly when asked about whether there were ethical issues in using third-party hackers but said the bureau needed to review its operation ‘to make sure that we identify the risks and benefits.’ The F.B.I. has been unwilling to say whom it paid to demonstrate a way around the iPhone’s internal defenses, or how much, and it has not shown Apple the technique.”

“Bruce Sewell, Apple’s general counsel, told a House commerce oversight subcommittee that the company already works with law enforcement regularly and would help develop the FBI’s capability to decrypt technology itself, but won’t open ‘back doors’ to its iPhones due to the security risk that would pose to all users. . . . What the FBI wants, Hess said, is ‘that when we present an order, signed by an independent federal judge, that (tech companies) comply with that order and provide us with the information in readable form.’ How they do that is up to them, she said.”

“The leaders of the Senate Intelligence Committee have introduced a bill that would mandate those receiving a court order in an encryption case to provide “intelligible information or data” or the “technical means to get it” — in other words, a key to unlock secured data.  “I call it a ‘follow the rule of law bill,’ because that’s what it does: It says nobody’s exempt from a court order issued by a judge on the bench,’ said Committee Chairman Richard Burr, a North Carolina Republican. The top Democrat on the committee, California’s Dianne Feinstein, is a co-sponsor.”

Senate Bill Introduced

Here are a few excerpts from the proposed Senate Bill:

(1) GENERAL. Notwithstanding any other provision of law and except as provided in paragraph 7 (2), a covered entity that receives a court order from a government for information or data shall —

(A) provide such information or data to such government in an intelligible format; or

(B) provide such technical assistance as is necessary to obtain such information or data in an intelligible format or to achieve the purpose of the court order.

(2) SCOPE OF REQUIREMENT. A covered entity that receives a court order referred to in par graph (1)(A) shall be responsible only for providing data in an intelligible format if such data has been made unintelligible by a feature, product, or service owned, controlled, created, or provided, by the covered entity or by a third party on behalf of the covered entity.

(3) COMPENSATION FOR TECHNICAL ASSISTANCE. . . .

(b) DESIGN LIMITATIONS. Nothing in this Act shall be construed to authorize any government officer to require or prohibit any specific design or operating system to be adopted by any covered entity.

(4) DEFINITIONS . . . .

Non-Terrorist Crimes & Demands for Cell-Phone Access

Upcoming: Newseum Institute Moot Court Event Read More

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FAN (First Amendment News, Special Series) Newseum Institute to Host Event on Cell Phone Privacy vs National Security Controversy

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Starting today and continuing through mid-June, I will post a special series of occasional blogs related to the Apple iPhone national security controversy and the ongoing debate surrounding it, even after the FBI gained access to the phone used by the terrorist gunman in the December shooting in San Bernardino, California.

Gene Policinski

Gene Policinski

This special series is done in conjunction with the Newseum Institute and a major program the Institute will host on June 15, 2016 in Washington, D.C.

I am pleased to be working with Gene Policinski (the chief operating officer of the Newseum Institute) and Nan Mooney (a D.C. lawyer and former law clerk to Chief Judge James Baker of the U.S. Court of Appeals for the Armed Forces) in organizing the event.

The June 15th event will be a moot court with seven Supreme Court Justices and two counsel for each side. The focus will be on the First Amendment issues raised in the case. (See below re links to the relevant legal documents).

→ Save the Date: Wednesday, June 15, 2016 @ 2:00 p.m., Newseum, Washington, D.C. (more info forthcoming).

The Apple-FBI clash was the first significant skirmish — and probably not much more than that — of the Digital Age conflicts we’re going to see in this century around First Amendment freedoms, privacy, data aggregation and use, and even the extent of religious liberty. As much as the eventual outcome, we need to get the tone right, from the start — freedom over simple fear. –Gene Policinski

Newseum Institute Moot Court Event

It remains a priority for the government to ensure that law enforcement can obtain crucial digital information to protect national security and public safety, either with cooperation from relevant parties, or through the court system when cooperation fails.Melanie Newman (spokeswoman for Justice Department, 3-28-16)

As of this date, the following people have kindly agreed to participate as Justices for a seven-member Court:

The following two lawyers have kindly agreed to serve as the counsel (2 of 4) who will argue the matter:

→ Two additional Counsel to be selected.  

Nan Mooney and I will say more about both the controversy and the upcoming event in the weeks ahead in a series of special editions of FAN. Meanwhile, below is some relevant information, which will be updated regularly.

Apple vs FBI Director James Comey

President Obama’s Statement

Congressional Hearing

Documents

Screen Shot 2016-03-17 at 10.46.11 PM

Last Court Hearing: 22 March 2016, before Judge Sheri Pym

Podcast

Video

News Stories & Op-Eds

lockediphone5c

  1. Pierre Thomas & Mike Levine, “How the FBI Cracked the iPhone Encryption and Averted a Legal Showdown With Apple,” ABC News, March 29, 2016
  2. Bruce Schneier, “Your iPhone just got less secure. Blame the FBI,” Washington Post, March 29, 2016
  3. Katie Benner & Eric Lichtblau, “U.S. Says It Has Unlocked Phone Without Help From Apple,” New York Times, March 8, 2016
  4. John Markoff, Katie Benner & Brian Chen, “Apple Encryption Engineers, if Ordered to Unlock iPhone, Might Resist,” New York Times, March 17, 2016
  5. Jesse Jackson, “Apple Is on the Side of Civil Rights,” Time, March 17, 2016
  6. Katie Benner & Eric Lichtblau, “Apple and Justice Dept. Trade Barbs in iPhone Privacy Case,” New York Times, March 15, 2016
  7. Kim Zetter, “Apple and Justice Dept. Trade Barbs in iPhone Privacy Case,” Wired, March 15, 2016
  8. Alina Selyukh, “Apple On FBI iPhone Request: ‘The Founders Would Be Appalled,‘” NPR, March 15, 2016
  9. Howard Mintz, “Apple takes last shot at FBI’s case in iPhone battle,” San Jose Mercury News, March 15, 2016
  10. Russell Brandom & Colin Lecher, “Apple says the Justice Department is using the law as an ‘all-powerful magic wand‘,” The Verge, March 15, 2016
  11. Adam Segal & Alex Grigsby, “3 ways to break the Apple-FBI encryption deadlock,” Washington Post, March 14, 2016
  12. Seung Lee, “Former White House Official Says NSA Could Have Cracked Apple-FBI iPhone Already,” Newsweek, March 14, 2016
  13. Tim Bajarin, “The FBI’s Fight With Apple Could Backfire,” PC, March 14, 2016
  14. Alina Selyukh, “U.S. Attorneys Respond To Apple In Court, Call Privacy Concerns ‘A Diversion’,” NPR, March 10, 2016
  15. Dan Levine, “San Bernardino victims to oppose Apple on iPhone encryption,” Reuters, Feb. 22, 2016
  16. Apple, The FBI And iPhone Encryption: A Look At What’s At Stake,” NPR, Feb. 17, 2016
0

FAN 102 (First Amendment News) Len Niehoff on Hulk Hogan’s $140.1M Award Against Gawker

The magnitude of Hogan’s $100 million damage claim could have a serious chilling effect on all media who report on public figures and their lifestyles. — Len Niehoff (3-16-16)

Will there be a chilling effect on journalists? I hope not. I guess editors will have to address that. — Erwin Chemerinsky (3-21-16)

Prof. Len Niehoff

Prof. Len Niehoff

Recently, a Florida jury rendered a $115 million verdict (YouTube video here) against Gawker, this in connection with a 2012 posting  of a snippet of a video of Hulk Hogan (Terry G. Bollea) having sex with a friend’s wife. Subsequently, that jury awarded an additional $25.1 million in punitive damages. Gawker has said it will appeal.

The controversy arouse when Gawker posted a 13-year old secretly recorded sex video involving Mr. Hogan. He sued and prevailed on a claims of  invasion of privacy, intentional infliction of emotional distress, and economic harm.

Given the verdict, I invited Len Niehoff (professor at the University of Michigan Law School and of counsel at Honigman Miller Schwartz & Cohn) to comment on the Gawker $140.1 million dollar award and the First Amendment issues raised by it.

* * * * 

Last Friday, a Florida jury awarded Hulk Hogan $115 million in damages against Gawker based upon its publication of a brief and grainy videotape of the former professional wrestler having sex. That verdict exceeded the $100 million requested by Hogan and was purportedly compensatory, although the punitive message was tough to miss. A few days later the jury added $25 million more in formally punitive damages, which seems redundantly oppressive if not, so to speak, orgiastic.

The extravagance of the verdict is a problem unto itself. The evidence presented at trial seems wholly inadequate to yield such a number. And such outsized verdicts raise grave concerns when they come in speech cases. As the Supreme Court observed in New York Times, Co. v. Sullivan (1964), substantial damage awards can chill speech just as effectively as a criminal prosecution, casting a “pall of fear and timidity” over free expression. In Sullivan, the Court observed that the libel damage award at issue there was 100 times greater than the penalty imposed under the much-maligned Sedition Act. The verdict in question here, based on true speech, is about 28,000 times greater.

Apart from damages, the finding of liability is itself worrisome. In Snyder v. Phelps (2011), the Supreme Court held that the First Amendment barred invasion of privacy claims brought by a significantly more sympathetic plaintiff than Hulk Hogan. There, the father of a deceased soldier sued the Westboro Baptist Church for picketing and displaying offensive signs near his son’s funeral. The plaintiff advanced a variety of claims, including invasion of privacy. The jury awarded millions of dollars in damages to the plaintiff but the Supreme Court reversed, at various points in its opinion framing the relevant inquiry in two different ways.

Hulk Hogan

Hulk Hogan

In one portion of its opinion, the Court suggests that the test is whether the speech was of “only private concern.” The Court cited a case involving an individual’s credit report, which had been sent to a limited number of subscribers who were bound not to disseminate it. The Court noted that the publication in question there was of interest “solely” to the speaker and a specified audience.

If this is the test then Gawker clearly prevails. Prior to Gawker’s publication of the tape, Hulk Hogan had widely disseminated stories about his sexual exploits and they had become a matter of public discussion. These facts make it difficult (if not impossible) to argue that Hogan’s sexual escapades were “only” or “solely” of interest to him and a small collection of intimates.

In another portion of the opinion, the Court suggests that the test is whether the speech “can be fairly considered as relating to any matter of political, social, or other concern to the community.” The Court stressed that this is a highly contextual inquiry and that the “inappropriate or controversial character” of the speech is “irrelevant.”

 Hogan’s case presents a closer question under this standard but it is important to understand why. Let’s assume that Gawker had published a story describing Hogan’s sexual activities without showing the tape. Under those circumstances, it seems clear that Gawker’s conduct would pass the test. Gawker would simply have conveyed facts that had become a matter of public interest and on which a number of media entities had reported—and continue to report. Gawker would have done what the media have done for years: talk about the noteworthy sex life of a public figure.

What makes this case a closer one is Gawker’s decision to show the tape itself. This is almost certainly what outraged the jury. And it is not an irrelevant consideration—indeed, in Snyder the Supreme Court suggests that the “form” of the speech can matter. But should the distinction between describing and showing make a difference in this particular case? I am skeptical, for two primary reasons.

Last week’s jury verdict awarding Hulk Hogan $115 million had onlookers predicting the death of Gawker Media . . . . — Kaja Sadowski, USA Today, March 21, 2016

First, this distinction carries with it the risk that we will punish speech because it was conveyed in a particularly powerful form. The jury that was outraged over the tape might have greeted with relative indifference a Gawker report describing the same events. The video evokes a stronger, and potentially unreasoned, response. As media law scholar Jane Kirtley noted in a recent New York Times op-ed., the jury may well have thought to itself: “That could be my daughter, or my grandson. Or me.” But, of course, the jury would not want Gawker to report descriptively on those things, either. In other words, we need to ensure that uniquely compelling speech does not receive less protection because of its capacity to prompt us to ask the wrong questions.

Nick Denton (owner of Gawker Media)

Nick Denton (owner of Gawker Media)

Second, where form does seem to make a difference that difference will often lie in substantially greater and more invasive detail. Say, hypothetically, that a presidential candidate who has been described as having small hands wants to dispel any implications about the size of his penis. The candidate publicly offers a vague “guarantee” that there is “no problem” in this respect. Reporting on these events certainly raises no privacy concern. But we would likely feel differently about the broadcast of a purloined security video that showed the candidate in a restroom and provided definitive data.

In contrast, consider the hypothetical author of a memoir that offers detailed descriptions of his or her many sexual encounters. A report on these events would, again, raise no privacy concerns. But, here, we might also conclude that a videotape of the same events did not constitute an invasion of privacy, given the level of specificity that the author already shared with us. An argument can be made that the Hogan case is much closer to this hypothetical than to the prior one.

What’s next? The damage award will likely be reduced and a settlement may emerge. Or, perhaps, an appellate court will reverse. There is, after all, a compelling argument that Hogan cannot object to further publicity about his time in the sexual limelight having, well, “thrust himself” there.

* *  *

A top Gawker Media executive [Heather Dietrick, Gawker Media’s president and general counsel] says the company expects a jury’s multi-million dollar award in a sex video case will be overturned by an appeals court. — ABC News, March 21, 2016

* *  *

Commentaries 

Georgetown Appellate Litigation Clinic Files Brief in 1-A Retaliation Case  Read More

2

Irresistible Surveillance?

Bernard Harcourt’s Exposed: Desire and Disobedience in the Digital Age offers many intriguing insights into how power circulates in contemporary society.  The book’s central contribution, as I see it, is to complicate the standard model of surveillance by introducing the surveilled’s agency into the picture.  Exposed highlights the extent to which ordinary people are complicit in regimes of data-monitoring and data-mining that damage their individual personhood and the democratic system.  Millions upon millions of “digital subjects,” Harcourt explains, have come to embrace forms of exposure that commoditize their own privacy.  Sometimes people do this because they want more convenience when they navigate capitalist culture or government bureaucracies.  Or because they want better book recommendations from Amazon.  Other times, people wish to see and be seen online—increasingly feel they need to be seen online—in order to lead successful social and professional lives.

So complicit are we in the erosion of our collective privacy, Harcourt suggests, that any theory of the “surveillance state” or the “surveillance industrial complex” that fails to account for these decentralized dynamics of exhibition, spectacle, voyeurism, and play will misdiagnose our situation.  Harcourt aligns himself at times with some of the most provocative critics of intelligence agencies like the NSA and companies like Facebook.  Yet the emphasis he places on personal desire and participatory disclosure belies any Manichean notion of rogue institutions preying upon ignorant citizens.  His diagnosis of how we’ve lost our privacy is more complex, ethically and practically, in that it forces attention on the ways in which our current situation is jointly created by bottom-up processes of self-exposure as well as by top-down processes of supervision and control.

Thus, when Harcourt writes in the introduction that “[t]here is no conspiracy here, nothing untoward,” what might seem like a throwaway line is instead an important descriptive and normative position he is staking out about the nature of the surveillance problem.  Exposed calls on critics of digital surveillance to adopt a broader analytic lens and a more nuanced understanding of causation, power, and responsibility.  Harcourt in this way opens up fruitful lines of inquiry while also, I think, opening himself up to the charge of victim-blaming insofar as he minimizes the social and technological forces that limit people’s capacity to change their digital circumstances.

The place of desire in “the expository society,” Harcourt shows, requires rethinking of our metaphors for surveillance, discipline, and loss of privacy.  Exposed unfolds as a series of investigations into the images and tropes we conventionally rely on to crystallize the nature of the threat we face: Big Brother, the Panopticon, the Surveillance State, and so forth.  In each case, Harcourt provides an erudite and sympathetic treatment of the ways in which these metaphors speak to our predicament.  Yet in each case, he finds them ultimately wanting.  For instance, after the Snowden disclosures began to garner headlines, many turned to George Orwell’s novel 1984 to help make sense of the NSA’s activities.  Book sales skyrocketed.  Harcourt, however, finds the Big Brother metaphor to be misleading in critical respects.  As he reminds us, Big Brother sought to wear down the citizens of Oceania, neutralize their passions, fill them with hate.  “Today, by contrast, everything functions by means of ‘likes,’ ‘shares,’ ‘favorites,’ ‘friending,’ and ‘following.’  The drab blue uniform and grim gray walls in 1984 have been replaced by the iPhone 5C in all its radiant colors . . . .”  We are in a new condition, a new paradigm, and we need a new language to negotiate it.

Harcourt then considers a metaphor of his own devising: the “mirrored glass pavilion.”  This metaphor is meant to evoke a sleek, disorienting, commercialized space in which we render ourselves exposed to the gaze of others and also, at the same time, to ourselves.  But Harcourt isn’t quite content to rest with this metaphor either.  He introduces the mirrored glass pavilion, examines it, makes a case for it, and keeps moving—trying out metaphors like “steel mesh” and “data doubles” and (my favorite) “a large oligopolistic octopus that is enveloping the world,” all within the context of the master metaphor of an expository society.  Metaphors, it seems, are indispensable if imperfect tools for unraveling the paradoxes of digital life.

The result is a restless, searching quality to the analysis.  Exposed is constantly introducing new anecdotes, examples, paradigms, and perspectives, in the manner of a guided tour.  Harcourt is clearly deeply unsettled by the digital age we have entered.  Part of the appeal of the book is that he is willing to leave many of his assessments unsettled too, to synthesize a vast range of developments without simplifying or prophesizing.

Another aspect of Exposed that enhances its effect is the prose style.  Now, I wouldn’t say that Harcourt’s Foucault-fueled writing has ever suffered from a lack of flair.  But in this work, Harcourt has gone further and become a formal innovator.  He has developed a prose style that uncannily mimics the experience of the expository society, the phenomenology of the digital subject.

Throughout the book, when describing the allure of new technologies that would rob us of our privacy and personhood, the prose shifts into a different register.  The reader is suddenly greeted with quick staccato passages, with acronyms and brand names thrown together in a dizzying succession of catalogs and subordinate clauses.  In these passages, Harcourt models for us the implicit bargain offered by the mirrored glass pavilion—inviting us to suspend critical judgment, to lose ourselves, as we get wrapped up in the sheer visceral excitement, the mad frenzy, of digital consumer culture.

Right from the book’s first sentence, we confront this mimetic style:

Every keystroke, each mouse click, every touch of the screen, card swipe, Google search, Amazon purchase, Instagram, ‘like,’ tweet, scan—in short, everything we do in our new digital age can be recorded, stored, and monitored.  Every routine act on our iPads and tablets, on our laptops, notebooks, and Kindles, office PCs and smart-phones, every transaction with our debit card, gym pass, E-ZPass, bus pass, and loyalty cards can be archived, data-mined, and traced back to us.

Other sentences deploy a similar rhetorical strategy in a more positive key, describing how we now “‘like,’ we ‘share,’ we ‘favorite.’ We ‘follow.’ We ‘connect.’ We get ‘LinkedIn”—how “[e]verything today is organized around friending, clicking, retweeting, and reposting.”

There is a visceral pleasure to be had from abandoning oneself to the hyper-stimulation, the sensory overload, of passages like these.  Which is precisely the point.  For that pleasure underwrites our own ubiquitous surveillance and the mortification of self.  That pleasure is our undoing.  More than anything else, in Harcourt’s telling, it is the constant gratifications afforded by technologies of surveillance that have “enslaved us, exposed us, and ensnared us in this digital shell as hard as steel.”

*  *  *

I hope these brief comments have conveyed some of what I found so stimulating in this remarkable book.  Always imaginative and often impressionistic, Exposed is hazy on a number of significant matters.  In the hope of facilitating conversation, I will close by noting a few.

First, what are the distributional dimensions of the privacy crisis that we face?  The implicit digital subject of Exposed seems to be a highly educated, affluent type—someone who would write a blog post, wear an Apple Watch, buy books on Amazon.  There may well be millions of people like this; I don’t mean to suggest any narcissism in the book’s critical gaze.  I wonder, though, how the privacy pitfalls chronicled in Exposed relate to more old-fashioned forms of observation and exploitation that continue to afflict marginalized populations and that Harcourt has trenchantly critiqued in other work.

Second, what about all the purported benefits of digital technology, Big Data, and the like?  Some commentators, as Harcourt notes in passing, have begun to argue that panoptic surveillance, at least under the right conditions, can facilitate not only certain kinds of efficiency and security but also values such as democratic engagement and human freedom that Harcourt is keen to promote.  I share Harcourt’s skepticism about these arguments, but if they are wrong then we need to know why they are wrong, and in particular whether they are irredeemably mistaken or whether they might instead point us toward useful regulatory reforms.

And lastly, what would dissent look like in this realm?  The final, forward-looking chapter of Exposed is strikingly short, only four pages long.  Harcourt exhorts the reader to fight back through “digital resistance” and “political disobedience.”  But remember, there is no conspiracy here, nothing untoward.  Rather, there is a massively distributed and partially emergent system of surveillance.  And this system generates enormous perceived rewards, not just for those at the top but for countless individuals throughout society.  It is something of a puzzle, then, what would motivate the sort of self-abnegating resistance that Harcourt calls for—resistance that must be directed, in the first instance, toward our own compulsive habits and consumptive appetites.  How would that sort of resistance develop, in the teeth of our own desires, and how could it surmount collective action barriers?

These are just a few of the urgent questions that Exposed helps bring into focus.

*  *  *

David Pozen is an associate professor at Columbia Law School.

0

How CalECPA Improves on its Federal Namesake

Last week, Governor Brown signed the landmark California Electronic Communications Privacy Act[1] (CalECPA) into law and updated California privacy law for modern communications. Compared to ECPA, CalECPA requires warrants, which are more restricted, for more investigations; provides more notice to targets; and furnishes as a remedy both court-ordered data deletion and statutory suppression.  Moreover, CalECPA’s approach is comprehensive and uniform, eschewing the often irrational distinctions that have made ECPA one of the most confusing and under-protective privacy statutes in the Internet era.

Extended Scope, Enhanced Protections, and Simplified Provisions

CalECPA regulates investigative methods that ECPA did not anticipate. Under CalECPA, government entities in California must obtain a warrant based on probable cause before they may access electronic communications contents and metadata from service providers or from devices.  ECPA makes no mention of device-stored data, even though law enforcement agents increasingly use StingRays to obtain information directly from cell phones. CalECPA subjects such techniques to its warrant requirement. While the Supreme Court’s recent decision in United States v. Riley required that agents either obtain a warrant or rely on an exception to the warrant requirement to search a cell phone incident to arrest, CalECPA requires a warrant for physical access to any device, not just a cell phone, which “stores, generates, or transmits electronic information in electronic form.” CalECPA clearly defines the exceptions to the warrant requirement by specifying what counts as an emergency, who can give consent to the search of a device, and related questions.

ECPA’s 1986-drafted text only arguably covers the compelled disclosure of location data stored by a service provider, and does not clearly require a warrant for such investigations. CalECPA explicitly includes location data in the “electronic communication information” that is subject to the warrant requirement when a government entity accesses it from either a device or a service provider (broadly defined).  ECPA makes no mention of location data gathered in real-time or prospectively, but CalECPA requires a warrant both for those investigations and for stored data investigations. Whenever a government entity compels the “the production of or access to” location information, including GPS data, from a service provider or from a device, CalECPA requires a warrant.

Read More

8

The Complete Posner on Posner Series

The Posner on Posner series began on November 24, 2014 and ended with the Afterword on January 5, 2015. Below is a hyperlinked list of all the posts.

 Table of Contents

  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part I
  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part II, The Will to Greatness
  1. The Man Behind the Robes — A Q & A with Richard Posner
  1. The Judge & Company – Questions for Judge Posner from Judges, Law Professors & a Journalist
  1. On Legal Education & Legal Scholarship — More questions for Judge Posner
  1. On Free Expression & the First Amendment — More questions for Judge Posner
  1. On Privacy, Free Speech, & Related Matters – Richard Posner vs David Cole & Others
  1. On Judicial Reputation: More questions for Judge Posner
  1. Posner on Same-Sex Marriage – Then & Now
  1. Posner on Case Workloads & Making Judges Work Harder
  1. The Promethean Posner – An Interview with the Judge’s Biographer
  1. Afterword: Posner at 75 – “It’s My Job”

→ Forthcoming: Richard Posner (Oxford University Press, 2016) by William Domnarski.

8

On Privacy, Free Speech, & Related Matters – Richard Posner vs David Cole & Others

I’m exaggerating a little, but I think privacy is primarily wanted by people because they want to conceal information to fool others. Richard Posner

Privacy is overratedRichard Posner (2013)

 Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct. Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you.Richard Posner (2014)

This is the seventh installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, and the sixth one here.

Privacy has been on Richard Posner’s mind for more than three-and-a-half decades. His views, as evidenced by the epigraph quotes above, have sparked debate in a variety of quarters, both academic and policy. In some ways those views seem oddly consistent with his persona – on the one hand, he is a very public man as revealed by his many writings, while on the other hand, he is a very private man about whom we know little of his life outside of the law save for a New Yorker piece on him thirteen years ago.

On the scholarly side of the privacy divide, his writings include:

  1. The Right of Privacy,” 12 Georgia Law Review 393 (1978)
  2. Privacy, Secrecy, and Reputation,” 28 Buffalo Law Review 1 (1979)
  3. The Uncertain Protection of Privacy by the Supreme Court,” 1979 Supreme Court Review 173
  4. The Economics of Privacy,” 71 The American Economic Review 405 (1981)
  5. Privacy,” Big Think (video clip, nd)
  6. Privacy is Overrated,” New York Daily News, April 28, 2014

For a sampling of Judge Posner’s opinion on privacy, go here (and search Privacy)

(Note: Some links will only open in Firefox or Chrome.)

_____________________

Privacy – “What’s the big deal?”

Privacy interests should really have very little weight when you’re talking about national security. The world is in an extremely turbulent state – very dangerous. — Richard Posner (2014)

Recently, Georgetown Law Center held a conference entitled “Cybercrime 2020: The Future of Online Crime and Investigations” (full C-SPAN video here). In the course of that event, Judge Posner joined with others in government, private industry, and in the legal academy to discuss privacy, the Fourth Amendment, and free speech, among other things. A portion of the exchange between Judge Posner and Georgetown law professor David Cole was captured on video.

Judge Richard Posner

Judge Richard Posner

Scene: The Judge sitting in his office, speaking into a video conference camera — As he rubbed his fingers across the page and looked down, Posner began: “I was thinking, listening to Professor Cole, what exactly is the information that he’s worried about?” Posner paused, as if to setup his next point: “I have a cell phone – iPhone 6 – so if someone drained my cell phone, they would find a picture of my cat [laughter], some phone numbers, some e-mail addresses, some e-mail texts – so what’s the big deal?”

He then glanced up from the text he appeared to be reading and spoke with a grin: “Other people must have really exciting stuff. [laughter] Could they narrate their adulteries or something like that?” [laughter] He then waved his hands in the air before posing a question to the Georgetown Professor.

“What is it that you’re worrying about?” Posner asked as if truly puzzled.

At that point, Cole leaned into his microphone and looked up at the video screen bearing the Judge’s image next to case reports on his left and the American flag on his right.

Cole: “That’s a great question, Judge Posner.”

Professor Cole continued, adding his own humor to the mix: “And I, like you, have only pictures of cats on my phone. [laughter] And I’m not worried about anything from myself, but I’m worried for others.”

On a more substantive note, Cole added: “Your question, which goes back to your original statement, . . . value[s] . . . privacy unless you have something to hide. That is a very, very shortsighted way of thinking about the value [of privacy]. I agree with Michael Dreeben: Privacy is critical to a democracy; it is critical to political freedom; [and] it is critical to intimacy.”

The sex video hypothetical

And then with a sparkle in his spectacled eye, Cole stated: “Your question brings to mind a cartoon that was in the New Yorker, just in the last couple of issues, where a couple is sitting in bed and they have video surveillance cameras over each one of them trained down on the bed [Cole holds his hands above his head to illustrate the peering cameras]. And the wife says to the husband: ‘What are you worried about if you’ve got nothing to hide, you’ve got nothing to fear.’”

Using the cartoon as his conceptual springboard, Cole moved on to his main point: “It seems to me that all of us, whether we are engaged in entirely cat-loving behavior, or whether we are going to psychiatrists, or abortion providers, or rape crises centers, or Alcoholics Anonymous, or have an affair – all of us have something to hide. Even if you don’t have anything to hide, if you live a life that could be entirely transparent to the rest of the world, I still think the value of that life would be significantly diminished if it had to be transparent.”

Without missing a beat, Cole circled back to his video theme: “Again you could say, ‘if you’ve got nothing to hide, and you’re not engaged in criminal activity, let’s put video cameras in every person’s bedroom. And let’s just record the video, 24/7, in their bedroom. And we won’t look at it until we have reason to look at it. You shouldn’t be concerned because . . .’”

At this point, Posner interrupted: “Look, that’s a silly argument.”

Cole: “But it’s based on a New Yorker cartoon.”

The Judge was a tad miffed; he waved his right hand up and down in a dismissive way: “The sex video, that’s silly!Waving his index finger to emphasize his point, he added: “What you should be saying, [what] you should be worried about [are] the types of revelation[s] of private conduct [that] discourage people from doing constructive things. You mentioned Alcoholics Anonymous . . .”

Cole: “I find sex to be a constructive thing.”

Obviously frustrated, Posner raised his palms up high in protest: “Let me finish, will you please?”

Cole: “Sure.”

Posner: “Look, that was a good example, right? Because you can have a person who has an alcohol problem, and so he goes to Alcoholics Anonymous, but he doesn’t want this to be known. If he can’t protect that secret,” Posner continued while pointing, “then he’s not going to go to Alcoholics Anonymous. That’s gonna be bad. That’s the sort of thing you should be concerned about rather than with sex videos. . . . [The Alcoholics Anonymous example] is a good example of the kind of privacy that should be protected.”

David Cole

Professor David Cole

Privacy & Politics 

Meanwhile, the audience listened and watched on with its attention now fixed on the Georgetown professor.

Cole: “Well, let me give you an example of sex privacy. I think we all have an interest in keeping our sex lives private. That’s why we close doors into our bedroom, etc. I think that’s a legitimate interest, and it’s a legitimate concern. And it’s not because you have something wrong you want to hide, but because intimacy requires privacy, number one. And number two: think about the government’s use of sex information with respect to Dr. Martin Luther King. They investigated him, intruded on his privacy by bugging his hotel rooms to learn [about his] affair, and then sought to use that – and the threat of disclosing that affair – to change his behavior. Why? Because he was an active, political, dissident fighting for justice.”

“We have a history of that,” he added. “Our country has a history of that; most countries have a history of that; and that’s another reason the government will use information – that doesn’t necessarily concern [it] – to target people who [it is] concerned about . . . – not just because of their alcohol problem [or] not just because of their sexual proclivities – but because they have political views and political ideas that the government doesn’t approve of.”

At this point the moderator invited the Judge to respond.

Posner: “What happened to cell phones? Do you have sex photos on your cell phones?”

Cole: “I imagine if Dr. Martin Luther King was having an affair in 2014, as opposed to the 1960s, his cell phone, his smart phone, would have quite a bit of evidence that would lead the government to that affair. He’d have call logs; he might have texts; he might have e-mails – all of that would be on the phone.”

The discussion then moved onto the other panelists.

Afterwards, and writing on the Volokh Conspiracy blog, Professor Orin Kerr, who was one of the participants in the conference, summed up his views of the exchange this way:

“I score this Cole 1, Posner 0.”

The First Amendment — Enter Glenn Greenwald Read More