This week, in United States v. Jones, all the justices of the Supreme Court agreed that the U.S. Constitution precludes the government from monitoring our movements using installed GPS technology absent a warrant supported by probable cause.
But the justices did not agree on the reasoning underlying this decision. The majority, in an opinion written by Justice Antonin Scalia, viewed the vehicle to which the government had surreptitiously attached the GPS device as an “effect.” Accordingly, the use of the device constituted a search within the literal meaning of the Fourth Amendment—that is, it constituted a physical occupation of property by the government for the purpose of obtaining information, which the Fourth Amendment prohibits absent a warrant.
Notably, the majority declined to apply the analysis developed in Katz v. United States to determine whether a constitutional search had occurred. Under the Katz test, a court will inquire whether the government invaded a defendant’s objectively reasonable expectation of privacy. Scalia explained that it was unnecessary to apply the Katz test here, for that test does not preclude “previously recognized protection for property.” In other words, because this case involved an actual physical invasion of property, there was no need to determine whether the defendant had any objectively reasonable expectation of privacy.
Writing for himself and three of his colleagues, Justice Samuel Alito reached the same result applying Katz. The concurring justices concluded that “the use of long[] term GPS monitoring in investigations of most offenses impinges on expectations of privacy,” and by any measure the monitoring in this case—four weeks—could only be considered long-term. Scalia and Alito argued back and forth about whether the Katz test has supplanted property-based determinations of privacy, but it seems clear that Katz will control when, unlike this case, the government’s monitoring does not involve an actual physical invasion of property.
Justice Sonia Sotomayor joined the majority but issued a concurrence that may prove the most interesting—and prescient—of all the opinions in Jones. She agreed that, at a minimum, “[w]hen the Government physically invades personal property to gather information, a search occurs,” regardless whether the defendant has an objectively reasonable expectation of privacy. And she warned against the dangers posed by the ability of the government, via GPS technology, “to assemble data that reveal private aspects of identity,” an ability that could “alter the relationship between citizen and government in a way that is inimical to democratic society.” She urged the courts to take account of these aspects of GPS technology “when considering the existence of a reasonable expectation of privacy in the sum of one’s public movements.”
More importantly, Justice Sotomayor suggested that, in light of the ubiquity of GPS and other similar technologies, perhaps the time has come “to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” Every day we reveal information about ourselves to others that is captured and stored—to our friends, to our family members, to our banks, to on-line service providers like Amazon and Facebook. Simply because we choose to disclose this information in the context of relationships of trust does not mean that the government should automatically have access to it. In the digital age, as Justice Sotomayor put it, Fourth Amendment doctrine should not “treat secrecy as a prerequisite for privacy.”
Lawrence Friedman
January 26, 2012
January 10, 2012
George Dargo
At a time when many academics are winding down, my colleague George Dargo, who passed away last week, became enviably prolific.
Before joining the New England Law faculty, back when he was a professor of history, George wrote a number of important books about legal history, including Roots of the Republic: A New Perspective on Early American Constitutionalism (1974), Law in the New Republic: Private Law and the Public Estate (1983), and, in between, Jefferson’s Louisiana: Politics and the Clash of Legal Traditions (1975). Jefferson’s Louisiana has been called “undoubtedly one of the most important studies ever of the Louisiana Purchase and its impact on the politics and legal culture of Louisiana.”
After he joined the New England Law faculty in 1983, George continued writing about legal history; his work in this time included A History of the United States Court of Appeals for the First Circuit (1993), and an article on the famous Sarah Roberts case, which appeared in 1997 in the journal of the Massachusetts Supreme Judicial Court Historical Society.
For nearly a decade thereafter, George focused his energies on the classroom. He taught courses in constitutional law, administrative law, freedom of expression, and law and literature, and he earned a reputation as a superlative classroom teacher. During this time, his writing consisted primarily of sharp letters to the New York Times about events of the day (some more recent examples of which can be found here).
In 2006, I asked George if he would be interested in contributing an article to an issue of the New England Law Review devoted to faculty scholarship. In short order he produced an essay on the Book of Ruth, “Deriving Law from the Biblical Narrative.” It was a gem, and George must have enjoyed the experience of putting it together more than he thought he would because there followed a study—the first by a law professor—of Franz Kafka’s legal writing, “Reclaiming Franz Kafka, Doctor of Jurisprudence” (2007) and a return to the area of his doctoral expertise, the Louisiana Purchase, in “The Digest of 1808: Historical Perspectives” (2009).
And that was not all. With the help of his son, Stephen, George turned his attention to Melville’s famous scrivener, Bartleby, in an interdisciplinary essay about the connections between law and architecture. And he began work on revising Jefferson’s Louisiana; the new edition would become the centerpiece of a program devoted to his work at the American Association of Law Schools 2010 meeting in New Orleans. Finally, just weeks before his death, George finished From Colony to Empire: Episodes in American History, which will be published in 2012 by the Lawbook Exchange. Episodes collects George’s fugitive legal history pieces, with new introductions and supporting materials.
Nor was George a selfish scholar. He always inquired about my projects and was instrumental in helping me to think through a piece on the Massachusetts Constitution. We spent even more time discussing our shared fondness for Melville: I read his take on Bartleby, he read mine on Billy Budd, we talked often of Ahab’s quest for the white whale.
All of us should be so productive and generous, our writing so thoughtful and polished. We at New England have lost a great comrade and teacher; the world has lost a great scholar.
Lawrence Friedman
Before joining the New England Law faculty, back when he was a professor of history, George wrote a number of important books about legal history, including Roots of the Republic: A New Perspective on Early American Constitutionalism (1974), Law in the New Republic: Private Law and the Public Estate (1983), and, in between, Jefferson’s Louisiana: Politics and the Clash of Legal Traditions (1975). Jefferson’s Louisiana has been called “undoubtedly one of the most important studies ever of the Louisiana Purchase and its impact on the politics and legal culture of Louisiana.”
After he joined the New England Law faculty in 1983, George continued writing about legal history; his work in this time included A History of the United States Court of Appeals for the First Circuit (1993), and an article on the famous Sarah Roberts case, which appeared in 1997 in the journal of the Massachusetts Supreme Judicial Court Historical Society.
For nearly a decade thereafter, George focused his energies on the classroom. He taught courses in constitutional law, administrative law, freedom of expression, and law and literature, and he earned a reputation as a superlative classroom teacher. During this time, his writing consisted primarily of sharp letters to the New York Times about events of the day (some more recent examples of which can be found here).
In 2006, I asked George if he would be interested in contributing an article to an issue of the New England Law Review devoted to faculty scholarship. In short order he produced an essay on the Book of Ruth, “Deriving Law from the Biblical Narrative.” It was a gem, and George must have enjoyed the experience of putting it together more than he thought he would because there followed a study—the first by a law professor—of Franz Kafka’s legal writing, “Reclaiming Franz Kafka, Doctor of Jurisprudence” (2007) and a return to the area of his doctoral expertise, the Louisiana Purchase, in “The Digest of 1808: Historical Perspectives” (2009).
And that was not all. With the help of his son, Stephen, George turned his attention to Melville’s famous scrivener, Bartleby, in an interdisciplinary essay about the connections between law and architecture. And he began work on revising Jefferson’s Louisiana; the new edition would become the centerpiece of a program devoted to his work at the American Association of Law Schools 2010 meeting in New Orleans. Finally, just weeks before his death, George finished From Colony to Empire: Episodes in American History, which will be published in 2012 by the Lawbook Exchange. Episodes collects George’s fugitive legal history pieces, with new introductions and supporting materials.
Nor was George a selfish scholar. He always inquired about my projects and was instrumental in helping me to think through a piece on the Massachusetts Constitution. We spent even more time discussing our shared fondness for Melville: I read his take on Bartleby, he read mine on Billy Budd, we talked often of Ahab’s quest for the white whale.
All of us should be so productive and generous, our writing so thoughtful and polished. We at New England have lost a great comrade and teacher; the world has lost a great scholar.
Lawrence Friedman
January 3, 2012
Amending the Constitution to Overturn Citizens United
In more than 200 years, the United States Constitution has been amended just twenty-seven times. The primary reason for this is not hard to fathom: it is almost fantastically difficult to amend the Constitution. A proposal must secure the approval of two-thirds of both houses of Congress and three-quarters of the states before we can say the Constitution has been amended. To have a chance, then, any serious proposal must have a great deal of sustained popular support.
One proposal that appears to have that kind of support is an amendment that would overturn the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission, in which a majority of the Court lifted certain restrictions on corporate political speech. As Jeff Clements details in his new book, Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It, the proposed amendment would make clear that the terms “people,” “person” and “citizen” in the Constitution do not include corporations or limited liability companies established here or abroad—thus eliminating the premise underlying Citizens United, that the speech of corporate entities is as valuable under the First Amendment as that of flesh-and-blood human beings.
In the book and his blog, Clement captures the outrage people (actual people, not corporations) feel toward Citizens United. To be fair, there is a plausible First Amendment rationale for the Court’s decision: one goal of the freedom of speech is to promote a diversity of views and wealth of information in the marketplace of ideas. The problem is, that is not the only goal of the Amendment, and that goal is in any event undermined when certain speakers may flood the market with their particular views on a variety of issues.
Further, in its focus on maximizing the amount of speech in the marketplace, the Citizens United court failed to appreciate that only flesh-and-blood humans will suffer the consequences of lawmaking in a tangible way. Corporate interests might, for example, favor the wide use of technologies that can track our activities, such as automobile smart passes and GPS software, and speak through contributions to officials who would adopt these technologies. But no corporate entity will ever have to deal with any of the real-world consequences of that adoption, such as the potential for undermining individual privacy interests.
Perhaps more critically, Citizens United is wrongheaded because it suggests that the product of thought—the ideas that end up in the marketplace—is somehow disconnected from its source. If the premise of Citizens United is correct, whether speech is generated by humans, corporate public relations flacks, or a computer programmed to spit out random policy proposals, makes no difference—it’s all the same. But that can’t be right: humans have an inherent dignity that neither corporations nor computers possess, and the notion that their speech is worth the same as ours ultimately demeans us in a fundamental way.
Lawrence Friedman
One proposal that appears to have that kind of support is an amendment that would overturn the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission, in which a majority of the Court lifted certain restrictions on corporate political speech. As Jeff Clements details in his new book, Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It, the proposed amendment would make clear that the terms “people,” “person” and “citizen” in the Constitution do not include corporations or limited liability companies established here or abroad—thus eliminating the premise underlying Citizens United, that the speech of corporate entities is as valuable under the First Amendment as that of flesh-and-blood human beings.
In the book and his blog, Clement captures the outrage people (actual people, not corporations) feel toward Citizens United. To be fair, there is a plausible First Amendment rationale for the Court’s decision: one goal of the freedom of speech is to promote a diversity of views and wealth of information in the marketplace of ideas. The problem is, that is not the only goal of the Amendment, and that goal is in any event undermined when certain speakers may flood the market with their particular views on a variety of issues.
Further, in its focus on maximizing the amount of speech in the marketplace, the Citizens United court failed to appreciate that only flesh-and-blood humans will suffer the consequences of lawmaking in a tangible way. Corporate interests might, for example, favor the wide use of technologies that can track our activities, such as automobile smart passes and GPS software, and speak through contributions to officials who would adopt these technologies. But no corporate entity will ever have to deal with any of the real-world consequences of that adoption, such as the potential for undermining individual privacy interests.
Perhaps more critically, Citizens United is wrongheaded because it suggests that the product of thought—the ideas that end up in the marketplace—is somehow disconnected from its source. If the premise of Citizens United is correct, whether speech is generated by humans, corporate public relations flacks, or a computer programmed to spit out random policy proposals, makes no difference—it’s all the same. But that can’t be right: humans have an inherent dignity that neither corporations nor computers possess, and the notion that their speech is worth the same as ours ultimately demeans us in a fundamental way.
Lawrence Friedman
December 1, 2011
The Slippery Slope is Here!
One of the primary criticisms of trying terrorists by military commission is the slippery slope which exists in a system not founded on sound legal principles. Proponents of military commissions have argued we needed this separate system to address unique issues involved with trying suspected enemy terrorists, and by creating a separate system we prevent the individual rights protections that apply in Article III prosecutions from being diluted. This is because military commissions are limited to trying non-U.S. citizen “unprivileged belligerents.”
One of the key flaws of this argument is that the Military Commission Act’s limitation on trying only non-U.S. citizens by military commission was not based on any clear legal principle, and nothing would prevent the jurisdiction of these commissions from expanding in the future. Over the past several weeks, the Senate Armed Services Committee has been toying with an amendment to the National Defense Authorization Act (NDAA) which will push us down this slope.
Among other things, the proposed amendments create a presumption of military detention in certain cases, even when the detainee is a U.S. citizen. And, of course, because the military is not in the business of operating prisons throughout the country, the most likely place for that detention would be Guantanamo. These proposed amendments, coupled with already existing legislation, could result in a suspect—even a U.S. citizen—being detained by the military, sent to Guantanamo and then never able to be tried in an Article III court in the United States.
Welcome the slippery slope.
Interestingly the amendment has enjoyed bi-partisan support in the in the Senate Armed Services Committee. In an op-ed in the Washington Post Senator Levin and Senator McCain recently argued that the proposed amendments are not likely to have much if any impact on current procedures and the legislation gives the President the authority to opt out of the military detention option in a particular case if certain criteria are met. That argument, even if true, does not address the underlying issue: why should military detention be the default option in these cases to begin with?
Is it because the military has proven to be more capable in effectively detaining terrorists or others in the past? The sad history of abuses that occurred at Abu Ghraib and Guantanamo clearly show the fallacy of that proposition. Is it because the military has proven to be more efficient and effective at trying terrorist suspects? Here again, the long and sad history of the military commissions process and the utter inability of the commissions to effectively, fairly and efficiently try suspected terrorists belies any claim that this is a better format for these trials.
The fact is that the military’s job is to fight and win wars—not to act as the primary governmental institution authorized to detain and try terrorist suspects.
It seems likely that efforts by the Senate Armed Services Committee to add these detainee amendments to the NDAA have much more to do with politics and demagoguery than with legitimate national security concerns. And because these proposed amendments put us clearly on the slippery slope, we are all the worse for it.
One of the key flaws of this argument is that the Military Commission Act’s limitation on trying only non-U.S. citizens by military commission was not based on any clear legal principle, and nothing would prevent the jurisdiction of these commissions from expanding in the future. Over the past several weeks, the Senate Armed Services Committee has been toying with an amendment to the National Defense Authorization Act (NDAA) which will push us down this slope.
Among other things, the proposed amendments create a presumption of military detention in certain cases, even when the detainee is a U.S. citizen. And, of course, because the military is not in the business of operating prisons throughout the country, the most likely place for that detention would be Guantanamo. These proposed amendments, coupled with already existing legislation, could result in a suspect—even a U.S. citizen—being detained by the military, sent to Guantanamo and then never able to be tried in an Article III court in the United States.
Welcome the slippery slope.
Interestingly the amendment has enjoyed bi-partisan support in the in the Senate Armed Services Committee. In an op-ed in the Washington Post Senator Levin and Senator McCain recently argued that the proposed amendments are not likely to have much if any impact on current procedures and the legislation gives the President the authority to opt out of the military detention option in a particular case if certain criteria are met. That argument, even if true, does not address the underlying issue: why should military detention be the default option in these cases to begin with?
Is it because the military has proven to be more capable in effectively detaining terrorists or others in the past? The sad history of abuses that occurred at Abu Ghraib and Guantanamo clearly show the fallacy of that proposition. Is it because the military has proven to be more efficient and effective at trying terrorist suspects? Here again, the long and sad history of the military commissions process and the utter inability of the commissions to effectively, fairly and efficiently try suspected terrorists belies any claim that this is a better format for these trials.
The fact is that the military’s job is to fight and win wars—not to act as the primary governmental institution authorized to detain and try terrorist suspects.
It seems likely that efforts by the Senate Armed Services Committee to add these detainee amendments to the NDAA have much more to do with politics and demagoguery than with legitimate national security concerns. And because these proposed amendments put us clearly on the slippery slope, we are all the worse for it.
September 23, 2011
America Needs Harry Truman
In a new book, Top Secret America, Washington Post reporters Dana Priest and William Arkin tell the story of the rise of the American security state following the terrorist attacks on 9/11. The authors detail the vast security apparatus developed by an alphabet soup of federal agencies. The thesis of the book is twofold. First, the authors explain, with numerous examples, how this security apparatus developed with little if any oversight, coordination or attempt to assess whether the new security state would better protect us from terrorist attacks. A second theme is that much of this security apparatus is being used not to fight terrorism, but to combat ordinary crime. The extremely sophisticated technologies that state and local law enforcement agencies now routinely use, make the thermal imaging device at issue in Kyllo v. United States seem like ancient technology.
In this era of endless budget battles and a competition between the major political parties as to which can show better fiscal restraint and responsibility, it is striking how little either party, particularly in Congress, is willing to question the need for such a vast and expensive security apparatus. The hesitancy of politicians of either stripe to question these programs is obvious: no politician wants to be seen as soft on terror or unwilling to do everything necessary to protect citizens. Hence, there has been virtually no effort in Congress to assert meaningful oversight of these programs, or even to become educated as to what programs actually exist. In one interview, the authors quote a senior Department of Defense official who says that only God knows the extent of the government’s security programs.
While Congress’ unwillingness to provide meaningful oversight is understandable, it is not excusable. There is, in fact, very strong precedent for Congress to perform necessary oversight and question the effectiveness and usefulness of important government programs even in time of war.
At the beginning of World War II Congress created a committee to investigate the nation’s defense program. The committee was headed by then Senator Harry Truman. Over the course of the next several years, Senator Truman’s committee held numerous public hearings, conducted investigations into defense spending programs, and visited countless military bases and factories. The Truman Committee became a powerful watchdog against fraud, waste and abuse. That committee is credited with saving the government billions of dollars, eliminating wasteful programs and saving American lives. All this, while the U.S. was fighting major wars on two fronts on opposite sides of the world. Where is the modern day Truman Commission?
In this era of endless budget battles and a competition between the major political parties as to which can show better fiscal restraint and responsibility, it is striking how little either party, particularly in Congress, is willing to question the need for such a vast and expensive security apparatus. The hesitancy of politicians of either stripe to question these programs is obvious: no politician wants to be seen as soft on terror or unwilling to do everything necessary to protect citizens. Hence, there has been virtually no effort in Congress to assert meaningful oversight of these programs, or even to become educated as to what programs actually exist. In one interview, the authors quote a senior Department of Defense official who says that only God knows the extent of the government’s security programs.
While Congress’ unwillingness to provide meaningful oversight is understandable, it is not excusable. There is, in fact, very strong precedent for Congress to perform necessary oversight and question the effectiveness and usefulness of important government programs even in time of war.
At the beginning of World War II Congress created a committee to investigate the nation’s defense program. The committee was headed by then Senator Harry Truman. Over the course of the next several years, Senator Truman’s committee held numerous public hearings, conducted investigations into defense spending programs, and visited countless military bases and factories. The Truman Committee became a powerful watchdog against fraud, waste and abuse. That committee is credited with saving the government billions of dollars, eliminating wasteful programs and saving American lives. All this, while the U.S. was fighting major wars on two fronts on opposite sides of the world. Where is the modern day Truman Commission?
September 6, 2011
Privacy Harms Under Massachusetts Law
Last month, the Massachusetts Appeals Court decided Amato v. District Attorney, a case involving privacy and DNA. The plaintiff was one of many men who voluntarily submitted a DNA sample to prosecutors in connection with a murder investigation. Following the completion of that investigation, the indictment and conviction of another individual, and the exhaustion of the appellate process, the plaintiff sought confirmation that, as prosecutors had promised him, his DNA sample had been destroyed. He received no such confirmation; in fact, a representative of the state crime lab stated that the lab continued to hold all the voluntarily-submitted DNA samples associated with that case.
In his class action suit, the plaintiff claimed the defendant had violated two Massachusetts laws, the Fair Information Practices Act (FIPA) and the statutory protection against privacy invasions. In addition, he argued that the defendants had breached a promise made by investigating detectives and the district attorney that his DNA sample would not be retained.
The trial court dismissed the plaintiff’s claims and the Appeals Court reversed. Regarding the scope of FIPA, the court held that, as the statutory text indicates, government agencies may not collect or maintain more personal data than reasonably necessary in connection with their legal functions; an agency that violates this rule may be subject to an action for equitable relief. In this case, the court concluded the plaintiff’s allegations sufficed to show the defendants kept more of his personal data than reasonably necessary—after all, the criminal investigation had ended and the appellate process had run its course.
As for the invasion of privacy claim, the Appeals Court noted that, under the statute, an individual has the right to be free from unreasonable, substantial and serious interference with privacy, and the trial court has the equitable power to enforce this right. The court agreed that the DNA information at issue should be considered highly sensitive, and the allegation that the defendants retained this information without the plaintiff’s consent, and made it available for use in other criminal investigations, sufficed to show the retention was unreasonable.
Finally, the Appeals Court held that the investigating detectives had made an enforceable promise to the plaintiff when they solicited a DNA sample from him, which they broke, thereby creating an actionable claim for breach of contract.
And so the court remanded for further proceedings, and we are left with a decision that stands as a rare vindication of privacy interests. To be sure, victory depended upon the existence of statutory rules governing the collection and maintenance of private information, a statutory protection of privacy interests, and particularly egregious facts. At the same time, the decision gives us some sense of the kind of privacy harm that will be actionable.
The understanding of privacy harm embraced by the Amato court may have some utility for individuals seeking to pursue privacy violations in other contexts. One of the most difficult issues confronting plaintiffs who claim a privacy violation is the way the harm should be characterized. It is not the same as physical harm, which can be quantified and measured. And, under statutes that require a showing of actual harm, it may be difficult to demonstrate that a loss of control over personal information caused an injury.
In contrast, the Amato court’s reasoning indicates that the presence of certain factors will point to the existence of an injury which is subject to remedy. Consider that, while the court recognized data collection and maintenance may be reasonably necessary, such necessity does not extend indefinitely into the future. For example, in the context of a criminal case, when the investigation has ceased, and certainly when a conviction has been upheld, it is no longer necessary to retain information that is not relevant to the case. At the point in time when consensually-submitted personal information ceases to be relevant to a government function, control over that information essentially reverts back to the individual and the continued retention of it amounts to unreasonable interference with privacy—that is, an actionable injury.
This injury existed, moreover, even absent evidence that the privacy violator made use of the personal information at issue. In other words, the Appeals Court in Amato concluded that the merely holding this information without the information-owner’s consent stated a claim for relief.
This kind of analyis suggests that, at least under Massachusetts law, the default position is individual control over personal information, and the loss of that control without appropriate justification must be regarded as a particularized harm, one which the courts have the power to remedy.
Lawrence Friedman
In his class action suit, the plaintiff claimed the defendant had violated two Massachusetts laws, the Fair Information Practices Act (FIPA) and the statutory protection against privacy invasions. In addition, he argued that the defendants had breached a promise made by investigating detectives and the district attorney that his DNA sample would not be retained.
The trial court dismissed the plaintiff’s claims and the Appeals Court reversed. Regarding the scope of FIPA, the court held that, as the statutory text indicates, government agencies may not collect or maintain more personal data than reasonably necessary in connection with their legal functions; an agency that violates this rule may be subject to an action for equitable relief. In this case, the court concluded the plaintiff’s allegations sufficed to show the defendants kept more of his personal data than reasonably necessary—after all, the criminal investigation had ended and the appellate process had run its course.
As for the invasion of privacy claim, the Appeals Court noted that, under the statute, an individual has the right to be free from unreasonable, substantial and serious interference with privacy, and the trial court has the equitable power to enforce this right. The court agreed that the DNA information at issue should be considered highly sensitive, and the allegation that the defendants retained this information without the plaintiff’s consent, and made it available for use in other criminal investigations, sufficed to show the retention was unreasonable.
Finally, the Appeals Court held that the investigating detectives had made an enforceable promise to the plaintiff when they solicited a DNA sample from him, which they broke, thereby creating an actionable claim for breach of contract.
And so the court remanded for further proceedings, and we are left with a decision that stands as a rare vindication of privacy interests. To be sure, victory depended upon the existence of statutory rules governing the collection and maintenance of private information, a statutory protection of privacy interests, and particularly egregious facts. At the same time, the decision gives us some sense of the kind of privacy harm that will be actionable.
The understanding of privacy harm embraced by the Amato court may have some utility for individuals seeking to pursue privacy violations in other contexts. One of the most difficult issues confronting plaintiffs who claim a privacy violation is the way the harm should be characterized. It is not the same as physical harm, which can be quantified and measured. And, under statutes that require a showing of actual harm, it may be difficult to demonstrate that a loss of control over personal information caused an injury.
In contrast, the Amato court’s reasoning indicates that the presence of certain factors will point to the existence of an injury which is subject to remedy. Consider that, while the court recognized data collection and maintenance may be reasonably necessary, such necessity does not extend indefinitely into the future. For example, in the context of a criminal case, when the investigation has ceased, and certainly when a conviction has been upheld, it is no longer necessary to retain information that is not relevant to the case. At the point in time when consensually-submitted personal information ceases to be relevant to a government function, control over that information essentially reverts back to the individual and the continued retention of it amounts to unreasonable interference with privacy—that is, an actionable injury.
This injury existed, moreover, even absent evidence that the privacy violator made use of the personal information at issue. In other words, the Appeals Court in Amato concluded that the merely holding this information without the information-owner’s consent stated a claim for relief.
This kind of analyis suggests that, at least under Massachusetts law, the default position is individual control over personal information, and the loss of that control without appropriate justification must be regarded as a particularized harm, one which the courts have the power to remedy.
Lawrence Friedman
August 30, 2011
Trying Former Soldiers in Federal Court
The Sixth Circuit Court of Appeals recently affirmed the conviction of a former Army Private, Steven D. Green, for sexual assault and the murder of four Iraqi civilians in 2006. What makes this case unique is that Green was tried in federal district court rather than in a military court-martial. By the time Army officials became aware of the allegations against Green, the military had discharged him from the service. Court-martial jurisdiction is based on the status of the soldier at the time of the offense and at the time of trial. Because Green was no longer a member of the military at the time the Army discovered the allegations, court-martial jurisdiction no longer existed.
Prior to 2000, this situation created a jurisdictional gap whereby former service members could avoid criminal prosecution for acts they committed but were not discovered before they were discharged. In 2000, Congress passed the Military Extraterritorial Jurisdiction Act (MEJA) to close that gap. Under MEJA, the U.S. Government may prosecute former soldiers for crimes they committed outside the special territorial and maritime jurisdiction of the United States while they were members of the military. Prosecutions under MEJA have been rare, and the case against Steven Green represents one of the few times federal authorities have used the statute.
Use of MEJA to prosecute former service members for crimes committed outside of U.S. territory raise several constitutional issues. The Sixth Circuit opinion in Green addresses a number of these issues, including Green’s contention that MEJA violates separation of powers. Green contended that MEJA violates this principle because it expands the executive’s power to enforce the law by expanding its jurisdiction. The Sixth Circuit rejected this argument. The court agreed that MEJA represents an expansion of executive authority, but that expansion does not come at the expense of another branch of government. Accordingly MEJA is no different than any other federal law that increases the categories of criminal conduct.
This holding is interesting in light of the ongoing debate over whether terrorist suspects should be tried in federal court or in military commissions. Those who have argued for trial in military commissions assert that federal courts lack the necessary tools to handle these cases and, therefore, a special and separate system of adjudication is needed. Cases like Green suggest the opposite. According to the Sixth Circuit’s decision in Green, Congress can in fact provide the executive with the authority to try problematic cases in federal courts, and, if this decision is any indication, courts are likely to give significant deference to those congressional grants of authority.
Prior to 2000, this situation created a jurisdictional gap whereby former service members could avoid criminal prosecution for acts they committed but were not discovered before they were discharged. In 2000, Congress passed the Military Extraterritorial Jurisdiction Act (MEJA) to close that gap. Under MEJA, the U.S. Government may prosecute former soldiers for crimes they committed outside the special territorial and maritime jurisdiction of the United States while they were members of the military. Prosecutions under MEJA have been rare, and the case against Steven Green represents one of the few times federal authorities have used the statute.
Use of MEJA to prosecute former service members for crimes committed outside of U.S. territory raise several constitutional issues. The Sixth Circuit opinion in Green addresses a number of these issues, including Green’s contention that MEJA violates separation of powers. Green contended that MEJA violates this principle because it expands the executive’s power to enforce the law by expanding its jurisdiction. The Sixth Circuit rejected this argument. The court agreed that MEJA represents an expansion of executive authority, but that expansion does not come at the expense of another branch of government. Accordingly MEJA is no different than any other federal law that increases the categories of criminal conduct.
This holding is interesting in light of the ongoing debate over whether terrorist suspects should be tried in federal court or in military commissions. Those who have argued for trial in military commissions assert that federal courts lack the necessary tools to handle these cases and, therefore, a special and separate system of adjudication is needed. Cases like Green suggest the opposite. According to the Sixth Circuit’s decision in Green, Congress can in fact provide the executive with the authority to try problematic cases in federal courts, and, if this decision is any indication, courts are likely to give significant deference to those congressional grants of authority.
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