Individual Rights and Group Rights in Privacy

Are privacy rights group rights or individual rights or some combination thereof? In what follows I will broadly survey the implications of Supreme Court caselaw in three important privacy cases in an effort to shed some light on our question.

The now ubiquitous dialogue about privacy could begin with the acknowledgement that what currently exists is a patchwork of laws and decisions developed piecemeal, throughout the course of addressing practical concerns. There is distinction between group rights and individual rights with regard to the existing body of work in this area, and in order to arrive at a more coherent jurisprudence, it may be helpful to compare and contrast how the group based rights and the individual based rights operate to protect privacy.

First, let’s review what is denoted by “group rights” and “individual rights.” Group rights are implicated when the “Individual is part of a group with fixed characteristics not unique to single individuals nor the result of individual achievement.”Individual rights must always be balanced against the requirements of the group.” Group rights related theories are an important component of political philosophy: “Justice requires removing or compensating for undeserved “morally arbitrary” disadvantages, particularly if these are “profound, pervasive and present from birth.” From "The Rights of Minority Cultures,” paraphrasing Rawls and Dworkin.

Group and individual rights only make sense within this context of a dichotomy. Without group rights individual rights are meaningless and vice versa, and it is the balance of pressure of one against the other that gives the analysis of either coherence. If the rights of the group are defined by that which is immutable, shared by the group and devoid of any characteristic that pertains to merit, then it makes sense to ascribe to individual rights that which is necessarily not shared and wholly pertaining to what makes any individual unique. Any analysis of an individual based right is unquestionably related to the meritorious characteristics of the particulars and these particulars can be facts as they relate to the specifics of a matter, or characteristics as they relate to the individual. Choice, then, or lack thereof, has much to do with the analysis of whether a set of particulars can be analyzed through an individual or group lens.

The right to privacy, it has been said, can be found in the penumbra of the First Amendment, as a sort of corollary of the right of association. But there is much more to privacy than just one amendment.

The three cases I choose to help us synthesize and contextualize the notion of individual rights versus group rights are Griswold v Connecticut, 381 US 479 (1965), Soldal v. Cook County, 506 US 56 (1992) and US V Jones, 132 S. Ct. 945 (2012). Let’s take a look at them from the earliest case, in 1965 and follow through to 2012 to trace the logic of the court over this time frame. Also we will see that the court treats privacy as a procedural as well as substantive right.

In Griswold v Connecticut, the appellants, an executive director of Planned Parenthood in Connecticut, and its Medical Director, a licensed physician and professor at Yale, were arrested, convicted and fined pursuant to §§ 53-32 and 54-196 of the General Statutes of Connecticut (1958 rev.), for being accessories in the prevention of human conception. The appellants had prescribed contraceptives to their patients. The Appellate Division, and the Supreme Court of Errors confirmed the conviction. The Supreme Court begins its analysis by noting that it believes the appellants “have standing to raise the constitutional rights of the married people with whom they had a professional relationship” and goes on to say: “The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to them.” The majority finds that the fact pattern “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees,” reasoning that the Due Process Clause of the Fourteenth Amendment, along with the First Amendment, the Third, Fourth and Fifth Amendment all operate to protect privacy, and as such, a law forbidding the use, rather than regulating the manufacture or sale of contraceptives is overbroad.

In Soldal v. Cook County, Soldal, the tenant of a trailer home in Cook County Illinois, brings a 42 U. S. C. § 1983 action alleging a violation of his rights under the Fourth and Fourteenth Amendment, after the employees of his landlord, without an eviction order, evicted Soldal from his trailer park by wrenching the sewer and water connections off the side of his trailer home. They also disconnected the phone, tore off the trailer's canopy and skirting, and hooked the entire home to a tractor. Cook County Sheriff’s Department were present, to make sure Soldal did not offer resistance. The Supreme Court reversed the District Court and Seventh Circuit Court holding that removal of the Soldals' trailer did not constitute a seizure for purposes of the Fourth Amendment or a deprivation of due process for purposes of the Fourteenth, noting that the Fourth Amendment is implicated in civil contexts as well as in criminal contexts and that reasonableness is still the ultimate standard under the Fourth Amendment.

In US v Jones, the defendant, a suspected cocaine dealer, sought exclusion of all evidence obtained via a GPS tracking device that was placed on his vehicle without his consent. The United States Court of Appeals overturned the lower court’s conviction, on the grounds that the tracking device was a search that violated the defendant’s expectation of privacy. Certiorari was granted in June of 2011, after which the Supreme Court held that installing a GPS tracking device on the defendant’s vehicle and using the device to monitor the vehicle’s movements constituted a search under the Fourth Amendment. The matter was remanded to the DC court, where the District Court judge allowed the use of cell phone location data pursuant to the Stored Communications Act. After a mistrial Jones eventually accepted a plea.

The remand is particularly interesting for our purposes because the data admitted via the Stored Communications Act had the net effect of supplying substantially similar, if not the same, data about Jones that the GPS device did, via the defendant’s custom of carrying his cell phone, rather than via his habit of riding in his car.

In the earliest case we see the court reasoning that privacy is protected at various places by the Bill of Rights as well as via the Due Process Clause of the Fourteenth Amendment. Generally speaking the operation of these rights is via a theory of individual rights as well as group rights. The right of free expression guaranteed by the First Amendment has both procedural and substantive components, but either is related to the particulars, rather than the immutable characteristics of the individual, as it is the latter part of the First Amendment that addresses a group right, via the Establishment Clause. The Third Amendment in its prohibition against the quartering of soldiers "in any house" may be best understood as a privacy right rooted in group rights, as surely the individual who might object to such a thing would have had little choice in determining whether it is peacetime or wartime. The Fourth Amendment, as viewed by the Griswold Court, is also a procedural right and clearly pertains to the rights of the individual. The Fifth Amendment right against self-incrimination implicates both group and individual rights; the Majority in Griswold states that it: “create(s) a zone of privacy which government may not force him to surrender to his detriment.

As we follow through to Soldal, the focus of the inquiry is on the Fourth and Fourteenth Amendment, as this is a case that turns on the notion of state action with regard to an individual’s private property. Thus procedural and substantive rights are implicated, the Third and Fifth Amendments are not mentioned, as they do not have applicability with regard to the particular fact pattern. The rights here are exclusively individual based rights, the immutable characteristics of the appellant do not enter the court’s reasoning.

The Jones court also focuses on individual based rights, as the fact pattern also gives rise to an inquiry about whether a particular individual’s expectation of privacy was implicated.

 Privacy, as we have seen, is a right rooted in both group rights and in individual rights related theories. Existing caselaw has examined the right in light of the multifaceted protection offered to it by the US Constitution’s Bill of Rights as well as the Fourteenth Amendment, and both from the context of privacy being a procedural as well as a substantive right. Existing legislation approaches the right via group or individual rights related language or both. Thus, the deprivation of privacy is the deprivation of a substantive and procedural right of an individual, as well as of a group.

© Martha C. Chemas, Esq.
This work is published via a Creative Commons Attribution 3.0 Unported License.


Sunlight Kills Vampires

One year later and the victims of Sandy Hook still in our hearts… Lots of surprising things happened over the past year politically and legislatively; we discovered, for example, that right-wingers and left-wingers alike want #privacy. But what about the tonz ’o‘ gunz being used to hurt people? Some very knowledgeable and educated folks who taught me a lot about security are totally opposed to gun control, and this piece is written for them in particular because, after all, why preach to the choir?
How can we address the memory of those killed at Sandy Hook, and the countless other victims of heartbreaking and meaningless gun violence?
Well how about treating guns the way we treat other dangerous machines? How about looking into requiring insurance or at least encouraging insurance-related regulations in order to promote more responsible possession of consumer firearms? How about biometric locks for consumer firearms? Then the only person who could operate a particular firearm would be the person(s) to whom it is registered, who ostensibly passed some sort of safety competency test (and anyone who can hack the lock...). Yes, I know, 3D printed guns and the like. Whatever, baby steps people. The US military requires background checks when issuing certain types of arms to members of its ranks, why not the rest of us? It's not about disarming the people, but rather about teaching us all to be more responsible gun owners; same goes for nation-states, IMHO. The Due Process Clause of the Unites States Constitution would continue to protect an individual’s right to bear arms.
The other suggestion of the day has to do with privacy; perhaps the attorney general of the state where such heinous massacres take place could have the option to release the results of the toxicology screen of the perpetrator to the public. It's just an educated guess, but I bet some of these malfeasors were all on the same prescription drugs. 
So… the gun lobby and pharma lobby would never let above happen? All the more reason to push for publicly financed elections. We are losing our democracy to a precious few who never have to walk among the rest of us and who pay others to do dirty work they are too afraid to do themselves. It's time to force them out into the light of day. Remember: sunlight kills vampires. 


Furlogh Food Recipe

Polenta is easy to make, inexpensive and comes packaged dry. It has common characteristics with grits and is very versatile. My favorite restaurant polenta dish is from Wolfgang Puck American Grille in the Borgata in Atlantic City, and I just recently decided to try preparing a polenta dish myself. This dish started with a box of Colavita Polenta, but feel free to use your favorite brand.

You will need:
1 Box Polenta Cornmeal
4 tablespoons olive oil
1 jar sliced button mushrooms
1/4 cup grated parmesan cheese
Salt and pepper to taste
Cilantro, fresh or dried.

Boil some water. The ratio for preparing polenta is 2:1, water to polenta. I used two cups of water to prepare 1 cup of polenta.
Pour water into a saucepan, when the water reaches a boil, pour in the polenta. Add about a tablespoon of olive oil and some salt and pepper to taste, and use a whisk to smooth it all out. From the time you pour in the polenta, it will be less than five minutes for the polenta to be cooked. Turn off the flame.

Add your extra ingredients. Mine are mushrooms and parmesan, but you should pick what you like. I added a quarter cup of sliced button mushrooms (from a jar) and a quarter cup of grated parmesan cheese. Blend these ingredients and then pour the mixture into a baking dish. Refrigerate for at least an hour. Now you have the basic component of your meal. You can keep this in your fridge for at least a week, so make this on a Sunday and then use as needed throughout the week.

The last steps:
Preheat oven to 350 degrees. Take a half inch slice of polenta from the baking dish and bake for 5-6 minutes. This will remove some of the moisture from the polenta slice. Remove from oven, brush on some olive oil and fry or grill for about three minutes. Sprinkle on some cilantro. Enjoy! Makes a great side dish to soup, especially if paired with guacamole.


Happy Birthday America

Ah, privacy. Everybody wants more for themselves, perhaps at the cost of the privacy of others. What a conundrum.
Using Facebook Graph Search I ran a search for "Persons who work at NSA" and got back over one-thousand search results. Interesting, in and of itself since this would imply that even potentially  sensitive information faces its eventual demise at the hands of crowdsourcing and self reporting. The photos have been retouched to observe privacy.

What will we, collectively, do with all of that information? Learn the Bill of Rights, I hope. Here are the results for a graph search for "People who work at NSA who like the US Constitution."

As you can see, only one person of the "more than 1000 people" fit this criteria. A friend reminded me yesterday that the greatest battle Americans have ever fought is with ourselves. I wholeheartedly agree.
So, on this, the 237th birthday of my native and most beloved country, I want to wish the USA a happy birthday. To those in other lands who hate us because we are a vibrant, free and diverse culture: stuff it. To those who protect us, often in silence: Thank you! Please read the Constitution, it's awesome.


To Endorse or Not To Endorse

Well, this tweet got my attention this morning:

And brought to mind some potential pitfalls with regard to privilege: When the endorsee has no publicly available content on the subject for which they are being endorsed, the first question that usually pops into my head is, "How do they know this about the individual being endorsed?" That inquiry makes me a bit nervous, especially if I imagine a scenario involving a member of a licensed profession, under scrutiny for some alleged act of malpractice. As a plaintiff's advocate or on behalf of the defendant, contacting all the people who clicked that "endorse" button might make the short list of people from whom some statement might be sought.
When there is publicly available content such as a treatise or a published note on the part of the endorsee, stated scenario seems like much less of an issue, and thus reinforces the old adage of "Publish or Perish."
My tip for staying out of trouble? Endorse for attributes for which information is publicly available, i.e. public speaking or subject matter pertaining to publicly accessible skills such as litigation or the subject matter of a recent treatise.
Also, kudos to the writer of "101." It treats the subject matter at a very basic level and this may give us a clue as to where many LinkedIn users are right now with regard to this feature.


Untitled 13

Fortune's Thorns, again
grass oak lemon  | breathe outside
#ForAll Dearest Lost


Happy Holidays!

"... freedom of thought is best promoted by the gradual illumination of men's minds which follows from the advance of science." 

Charles Darwin


POTUS, Hizzonor And My Senators Hung Out In SI Today and Did Not Invite Me; Instead I Wrote This Article

Well, if the media reports are to be given any credence, the Director of the CIA got pwned. By now hopefully we can all agree, stealing email is not particularly difficult, that is to say, you probably know at least one person who knows how to do it.
But what are the legal repercussions?
We could start by acknowledging a preliminary binary that underpins our process of analysis: What are the legal mechanisms that protect the disclosure of an electronic communication? There is the military related "classified" communications regime. This group of categorizations is brought to you by your local governments. The private sector has its own scheme: Privileged Communications. Therefore, in addition to "Classified" the government may use privilege as their justification for not disclosing a communication.
The private sector does not have the same leeway to use "National Security" as a rationale for not disclosing a digital document, but give them some time to refine their agenda.
So far no one commenting on this fracas has referenced this law: good old 18 USC §2517; you may be particularly interested in Section (4): No otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character.
What does it mean? It means stolen emails, if privileged, cannot be used in a court of law, only in the court of public opinion.