But it’s been “very seldom” so far. Oh, well, then that’s okay. [Mashable, Guardian, earlier]
More: Most of us would say a drone hovering 20 feet above our back yard invades our property. Will the FAA agree? [Voss, NoWayFAA.org]
Posts Tagged ‘privacy’
SCOTUS: trial lawyers can’t scoop up DMV names to solicit cases
Yesterday, in the case of Maracich v. Spears, the Supreme Court ruled that the Driver’s Privacy Protection Act of 1994 (DPPA) prohibits trial lawyers from accessing names and contact information from states’ drivers license databases with the intention of soliciting potential clients for litigation. Under DPPA, the general rule is that states must keep the information in such databases private; there is a “litigation exception” for queries intended to investigate or prepare for legal proceedings, but the Court ruled that soliciting clients was not part of its scope. As I argue in a new post at Cato at Liberty, the dispute brought about a curious reversal in the polarities displayed in the case of Maryland v. King earlier this month: the pro-privacy justices in that case were more likely to be willing to dispense with privacy this time, and vice versa.
The underlying lawsuit (Kevin Russell at SCOTUSBlog and background here, here) also involves a bit of a reversal: class action lawyers are themselves being sued in a class action. The majority opinion by Justice Anthony Kennedy sketches in some of the background:
In the case now before the Court, petitioners are South Carolina residents whose personal information was obtained by respondents from the South Carolina DMV and used without their consent to send solicitation letters asking them to join the lawsuits against the car dealerships. Petitioner Edward Maracich received one of the letters in March 2007. While his personal information had been disclosed to respondents because he was one of many buyers from a particular dealership, Maracich also happened to be the dealership’s director of sales and marketing. Petitioners Martha Weeks and John Tanner received letters from respondents in May 2007. In response to the letter, Tanner called Richard Harpootlian, one of the respondent attorneys listed on the letter. According to Tanner, Harpootlian made an aggressive sales pitch to sign Tanner as a client for the lawsuit without asking about the circumstances of his purchase.
Some of these points may be relevant on remand, because the court will be asked to consider whether the original solicitation letter (marked “SOLICITATION”) had the predominant purpose of investigating the developing lawsuit, or of attracting clients for it. And this leads to the third turnabout. In the second class action, the one over privacy and the lawyers’ use of the DMV database, petitioners are seeking specified statutory damages of $2,500 for each person whose privacy was breached, which could add up to an “astronomical” (as Justice Ginsburg put it in her dissent) sum of hundreds of millions of dollars in all. Indeed, the majority opinion as well as the dissent signaled disquiet at a possible assessment of damages so far out of proportion to any actual harm done — a phenomenon we have seen again and again in statutory class or group damages cases in the past. Some trial lawyers have in the past pooh-poohed, as the griping of sore losers, complaints about mechanical multiplication of statutory damages into huge sums (e.g. FACTA, junk faxes, song piracy, California Labor Code). In this case, such multiplication could pose a threat to the fiscal well-being of some of their own number. (& welcome TortsProf, Legal Ethics Forum, SCOTUSBlog, JOLT Digest (Harvard Journal of Law and Technology) readers)
Surveillance roundup
- “Old crisis creates new leviathan” [Barton Hinkle] Some other things that maybe should happen before Snowden gets prosecuted [Bruce Schneier] “Were they here, my parents might have asked, ‘What happened to America?'” [Nat Hentoff]
- Candidate Obama, meet President Obama; on surveillance, you’ll find you have little in common [graphic courtesy Caleb Brown, Cato at Liberty] Don’t say the president wants to be trusted with complete discretion unfettered by the other branches of government; that’s his assassination program, not his surveillance program [Jacob Sullum]
- A different view: two leading libertarian legal thinkers, Roger Pilon and Richard Epstein, defend the NSA surveillance program [Chicago Tribune]
- How very wrong David Simon is about the NSA’s capabilities [Clay Shirky, Guardian]
- Tracking by advertisers just as bad? No, here’s why state surveillance is worse [Jason Kuznicki, Brian Doherty]
- I’m not the only one wondering whether prosecution of QWest’s Joseph Nacchio relates to his non-cooperation with NSA [Michael Kelly/Business Insider, Scott Shackford/Reason, Greg Campbell/Daily Caller]
- What would it take to bring back a Watergate-era spirit of reform? [Jesse Walker]
- “As the NSA has made all too clear, unless we update our concept of the Fourth Amendment to fit the realities of the Internet Age, those general warrants [despised by colonists] will be back — on a far larger scale, and in secret.” [Julian Sanchez]
When government Hoovers up information
Don’t just think vacuum cleaners, think J. Edgar Hoover. [Gene Healy, Washington Examiner] In fact there’s a long history of misuse of ostensibly secure law-enforcement files and databases [1993 GAO report; Robert F. Weir, ed., book on Stored Tissue Samples; unlawful private-investigator access to the National Crime Information Center (NCIC), the FBI’s electronic criminal-records database] Once DNA databases are open to varied queries from multiple law enforcement agencies, can we presume them immune from abuse? Even the NSA, whose level of professionalism is presumedly far higher than that of local law enforcement agencies, is no stranger to stories about gratuitous and offensive abuse of privacy. And, writes Jim Harper, the evidence is that the NSA has gathered telecom metadata on a dragnet basis (as distinct from individualized suspicion) not merely for data mining, but to assist in investigations of persons who may happen to come under suspicion in the future, quite a different rationale.
More: “Was a Telecom CEO Sent to Prison Because He Resisted NSA?” [Alexander Cohen, Atlas, on Joseph Nacchio’s prosecution on insider trading charges after QWest refused to participate in surveillance] For many other telecoms, at any rate, fear of regulatory muscle will turn them into eager cooperators [Ira Stoll on Verizon] Related: 2007.
More on Maryland v. King
Caleb Brown of Cato interviews me:
Official DNA database use and obligatory testing is now sure to expand; where might it be headed? “If states are using DNA to verify paternity on births to underage women, why not use it to verify paternity on all births?” [Glenn Reynolds] “The 2018 Ezra Klein column on how it’s insane we’re not testing all this DNA for public health purposes writes itself.” [@andrewmgrossman] Michelle Meyer also has some ideas. Earlier here.
The IRS and your email
Did you know the IRS has asserted, and apparently exercised, a right to read your emails without a warrant? I didn’t, until now. [ACLU; more from ProPublica]
Regarding yesterday’s revelation that the National Security Agency has been collecting the phone records of millions of Americans, Glenn Greenwald at the U.K. Guardian has the original scoop, quoting my Cato colleague Julian Sanchez about one of the most salient aspects of the program: it scoops up everyone’s phone data in a dragnet, rather than proceeding against some narrower category of phone records for which there is individualized suspicion. More coverage: Guardian sidebar on what telephone metadata can reveal; Timothy Lee/Washington Post; Orin Kerr/Volokh (“This is potentially a huge story. If the NSA is getting all call records from every domestic call from Verizon, then that’s a very big deal”); Adam Serwer/MSNBC; Electronic Frontier Foundation (“There is no indication that this order to Verizon was unique or novel. It is very likely that business records orders like this exist for every major American telecommunication company, meaning that, if you make calls in the United States, the NSA has those records. And this has been going on for at least 7 years, and probably longer.”) And from a slightly different perspective, Joshua Foust, who cites Congress for having repeatedly voted to give the Executive ultra-broad surveillance powers, and writes: “The information the NSA is collecting is metadata, not content (like a wiretap), and not account names. Uncovering personally identifiable information would require separate warrants to do so. This was a pattern analysis, not really mass surveillance as we traditionally understand it.”
P.S. On the IRS’s claims of a right to read email without a warrant, Justin Horton: “Not limited to IRS; this is basically government’s position and only 6th Circuit seems to disagree.”
Driverless cars: a privacy/surveillance threat?
Randal O’Toole doesn’t share the concerns of Greg Beato and others.
May 2 roundup
- Pigford and more: why do modern privacy laws so often redound to the benefit of those in power? [Stewart Baker]
- N.H. man who lost life savings at carnival game in exchange for dreadlocked banana concedes he was “foolish” but is considering lawsuit [WBZ, BoingBoing]
- The judicial humorist — I’ve got him on the list [San Antonio strip club case: MySanAntonio, Above the Law, ABA Journal]
- To be for capitalism, be against crony capitalism [Tim Carney, The Atlantic]
- “News Corp. Pays Itself $139 Million For Phone-Hacking Scandal — Minus Legal Fees” [Daniel Fisher]
- What must they think of the Norris-LaGuardia Act of 1932? Brennan Center lists Wisconsin bill providing for stays of injunction pending appeal among “Attacks on Judiciary” [Brennan Center Fair Courts E-lert]
- Federal Trade Commissioner Joshua Wright says it’s time to pin down commission’s vague Section 5 power [Andrea Agathoklis Murino, WLF]
“Actress Loses Suit Against IMDb for Posting Age”
“A 41-year-old actress who claimed the Internet Movie Database unfairly disclosed her real age lost a case against the site this week after a federal jury in Seattle rejected her lawsuit.” [Mashable, AP/USA Today; earlier]
IP and technology roundup
- “Conservatives awkwardly stumble toward tackling copyright” [Tim Carney, TechDirt, Cato forum last Thursday with Jerry Brito and Tom Bell, Mike Palmedo summary] Virginia Postrel on copyright reform [Bloomberg]
- More on ITU’s grab for Internet authority [Gordon Crovitz/WSJ, Jim Harper/Cato, CNet (unanimous resolution in U.S. House), earlier here, here, etc.]
- After software company sues China over infringement, hackers based in PRC nearly bring it down [Bloomberg]
- “Intel’s war with plaintiff’s lawyers who file M&A suits” [Nate Raymond, Reuters]
- Contrary to some imaginings, there’s no clear-cut contrast between “statutory” intellectual property law and “common-law” real property law [Adam Mossoff, TotM]
- “Tech’s 8 Most Fearsome ‘Patent Trolls'” [Biz Insider] Alex Tabarrok on the downside of software patents [Rev. Marge]
- Privacy law vs. e-commerce: At Calif. high court, Apple challenges online application of 1991 Song-Beverly law [Mercury-News]