Privacy
Federalization in Information Privacy Law
118 Yale L.J. 868 (2009). In Preemption and Privacy, Professor Paul Schwartz argues that it would be unwise for Congress to adopt a unitary federal information privacy statute that both eliminates the sector-specific distinctions in federal information privacy law and blocks the development of stronger state regulation. That conclusion, though narrow, rests on descriptive and normative claims with broad implications for the state-federal balance in information privacy law. Descriptively, Professor Schwartz sees the current information privacy law landscape as the product of successful experimentation at the state level. That account, in turn, fuels his normative claims, and in particular his sympathy with theories of competitive federalism. As I will argue, however, we cannot ignore the federal inputs—judicial and legislative—that shape significant segments of state information privacy law. The story of information privacy law is one of federal leadership as well as state experimentation, and we should be wary—whether on the basis of observable practice or theoretical perspective—of disabling Congress from articulating and federalizing privacy norms. Moreover, even from the perspective of competitive federalism, the arguments for federal regulation of information privacy law are stronger than Professor Schwartz suggests.
Preemption and Privacy
118 Yale L.J. 902 (2009). A broad coalition, including companies formerly opposed to the enactment of privacy statutes, has now formed behind the idea of a national information privacy law. Among the benefits that proponents attribute to such a law is that it would harmonize the U.S. regulatory approach with that of the European Union and possibly minimize international regulatory conflicts about privacy. This Essay argues, however, that it would be a mistake for the United States to enact a comprehensive or omnibus federal privacy law for the private sector that preempts sectoral privacy law. In a sectoral approach, a privacy statute regulates only a specific context of information use. An omnibus federal privacy law would be a dubious proposition because of its impact on experimentation in federal and state sectoral laws, and the consequences of ossification in the statute itself. In contrast to its skepticism about a federal omnibus statute, this Essay views federal sectoral laws as a promising regulatory instrument. The critical question is the optimal nature of a dual federal‑state system for information privacy law, and this Essay analyzes three aspects of this topic. First, there are general circumstances under which federal sectoral consolidation of state law can bring benefits. Second, the choice between federal ceilings and floors is far from the only preemptive decision that regulators face. Finally, there are second‑best solutions that become important should Congress choose to engage in broad sectoral preemption.
Undermining Excessive Privacy for Police: Citizen Tape Recording To Check Police Officers' Power
117 Yale L.J. 1549 (2008).
United States v. Ankeny: Remedying the Fourth Amendment's Reasonable Manner Requirement
117 Yale L.J. 723 (2008).
The Marriage of Family Law and Private Judging in California
116 Yale L.J. 1615 (2007)
Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext
Since Whren v. United States, Fourth Amendment analysis has failed to appreciate the serious wrongfulness of pretextual police behavior—especially searches and seizures. This is not because a pretext test is impractical or philosophically unsound. Rather, the problem lies in the current focus of our Fourth Amendment analysis, which puts undue emphasis on the individual’s “right to privacy” and insufficient emphasis on responsible police behavior. The state’s investigatory power is held in trust by the police for the people. If we refocus our attention on the idea that the police power must be deployed in a responsible manner in keeping with that trust, we can see clearly what is problematic about pretext. Read Eric Citron's Pocket Part Commentary adapted from this Note. Read Professor Margaret Raymond's Response, On Rights and Responsibilities: A Response to The Problem with Pretext. Read Judge James Robertson's Response, How Whren Protects Pretext.
Beyond Lawrence: Metaprivacy and Punishment
115 Yale L.J. 1862 (2006) Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian–Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty–and communitarian–William Eskridge has described it as the gay rights movement's Brown v. Board of Education. It is simultaneously broad, in its evocation of our deepest spiritual commitments, and narrow, in its self-conscious attempts to avoid condemning laws against same-sex marriage, prostitution, and bestiality. This Article reconciles these competing claims on Lawrence's jurisprudential legacy. In Part I, it defends the view that Lawrence constitutionalizes what I call "metaprivacy": When societal consensus internalizes a breach of the historical legal divide between particular "conduct" and an associated "status," punishment of that conduct cannot be based on moral approbation alone. The Article then, in Part II, harmonizes this view of Lawrence's legacy with pre-Lawrence constitutional privacy doctrine and theory. Finally, in Part III, the Article applies this understanding of Lawrence interdoctrinally, to capital sentencing. The Article suggests that all that separates the impermissible moral judgments made by a legislature in prohibiting sodomy from the permissible--indeed, almost constitutionally required–moral judgments made during the sentencing phase of a capital trial is a preference for gays over other a priori criminals. Notwithstanding the obvious appeal of permitting such a preference, Lawrence provides no support for it.
Securing Informationships: Recognizing a Right to Privity in Fourth Amendment Jurisprudence
115 Yale L.J. 1086 (2006) This Note argues for judicial recognition of a Fourth Amendment right to privity, conceived broadly as a right to make limited disclosure of one's personal information without surrendering the constitutional privacy interests that attach to it. In particular, this Note challenges the so-called third-party doctrine, which holds that when individuals disclose information to a third party, they retain no constitutional protection against government searches of that information. It argues that a privity right is essential for people to be secure in their "papers," particularly in a world increasingly defined by "informationships," or relationships formed around shared access to and exchange of personal information.
The Two Western Cultures of Privacy: Dignity Versus Liberty
113 Yale L.J. 1151 (2004) Privacy advocates often like to claim that all modern societies feel the same intuitive need to protect privacy. Yet it is clear that intuitive sensibilities about privacy differ from society to society, even as between the closely kindred societies of the United States and continental Europe. Some of the differences involve questions of everyday behavior, such as whether or not one may appear nude in public. But many involve the law. In fact, we are in the midst of major legal conflicts between the countries on either side of the Atlantic--conflicts over questions like the protection of consumer data, the use of discovery in civil procedure, the public exposure of criminal offenders, and more. Clearly the idea that there are universal human sensibilities about privacy, which ought to serve as the basis of a universal law of privacy, cannot be right. This Article explores these conflicts, trying to show that European privacy norms are founded on French and German ideas of "personal honor." Continental "privacy," like continental sexual harassment law, prison law, and many other bodies of law, aims to protect the "personal honor" of ordinary French and German folk. American law takes a very different approach, protecting primarily a liberty interest. The Article traces the roots of French and German attitudes over the last couple of centuries, highlighting the French experience of sexual license in the nineteenth century and the German experience of Nazism. The Article then discusses the current state of French and German law with regard to matters such as consumer credit reporting, public nudity, and the law of baby names. It contrasts continental approaches to what we find in American law. Throughout, the Article argues, American law shows a far greater sensitivity to intrusions on the part of the state, while continental law shows a far greater sensitivity to the protection of one's public face. These are not differences that we can understand unless we abandon the approach taken by most privacy advocates, since such differences have little to do with the supposedly universal intuitive needs of "personhood." Instead, they are differences that reflect the contrasting political and social ideals of American and continental law. Indeed, we should broadly reject intuitionism in our legal scholarship, focusing instead on social and political ideals.
Privacy Rights and Abortion Outing: A Proposal for Using Common-Law Torts To Protect Abortion Patients and Staff
112 Yale L.J. 1545 (2003) When Lori Driver, an anti-abortion activist, learned that Lisa Smith was scheduled to have an abortion the following day, Driver looked up Smith's telephone number and left her two telephone messages. Smith did not return Driver's calls, so Driver stepped up her efforts, going to Smith's house and leaving anti-abortion literature and a plastic model of a fetus on her doorstep. The next morning, the day of Smith's scheduled abortion, Driver left a message on her answering machine, asking her parents to call about a medical emergency involving their daughter. When Smith arrived at the clinic for her appointment, a protestor called out to her by name and accused her of murdering her baby. An unknown caller left a message for Smith at the clinic that Smith's parents knew about her plan and were distraught. Meanwhile, a clinic representative called Driver's number pretending to be Smith's father returning her message, and the person at the other end informed him that Smith had gone in for an abortion. This example has become all too ordinary. (Incidentally, a divided court denied relief to Smith.) Having lost the legal battle to criminalize abortion, anti-abortion protestors have shifted to a strategy of extralegal deterrence through various techniques of shaming, harassment, and obstruction. Protestors publicize the names of patients and, in at least one case, their medical records. They film patients entering and leaving clinics, and post the images on the Internet. They record license plates in clinic parking lots; track down drivers' names and addresses; visit patients' homes; and send letters to them and their families, friends, boyfriends, and husbands. Protestors even pose as abortion providers, taking down personal information from callers and using that information to contact family members and urge them to intervene. Abortion doctors are also targets of intentional exposure. Protestors picket outside doctors' homes, photograph them, videotape them, and observe them through binoculars. They leaflet cars with the names and addresses of clinic staff. They post doctors' names, addresses, phone numbers, and license plate numbers, as well as video footage of clinic entrances, on the Internet. Intent on going further, they have been planning, and may already have begun, to broadcast clinic footage on public access television. What all these activities--to which this Note refers as "abortion outing"--have in common is that they destroy the privacy and anonymity on which the practice of abortion fundamentally depends. Patients need anonymity to be safe from community retaliation and free from the unwanted influence of friends, family members, and acquaintances. Doctors need privacy to be safe from harassment or violence by community members who oppose what they do. Abortion opponents have rightly guessed that reducing anonymity deters abortion, and their guess is paying off. Fewer and fewer doctors are practicing abortion, to the point where abortion is no longer accessible in much of the country, and prospective patients have been driven away from clinics by the threat of publicity. Because Roe's constitutional right to privacy only protects women against state actors, abortion-rights advocates have fought at the federal and state levels for statutory and judicial protections against protestors. At the federal level, for example, they have helped pass the Freedom of Access to Clinic Entrances Act of 1995 (FACE), which criminalizes the use of, among other things, force or threats to prevent women from entering clinics, and the Drivers' Privacy Protection Act of 1994, which makes it more difficult for anti-abortion activists, among others, to obtain personal information based on names and license plates. At the state and local levels, they have secured laws, ordinances, and injunctions restricting protests outside clinic entrances and doctors' homes. So far, however, advocates have largely overlooked common-law privacy rights as a possible source of protection. This may be a serious mistake. Two common-law torts, in particular, are well suited to the specific harm of abortion outing: the intrusion tort, which covers wrongful intrusions into a person's physical seclusion or personal affairs, and the publication tort, which covers wrongful publication of private facts. These torts are expressively valuable in that they focus on the individuals being harmed rather than on their general class, and empower these individuals to seek change directly through the courts rather than waiting to be protected by their legislators. The torts are also practical in that they actually compensate victims of past violations. They are easier to pursue than legislation, which requires tremendous momentum to overcome the burden of inertia, opposition from interest groups, and competition from other legislative priorities. They carry a lower burden of proof than criminal statutes such as FACE and may apply to a wider range of conduct. Moreover, given the Supreme Court's division over questions related to abortion privacy and its growing resistance to federal law that does not fall neatly within Congress's Commerce Clause powers, the states may now be the more promising arena for protecting abortion-related privacy. This Note examines the possibility of using common-law privacy rights to cover gaps left by other forms of legal protection. Part II sorts out the various privacy interests at stake in the debate over abortion outing and takes stock of the conflicting interests of anti-abortion protestors, which courts must also weigh. Part III develops an account of which privacy interests might be protected through the common law. It will be clear from this account that, in its current form, the common law fails to match many of our intuitions about privacy, or, at best, is inconsistent. Part IV addresses constitutional limits and considerations. Part V concludes.
Local Policing After the Terror
111 Yale L.J. 2137 (2002) Crime waves always carry with them calls for more law enforcement authority. What happened on September 11, 2001 was, among other things, a crime wave--because of that one day, the number of homicides in America in 2001 will be twenty percent higher than the year before. It is no surprise, then, that even before the fires in the rubble that was the World Trade Center burned themselves out, some politicians were calling for broader powers for law enforcement and greater restrictions on citizens, all in the effort to fight this particular crime wave. That is not a bad thing. Law enforcement authority naturally varies with the nature and size of the crime problems police must combat. A glance at the recent history of criminal procedure shows as much. Most legal restrictions on policing date from the criminal procedure revolution of the 1960s, which itself can be seen as a consequence of the low-crime 1950s. Higher crime rates led to cutbacks in those legal protections in the 1970s and 1980s, just as lower crime rates have led to some expansion in the past few years. In short, Fourth and Fifth Amendment rights have varied with crime before, and they will probably do so in the future. As they must, if the law is to reflect a sensible balance between the social need for order and individuals' desire for privacy and liberty. The terrorist attacks on New York and Washington raised the demands on law enforcement. Those increased demands have already led to some increases in law enforcers' legal authority, and that trend will--and probably should--continue, at least for a while. It helps to separate these legal changes (both the ones we have already seen and the ones likely to come in the near future) into two categories: special powers that are limited to the fight against terrorism, and changes in the authority of police across the board. The first is the product of federal legislation, and thus affects only a small fraction of the more than 800,000 law enforcement officers in the United States. The second is, or will be, the product of judicial decisions, for it is judges who determine the scope of Fourth and Fifth Amendment law, and it is those bodies of law that constrain the great majority of those 800,000-plus officers. The first category has gotten the most ink thus far, but the second category is more important. The sheer size of America's local law enforcement machinery means that the rules that bind it have much more to do with the amount of freedom most Americans possess than the rules that limit the power of FBI agents. The subject of this Essay is that second category. At first blush, one might wonder whether the category will even exist. Why, after all, should the war on terrorism lead to change in the doctrines governing ordinary searches and seizures when Congress has already created targeted authority for fighting terrorists? The answer comes in three parts. First, some antiterrorism legislation is not so targeted after all: Some of the extra powers Congress has granted the FBI are general, not limited to the fight against al Qaeda. Courts will be called on to assess the constitutionality of these provisions as a general matter, not just as applied to a particular crime problem. If they are upheld, state and local governments can be expected to copy them. Second, the domestic war on terrorism is already affecting local police departments' ability to deal with more typical sorts of crime. A lot of police manpower has been diverted to various forms of homeland security, such as guarding at-risk public spaces and responding to reports of possible attacks. That drains resources from more ordinary policing, which may in turn lead to an increase in crime generally--some cities have seen sharp increases in homicides since September 11. A general crime rise would naturally lead to calls for fewer legal restrictions on the police, as it did in both the 1960s and the 1980s. Such calls are likely even if we manage to avoid a post-September 11 surge in crime: Lowering the level of legal regulation would permit police to do the rest of their jobs more cheaply, leaving more time and personnel to devote to security against further terrorist attacks. This is a particular instance of a general point: A sharp rise in one kind of crime inevitably generates demand for greater authority to deal with other crimes. Third, most constitutional limits on policing are transsubstantive--they apply equally to suspected drug dealers and suspected terrorists. A number of scholars have bemoaned this fact, but it remains a fact, and there is no reason to believe that current exigencies will change it. It follows that when courts approve police tactics designed to fight terrorists, they will also be sanctioning use of the same tactics against other sorts of criminals. And the transsubstantive nature of American criminal procedure matters in another important way: Judges and Justices are likely to think about the effect of their decisions on the fight against terrorism even when the underlying cases involve more ordinary sorts of policing. We have seen this before. One cannot read Fourth Amendment cases from the 1980s without sensing judicial attention to the pros and cons of the war on drugs--even when the cases did not involve drug crime. Crack dealers were the most salient crime problem a dozen years ago; now, terrorists occupy that place. And if the war on terrorism has half the effect on Fourth Amendment law that the war on drugs had, the effect will be large indeed. For all these reasons, Fourth and Fifth Amendment law is likely to move toward greater authority for the police--not just for the FBI, and not just when fighting terrorists. The natural conclusion is that we will see a loss of individual liberty and privacy. After all, this tradeoff seems to be zero-sum. Giving ground on one side means losing ground on the other. Yet that need not be so. As things stand now, the law that polices the police is at once too lax and too strict. It both limits police in the wrong ways and leaves them free to do the wrong things. Some of these dysfunctional features appear precisely in areas where the fight against terrorism is most likely to place pressure on the law. In the wake of September 11, these conditions present a large opportunity. It may be possible, by fixing some of the law's worst mistakes, to give the police more power while also giving citizens more liberty and privacy--a Pareto move in a sphere where such moves are rare. Now may be the time for a grand trade--greater power to catch criminals coupled with rules that limit the harm greater power can do. My chief goal in this Essay is to suggest the outlines of such a trade. It has four elements. First, give police the power to seize or search groups, with or without any grounds for suspecting individual members of those groups. That sounds like, and is, a large gift. Yet it is also a bribe (of the healthy sort), a means of inducing police to substitute less harmful and more self-regulating tactics for more harmful and harder-to-regulate ones. Second, give police the power (more precisely, let them keep the broad power they already have) to stop and question individual suspects based on slight suspicion, but regulate the manner of those encounters more seriously. Right now, Fourth Amendment law devotes an enormous amount of attention to the fact of searches and seizures, but almost none to how those searches and seizures are carried out. That ought to be reversed; sharp legal lines between "searches" and "seizures" and everything else ought to be replaced with hazier boundaries between decent police behavior and the indecent kind. Those two changes would have a number of good effects; among other things, they might substantially reduce the harm caused by racial profiling--the practice of selecting targets of police attention based in part on race or ethnicity. Third, give police greater power to gather information, but couple that gift with restrictions on how the information is used once it is gathered. It is one of the law's great peculiarities that privacy tends to be protected either absolutely or not at all--either no one can see the contents of my glove compartment or the police can both see it and put it on the evening news. Graded protection would make more sense, by giving police greater power to catch criminals while still guarding against the worst privacy intrusions. Fourth, give police the ability to question all arrestees, even those who have invoked their Miranda rights, but couple that with a requirement that interrogation be video- and audiotaped, so that courts can review police questioning for evidence of coercion. Current Miranda doctrine overprotects a few suspects--the few who are savvy enough to invoke their rights (and thereby opt out of questioning)--and underprotects the rest. Case-by-case review with tapes of interrogation sessions would be fairer. Notice that racial profiling appears only indirectly on this list of proposed reforms. That might seem like a dodge. In terms of how we police the police, profiling is the great issue of our time. There was already a lively debate about it before September 11, and the mass murder that took place on that date only served to make that debate more important. Any responsible discussion that aims to reform Fourth Amendment law should, one might think, grapple with this issue. But profiling is an issue best solved by indirection. If confronted directly, it is intractable--easy to forbid in theory, impossible (and maybe inadvisable) to root out in practice, for reasons that go to the heart of why police officers do the things they do. At the same time, the size of the problem might be reduced significantly if the law did two things it does not presently do: Make alternatives to profiling cheaper for the police, and reduce the harms profiling causes when it happens. Those steps would not solve the problem--maybe they would not come close to solving the problem--but with unsolvable problems, mitigation of harm is a worthy goal. The Essay proceeds as follows. Part I defends the proposition that the scope of Fourth and Fifth Amendment rights does and should vary (and has varied in the recent past) with crime rates. In other words, there is nothing new about, and nothing wrong with, the claim that after September 11 law enforcement authority should increase. Part II then deals with the ways that power could increase while minimizing harm to the citizenry, focusing on the elements of the trade outlined above, and, in particular, on the ways in which these legal changes might be the best available option for dealing with racial profiling. Part III concludes with a brief discussion of the feasibility of a constitutional trade like the one I suggest here.
Between Two Spheres: Comparing State and Federal Approaches to the Right to Privacy and Prohibitions Against Sodomy
111 Yale L.J. 993 (2002)