New Surveillance Bill Still Presents Privacy Issues

The fight to strike a balance between security and liberty continues this week as the Democratic Congress introduces a new surveillance bill that will give a secret court the power to issue general warrants for the purpose of investigating foreign targets. The bill is in response to the Protect America Act, which permitted investigations without a warrant. Unfortunately, the bill still draws question as to whether the security measures are a direct violation of the 4th amendment, specifically the prohibition of general warrants. However, Congress simply views the at as an improvement upon the current status of foreign surveillance measures.

Read more about the issue in the Washington Post article "Democrats to Offer New Surveillance Rules."

Government Collection of Traveler Data a Violation of the 4th Amendment?

An article published in the Washington Post today reveals that the Department of Homeland Security has been collecting more data on travelers than previously thought. Through the use of something called the Automated Targeting System, the data on travelers has been collected since the mid 1990s to "assess the security threat posed by all passengers entering the U.S."

However, recent dossiers obtained from the Department of Homeland Security's ATS suggest that the information gathered goes above and beyond what is required to check for a "security risk" as the government has data on "the travel habits of millions of Americans who fly, drive or take cruises abroad, retaining data on the persons with whom they travel or plan to stay, the personal items they carry during their journeys, and even the books that travelers have carried."

Apparently, those critical of the system say that information could be used to make correlations and create relationships that may not actually be valid. The Washington Post reports:

"Edward Hasbrouck, a civil liberties activist who was a travel agent for more than 15 years, said that his file contained coding that reflected his plan to fly with another individual. In fact, Hasbrouck wound up not flying with that person, but the record, which can be linked to the other passenger's name, remained in the system. "The Automated Targeting System," Hasbrouck alleged, "is the largest system of government dossiers of individual Americans' personal activities that the government has ever created."

He said that travel records are among the most potentially invasive of records because they can suggest links: They show who a traveler sat next to, where they stayed, when they left. "It's that lifetime log of everywhere you go that can be correlated with other people's movements that's most dangerous," he said. "If you sat next to someone once, that's a coincidence. If you sat next to them twice, that's a relationship.'"

If the ATS does ever reach a court dispute over whether or not it violates the Privacy Act of 1974, which prohibits, among other things "gathering of data related to Americans' exercise of their First Amendment rights, such as their choice of reading material or persons with whom to associate," the question could ultimately come down to whether these searches and seizures are reasonable under the 4th Amendment's prohibition of unreasonable searches and seizures.

New Jersey Supreme Court Punts Questions about Beginning of Life

On September 12th, New Jersey's high court unanimously ruled that a "doctor had 'no legal duty' to tell her that her six-to-eight-week-old embryo was “a complete, separate, unique and irreplaceable human being.'"

According to the NY Times article, the case has some bizarre beginnings as a malpractice suit. They report:

"The decision handed down today reversed a unanimous ruling by a three-judge appeals panel. The case began in 1998, when Rosa Acuna of Bound Brook, a mother of two, sued Sheldon C. Turkish, her gynecologist in Perth Amboy, over an incomplete abortion, and charged that he had not given her sufficient information before she allowed him to perform the abortion.

Mrs. Acuna, now 40, said in court proceedings that when she was in the early stages of pregnancy in 1996, she had asked Dr. Turkish “if it was the baby in there” and that Dr. Turkish had replied, “Don’t be stupid, it’s only blood.”

According to court papers, Dr. Turkish denied having made such a statement, adding that he probably told her that a “seven-week pregnancy is not a living human being,” but rather that it “is just tissue at this time.”

Mrs. Acuna had an abortion, and several weeks later went to the hospital after experiencing bleeding. She said that only after a nurse told her that “the doctor had left parts of the baby inside” did she realize it “was a baby and not just blood” inside her.

In court papers she said that she would not have had the abortion if she had received proper answers to her questions, and that she went on to suffer post-traumatic stress because of the procedure."

Apparently, Ms. Acuna wants the decision appealed to the USSC, so it is a possibility that we could see it go to the court for the spring term next year. The NJ high court did not ultimately rule on when life begins instead saying that, "There is not even remotely a consensus among New Jersey’s medical community or citizenry that the plaintiff’s assertions are medical facts, as opposed to firmly held moral, philosophical and religious beliefs, to support the establishment of the duty she would impose on all physicians."

Five of the court's seven justices weighed in on the case with the two others recusing themselves. No explanation was given for their recusal.

Going Beyond Unreasonable Searches & Seizures

The new law that Bush signed has violations of the 4th Amendment written all over it. According to an article by the NY Times, the new law both expands the definition of "electronic surveillance" and clarified the FISA act of 1978 to allow for warrantless searches.

The article reads:

“This more or less legalizes the N.S.A. program,” said Kate Martin, director of the Center for National Security Studies in Washington, who has studied the new legislation.

Previously, the government needed search warrants approved by a special intelligence court to eavesdrop on telephone conversations, e-mail messages and other electronic communications between individuals inside the United States and people overseas, if the government conducted the surveillance inside the United States.

By changing the legal definition of what is considered “electronic surveillance,” the new law allows the government to eavesdrop on those conversations without warrants — latching on to those giant switches — as long as the target of the government’s surveillance is “reasonably believed” to be overseas."

Bush's decision goes against the general prevailing jurisprudence on this issue in the lower courts which have reviewed this matter. Recall that nearly a year ago on August 16, 2006 a Detroit district judge, Anna Diggs Taylor, ruled that the NSA terrorist surveillance program violated the 4th Amendment. The 6th Circuit Court of Appeals failed to rule on the issue throwing it out on the justiciability doctrine of standing and thus refused to rule on the actual merits of the case.

The LSAT, Logic Games, & Brendlin

One component on the standardized test used for admission to law schools around the country, is called logic games. Logic games comprise a range of different situations in which a student taking the test must know how to arrange and coordinate multiple sets of elements at a time.

For example, say that a college counselor needs to meet with five students: Betty, Carol, Dan, Ellen, and Fin over the five day week. The test taker must coordinate the schedule for the college counselor. Simple right? However, there may be several restrictions to the counselor's meeting schedule such as the fact that she cannot see any girls on Monday or Wednesday, Carol must see the counselor before Dan, and Carol must see the counselor anytime in between Betty and Ellen. The Law School Admissions Test (LSAT) thus requires students to be able to separate important issues and determine what really matters in resolving a problem.

Similarly in the recent case involving passenger's rights to bring a constitutional challenge against a traffic stop search (Brendlin v. California), a similar element of being able to separate issues and deal with multiple elements at a time is at hand. The case is interesting in that the methamphetamines seized on Brendlin's person implicate him in illegal drug use. Why should a person who most probably committed a crime be allowed to bring a challenge to his detention and suppress this evidence? It is most likely for this reason why the California Supreme Court ruled against Brendlin since letting a person who violated the law go free is not "equal justice under law." Yet, the question which the justices should have addressed separates this issue of guilt and innocence, requiring them to ascertain whether or not Brendlin or a person similarly situated has the right to bring a constitutional challenge to the seizure. Whether or not the person is guilty or innocent based on this evidence seized during the traffic stop is an entirely separate issue.

The question posed to the justices was: "Whether a passenger in a vehicle subject to a traffic stop is thereby “detained” for purposes of the Fourth Amendment, thus allowing the passenger to contest the legality of the traffic stop." How else could a person sitting in the vehicle not be detained? It would be ludicrous to say otherwise. Come on, justices use those good skills that the LSAT reinforced.

It appears that perhaps the California Supreme Court justices need a little logic games review for the next term.

The Right to Die

Dr. Jack Kevorkian, also known as "Dr. Death," was recently released from prison after serving an eight year term. His conviction of helping 130 terminally ill people commit suicide brought to the national spotlight the debate on the right to die and to die with dignity.

Kevorkian was convicted of second-degree murder by assisting a suicide in Michigan. It is interesting to characterize Dr. Kevorkian's actions as murder instead of aid. Is he an accomplice to a crime or is he actually committing a crime by himself? In other words is suicide a crime even if the patient expresses the wish to die? USSC precedent on this issue remains rather silent and decisions such as Glucksberg v. Washington have made it clear that the Court has not decided this issue in past cases. Justice O'Connor in her concurring opinion makes this quite clear. She says:

"The Court frames the issue in this case as whether the Due Process Clause of the Constitution protects a "right to commit suicide which itself includes a right to assistance in doing so," ante, at 18, and concludes that our Nation's history, legal traditions, and practices do not support the existence of such a right. I join the Court's opinions because I agree that there is no generalized right to "commit suicide." But respondents urge us to address the narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death. I see no need to reach that question in the context of the facial challenges to the New York and Washington laws at issue here. See ante, at 18 ("The Washington statute at issue in this case prohibits `aid[ing] another person to attempt suicide,'. . . and, thus, the question before us is whether the `liberty' specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so"). "

The issue of the mental capacity of those wishing to die is another issue entirely, but the debate over the legality of suicide does not end there. What about those who wish to die that are in perfect health and have families to support? It seems that the issue comes down to a right to privacy--the right to be left alone. This right to privacy, however, must be balanced with the effects of granting that right. For example, if a single parent wishes to commit suicide, should our laws allow her to do so, given that she is raising and supporting a child? What effects would her suicide have on the child? It is an issue that has been raised before by John S. Mill in his essay On Liberty. He says:

"I fully admit that the mischief which a person does to himself, may seriously affect, both through their sympathies and their interests, those nearly connected with him, and in a minor degree, society at large. When, by conduct of this sort, a person is led to violate a distinct and assignable obligation to any other person or persons, the case is taken out of the self-regarding class, and becomes amenable to moral disapprobation in the proper sense of the term. If, for example, a man, through intemperance or extravagance, becomes unable to pay his debts, or, having undertaken the moral responsibility of a family, becomes from the same cause incapable of supporting or educating them, he is deservedly reprobated, and might be justly punished; but it is for the breach of duty to his family or creditors, not for the extravagance. If the resources which ought to have been devoted to them, had been diverted from them for the most prudent investment, the moral culpability would have been the same."

But he goes onto say:

"But with regard to the merely contingent or, as it may be called, constructive injury which a person causes to society, by conduct which neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself; the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom."

It appears, thus, that Mill would allow for an individual without any obligation to others to have the right to die. It will be interesting to see if any challenges reach the Court now that Kevorkian is out of prison and has said that he will challenge the current thinking about assisted suicide. It will be interesting as well to see how the Court handles these arguments.

TB, Public Health & Individual Civil Liberties

A man with a particularly dangerous drug resistant strain of TB was recently quarantined by the U.S. government in Denver, CO. The man--Andrew Speaker--was planning to fly to Paris from Atlanta, GA, after having tested positive for TB. He alleges that his doctor only "preferred" that he not fly. Apparently no medical professional had made it explicitly clear to him that he could not fly as he would infect and endanger those flying with him.

The attention that this story has garnered, however, raises an interesting constitutional question about balancing individual liberties with the common good. If in fact Mr. Speaker had been prohibited to fly and if his now apologetic self were not as caring for the health of others, would the U.S. be able to curtail his "right to be left alone" over the concern of possible infection during air travel? What about equal protection? Can the government treat individuals differently based on their health status? It is a point that has been raised before by Professor Lawrence Gostin of the Georgetown Law Center. In analyzing the World Health Organization International Health Regulations, Gostin concludes that sometimes compulsory measures against individuals with infectious diseases may be justified. He says:

"Yet, infectious disease powers curtail individual freedoms, including privacy (eg, surveillance), bodily integrity (eg, compulsory treatment), and liberty (eg, travel restrictions and quarantine)....States should have the power to sanction individuals with dangerous contagious diseases who refuse medical interventions."

It is hard to come to a conclusive answer. Not much precedent exists on the issue. How the justices would perceive the actual issue at hand would also be another question. Would it be an issue of national security? Could they perceive Mr. Speaker as essentially a vessel for spreading a hazardous biological weapon? Or would the issue be a more complicated balancing act, depending upon how serious the actual infection was? Sick people fly on airplanes all the time, but in this case the type of infection mattered.