Friday, August 25, 2017

Landmark Indian Supreme Court ruling recognizes constitutional right of privacy

In a landmark ruling akin to U.S. Supreme Court Justice William O. Douglas’s famous foray into the “penumbras, formed by emanations” in the U.S. Constitution in 1965 (Griswold on FindLaw), the Supreme Court of India has recognized a constitutional right of privacy, including informational privacy.  Here are some highlights from the unanimous 266-page disposition, per Justice Dhananjaya Y. Chandrachud (overruling his father, according to some commentary), in Puttaswamy v. Union of India.  Download the opinions in PDF here.  A very heartfelt hat tip from me to attorney Shruti Chopra for bringing this blockbuster to my attention.

The case revolved around the government’s “Aadhaar card scheme” (¶ 3).  A project of extraordinary scope, Aadhaar means to assign a unique identity number to every one of India’s 1.3bn residents based on demographic and biometric data.  The 91-year-old named plaintiff is himself a retired judge; read more at The Indian Express.

The Court examined the origin of privacy, beginning with Aristotle’s distinction between “public and private realms” (¶ 29).  The Court traced privacy through Blackstone (¶ 30), John Stuart Mill (¶ 31), Madison (¶ 33), Warren and Brandeis (¶ 34), and Cooley (¶ 36).  “Conscious as we are of the limitations with which comparative frameworks of law and history should be evaluated, the above account is of significance,” the Court explained. “It reflects the basic need of every individual to live with dignity…. The need to protect the privacy of the being is no less when development and technological change continuously threaten to place the person into public gaze and portend to submerge the individual into a seamless web of inter-connected lives.”

Speaking favorably to the evolution of “natural rights,” the Court cited Locke (¶ 40), Blackstone (¶ 40), Roscoe Pound (¶ 42), and Ronald Dworkin (¶ 46), as well as the American Declaration of Independence (¶ 41) and French Declaration of the Rights of Man and of the Citizen (¶ 41).  Applying “a settled position in constitutional law,” the Court regarded constitutional rights as “emanat[ing] from basic notions of liberty and dignity” (¶ 24).

The court regarded recognition of informational privacy as consistent with India’s obligations under the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights (¶ 66).  “India’s commitment to a world order founded on respect for human rights has been noticed along with the specific articles of the UDHR and the ICCPR which embody the right to privacy” (¶ 91; see also ¶¶ 129-130).  The Court found collateral international legal support in the Convention on the Elimination of Discrimination against Women (¶ 132).  The Court rejected the “theory that civil and political rights are subservient to socio-economic rights” (¶ 154).

Textually, the Court invoked the Preamble of the Indian Constitution, which commits itself to values of “justice,” “liberty,” “equality,” and “fraternity” (¶¶ 93-95).  “The submission that recognising the right to privacy is an exercise which would require a constitutional amendment and cannot be a matter of judicial interpretation is not an acceptable doctrinal position. The argument assumes that the right to privacy is independent of the liberties guaranteed by Part III of the Constitution. There lies the error. The right to privacy is an element of human dignity.” (¶ 113.)

A basic, “inalienable” right to live, the Court reasoned, must predate the Constitution.  “It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the state without either the existence of the right to live or the means of enforcement of the right” (¶ 119).

With regard to originalism and living constitutionalism, the Court wrote: “Now, would this Court in interpreting the Constitution freeze the content of constitutional guarantees and provisions to what the founding fathers perceived? The Constitution was drafted and adopted in a historical context. The vision of the founding fathers was enriched by the histories of suffering of those who suffered oppression and a violation of dignity both here and elsewhere. Yet, it would be difficult to dispute that many of the problems which contemporary societies face would not have been present to the minds of the most perspicacious draftsmen. No generation, including the present, can have a monopoly over solutions or the confidence in its ability to foresee the future. As society evolves, so must constitutional doctrine. The institutions which the Constitution has created must adapt flexibly to meet the challenges in a rapidly growing knowledge economy. Above all, constitutional interpretation is but a process in achieving justice, liberty and dignity to every citizen.” (¶ 116.)

The court rejected strict originalism and pledged fealty to living constitutionalism expressly in a meditation upon technology:  “Today’s technology renders models of application of a few years ago obsolescent. Hence, it would be an injustice both to the draftsmen of the Constitution as well as to the document which they sanctified to constrict its interpretation to an originalist interpretation. Today’s problems have to be adjudged by a vibrant application of constitutional doctrine and cannot be frozen by a vision suited to a radically different society. We describe the Constitution as a living instrument simply for the reason that while it is a document which enunciates eternal values for Indian society, it possesses the resilience necessary to ensure its continued relevance. Its continued relevance lies precisely in its ability to allow succeeding generations to apply the principles on which it has been founded to find innovative solutions to intractable problems of their times.”  (¶ 151.)

With regard to precedentialism, the Court rejected precedents incompatible with a constitutional right to privacy.  The Court cited U.S. decisions Buck v. Bell (U.S. 1927) (approving compulsory sterilization) (Oyez) and Korematsu (U.S. 1944) (approving Japanese-American internment) (Oyez) as examples of court decisions contrary to human rights and so appropriately “consigned to the archives, reflective of what was, but should never have been” (¶ 121).

With further regard to comparativism, the Court cautioned that “[f]oreign judgments must ... be read with circumspection ensuring that the text is not read isolated from its context” (¶ 134).  That said, the court explicated precedents from the United Kingdom, United States, South Africa, and Canada, as well as the European Court of Human Rights, the Court of Justice of the European Union, and the Inter-American Court of Human Rights.  In U.S. case law (pp. 141-65), the Court pointed to:

  • Boyd v. United States (U.S. 1886) (private papers),
  • Meyer v. Nebraska (U.S. 1923) (teaching in foreign languages),
  • Pierce v. Society of Sisters (U.S. 1925) (compulsory schooling),
  • Olmstead v. United States (U.S. 1928) (Brandeis, J., dissenting) (telephone wiretap),
  • Griswold v. Connecticut (U.S. 1965) (contraceptives),
  • Katz v. United States (U.S. 1967) (telephone wiretap),
  • Stanley v. Georgia (U.S. 1969) (obscene content in home),
  • Eisenstadt v. Baird (U.S. 1972) (contraceptive information),
  • Paris Adult Theatre I v Slaton (U.S. 1973) (obscene films),
  • Roe v. Wade (U.S. 1973) (abortion),
  • United States v. Miller (U.S. 1976) (bank records),
  • Carey v. Population Services International (U.S. 1977) (contraceptive advertising and sale),
  • Nixon v. Administrator, General Services (U.S. 1977) (presidential papers),
  • Whalen v. Roe (U.S. 1977) (prescription drug information),
  • Smith v. Maryland (U.S. 1979) (pen register),
  • Bowers v. Hardwick (U.S. 1986) (sexual privacy),
  • Planned Parenthood v. Casey (U.S. 1992) (abortion),
  • Minnesota v. Carter (U.S. 1998) (home window view),
  • Minnesota v. Olson (U.S. 1990) (home overnight guest),
  • Kyllo v. United States (U.S. 2001) (thermal imaging of home),
  • Lawrence v. Texas (U.S. 2003) (sexual privacy),
  • NASA v. Nelson (U.S. 2011) (background checks),
  • United States v. Jones (U.S. 2012) (Scalia opinion and Sotomayor concurrence) (GPS tracking),
  • Florida v. Jardines (U.S. 2013) (Scalia opinion and Kagan concurrence) (dog sniff),
  • Riley v. California (U.S. 2014) (digital cell phone contents), and
  • Obergefell v. Hodges (U.S. 2015) (gay marriage).

Examining informational privacy, the Court reiterated Indian precedents rejecting the U.S. Fourth Amendment third-party doctrine (¶¶ 66, 77). 

The Court spent many pages engaging with commentators on and critics of privacy doctrine, including Richard Posner and Robert Bork (¶ 140, p. 197), Catherine McKinnon (p. 198), Alan Westin (p. 199), Roger Clarke (p. 200), Anita Allen (p. 200), and Bert-Jaap Koops, et al. (p. 201).  Specifically with regard to the formulation of an informational privacy right, the Court discussed the works of Christina Moniodis (¶ 174), Yvonne McDermott (¶ 174), Daniel Solove (¶ 175), and Posner again (¶ 179).  The Court discussed privacy principles developed through the legislative efforts to update Indian data protection, including notice, choice and consent, collection limitation, purpose limitation, access and correction, disclosure, security, transparency, and accountability (¶ 184).

Regarding the protection of life and liberty in article 21 of the India Constitution, the Court wrote: “Life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist. The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions. ‘Life’ within the meaning of Article 21 is not confined to the integrity of the physical body.”  (¶ 106.)

“To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III [of the Constitution]. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty is intended to achieve.”  (¶ 107; see also ¶¶ 168-169.)

The Court listed privacy rights previously recognized under article 21 of the India Constitution: right to travel abroad, right against solitary confinement, right of prisoners against bar fetters, right to legal aid, right to speedy trial, right against handcuffing, right against custodial violence, right against public hanging, right to doctor aid at public hospital, right to shelter, right to healthy environment, right to compensation for unlawful arrest, right against torture, right to reputation, and right to pursue a livelihood (¶ 150).

The Court rejected the recognition of privacy in statute or in common law as a basis to refuse recognition in constitutional law.  Citing the Max Planck Encyclopaedia of Comparative Constitutional Law, the Court found validity in privacy as both a negative right and a positive right.  (¶ 158.)  With regard to the separation of powers, the Court heralded the importance of judicial review as “a powerful guarantee against legislative encroachments on life and personal liberty,” not to be surrendered easily (¶ 166).  The Court frowned on the proposition of recognizing privacy only as ancillary to substantive due process, pointing with disapproval to consequent “vagaries of judicial interpretation” in U.S. law (¶ 167).

The Court concluded, in key parts:

- “Privacy is a constitutionally protected right which emerges primarily from the
guarantee of life and personal liberty in Article 21 of the Constitution. Elements of
privacy also arise in varying contexts from the other facets of freedom and dignity
recognised and guaranteed by the fundamental rights contained in Part III” (part T(3)(C), p. 262).

- “At a descriptive level, privacy postulates a bundle of entitlements and interests” (part T(3)(E), p. 262).

- “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life” (part T(3)(F), p. 263).

- “While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place” (part T(3)(F), p. 263).

- “This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy. The Constitution must evolve with the felt necessities of time to meet the challenges thrown up in a democratic order governed by the rule of law. The meaning of the Constitution cannot be frozen on the perspectives present when it was adopted” (part T(3)(G), p. 263).

- “An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them” (part T(3)(H), p. 264).

- “Privacy has both positive and negative content. The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual” (part T(3)(I), p. 264).

- “Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection” (part T(5), p. 264).

Additional and collateral opinions run from PDF page 267 through 547.

Mass. App. upholds $2.9m 'actual malice' verdict over 'bitter feud' in local politics

The Range Feud (Columbia Pictures 1931)
The Massachusetts Appeals Court today rejected appeal of a defamation verdict.  The case is Van Liew v. Eliopoulos, no. 16-P-567 (soon available from the Reporter of Decisions), per Justice Blake.

The case arose amid what the court described as "a bitter feud ... between Chelmsford residents," focusing on the redevelopment of a historic property.  Plaintiff Eliopoulos was a selectman, real estate attorney, and project developer; defendant Van Liew was a business owner and project opponent.  The latter's vigorous opposition included a newsletter titled, "Why Perjury Matters."  The jury found, and the trial court entered judgment, against the defendant for 29 defamatory statements, to the tune of $2.9m.  The Appeals Court affirmed upon 26 statements.

Because the plaintiff was a public official and public figure, the case occasioned review of some First Amendment basics, namely, the Sullivan (FindLaw) "actual malice" standard and the Bose Corp. (FindLaw) standard of independent appellate review, besides the common law fact-opinion dichotomy.  Actual malice was supported, inter alia, by evidence that the defendant had reiterated charges of unethical conduct knowing that an ethics commission had exonerated the plaintiff.

The jury's damages award comprised $2.5m for reputational injury, $250,000 for emotional distress, and $150,000 in other compensatory damages.  Refusing remittitur, the Appeals Court held the damages sufficiently supported and neither excessive nor punitive.  A real estate broker had "testified that potential real estate buyers and sellers do not want to work with [plaintiff] because 'a lot of folks think that he is a—a corrupt, unethical person, because it's been said hundreds ... of times, over the past few years, in mailings and e-mails to their homes.'"  The Appeals Court opined, "The jury well could have found that the defamation turned [plaintiff] into a pariah in his own community, a status for him that has no end in sight."

Not many years ago, a politician-plaintiff's favorable verdict on actual malice was about as likely as, well not quite a unicorn, but maybe a California condor.  I advised more than one public-figure colleague not to pursue a cause because of cost, emotional toll, and mainly the overwhelming probability of loss under prophylactic free speech rules, all notwithstanding merits.  The "actual malice" standard on its face suggests no more rigor than a thoughtful recklessness analysis, but trial courts seemed to find it, to borrow the sometimes critique of strict scrutiny, "fatal in fact."

The efficacy of that conventional wisdom has been on the wane in recent years, and I welcome the return to fairness.  The $3m defamation verdict against Rolling Stone and its reporter in November  for "Rape on Campus" (NYT) and the Hulk Hogan (Bollea) privacy win against Gawker (settlement in NYT; new Netflix docko in The Atlantic) are high-profile instances of what might be a sea change underway to balance the scales.  Much hand-wringing has attended the President's "open up our libel laws" statement (NYT), and rightly so.  But that doesn't mean that the frustration that propelled Trump into office is wholly ill derived, on this point any less than on jobs and the economy.

The Appeals Court's application of "actual malice" was workaday and workmanlike.  That's the kind of cool rationality we need in our courts, now more than ever.

Tuesday, August 22, 2017

Book Review (Preview): Turbulent World of Middle East Soccer, by James Dorsey

My book review of James M. Dorsey's Turbulent World of Middle East Soccer (Hurst 2016) has been published at 52(6) International Review for the Sociology of Sport 772 (2017).  Below is a preview; read more at IRSS from Sage.
Dr. Dorsey's blog also is titled, The Turbulent World of Middle East Soccer.  For the opportunity to write and publish this review, I am indebted to Dr. Colin Howley, Richmond University in London, and to the editors at IRSS.
 James M Dorsey, The Turbulent World of Middle East Soccer, Hurst Publishers: London, 2016: 359 pp.: ISBN: 9781849043311, £15.99 (pbk). 
No interest in soccer ('football' in most of the world) is prerequisite to the read. Dorsey himself acknowledges in the book's introduction that soccer was 'a journey into the unknown' for him, and—though he is co-director of the Institute for Fan Culture at the University of W├╝rzburg—he disavows personal fandom. Rather Dorsey analogizes soccer, 'the world's most global cultural practice', to a 'prism'. Just as a prism separates white light into its constituent colours, Dorsey's study of soccer disentwines the modern Middle East into 'sport, society, culture, politics and development'....

Abstract: Arthur on vaccination and consumer protection

Donald C. Arthur, M.D., J.D. UMass Law '17, has published Commercial Deception by Anti-Vaccine Homeopathic Websites: A Consumer Protection Approach, 10 Biotechnology & Pharmaceutical L. Rev. 1, 27 (2017).  Here is the abstract.

Some internet marketers offer for sale “vaccination substitutes” that can purportedly replace actual scientifically-tested and federally-approved vaccinations. Deceptive internet advertising for vaccine substitutes has dissuaded parents from vaccinating their children, resulting in a resurgence of vaccine-preventable childhood diseases. The Food and Drug Administration and Federal Trade Commission have the authority to address dangerously deceptive product claims, including those for homeopathic preparations that have thus far avoided safety and efficacy testing. This article presents the issues involved in deceptive advertising and proposes regulatory solutions.
The article is available to Westlaw Next subscribers here.  The Review is published at North Carolina Central University School of Law.

Claiming Don as an alumnus is decidedly my privilege.  Dr. Arthur is an emergency medicine and preventive medicine physician.  He served 33 years in the U.S. Navy, culminating his career as Navy surgeon general and retiring at the rank of vice admiral. He served as chief executive officer of three hospitals, including the National Naval Medical Center in Bethesda, Maryland.

Wednesday, August 9, 2017

Book Review: So You've Been Publicly Shamed, by Jon Ronson

In an afterword to his 2015 book, Jon Ronson reported that So You’ve Been Publicly Shamed was not the first-draft title.  

Indeed, it must have been a struggle to name this wide-ranging volume.  Ronson explores shame in many contexts, from the woman whose off-color joke about AIDS on Twitter “blew up [her] life” (as the N.Y. Times put it) to the clients of a busted prostitution outfit, to the featured participant in “a German-themed BDSM orgy” (as the New Statesman put it).  I’m not here naming the Twitter woman, because if you read the book, I think you’ll agree she’s been named—and shamed—more than enough.

By Ronson’s broad definition of public shaming, I’ve been there.  Ronson does little to distinguish those who fairly earned some degree of public shaming—such as a journalist who made up quotes—from those who were disproportionately rebuked, or just misunderstood, or falsely maligned.  Ronson’s light touch with judgment—he admits he has not always been so evenhanded in his own social media life—frustrated me at first, as I’m one who likes to see justice done, or at least to wring my hands when it’s not.  However, I came to appreciate Ronson’s approach.  His reluctance to reach normative conclusions forced me, as reader, to acknowledge my own.  Do I really know how This American Life fact-checks, say, David Rakoff, versus Mike Daisey (see “Retraction”)?  Do I need to have an opinion at all on what consenting adults do in their sex dungeon?  (See also extended adventures with Jon Ronson in the porn world at his 2017 podcast, The Butterfly Effect, coming to iTunes free in November.)

Judgment would get in the way of Ronson’s search.  Chapter to chapter, Ronson leads us in a dogged effort to understand the shaming mob.  (Cf. the excellent work of Prof. Ken Westhues on mobbing.)  When does the mob spring into action, and when does it not?  Ronson tells stories of public shamings from the perspectives of the victims.  He went to the trouble of tracking them all down to get their stories; the Internet doesn’t usually bother.  (In my experience, neither does The New York Times, nor even a respectable author.)  Can the victim do anything to fight back against a public shaming?  Ronson gives us a fascinating glimpse into the sometimes shady world of online reputation management.  And ultimately:  Is there such a thing as redemption in the Internet age?

That was the question that kept me turning pages.  Coverage of Ronson’s book since 2015 really obsessed on the implications of social media, but this book is about so much more than that.  Despite my ongoing research into online erasure, or “the right to be forgotten” (e.g., here and here, and an exciting panel discussion at NCA 2016, reported here and here), I was surprised to see Ronson make the connection.  He considers the RTBF later in the book, tackling the conflicted feelings about RTBF that a lot of people in the journalism world have over interacting rights to expression, privacy, and identity. 

I continue to be captivated by the redemption problem, which I wrote about in a Washington Post opinion column some years ago.  I won’t tell where Ronson’s search leads, because that would spoil the fun.  Suffice to say, there’s plenty of work yet to do, if justice is really our aim.

Tuesday, August 1, 2017

CFP: Law and Development Conference in Poland

I am privileged to share this CFP.  Deadline October 10, 2017.


‘Law and Development Conference’
Jagiellonian University in Krakow, Poland

March 16, 2018     

Organizer: The American Law Program of the Catholic University of America at the Jagiellonian University in Krakow, Poland.

Academic   purpose:   The   research   project’s   aim   is   to   look   at   the   concept   of
‘development’ from alternative perspectives and analyze how different approaches thereto influence law. ‘Sustainable development’ is about balancing economic progress, environmental  protection,  individual  rights,  and  collective  interests.  It  requires  a holistic approach to human beings in their individual and social dimensions, which can be seen as a reference to ‘integral human development’ – a concept present in Catholic social teaching. 

‘Development’  may  be  seen  as  a  value  or  a  goal.  But  it  also  has  a  normative  dimension
influencing lawmaking and legal application. It is a rule of interpretation, which harmonizes the application of conflicting norms, and which is often based on the ethical and anthropological assumptions of the decision maker.

This research project is also about how different approaches to ‘development’ and their
impact on law may coexist in pluralistic and multicultural societies and how to evaluate their  legitimacy.  The  problem  may  be  analyzed  from  the  overarching  theoretical perspective as well as based on case studies stemming out from different legal branches.

Addressees:  Academics  from  US,  Poland  and  other  countries;  alumni  of  the  American
Law  Program,  LLM  Program,  and  International  Business  and  Trade  Summer  Law Program organized by Catholic University of America at Jagiellonian University.

Arrangements: 300-word paper proposals should be submitted by October 10, 2017 at Successful applicants will be notified by October 20, 2017. Accommodation for selected speakers at the university’s hotel will be provided by Jagiellonian University (two nights for speakers from Europe, 3 nights for speakers from outside Europe). Travel costs must be provided by participants.

Publication: The best conference papers will be published with Catholic University Law
Review.  Final  draft  will  be  due  by  late  January  2018  for  those  who  would  like  to  be
considered for publication. 

Academic  committee:  George  Garvey,  Megan  LaBelle,  Richard  Peltz-Steele,  Leah Wortham, Piotr Szwedo.