Boston Bar webinar will probe privacy law latest

Coming soon, the Boston Bar Association will host a webinar on data privacy class action litigation (and related privacy stuff too).  I'm trying to get up to speed on all of the latest developments so that I will not disappoint moderator Melanie A. Conroy, attorney and CIPP/US, of Pierce Atwood LLP, who graciously if foolhardily invited me to participate.  For The National Law Review in April, Conroy wrote the authoritative rundown on the Mount Ida student class action, which treatment inspired me to write about the case for The Savory Tort.

My task is daunting; a lot happened while I was in Africa early in the year and out of the office over the summer.  Our subject matter includes the new regulations under the California Consumer Privacy Act, burgeoning lawsuits under the Illinois Biometric Information Privacy Act, and the shock waves just now hitting the United States from the "Schrems II" decision in the European Court of Justice.  (Brush-with-greatness note: Max Schrems has been in my car.  Long story.)  That's just to get the ball rolling.

Co-panelists are Matthew M.K. Stein, of Manatt, Phelps & Phillips, LLP, and Marjan Hajibandeh, of CarGurus, Inc.  Here are the program details from the BBA:

BBA Webinar: Roundtable on Recent Developments in Data Privacy Class Action Litigation
Thursday, September 24, 2020, 10:00 to 11:00 a.m.
This webinar will explore the growing prevalence of data privacy class actions through recent developments in data privacy legislation, expanded private rights of action, biometric privacy claims, consumer data suits, post-breach and cybersecurity litigation, and the increasingly complex landscape of rulings by federal courts of appeals. The presenters will discuss national trends and developments within the First Circuit and in Massachusetts. The discussion will look ahead to areas to watch and trends that may shape the development of data privacy class actions in the coming months and years.

The program is free for BBA members and $100 for non-members. Registration at least two hours before the program-start is essential to receive the Zoom link.

Research for educational opportunity, accountability requires transparency, need not forgo student privacy

When I had the privilege of working on transparency issues in the Arkansas General Assembly in the 20-aughts, two legislators and I promoted a bill that would have required public state universities to disclose data on their use of affirmative action in admissions.

One legislator, an African-American woman, reacted with manifest hostility, as if we sought outright to deprive persons of color of access to education.  I wish she would have engaged with us rather than fighting the bill behind closed doors.  It probably would have surprised her to learn that I was motivated specifically by an accusation leveled by an African-American advocacy group.  The group alleged, inter alia, that higher ed was using affirmative action to boost enrollment profiles, for PR and accreditation purposes, but then failing to support those enrolled students' success on state campuses.

I didn't know, and to this day don't know, whether the group's accusations held up as more than anecdotes.  As a transparency and accountability advocate and public educator myself, charged with the responsibility of faculty governance, I wanted to know the truth.  And there arose the problem: It was impossible to do the research, because the universities claimed, even in response to internal queries, that student privacy required nearly every datum about admissions to be held secret.  There was no way to know what students benefited from affirmative action, nor to match those data up with how those students fared.

The access bill ultimately failed, and, to my view, the reason for that failure only made the transparency case stronger.  We were not undone by objection based on equality of opportunity.  We were undone because our bill, which broadly defined affirmative action, would have required disclosure of legacy admissions: that is, when a university admits an applicant because the applicant is related to an alumna or alumnus, especially one who's a donor.  That kind of admissions preference is known to contribute to systemic discrimination against persons of color, not to mention aggravation of our alarming rise in America of socioeconomic disparity.

State Capitol, Little Rock, Arkansas

The hostility of the aforementioned African-American legislator was a warm smile compared with the outrage that poured forth from a white, male legislator, who happened also to be affiliated with Arkansas State University (ASU).  In a legislative hearing, he challenged my assertion that the universities would not happily cooperate with my research.  They would, he alleged, no legislation needed.  He persuaded his committee colleagues to no-pass the bill with a promise: After the legislative session, I should contact him personally for help procuring the data, and he would see to it that the disclosures happened.

The bill died.  After the session, I contacted our zealous ASU opponent, that he might make good on his promise.  He ignored my query and never responded.

My work on that bill fueled an ongoing interest in the interaction of access and privacy in education, especially the interaction of the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and state freedom of information acts (FOIAs) (e.g., in 2018).  In that vein, my Arkansas colleague Professor Robert Steinbuch and I have just published, Ongoing Challenges in Researching Affirmative Action in Legal Education: Maximizing Public Welfare Through Transparency, 26:1 Texas Hispanic Journal of Law & Policy 57 (2020).  Here is the abstract:

The public good often depends on social science research that employs personal data. Volumes of scientific breakthroughs based on data accumulated through access to public information demonstrate the importance and feasibility of enabling research in the public interest while still respecting data privacy. For decades, reliable and routine technical methods have ensured protection for personal privacy by de-identifying personal data. Social science research into legal education and admission to the bar is presently a matter of urgent public interest and importance, requiring solid empirical analysis of anonymized personal data that government authorities possess. Social science research into the effects of affirmative action represents standard, indeed commonplace, research practice furthering the public interest, while employing established methods that minimize the risk to privacy. Yet, when seeking information regarding admissions standards and success metrics, researchers have faced remarkable headwinds from government officials. In this article, we continue to discuss a topic to which we have devoted significant professional energy: the proper balance of privacy, transparency, and accountability in researching legal education.

Our research grew out of an amicus representation in 2018, alongside Professor Eugene Volokh at UCLA Law.

I'm not here naming the ASU-affiliated legislator only because, these many years later, I don't remember his name.  I have no hesitation in calling him out if someone can remind me.

Pertinently, the data in question are still held secret, in Arkansas and many states.  So my colleagues in FOIA research, including Professor Steinbuch, still would welcome that legislator's help.  It's shameful that this fight for transparency and accountability is still under way all these years later.  It's one thing to adopt a policy position and have reasoned disagreement over it.  It's another thing entirely, and anathema to democracy, to insist on a policy position while willfully concealing evidence of its efficacy.

Anti-SLAPP slaps justice, but Richard Simmons survives dismissal in privacy suit over tracking device

Sensational Simmons in 2011
(Angela George CC BY-SA 3.0)

Updated Oct. 17, 2023, to correct broken links.

In telephone consultation with an attorney-colleague just the other day, I had occasion to climb onto my soapbox and preach my anti-anti-SLAPP gospel.  I'm not sure when he hung up, but I kept preaching, because it's about the message, not the audience.

Then Richard Simmons popped up in my newsfeed.  More on that in a minute.

'Anti-SLAPP'

Anti-SLAPP is a mostly statutory court procedure meant to diffuse "strategic lawsuits against public participation," that is, essentially, to dispose quickly of lawsuits that are meant principally to harass a defendant who is participating in public life in a way protected by the First Amendment, namely, speaking or petitioning.

The prototype case is a land developer who sues environmental protestors for a tort such as interference with contract.  An anti-SLAPP statute allows the protestor-defendant to obtain a quick dismissal, because the plaintiff knows the protestor is not a business competitor, and the plaintiff's true aim is harassment via tort litigation.  Anti-SLAPP may be useful if, say, and I'm just spitballing here, you're a sexual assault complainant suing a politician with a habit of counterclaiming for defamation.  But the far more common use of anti-SLAPP motions is when a mass-media defendant is sued for, well, anything.

The communications bar loves anti-SLAPP.  And what's not to love?  What anti-SLAPP statutes demand varies widely across the states.  A defendant's anti-SLAPP motion might require only that the plaintiff re-submit the complaint under oath, or more aggressive statutes demand that the court hold a prompt hearing and dismiss the complaint if the plaintiff cannot show probability of success on the merits, a stringent pretrial standard reserved usually for preliminary injunctions.  Whatever the statute requires, the universal takeaway is that the blocking motion is good for the defense, providing another way to slow down litigation and require more money, time, and exertion by the plaintiff—who, let's not forget, usually is a victim of injury, even if the injury has not yet been adjudicated to be the fault of the defendant.

My problems with anti-SLAPP are legion, not the least of which is that the communications defense bar hardly needs a new defense at its disposal.  We already have the most overprotective-of-free-speech tort system in the world.   Without diving deep today, it will suffice to say that my opposition to anti-SLAPP fits neatly into my broader position that the famous civil rights-era innovation in First Amendment law embodied in New York Times v. Sullivan (U.S. 1964) should rather be described as an infamous and pivotal turn down a wrong and dangerous road, which is why courts around the world have widely rejected the case's central holding.  My position makes me about the most despised person at any communications defense bar conference, so I mostly skip the social events, after I've redeemed my free drink tickets.

Along Came Richard Simmons

When I talk about the abusive deployment of anti-SLAPP, I'm usually talking about the plaintiff's inability to prove Sullivan "actual malice," which, as a subjective standard, requires evidence of the defendant's state of mind.  In an especially wicked cruelty, a typical anti-SLAPP motion requires the plaintiff to show likelihood of success in proving defendant's actual-malicious state of mind before the plaintiff is allowed to use litigation discovery to collect evidence—all of which remains in the defendant's possession.

Bastion of the First Amendment
(2015 image by Mike Mozart CC BY 2.0)

So the rules of the game in First Amendment defamation are first rigged against the plaintiff, and then, when the plaintiff dares to complain anyway, we punish the audacity.  Rubbing salt into the wound, anti-SLAPP laws may also then require the plaintiff to pay the corporate media defendant's legal fees, a bankrupting prospect for the everyday-Joe plaintiff who might have been victimized by the careless reporting of a profits-churning transnational news company.

What I don't usually talk about is the kind of thing that apparently happened lately to Richard Simmons.  The once-and-future fitness guru—don't miss Dan Taberski's podcast Missing Richard Simmons (e1), which, however "morally suspect," might be my favorite podcast ever—alleged in a California invasion-of-privacy lawsuit that celebrity gossip rag In Touch Weekly hired someone to put a tracking device on Simmons's car.  As media, do, and maybe now you to start to see the problem, In Touch Weekly asked for dismissal under California's powerful anti-SLAPP statute, putting to the test Simmons's audacious challenge to the shining gold standard of American journalism.

Fortunately in this case, a trial judge, and this week a California court of appeal, held that news-gathering through trespass, or intrusion, is not what anti-SLAPP is made to protect.  Correspondingly, there is no First Amendment defense to the tort of invasion of privacy by intrusion.  So Simmons's case may resist anti-SLAPP dismissal.

Also fortunately, Richard Simmons has the financial resources and determination to fight a strong invasion-of-privacy case all the way through an appeal before even beginning pretrial discovery.  This isn't his first rodeo.  Richard Simmons is a survivor.

Someone needs to give Richard Simmons a law degree, and one day I won't feel so alone at the comm bar cocktail party.

The case is Simmons v. Bauer Media Group USA, LLC, No. B296220 (Cal. Ct. App. 2d App. Dist. 4 Div. May 21, 2020).  Parent-company Bauer Media Group, by the way, owned the gossip magazines that lost to Rebel Wilson in her landmark Australian defamation case.

Now move those buns.

Recent commentaries ponder privacy in license plates, history of animal identity

Two blog entries tangentially related to areas of interest of mine crossed my desk this week.

CC TV (Adrian Pingstone CC0)

Privacy law.  For The Volokh Conspiracy at Reason, UC Berkeley Professor Orin Kerr wrote about the Massachusetts Supreme Judicial Court decision in Commonwealth v. McCarthy, No. SJC-12750, on April 16.  The Court considered the implications of automatic license plate readers under the Fourth Amendment, concluding that there are constitutional consequences, if not resulting in a violation of the defendant's rights in the instant drug case.  Kerr considers the case relative to the Supreme Court's 2018 cell-tower-location decision, Carpenter v. United States, and against the background of his own work on mosaic theory in privacy law (he's not a fan).  In a purely civil context, mosaic theory, born in the national security arena, has long been a key underpinning of personal privacy rights in their encroachment on the freedom of information, an accelerating conflict in the information age.  The commentary is "Automated License Plate Readers, the Mosaic Theory, and the Fourth Amendment: The Massachusetts Supreme Judicial Court Weighs In" (Apr. 22, 2020).

Peacock plumage (Jatin Sindhu CC BY-SA 4.0)

Animal law.  Evolution of animals at law was the subject of an Earth Day commentary for Legal History Miscellany by history Professor Krista Kesselring at Dalhousie University in Nova Scotia.  She traced the historical change in cultural and common law regard for animals from aesthetic adornment, to property of utility, to something, perhaps, at last, with intrinsic value.  The commentary is "Can You Steal a Peacock? Animals in Early Modern Law" (Apr. 22, 2020).  U.S. courts have evidenced a dawning recognition of animals as more than mere personal property, even in a civil context, moving beyond welcome developments in criminal anti-cruelty statutes.  The nascent trend is evident and needed especially in the area of tort damages, in which the valuation of a pet as an item of property fails profoundly to account for real and rational emotional suffering upon loss.  See furthermore the recent: Richard L. Cupp, Jr., Considering the Private Animal and Damages (SSRN last rev. Apr. 2, 2020).  HT @ Private Law Theory.

First Circuit dismisses Mount Ida student class action, incidentally limits emerging data protection theory

Holbrook Hall, Mount Ida College, Newton, Mass. John Phelan CC BY 3.0

An angle in a recent First Circuit decision deserves a mention in U.S. data protection circles.  I hadn't been aware of this angle of the case, so hat tip to attorney Melanie A. Conroy at Pierce Atwood in Boston for analyzing the case carefully in the The National Law Review.

The First Circuit affirmed dismissal in the ugly and unfortunate matter of Mount Ida College students' class action against the school after its abrupt closure and sale to the University of Massachusetts system.  Conroy's rundown on the case is thorough.  I want only to highlight one important point: the court refused to recognize, in Massachusetts law, a fiduciary duty owed by university to student.

The decision comports with multistate norms, but is nonetheless important in limiting an emerging doctrine of data protection in U.S. common law tort.  State courts that have recognized something like a data protection right in civil cases have used fiduciary duty to bootstrap their way there.

American common law invasion of privacy is too stringent to get the job done, that is, to articulate a data protection right, for various reasons.  One reason is its incorporation of what Professor Daniel Solove termed "the secrecy paradigm": information must be kept secret to remain secret.  Thus, I cannot complain when my bank tells someone about my financial transactions, because I already let my bank know about them.  My resort must be to banking privacy law, by statute.  And there arises the second problem for privacy plaintiffs: statutes are too stringent to get the job done.  I might be unhappy if my employer divulges information about my psychiatric condition to my insurer, but neither one of them is a healthcare provider covered by the federal patient privacy law ("HIPAA"), which does not (directly) provide for a cause of action anyway.

In 2018, the Connecticut Supreme Court bridged the common law gap from statutory insufficiency to actionable privacy claim by relying on the physician-patient duty of confidentiality.  In short, the court held, HIPAA + duty of confidentiality = protectible common law interest.  The court thereby allowed a woman to sue her ObGyn provider upon an allegation of breached confidentiality.  That duty of confidentiality is a form of fiduciary duty.  So a theory emerged of how U.S. common law might stumble its way to recognition of what the rest of the world, especially Europe, calls "data protection."

There are a lot of ways for us to start catching up with the rest of the world in recognizing people's right to personal data integrity; this is just one.  And it remains.  But it is limited by the scope of duties that might stand in for that second piece of the equation.  The Mount Ida case shows correctly that it will be harder for a plaintiff to get there against a business defendant that is not a professional, and the data held are financial information tangential to the nature of the relationship, here, educational.

The First Circuit aptly instructed Mount Ida students that if they wanted better protection for their personal information in state law, their remedy was with the state legislature.  The same can be said for Americans, data protection, and our torpid Congress.

The case is Squeri v. Mount Ida College, No. 19-1624 (1st Cir. Mar. 25, 2020).  U.S. Circuit Judge Lynch wrote for the panel, which also included Stahl and Kayatta, JJ.

Boston Globe wins access to booking photos, incident reports involving arrests of police officers

In the Massachusetts Supreme Judicial Court on March 12, the Boston Globe won access to booking photographs and incidents reports related to arrests of police officers under the state open records law.

The case arose from the denial of multiple public record requests, including two following State Police arrests of local law enforcement officers for operating motor vehicles while under the influence in 2012 and 2014.  State police resisted disclosure, claiming the records were not public as part of the state's "criminal record offender information" (CORI) database, which is exempt from disclosure by statute.

The exemption of criminal record information systems is the rule rather than the exception in the United States, in theory, to protect personal privacy.  Sometimes persons are never charged, or even arrested, or are exonerated prior to court proceedings, and public policy disfavors sullying reputation by association with police action.  On the opposite end of the criminal justice process, there is concern that even a person who is convicted of a crime will never escape the reputational impact of police involvement, especially in the age of an internet that never forgets.  Critics of non-disclosure policy claim that secrecy undermines accountability, which is especially important for law enforcement; and treats the public paternalistically, as if people cannot understand the relative significance of different stages of involvement with the police and criminal justice system, including the significance of having done one's time.  This tension of competing policy aims, especially as it plays out in the electronic age, and especially as it relates to visual media, implicates "practical obscurity," a conundrum that has dogged access policy for more than four decades and also marks a flashpoint in the trans-Atlantic privacy debate.

Examining the open records law, even as amended by the Massachusetts legislature while appeal was pending, aiming to bolster the state's position on the privacy-access seesaw, the Supreme Judicial Court ruled the records not shielded by the CORI statute's exemption for criminal record information. Employing the rule of narrow construction of access exemptions, the court concluded, "[W]e cannot read exemption (a) so broadly as to shield all investigatory materials created by police from disclosure. We therefore conclude that the booking photographs and incident reports sought here are not absolutely exempt from disclosure as public records under exemption (a) 'by necessary implication' of the CORI act."

Moreover, though police had not argued the point, the court ruled the records not exempt as an unwarranted invasion of personal privacy, at least in the particular context of police as arrestees.  The privacy exemption calls for a balance.  The court explained, "On the privacy side of the scale, we generally 'have looked to three factors to assess the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources'" (citations omitted).  Also, "privacy factors include the risk of adverse collateral consequences to the individual that might arise from the disclosure of this criminal justice information. 'On the other side of the scale, we have said that the public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner'" (citation omitted).

When police are themselves accused of crimes, the balance that might otherwise favor the ordinary citizen swings in favor of public accountability, the court reasoned. "There is a substantial public interest in the disclosure of police incident reports regarding alleged offenses by police officers and public officials that do not result in arraignment. And disclosure of the booking photographs will eliminate confusion as to the identity of those arrested where they may have common names that may be shared by others."

The court's conclusions accord with norms in state access law in the United States.  Though criminal information systems on the whole usually are exempt from disclosure, individual incident reports related to arrest usually are not—notwithstanding the fact that an exempt criminal record database may comprise records that are not exempt individually.  (Booking photos, or mug shots, also, traditionally have not been exempt from disclosure as a class of record, though that has been changing in recent years, because of a cottage industry in privacy invasion, and even extortion, that's cropped up online.)  Personal privacy exemptions are sometimes held to protect personal identity ad hoc, within police records as a class, and incident reports without resulting arrest may be exempt from disclosure.  But personal privacy exemptions typically implicate a balance, and courts tend to favor access when public officials are under scrutiny, especially when law enforcement officers are suspected of violating the law.

The case is Boston Globe Media Partners, LLC v. Department of Criminal Justice Information Services, No. SJC-12690 (Mar. 12, 2020) (Justia, Suffolk Law).  Chief Justice Gants wrote the opinion for a unanimous court.

Anti-SLAPP is not all it's cracked up to be

John Oliver this week on Last Week revisited the defamation lawsuit he drew against HBO from Bob Murray and Murray Energy.  The piece brings viewers up to speed on the feud.

Murray just dropped the suit, which was on appeal of dismissal to the West Virginia Supreme Court.  That led Oliver to do this effective segment on the problem of strategic lawsuits against public participation (SLAPPs).  Oliver called on the 20 states without anti-SLAPP statutes to adopt them, lest nationwide speakers remain subject to lawsuit in lowest-common-denominator, plaintiff-friendly locales.

I'm a big John Oliver fan—next-level, best standup I've ever seen, not to mention having redefined social commentary through comedy—and a free speech and journalism advocate.  That said, I am on record in opposition to anti-SLAPP laws, and I remain so.  The laws are an ill fit to resolve the underlying problem of excessive transaction costs in litigation and work an unfairness against legitimate causes of action.  Our First Amendment law radically weights defamation tort law against plaintiffs like nowhere else in the world, admittedly prophylactically dismissing claims by genuinely injured plaintiffs.  Defendants don't need another weapon in their arsenal.

Oliver is right that there are plenty of cases in which litigation is abused in an effort to suppress free speech.  But anti-SLAPP laws sweep within their ambit nearly every defamation and privacy case.  Defamation plaintiffs who have been genuinely injured and have no SLAPP motivation whatsoever also must respond to anti-SLAPP motions and are likely to suffer dismissal and pain of attorneys' fees—not because their suits lack merits, but because they lack access to discovery to get their hands on real, existing evidence of malice, discovery that our civil litigation system routinely affords to tort plaintiffs in the interests of justice.

The essential concept of anti-SLAPP law is said to have originated in Colorado as a means to protect environmentalists from retaliatory litigation by developers.  If you want to see evidence of my doubts about the efficacy of anti-SLAPP legislation, look no farther than a decision by the Supreme Judicial Court of Massachusetts just today, in which, literally, a property developer is the anti-SLAPP claimant in an epic litigation that has generated enormous transaction costs over anti-SLAPP procedure without ever reaching the merits of the case.

Anti-SLAPP laws look good on paper.  But they indiscriminately undermine tort law.  The effect of denying compensation to genuinely injured plaintiffs will be the effect of a failed tort system: unfairness, increased abuse by bad actors, and, ultimately, injured persons taking the law into their own hands.  Media advocates wonder why Generation Z, et seq., are hostile toward free speech.  Be careful what you wish for.

Radiolab ponders journalists who would undo what they wrought

Radiolab tackled the "right to be forgotten," U.S. style, back in August, and I missed it.  Hat tip at On the Media, which just revived the excellent segment.  Here is the summary and audio.

In an online world, that story about you lives forever. The tipsy photograph of you at the college football game? It’s up there. That news article about the political rally you were marching at? It’s up there. A DUI? That’s there, too. But what if ... it wasn’t.

In Cleveland, Ohio, a group of journalists are trying out an experiment that has the potential to turn things upside down: they are unpublishing content they’ve already published. Photographs, names, entire articles. Every month or so, they get together to decide what content stays, and what content goes. On today’s episode, reporter Molly Webster goes inside the room where the decisions are being made, listening case-by-case as editors decide who, or what, gets to be deleted. It’s a story about time and memory; mistakes and second chances; and society as we know it.

This episode was reported by Molly Webster, and produced by Molly Webster and Bethel Habte.

EU court rules for Google, narrows French 'right to be forgotten' order to Europe

In the latest battle of the feud between Google and the French data protection authority (CNIL), the Court of Justice of the European Union ruled that the CNIL's "right to be forgotten" order should be limited to internet users in Europe.  However, the court did not rule out the possibility of a worldwide order if the facts warrant.

The court wrote:

[T]he right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality....  Furthermore, the balance between the right to privacy and the protection of personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world. 

While the EU legislature has, in Article 17(3)(a) of Regulation 2016/679 [GDPR], struck a balance between that right and that freedom so far as the Union is concerned ... it must be found that, by contrast, it has not, to date, struck such a balance as regards the scope of a de-referencing outside the Union.

"Proportionality" is a core principle of EU human rights law when regulation collides with individual rights, or, as here, state power is implicated to favor one individual's rights over those of others.  The same principle also constrains supra-national authority over member states.

The case arose from a CNIL fine of Google.  The French authority had ordered Google to de-list search results to protect certain individuals' privacy under the "right to be forgotten," or "right to erasure," when those individuals were searched by name.  "De-listing" or "de-referencing" search results is the front line of right-to-erasure court challenges today, though the specter of erasure orders that reach content providers directly looms on the horizon.

Google complied with the CNIL order only for European domains, such as "google.fr" for France, and not across Google domains worldwide.  Google employs geo-blocking to prevent European users from subverting de-listing simply by searching at "google.com" (United States) or "google.com.br" (Brazil).  Determined users still can beat geo-blocking with sly technocraft, so CNIL was dissatisfied with the efficacy of Google's solution.  Undoubtedly, a dispute will arise yet in which the CNIL or another European data protection authority tests its might with a more persuasive case for global de-listing.

The case is Google, LLC v. Commission Nationale de L’informatique et des Libertés (CNIL), No. C-507/17 (E.C.J.), Sept. 24, 2019.  Several free speech and digital rights NGOs intervened on behalf of Google, including Article 19, the Internet Freedom Foundation, the Reporters Committee for Freedom of the Press, and the Wikimedia Foundation, as well as Microsoft Corp.  The case arose initially under the 1995 EU Data Protection Directive, but carries over to the new regime of the General Data Protection Regulation (GDPR).

Teachable torts: Court succinctly dismisses 'outing' case collateral to terrorism prosecution

Attendees dance during the Lesbian, Gay, Bisexual, and Transgender mixer
hosted by Joint Task Force Guantanamo Equal Opportunity Leaders for JTF
Troopers and Naval Station Guantanamo Bay Residents to honor LGBT
Pride Month in 2018. Photo by JTF GTMO PAO Trooper.

A short decision upon compelling facts in a civil case collateral to the criminal prosecution of Khalid Sheikh Mohammed, accused of being a September 11 architect, offers a worthwhile exercise in the study of tort law.

Semmerling, a lawyer on the defense team of Guantánamo-held Mohammed, accused the head of the defense team of outing Semmerling to Mohammed as gay.  The revelation of Semmerling's sexual orientation resulted in his removal from the team, because Mohammed would not work with a gay (or Jewish) lawyer.

Typical outing cases present some interesting problems in privacy law for several reasons.  First, they emphasize the distinction between the disclosure privacy tort and the defamation tort, because the revelation in an outing case is true.  First Amendment absolutism challenges the disclosure tort for its threat of liability upon a truthful statement, though there is little doubt that the disclosure tort would survive a direct Supreme Court challenge today.

Second, a plaintiff's homosexual (or other non-heterosexual) identity is rarely an absolute secret, disclosed to no one, but more often—and healthily—a personal datum that the plaintiff has disclosed with thought and care to different persons—parents, friends, public—at different times.  But "the secrecy paradigm" that dominates American privacy law disallows tort recovery unless intimate information remains intimately safeguarded.  (This is a critical point of difference between U.S. and European privacy law.)

Third, outing cases are complicated as a matter of social policy, for fear that a liability award might validate the view that homosexual orientation should be a source of shame, so either a truth properly kept secret (privacy tort), or a falsehood injuriously uttered (defamation tort).

This case is not typical—Semmerling's sexual orientation was only a secret to Mohammed—but its unusual facts, assuming the allegations as true for sake of argument on the motion to dismiss, left Semmerling with only less prospect of a tort remedy than usual.

Invoking the common law litigation privilege, the U.S. District Court, per Judge Robert W. Gettleman, rejected claims against the defense team leader herself. The absolute privilege ensures that an attorney has unfettered discretion in communicating with a client on matters pertaining to litigation.  The court also dismissed claims of negligence and intentional infliction of emotional distress (IIED) against the United States as defense counsel's employer.

Tim Jon Semmerling is a Chicago criminal-
defense attorney. In addition to his private
practice, he has worked pro bono for the
Center for Justice in Capital Cases at DePaul
University.

The negligence and IIED claims against the United States did survive dismissal under the Federal Tort Claims Act.  The FTCA on its terms disallows libel and slander claims against the United States, and the court opined that even a defamation claim disguised as IIED (or general negligence) would not survive that disallowance.  For the very fact that Semmerling complained about a truthful disclosure, his claim cannot be equated with libel or slander, and so was not a disguised defamation claim.

On tort law merits, though, Semmerling failed to state a claim, the court ruled.  He tried to predicate negligence on the defendant's one-time assurance to him that she would allow him to work on the case without disclosing his sexual orientation to Mohammed.  That was not basis enough, the court opined, to establish a duty of the United States to Semmerling for the purpose of proving negligence. The court did not wade in more deeply, but I expect that the duty requirement was especially elevated given Semmerling's lack of physical injury.

As to IIED, Semmerling sufficiently pleaded neither intent nor outrageousness.  Semmerling found out about the dislcosure only by way of hearsay and only some time after being fired.  So, the court reasoned, evidence was lacking that the disclosure was calculated to cause him emotional distress.  Also the disclosure was at worst "offensive," the court opined, and not "utterly intolerable in a civilized community," as Illinois law requires.

I wonder whether the facts would have supported a tortious interference claim; alas, that cause is expressly disallowed by the FTCA.

The case is Semmerling v. Bormann, No. 18-CV-6640 (N.D. Ill. Sept. 11, 2019).  HT@ ABA Journal.

[NOTE, Sept. 25, 2019: A generous colleague brought to my attention that the complaint in the case also pleaded defamation.  The claim failed on the litigation privilege as against lead counsel and was precluded by the FTCA as against the United States.  I ought to have marked the point that Semmerling was unable to claim disclosure in part because he guarded no intimately held secret.  The defamation claim was grounded in the allegation that lead counsel falsely suggested to the client a particular sexual interest in him.  That's an intriguing hypothetical when one considers the consequent analyses on the merits, including "capable of defamatory meaning."]

EU frets over Privacy Shield adequacy, and NGO insists, emperor still naked

The Commission of the European Union is reviewing the U.S.-EU Privacy Shield framework for conformity with the General Data Protection Regulation (GDPR), and NGO AccessNow is again demanding an inadequacy finding.

A lot is at stake.  For the uninitiated, European regulators have a dramatically different take on the protection of personal information than the free-wheeling free marketeers of the United States.  I've written some about the problem here and elsewhere (e.g., here and here), arguing that the American people are not so far from European privacy norms, but it's our law that lags behind the democratic will.  For my money, the definitive macro analysis of why American and European approaches to privacy have differed is James Q. Whitman's.  Anyway, the GDPR does not allow the export from Europe of information to countries that do not comport with its privacy protections, and that creates a monumental problem for the trans-Atlantic flow of not only information, but commerce.

The problem is not new and existed under the GDPR's predecessor law, the 1995 Data Protection Directive (DPD).  A number of mechanisms were devised to work around the problem, and they were approved by European regulators under the umbrella of "the Safe Harbor agreement."  But it's widely understood, at least on the European side, that Safe Harbor was something of a sham: No one with a straight face could argue that U.S. law was comparable to the DPD.  Safe Harbor in practice comprised mostly industry standards, voluntarily adopted and barely enforced by U.S. regulators.  There's also an important piece of this problem in the vein of national security, government spying, and personal information; I'm not even getting into that.

Privacy Shield is stronger than Safe Harbor, but the GDPR is a lot stronger than the DPD.  There have been remarkable advancements in privacy law in some states, notably California, in the EU direction.  And quite a number of court challenges have followed, winding their way through the process, some derived from objections in the commercial sphere, some the civil rights sphere: you've probably heard of "the right to be forgotten."  But our patchwork state laboratories hardly sum reassurance to Europe.  So in the absence of a comprehensive peace offering at the federal level, the debate over the EU's adequacy determination regarding Privacy Shield pretty much boils down to whether or not we're going to admit that the emperor is naked.

AccessNow, a global NGO and sponsor of RightsCon, has consistently called for honesty about the emperor's sorry state.  A recent memo calls on the Commission to rule Privacy Shield inadequate, and AccessNow has invited republication of a new infographic in support of its position.  I hereby oblige. It's past time we get serious about protecting personal information in the United States and stop commercial exploitation of human identity upon industry's abusive invocations of civil rights such as the freedom of speech and freedom to contract.

[UPDATE, 23 Oct. 2019, at 13:53 U.S. EDT: Privacy Shield still good, per EC report issued today.]

Teachable torts, Patriots edition: Civil complaint against Antonio Brown

Antonio Brown in 2014 (by Brook Ward CC BY-NC 2.0)

New England news is afire today over the civil lawsuit filed against NFL Patriots football acquisition Antonio Brown.  It happens that many 1L law students are presently immersed in their first exposures to intentional torts and federal jurisdiction.  So here from Mnwilla at Scribd is the complaint and some comments for thought.

Antonio Brown Lawsuit by mnwillia on Scribd

Notes and Questions

1. The case is filed in federal court in Florida, but the claims are all in state tort law. What is the basis for federal jurisdiction?  Why do you think the complaint was filed on Brown's first scheduled day of practice with the Patriots?

2. The fact statement is lengthy, paragraphs 14 to 74. But federal practice requires only "notice pleading."  Plaintiff's counsel gives up a lot of information about the plaintiff's theory of the case by putting more content than necessary into pleadings.  So why so much ink on factual allegations?

3. There are five straightforward counts, or causes: two in battery, one in false imprisonment, one in IIED, and one in invasion of privacy.

• Notice how false imprisonment appears incidentally to other claims.  Unlike MBE hypotheticals, few cases in real life support false imprisonment by itself. 
• One of the battery counts is called "sexual battery (rape)."  That's not really a distinct kind of battery in multistate common law, and it doesn't here appear to be covered by any specific statute, apart from common law.  Nevertheless, a plaintiff may claim separate counts of tort upon discrete factual bases.  What are the advantages of doing so?
• What challenges does the plaintiff face in proving IIED?  Do the factual allegations get her there?  Is there vulnerability on this count or any other to a 12(b)(6) motion?

4. The plaintiff seeks punitive damages, and the bases for that claim are stated within the counts. Some jurisdictions require that sufficient allegations to support a claim for punitive damages be stated in a separate count, even though "punitive damages" is a damages claim, not a tort.  Can you discern the rule for punitive damages in the state jurisdiction, based on the allegations?

Abraham & White would limit further extension of First Amendment as tort defense

In a new article, Kenneth S. Abraham and G. Edward White, University of Virginia Law, argue against the further extension of the First Amendment ("imperialism") to constitutionalize tort law when torts are accomplished through speech.  Specifically, they study the First Amendment in defamation, privacy, and IIED before contemplating the First Amendment problems that lurk in fraud, product disparagement, product warning defect, and interference.  The interference problem has interested me since The Insider.  En route to their conclusion, the authors critically examine the truth-falsity dichotomy.  Here is the abstract for First Amendment Imperialism and the Constitutionalization of Tort Liability.

To what extent does the First Amendment impose limits on the permissible scope of tort liability? Until recently, the clear answer would have been, “only under very limited circumstances.” During the last few decades, however, the First Amendment has been so greatly expanding its empire that giving this answer is no longer possible. “All bets are off” would be a more accurate answer, because the forms of speech to which the Supreme Court has extended First Amendment protection have become impressively broad. Although existing First Amendment restrictions on the permissible scope of tort liability currently are limited, the very existence of those restrictions confirms that many torts involving speech potentially are subject to First Amendment protection. And many torts do involve speech – the duty to warn about the dangers of prescription drugs, fraud, and even some forms of simple negligence are just a few examples.

If the First Amendment of the future limited all or even many of these different constitutionally unprotected forms of tort liability, then its scope would be pervasive. We contend, however, that neither existing First Amendment doctrine nor sensible constitutional policy supports extending free speech protection to torts that are accomplished through speech, except in extremely narrow circumstances. Extending First Amendment protection to such torts would aggravate what we argue are two of the principal risks posed by First Amendment imperialism: the erosion of the cultural distinction between truth and falsity, and devaluation of the status of speech about matters of public concern. Our contention is that most of the forms of speech involved in torts that are accomplished through speech currently are, and should remain, excluded from First Amendment protection. To support this contention, we examine the First Amendment’s extension to previously unprotected forms of speech over the last three-quarters of a century, compare the new First Amendment protections to the doctrinal elements of a series of torts that always or often are accomplished through speech, and argue that it would make little sense, as a matter of tort or constitutional law, to restrict liability for those torts on First Amendment grounds.

 Hat tip @ TortsProf.

My Summer Book Report

I squeezed in some leisure reads this summer:

• Yuval Noah Harari, Homo Deus.  Yes, I drank the Harari Kool-Aid.  I am a true believer. Frightfully enjoyable stuff.  Sapiens is on my desk now.
• Ian McEwan, Machines Like Me.  Poor Ian McEwan (Atonement) has taken it on the chin from scifi fans for daring to dabble in the genre in this thought-provoking book that I quite adore.  Sure, the basic question of "Data"'s humanity (cf. ST:TNG) is trodden territory, but give a guy some credit for doing his homework and bringing his signature writing flair to the table in this page turner.  It's a far better book than Solar.  We don't talk about that.
  
• David Sedaris, Calypso.  Unfathomable how his books go from best to even better.  You must have David read you his audiobooks. 
• Bryan Stevenson, Just Mercy: A Story of Justice and Redemption.  Essential reading for the legally inclined.  Can’t wait for the movie.  Three words: Michael. B. Jordan!
• Luis Alberto Urrea, The House of Broken Angels.  For my fellow book group member who’s a LatAm aficionado, I am willing to revisit the trippy genre of my undergrad lit major once per year.  It’s always a, um, magic carpet ride, if you will.

And here is the most interesting stuff I read this summer, professional edition.  These are the categories!

·         Torts

·         Free Speech, Freedom of Information, and Privacy

·         Legal Education

·         Popular Culture

·         Self-Improvement

Torts

Kenneth S. Abraham & Leslie Kendrick, There’s No Such Thing as Affirmative Duty, Virginia Public Law and Legal Theory Research Paper No. 2018-59 (on SSRN).  OK, so maybe I didn’t actually read this 65-page paper.  Instead I read about it, and who could do otherwise?, when Anthony Sebok at Cardozo Law wrote such a great review for JOTWELL.  Abraham and Kendrick call for abandoning the Restatements’ wearisome struggle to chart the contours of affirmative duty.  Instead they would take what I would describe as a more European approach, looking at duty, affirmative or otherwise, as a function of risk creation.  I do think this approach has a bead on the doctrinally drifting direction of duty from the Second to Third Restatements, so maybe this is the future.  Sebok aptly observes that this kind of thinking jives with Stephen Sugarman’s proposed merger of intent and negligence.  Fortunately I’m less than 20 years from retirement, because I fear that by that time, torts will just be a squishy blob of relativistic uncertainty not unlike the inside of an atom.  Teaching that will be for younger minds.

Free Speech, Freedom of Information, and Privacy

Enrico Bonadio & Nicola Lucchi, Copyright and Pornography, in Non-Conventional Copyright: Do New and Non-Traditional Works Deserve Protection? 418 (Enrico Bonadio & Nicola Lucchi eds. 2018) (SSRN).  Copyright.  Pornography.  You do the math.  Seriously, worth a read, and informative multinational perspective.

Adam Candeub, Nakedness and Publicity, ___ Iowa L. Rev. ___ (forthcoming 2019) (SSRN).  Adam Candeub at Michigan State Law explores the right of publicity as a revenge-porn remedy.  And why not?  Tort and IP’s disfigured offspring does so much else….

Megan Deitz, Note, A Crime Remembered: The Possible Impact of the “Right to be Forgotten” in the United States for Crime Victims, Criminal Defendants, and the Convicted, 9 Ala. C.R. & C.L. L. Rev. 197 (2018).  Kudos, Megan Deitz, J.D. U. Ala. ’18.  This is what I was talking about.  Ban the box is great, but it’s not going to get us there.  And to think that I found this article through an AEJMC newsletter…  heresy!

Anthony L. Fargo, Protecting Journalists’ Sources Without a Shield: Four Proposals, 24 Comm. L. & Pol’y 145 (2019) (abstract at T&F).  Tony Fargo at Indiana University-Bloomington has pursued a range of interests in his career—he’s the founding director of the Center for International Media Law and Policy Studies—but all the while remained the national authority on reporter’s privilege.  With a federal shield law a long time not coming, this articles explores alternatives in (1) whistleblower protection, (2) government transparency to disincentivize leaking, (3) legal protection for anonymous sources, and (4) encryption tech.

Giovanni De Gregorio, Secret Filming and the Right to Inform Under an European Constitutional Perspective: The Case of Alpha Doryforiki v. Greece, 2:2 Rivista di Diritto dei Media 410 (2018) (SSRN).  I’m a fan of European privacy law, but even the most committed fan has to admit that it has generated some absurd results.  Count among them the notion that investigative journalists secretly recording corruption run the risk of violating politicians’ privacy rights.  Giovanni De Gregorio reviews the latest case law.  For heaven’s sake, no one tell the bureaucrats in Texas (see Texas v. Doyle, infra).

Thomas Healy, Anxiety and Influence: Learned Hand and the Making of a Free Speech Dissent, 50 Ariz. St. L.J. 803 (2018) (SSRN).  The relationship between Judges Hand and Holmes, and especially Hand’s slow-cooking influence on modern First Amendment jurisprudence as a result, has been the intriguing study of many writings before, Healy’s included.  Nevertheless, in this compelling essay, Thomas Healy at Seton Hall Law here revisits the subject for a close look, laying out the timeline and examining exactly what Holmes’s evolving position took and did not take from Hand’s earnest offerings.

Matteo Monti, Automated Journalism and Freedom of Information: Ethical and Juridical Problems Related to AI in the Press Field, 1:1 Opinio Juris in Comparatione: Studies in Comparative and National Law (2018) (SSRN).  I am not a fan of the trend that puts “and AI” after everything, and voila!, new article, new theory, new field of law, new main dish.  All the same, this article on AI implications for journalism, with an especial eye to the problem of tort liability, is a neat, thoughtful, and very readable roundup from an unexpected source.  Don’t be confused by the title: in American parlance, this is more about free speech, or free flow of information, not FOI in the access sense.  Matteo Monti is a Ph.D. candidate at the Institute of Law, Politics, and Development of the Scuola Superiore Sant’Anna, a public university in Pisa.

Let's burn some books, Dark Ages style! And maybe a philosopher, too.
(Metropolitan Museum of Art, c.1515–27, Purchase, Joseph Pulitzer Bequest, 1917.)

Ada Palmer, How #Article13 is Like the Inquisition: John Milton Against the EU #CopyrightDirective, BoingBoing, Mar. 24, 2019.  This.  Is.  Brilliant.  This short essay should be required reading for every human being with an internet connection.  Don’t let the title’s narrow references to copyright and the EU throw you off; the implications of this piece are breathtaking.  Ada Palmer, University of Chicago history professor and science fiction writer, analogizes internet content filtering—the kind that everyone now is clamoring for Google, Facebook, and Twitter to double down on—to the very press licensing that earned John Milton’s critical condemnation in the Areopagitica, circa 1644.  It’s a downright terrifying proposition that leaves me wondering whether our best intentions are not already about the industry of turning the internet into the most repressive thought regime in the history of human civilization.  Best not read just before bed.

Texas v. Doyle, No. PD-0254-18 (Tex. Ct. Crim. App. Feb. 27, 2019) (via Texas Tribune).  I’m just going to say it, because we’re all thinking it, and something needs to be done: there’s something wrong with the water in Texas.  This case is the latest in what’s going on a decades-long saga of First Amendment challenges to the Texas Open Meetings Act (OMA).  You read that right: public officials are claiming that the open meetings act violates their First Amendment rights.  It would be funny, except they won.

Admittedly and rightly, the First Amendment calls for heightened scrutiny of criminal laws (and tort law) when violation is accomplished only by First Amendment-protected activity, such as speech.  Texas officials have long and fruitfully argued that the criminal-enforcement provisions of the OMA deprive them of their First Amendment right to communicate with one another.  Specifically, they contest the vagueness of applying the OMA to “meetings”—such as serial, or “daisy chain,” communications—alleged to subvert the OMA.

First Amendment problems in criminal law are often overcome by mere scienter; ask Michelle Carter’s counsel about that.  But it’s famously difficult to prove intent to subvert a freedom of information act, so transparency advocates have fought for enforcement mechanisms that operate shy of criminal intent.  I honestly don’t know whether this problem in Texas resulted from overzealous enforcement or opportunistic politicians in smoke-filled rooms, but the nonsense has got to stop.  I’ve seen OMA violations in other states, and I’ve seen innocent non-compliance, and I’ve never been confused about the difference between the two.

Legal Education

Lawrence J. Trautman, The Value of Legal Writing, Law Review, and Publication, 51 Ind. L. Rev. 693 (2018) (SSRN).  A business law professor at Western Carolina University, Lawrence Trautman capably offers this hefty opus, the latest entry in the legal-scholarship-matters genre.  The addition is welcome, as if more evidence should be needed to refute the snarky, anti-intellectual, and ultimately counter-factual rhetoric about the uselessness of legal scholarship (much less legal writing).  (See my own missive of some years ago for background, hat tip at UMass Law Review and Steve Zoni.)  In his abstract, Trautman “hope[s] this Article may become a required reading as one of the first assignments for all incoming first-year law students, or even before any classes begin.”  I’m down with that, but we might need an abbreviated version.

Popular Culture

Charles Duhigg, The Real Roots of American Rage, The Atlantic, Jan./Feb. 2019.  It goes without saying that everything in The Atlantic, my favorite magazine, is worth reading.  But my wife thought to point out this article to me.  I’m trying not to read too much into that.  Pulitzer-Prize winner Charles Duhigg takes a deep dive into outrage in our present social and political environment—newly salient upon the Dayton and El Paso shootings.  Building out from some groundwork in psychology by UMass Amherst’s James Averill, Duhigg establishes that ignoring our social anger or suppressing it is maybe the worst thing we could do.  He explores research that shows instead a possible way forward.

Self-Improvement

Jon Acuff, Do Over: Make Today the First Day of Your New Career (2015).  Just a couple years ago, I discovered Jon Acuff.  Yeah, I know, I got there late.  Anyway, I read the free preview, chapter 1, of his 2015 book, Do Over.  You can too.  I’m not going to read the rest, because I more or less like my job (underpaid), and I’m not really the self-help-reading sort.  Nevertheless, I liked this, as I seem to like just about everything Jon Acuff writes and says.  He makes me smile.