I pledge not to accept NRA donations: Gun control and denial of opportunity to wound and kill

Let the record reflect that I’m an occasional NRA member and supporter of the Second Amendment—not for hunting, and not just for personal security, but mostly for the real need to be able to overthrow the government if—when—it comes to that.

 

But the NRA should be at the table talking about gun control.  The simple reality of preventing violent crime is that denying opportunity to would-be offenders is the only thing that works well.

That was my over-simplistic take-away from Tom Gash’s The Truth About Why People Do Bad Things (2016) (Amazon), which I just read coincidentally with Parkland.  It’s a fabulous book even if you do not have much interest in criminal law and policy, which I do not.  It’s an important book for anyone just to be an informed voter.  Tom Gash is a senior fellow at the Institute for Government in the U.K.  Hat tip to my uncle in London for putting me on to it. 

Gash dispels 11 myths about crime prevention.  Those chapters are well worth reading, so we don’t find ourselves recycling foolish misconceptions as we make crime policy.  Indeed, to read Gash’s account, the cycle of crime prevention policy over decades seems like an exercise in Groundhog Day.  In the big picture, there are two predominant ways of thinking about crime, and they’re both wrong.  One view says criminals are innately bad actors, so we need to create powerful disincentives, such as three-strikes laws, to make them do the right thing.  The other view says that crime is a socio-economic problem we can fix with education and jobs.  Wrong and wrong.  Not wholly wrong, but too wrong for either redressive strategy to be effective.

Needless to say, crime is more complicated than one worldview, and there is no one panacea.  However, there is one thing that works a lot of the time: denial of opportunity.  A lot of crime happens in the moment and is not wholly irrational.  A modest deterrent gives a person’s better angels a chance to be heard.  Something as simple as a bike lock makes a potential thief not become one.

So we come to guns.  As the Parkland teens and parents have said, access to “weapons of war” is just too easy.  A regulation as modest as a waiting period can mean denial of opportunity for someone who is emotionally imbalanced, whether in the moment or by pathology.

I support the Second Amendment, and I’m wary of bans on weapons we would need to overthrow a tyrannical government.  I support the First and Fourth Amendments too, but I understand parade permitting and search incident to arrest.  I would like to see the NRA, which I respect as a key protector of civil liberties, as a responsible participant in the discussion about reasonable regulation, rather than an increasingly alienated fall guy.

'False claims of love': Mass. App. speaks from the heart for Valentine's Day

Just in time for Valentine's Day, the Massachusetts Court of Appeals rejected a divorcee's lawsuit for "false claims of love."

The plaintiff's eight claims were aptly characterized by the court as sounding in fraud, battery (i.e., contact upon improperly procured consent), infliction of emotional distress, and unjust enrichment.  All of these claims turned on misleading inducement to marry as a common, operative allegation.

Massachusetts by statute "abolished the common law actions for alienation of affection," "reflect[ing] the Legislature's public policy decision to no longer consider judicial remedy appropriate for what is only 'an ordinary broken heart.'"  Christopher Robinette wrote succinctly about the "heart balm torts"—alienation of affections, criminal conversation, seduction, and breach of promise to marry—in November at Tortsprof Blog.  Reading between the lines of the law, the court explained that legislators meant to preclude any cause of action that would require "'explor[ing] the minds of' consenting partners" (quoting precedent).

This case was not about failure to marry, but about marriage under allegedly false pretenses.  Same difference, the court held, with respect to claims of fraud or misrepresentation: plaintiff's "artful pleadings fail to hide the fact that these claims, based on events that occurred prior to the marriage, are precluded ...."  The same result controlled battery, as the consent analysis plainly would defy the inferred legislative intent.

As to IIED, the plaintiff could not meet the threshold of "extreme and outrageous," neither through allegation of an adulterous affair, even if calculated to inflict emotional injury, nor through failure to disclose "concealment of past sexual or romantic history."  Massachusetts courts at least in theory recognize a cause of action for negligent infliction of emotional distress (NIED)--the truly pure case of it is far rarer than recitation of the theory--but found the record "bereft of physical harm manifested by objective symptomatology."  On both points, one must recall Jones v. Clinton, 990 F. Supp. 657 (E.D. Ark. 1998), per the Hon. Susan Weber Wright.  This case also well exemplifies why NIED is not sound doctrine, a point the Supreme Judicial Court might ought revisit one day.

On unjust enrichment and related theories, the court concluded that any unjustness was predicated on the earlier rejected fraud, and otherwise, the plaintiff was in no way of feeble mind.

The court summed up: "[N]ot all human actions in the context of the dissolution of a marriage have an avenue for legal recourse, no matter how much anger, sorrow, or anxiety they cause." Broadened to all affairs of the heart, the conclusion well restates essential tort policy, lest we become the caricature of the litigious society.

The case is Shea v. Cameron, No. 16-P-1479 (Mass. Ct. App. Feb. 9, 2018), per Agnes, Sacks, and Lemire, JJ.

Decedent's reps fight Yahoo! for email access, beat federal preemption argument in state high court

The Massachusetts Supreme Judicial Court has rendered a thought-provoking judgment about postmortem access to a decedent's Yahoo! e-mail account.  The case is Ajemian v. Yahoo!, Inc., No. SJC-12237, Oct. 16, 2017, per Justice Lenk.  The SJC nabbed the case sua sponte from Mass. App.  The case will be available soon from Mass.gov new slip opinions.

Yahoo! denied access to the personal representatives of the decedent's estate on two grounds: (1) that access was prohibited by the preemptive, federal Stored Communications Act (SCA) (1986), essentially a sectoral privacy statute, and (2) that the representatives' common law property interest in digital assets was superseded by Yahoo! terms of service (ToS).

The trial court ruled in favor of Yahoo! on the SCA grounds and opined only indeterminately on the ToS argument.  The SJC reversed and remanded.  The Court employed a presumption against implied preemption to find the representatives outside the "lawful consent" terms of statutory exemption in the SCA, which would require actual owner consent.  The SCA therefore provided no barrier to access under state law on these facts. This is an important precedent in state construction of federal law to limit the reach of the SCA.

Tantalizingly on the ToS front, the trial court held that it could not opine definitively on Yahoo!'s position because of unresolved questions about the formation and enforceability of the ToS as contract.  The SJC reiterated that the trial judge had not established whether a "meeting of the minds" had occurred as purported prerequisite to contract.  That's a compelling observation in our world, awash as it is with click-wrap adhesion agreements being held enforceable by the courts without serious scrutiny.  "Meeting of the minds," however much a staple of 1L Contracts, has been pretty much read out of the analysis in today's boilerplate world.

The case will be one to watch if it generates another appeal, but I'll be surprised if on these facts, Yahoo! goes to the mat if that means risking the ToS on the record.

Intimate large parties and the duty to protect privacy

I had to take a blog break over the holidays in order to get a hefty book read and to write a review of it.  I’ll post on that when it comes closer to publication.  Meanwhile, my, how the world has changed!  Let me kick off the new year with a look at some related developments in privacy law.

As Marion Oswald of the University of Winchester wrote recently for the journal of Information Communication & Technology Law (open source), to paraphrase, privacy ain’t what it used to be.  Oswald opened with a quote from The Great Gatsby, so it goes without saying that that needs to be reiterated here.  She wrote,

At one of the Great Gatsby’s spectacular parties, the golf champion Jordan Baker remarked to Nick Carraway that she likes large parties: “They’re so intimate. At small parties there isn’t any privacy.”

From that paradox, Oswald builds the case that privacy must be redefined to protect individuals in the digital world.  She observes the inadequacy of the “reasonable expectation of privacy” (REP) test—the U.S. Fourth Amendment standard—given the objective test’s tendency to drive itself to extinction in a world of objectively diminishing privacy.  Kade Crockford with the ACLU of Massachusetts articulates this point brilliantly in her lectures.  Oswald is not the first to reach her conclusion, but she does so compellingly.

Two recent cases, from Pennsylvania and Massachusetts, reached different conclusions on the question of a corporate defendant’s duty to safeguard private data.  The cases show the struggle under way in U.S. courts to do just what Oswald proposed—to redefine privacy in the digital age.  The United States is increasingly at odds with Europe, and for that matter the rest of the world, on this question.  Heralded as a modern human right in Europe, data protection is a burgeoning global legal field—and corporate obligation.

Duty

First, a quick primer on duty in U.S. tort law.

Tort law in the United States usually provides for a “duty” by “default” in negligence—that is, all persons owe to all other a persons a duty to exercise reasonable care (or not to act negligently), to avert harm to all others.  But the default rule of duty is subject to some important limitations.   

One limitation is the economic loss rule, which circumscribes negligence liability.  The rule precludes a plaintiff’s action for nonphysical, economic injury alone.  There are plenty of exceptions to the rule, and some scholars even think it’s not really a rule at all.  For example, negligent misrepresentation, which is like fraud but without intent, can be supported by economic loss within the context and expectations of a business relationship.

Defamation and privacy torts can generate what looks like economic injury, but really are animated by their own, sui generis classes of damages to reputation and personality.  U.S. privacy torts push in the European direction, but generally do not protect data voluntarily disclosed to third parties, such as employers and banks—a relation of the REP problem.  That means no protection in privacy torts for financial data, even though it’s the stuff of identity theft.

The other limitation on duty by default is that U.S. law imposes no affirmative duty to protect, or to render aid.  This rule, too, is subject to many exceptions, such as a parent’s duty to protect a child, contractual and statutory duties to protect, and a duty not to abandon a rescue undertaken.

Here like in privacy law, European legal codes diverge from U.S. common law with a greater willingness to impose affirmative duty.  In the United States, the affirmative-duty limitation also can relieve a corporate entity of a duty to safeguard data when the injury to the plaintiff is caused much more immediately by an intervening bad actor, such as the hacker or identity thief.  (The problem in proximate causation is integrally related.)

So on to the cases.  Remember, "[i]t takes two to make an accident."

Pennsylvania

A January 12 Pennsylvania court decision, Dittman v. UPMC (Leagle) held that an employer had no duty to safeguard employees’ private information on a workplace computer.  (Hat tip to Richard Borden at Robinson + Cole.)  University of Pittsburgh Medical Center (UPMC) employees numbering 62,000 alleged disclosure of personal information in a data breach, resulting in the theft of identities and of tax refunds.

The court applied a five-factor test for duty: 

1. the relationship between the parties;

2. the social utility of the actor's conduct;

3. the nature of the risk imposed and foreseeability of the harm incurred;

4. the consequences of imposing a duty upon the actor; and,

5. the overall public interest in the proposed solution.

UPMC prevailed in common pleas and superior courts, the latter 2-1, arguing that it owed no duty to protect the plaintiff’s interests.  On the affirmative duty question, the court pointed to attenuated causation and professed willingness to defer to the state legislature.  As summarized by Brian J.Willett for the Reed Smith Technology Law Dispatch: 

The Superior Court observed that the social utility of electronic information storage is high, and while harm from data breaches is foreseeable, an intervening third party stealing data is a superseding cause.

Additionally, the Court explained that a judicially created duty of care would be unnecessary to motivate employers to protect employee information, as “there are still statutes and safeguards in place to prevent employers from disclosing confidential information” in addition to business considerations.

Finally, the Court agreed with the trial court’s conclusion that creating a duty in this context would not serve the public interest; rather, it would interrupt the deliberative legislative process and expend judicial resources needlessly.

The court then bolstered its conclusion by pointing to the economic loss rule as well. 

Massachusetts

Just before the holiday break in December, a Massachusetts Appeals Court also decided a case in which the plaintiff alleged an employer’s negligence in safeguarding private data—though the plaintiff was a client of the employer rather than an employee.

The facts recited by the court in Adams v. Congress Auto Insurance Agency, Inc. (Justia), have the makings of a docudrama.  According to the court, Thomas was fleeing police at high speed when he crashed his car into Adams's.  Thomas was driving the car of his girlfriend, Burgos, so Adams claimed against Burgos’s auto insurance.  Meanwhile Burgos was both customer and customer service manager of defendant insurance agency Congress.  She reported her car stolen and filed her own insurance claim. 

Adams could identify Thomas.  So Burgos used her computer access at work to identify Adams and passed his identity to Thomas.  Thomas then phoned Adams, impersonated a state police officer, and threatened Adams: “‘Shut the F up and get your car fixed or you will have issues,’” the court purported to quote.  Though I bet Thomas didn’t say just “F.”

Adams sued Congress on multiple theories, including negligent failure to safeguard private data.  At the trial level, according to the appeals court, “the motion judge . . . rul[ed] that expert testimony was required to establish whether the agency owed a duty to Adams to safeguard his personal information, what that duty entailed, and whether the agency breached that duty.”

It’s odd that the motions judge sought expert testimony, because, as the appeals court aptly observed, duty is unique among the four elements of negligence—duty, breach, proximate cause, and injury—for being purely a question of law, guided by public policy.  Courts do not ordinarily hear expert testimony on what the law is.  The theory goes that figuring that out is the judge’s main job.  (Too bad, or being a law professor would be more lucrative.  I was gently tossed from the witness stand once when a lawyer made a valiant but futile attempt to squeeze me past the rule.)

Unlike the Pennsylvania Superior Court, the Massachusetts Appellate Court found its way to a legal duty.  The court held “that the agency had a legal duty to Adams, a member of a large but clearly defined class of third parties, to prevent its employee’s foreseeable misuse of the information that Adams provided to process his automobile insurance claim.”  Where the Pennsylvania court had pointed to statute to justify judicial restraint, the Massachusetts court pointed to state data breach law to show that the legislature had green-lighted legal duty (albeit "a single green light, minute and far away").

“Just as those with physical keys to the homes of others have a duty of reasonable care to preserve their security,” the Massachusetts court reasoned, “companies whose employees have access to the confidential data of others have a duty to take reasonable measures to protect against the misuse of that data.”  Indeed, the court cited a keys case as applicable precedent.  The court made no fuss over the rule of affirmative duty or the rule of economic loss.  In a discussion of causation, the court seemed content to resort to foreseeability on the facts.

Summary judgment for defendant Congress was vacated, and the case was remanded for trial.

Conclusion

Advocates who wish to block European-style data protection in the United States use the availability of state tort law remedies as one tool in the toolbox to argue that U.S. law already sufficiently safeguards personal data from both sides of the Atlantic.  That’s not true.  Not yet.

Data protection in the United States is confounded by the rules of affirmative duty and economic loss.  And that’s not bad; those rules exist for sound public policy reasons.  They also are excepted for sound reasons.

I’ve written before (e.g., here and here) that popular thinking and expectations with respect to individual privacy are converging in the United States and Europe, even if a legal bridge lags behind.  Common law negligence can be a vital building block of that bridge.  But it’s a work in progress.

“‘Don’t believe everything you hear, Nick.’”