Hospital BAC disclosure prompts tort privacy claims

Photo by Marco Verch (CC BY 2.0)

The federal district court in Montana in December refused to dismiss an informational privacy claim against police, highlighting the space for state law to effect personal privacy protection in the United States.

Plaintiff Harrington was hospitalized after police found her unresponsive in her parked car. In the complaint, she alleged that sheriff's deputies "joked about her incapacitated condition and played along when nurses asked them to guess her blood alcohol content" (BAC). A nurse thereby disclosed Harrington's BAC, and, the complaint alleged, deputies then coaxed the record from a doctor. Harrington was charged with driving under the influence.

Subsequently, Harrington sued county officials and Madison Valley Hospital, the latter on theories of state statutory information privacy and common law invasion of privacy, negligence, and negligent infliction of emotional distress. The hospital sought dismissal on grounds that the federal Health Insurance Portability and Accountability Act (HIPAA), cited by the plaintiff in the complaint, affords no private right of action.  The federal district court, per Chief Judge Brian Morris, denied the motion to dismiss, recognizing that while HIPAA does not itself authorize private enforcement, it also does not preclude state law from providing greater privacy protection.

The case caught my attention because its facts point to something for which I've advocated, the use of tort law to fill gaps in informational privacy protection in the United States.  The law has not kept up with Americans' expectations of privacy, much less the norms of the world, but the common law should be sufficiently dynamic to reflect the evolving social contract.  I see drift in this direction in the expansion of medical fiduciary duty in emerging precedents in the states, such as Connecticut's Byrne v. Avery Center for Obstetrics & Gynecology, P.C., in 2018.

A theory as tenuous as negligent infliction of emotional distress, "NIED," can't usually stand on its own.  And tortious invasion of privacy has a poor track record in protecting personal information that is already in limited circulation.  However, paired with a medical provider's fiduciary duty and bolstered by a privacy violation recognized in regulation, either tort theory might be ripe for redefinition.

The case is Harrington v. Madison County, No. 2:21-cv-00015 (D. Mont. Dec. 6, 2021).  Hat tip to Linn Foster Freedman at Robinson+Cole's Data Privacy + Cybersecurity Insider.

American Airlines resists transparency, sues 'Points Guy' for tortious interference, trademark infringement

Photo by RJ Peltz-Steele at O.R. Tambo International Airport, Johannesburg,
South Africa, 2020 (CC BY-NC-SA 4.0)

The Points Guy (TPG) has become embroiled in litigation with American Airlines over how the TPG app lets users manage their frequent flyer miles, the airline charging the website with tortious interference and trademark infringement.

I read TPG every day.  The website is funded by product placements and advertising, especially by credit card companies.  One has to know that and take the content with heaps of salt.  But I find TPG incomparable and nonetheless worthwhile for keeping up with the travel industry.  And TPG advice has been especially helpful to me with advice on frequent flyer programs, for example, letting me know how much miles are worth on average in real dollars, so I know whether dynamic redemption tables are offering a good deal.

I also like some of the writers at TPG, because they set a tone that resonates with me, mixing a desire for industry accountability, especially for airlines, with a sense of humor and a lighthearted wonder of the world.  Baltimore-based senior editor Benét J. Wilson (LinkedIn, Muck Rack, Twitter; see also Poynter) is especially fabulous; check out her wider world at Aviation Queen.  I met Benét when she taught an outstanding program on advanced Google research tools for the National Freedom of Information Coalition (NFOIC), and thereby for my FOI Law students, who participated.

Last year, TPG launched an Apple app.  I haven't used it, because I'm an Android user.  I avoid Apple products because I've never been a fan of Apple intellectual property (IP) policies, which I mention because it's relevant here.  Apple's limited submission to a right of repair for Apple smartphones is a step in the right direction; more on that momentarily.  Anyway, TPG is working on the Android version of the app.

Among many features, the TPG app empowers users to manage their frequent flyer miles.  TPG deep-links to data from sites such as that of American Airlines (AA), within users' accounts there.  Obviously, this access improves the user's ability to maximize the value of their miles, recognizing good deals and, key, getting advance warning when miles are set to expire.

AA was not happy about that.  The company accused TPG of violating the terms and conditions of the website and frequent flyer program, AAdvantage, thus, allegedly, interfering with AA's contract with its customers and infringing on AA IP.  According to media reports, TPG sued AA in Delaware state court the week before last.  I assume TPG sought declaratory relief; at the time of this writing, the complaint is not yet available from Delaware courts.

Then on Tuesday last week, AA sued TPG in federal court, in AA's home Northern District of Texas.  The complaint alleged tortious interference with, inter alia, contract, unfair competition by misappropriation, (virtual) trespass, trademark infringement and dilution, copyright infringement, and violation of the Computer Fraud and Abuse Act.

For Law360, Jasmin Jackson filled in some background last week (limited access without subscription).  Jackson reported that TPG initially sought AA's partnership in the app.  AA declined.  Since the app's launch, the two were discussing their differences.  AA claimed surprise at TPG's Delaware filing and accused TPG of leveraging its position with litigation costs and compelling, AA said, the suit in Texas.

I see the case as a high-tech relation of the right-to-repair problem.  AA is gaining a business advantage through obfuscation of customer data and control of information under the guise of IP protection.  The same strategy is why I have to pay a high-dollar technician to tell me what's wrong with my car when the check-engine light comes on, and it's why 11% of McDonald's Taylor-made McFlurry machines are broken.

Customer frustration with companies' resistance to transactional transparency to maximize profit margins is manifesting in a wave of state legislation to protect consumers (see N.Y. Times July, Oct. 2021; repair industry website; U.S. PIRG).  Massachusetts voters overwhelmingly approved a right-to-repair ballot initiative in 2020, despite a $25m no campaign by the auto industry (on this blog).  Industry promptly sued, principally claiming federal preemption.  The outcome of a 2021 trial in Alliance for Automotive Innovation v. Healy is still awaited, as the parties battle over a state motion to reopen trial evidence.

There is a Fair Repair Act bill in Congress, even if its odds of passage are dismal.  And the President last summer made overtures, however feeble, ordering the Federal Trade Commission to regulate to protect independent repair shops.  Industry claims it needs exclusive repair rights to protect consumers from incompetent independent technicians.  But a May 2021 FTC report located such industry claims somewhere between baseless and overstated.

The cause should be, and at least sometimes is, bipartisan.  As I have commented many times, free markets depend on transparency, the free flow of information between business and consumer.  So even economic conservatives should be able to get behind the right to repair.  That bipartisan impulse has fueled congressional appetite for now pending bills to enhance antitrust in the tech sector.  Apple's seemingly open-minded move to allow smartphone repair might have been calculated to head off antitrust enforcement.

Summons issued last week in the lawsuit filed by AA, which is American Airlines, Inc. v. Red Ventures LLC, No. 4:22-cv-00044 (N.D. Tex. filed Jan. 18, 2022).

UPDATE, Nov. 10: The parties settled on undisclosed terms on November 4, 2022.

Business touting 'access,' 'journalism' is an ad broker

I find this ad,* "Because Journalism Matters," below, which I saw on my local morning news, troubling.

One could certainly get the impression that the advertiser is a business concerned principally with what the words say: access, accountability, objectivity, and journalism.  So I was pretty excited to see what journalistic outfit made this sleek sales pitch for all that I hold sacred.

The Trade Desk, it turns out, is not a journalistic outfit at all.  It's a media advertising buying platform.  The kind of outfit, I presume, that uses aggregated personal data obtained under the weak American consent regime to target advertising for viewers like me.

That's not all bad.  My wife was quick to point out that ads pays for the journalism I'm watching, insofar as one can still describe local news as journalism.  And The Trade Desk, on its website at least, does advocate for an open internet, so, I presume, supports net neutrality, which is a good thing.

But the commercial motive hardly equates to the public interest that drives journalism.  The ad opens with images of working journalists.  This is misappropriation, in my estimation.  The selection of words, access, accountability, objectivity, and journalism, doubles down on a misleading impression.

The company's website is a bit more honest, inserting between "because" and "matters": trust, reach, measurement, and innovation.  In descriptions, those words are contextualized in commerce.  Trust means transparency to the ad buyer about the ads, not the public's trust.  Reach and measurement plainly are about advertising efficacy.  And innovation, "[f]rom privacy to identity," "focuse[s] on the interests of the entire industry" (my emphasis), not innovation in journalism, and certainly not innovation in the protection of personal privacy and identity from industry.  

Those priorities don't sync in my mind with what looks like a journalist running down a street with a camera and a press badge in one of the opening stills.  Unless he's in a hurry to invade someone's privacy.

I don't know the answer to our woes in journalism, whether nonprofits, public funding, etc.  But if The Trade Desk, however laudable a model in the advertising business, marks the way forward for journalism, then the craft that I learned in j-school will soon be a quaint anachronism comprising only words.

* I realize that by drawing attention to this ad, I'm giving the advertiser exactly what it wants, in a no-publicity-is-bad-publicity way.  I decided that sharing the ad with commentary was only fair.  You decide, as the saying goes.

Schneider proposes (more) insider trading reform for Congress; background guarantees to outrage

Ever feel like it's harder and harder to pay higher and higher bills, even while the news raves about low unemployment, a rising stock market, and the rich get richer?  Feel like our members of Congress are out of touch and only working to line their own pockets?

Not all paranoia is delusional.  Fuel your outrage with Money, Power, and Radical Honesty: A Look at Members of Congress' Use of Information for Financial Gain, an article published by attorney Spencer K. Schneider, once my teaching and research assistant, in the Pepperdine Journal of Business, Entrepreneurship & The Law in November.  Here is the abstract.

Cleared of wrongdoing due to lack of evidence, Senators Kelley Loeffler and David Perdue continued their bids for re-election, and control of the Senate, in the Georgia run-off. Both Senators Loeffler and Perdue traded stocks in the run-up to the COVID-19 crisis after receiving classified briefings. These are just two of many instances of members of Congress profiting after receiving classified information. While the American public remained uninformed as to the true crisis looming as COVID-19 spread, members of Congress received private briefings and quietly sold securities such as travel and hotel related interests, and purchased other securities, such as remote-work software and medical equipment related interests.

Many members of Congress also profit from federal money earmarked to increase the value of their personal land deals, from access to IPOs, and from corporate board seats. While corporate executives, members of the executive branch, and ordinary citizens are subject to strict insider trading laws, members of Congress sail through loopholes and exceptions that are hand-crafted for their benefit. This article reviews proposals for fixing the problem before proposing a comprehensive solution focused on limiting the financial opportunities for members of Congress and strict reporting requirements.

While many proposals to address this problem exist, none come close to preventing members of Congress from profiting in these often nefarious ways. To ensure that members of Congress work on behalf of the American Public—and not their own pocketbooks—the comprehensive and drastic reform articulated in this article is required.

Spencer K. Schneider

Mr. Schneider worked on a piece of this article when he was still a law student under my tutelage.  I remember being flabbergasted by the background section, and then, in January 2021, thinking that we all should be at the Capitol ramparts, but for different reasons.  What's perhaps most disheartening is that past purported reform efforts in Congress have been devoid of will or insincere in execution. I know that Schneider worked hard on his reform proposal and sought advice from skeptical experts. Whether meaningful reform will precede frustration-fueled revolution in this country is anyone's guess.

The article is Spencer K. Schneider, Money, Power, and Radical Honesty: A Look at Members of Congress' Use of Information for Financial Gain, 14 J. Bus. Entrepreneurship & L. 296 (2021).  Schneider is licensed in Massachusetts and bar pending in his present home state of California.

UPDATE, Jan. 28: Less than a week after I posted this item, The Daily Show with Trevor Noah published a nice exposé on congressional insider trading, incorporating some of the same data that fueled Schneider's article and my ire:

SCOTUS lets stand First Amendment protection of citizen newsgathering via secret recording of police

Pixabay by Bruce Emmerling

Denying review in November 2021, the U.S. Supreme Court let stand court decisions declaring the Massachusetts wiretap statute unconstitutional as applied to recording police in public places.

I wrote about the original U.S. District Court decision here at The Savory Tort in 2019.  As I commented then, the decision and others like it in the federal courts have broader implications for the First Amendment and the right of access to information.  Historically, American courts have been reluctant to locate access rights in the negative command that Congress make no law abridging the freedom of speech.

But developments in media technology have dimmed the once bright line between information acquisition and expression.  In an age in which one can retweet scarce moments after reading a tweet, government regulation of receipt seems to impinge intolerably on transmission.  Layer on as well a realpolitik of demand for accountability in law enforcement, and the mechanical application of a wiretap prohibition to a smartphone recording of police conduct, or misconduct, becomes indefensible.

Accordingly, civil liberties advocates applauded the district court holding "that secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place, and manner restrictions."  Bipartisan claimants in the case included Boston-based civil rights activists K. Eric Martin and René Perez, supported by the ACLU of Massachusetts, and conservative activist James O'Keefe and his Project Veritas Action Fund.

In December 2020, the First Circuit mostly affirmed.  U.S. Circuit Judge David J. Barron observed for a unanimous panel that also comprised retired Supreme Court Justice David Souter, sitting by designation, and Senior Judge and Rhode Islander Bruce M. Selya, "Massachusetts makes it as much a crime for a civic-minded observer to use a smartphone to record from a safe distance what is said during a police officer's mistreatment of a civilian in a city park as it is for a revenge-seeker to hide a tape recorder under the table at a private home to capture a conversation with an ex-spouse."

The Massachusetts wiretap law, which is restrictive, requiring all-party consent, but not unique in the states, thus offended the First Amendment insofar as it "prohibit[ed] the secret, non-consensual audio recording of police officers discharging their official duties in public spaces."  In the vein of the changing media landscape and advent of citizen journalism, the First Circuit opined: "In sum, a citizen's audio recording of on-duty police officers' treatment of civilians in public spaces while carrying out their official duties, even when conducted without an officer's knowledge, can constitute newsgathering every bit as much as a credentialed reporter's after-the-fact efforts to ascertain what had transpired."

However, ruling that Project Veritas's purported fear of prospective prosecution failed to prevent a controversy ripe for adjudication, the First Circuit vacated the judgment of the district court insofar as it reached the "secret, non-consensual audio recording of government officials discharging their duties in public" (my emphasis).  That's not to say the principle of the ruling cannot extend beyond police, to other public officials, when there is legitimate public interest in accountability.  Precedent suggests such extension.  But the court was skeptical of the potential reach of an unqualified ruling: "[I]f we ... construe the term 'government officials' as broadly as 'officials and civil servants,' that category covers everyone from an elected official to a public school teacher to a city park maintenance worker."

The First Circuit ruling thus nudges the First Amendment forward in the access arena.  Meanwhile, First Amendment problems lurk ever more menacingly in countervailing privacy law.

At the end of November 2021, Twitter announced a new privacy policy allowing any individual pictured in a tweet to demand takedown, regardless of whether the tweet contains information held private.  There are public-figure and public-interest exceptions.  But generally, images of ordinary persons in public places are imbued with a right of privacy akin to that which animates the European (and increasingly rest-of-the-world) right of personal data protection.

The balanced protection of personal privacy in public places is proving difficult to draw in European courts, which have generated rulings not always savory to the American palate.  My Google Nest Doorbell, for example, facing the public street in Rhode Island, would be problematic under European privacy law.  A private company, Twitter does not have to contend with the First Amendment.  But if the same privacy value and takedown policy were embodied in law, well, as they say in New England, a stahm is a-brewin'.

Both district and circuit courts rejected Project Veritas's facial challenge to the wiretap law.  Project Veritas filed a petition for writ of certiorari in May 2021, and the U.S. Supreme Court denied review in Project Veritas Action Fund v. Rollins, No. 20-1598, on November 22, 2021.  Hat tip to Brian Dowling at Law360.  Cf. Family in fatal police shooting demands transparency, The Savory Tort, Jan. 19, 2022.

Christian flag, Nazi art color SCOTUS arguments this week, raising First Amendment, choice-of-law issues

On Tuesday, the U.S. Supreme Court heard oral argument in both the Boston flag First Amendment scrap (on this blog) and the latest transnational Nazi-appropriated-art case.

My take of the transcript accords with what I'm reading from commentators (e.g., Brian Dowling (subscription required)): It looks bad for Boston.  The city seems to know that, having already pledged to rewrite its flag policy.  So I'm not sure why this dispute has been belabored into a literal Supreme Court case.

Justice Kagan seemed unsure, too.  She, and not she alone, regarded city commissioner George Rooney's refusal to raise the Christian ecumenical flag on a public pole as based on a mistaken understanding of the Establishment Clause, if "an understandable mistake."

Neutrality in the policy for "guest" flags rides to the rescue, abating any establishment-of-religion issue.  So I don't expect this case will generate establishment or free exercise jurisprudence, nor any new First Amendment principle at all.  The Court seemed willing to locate the case firmly in existing public forum doctrine.  Boston just did a lousy job of defining the forum, creating for itself the "risk of being forced to fly the swastika," in the words of city counsel.

At least the case might yield a neat demonstration-of-principle opinion for law school casebooks.

The same day, the Court heard argument in the latest art appropriation (and expropriation) case.  In the "Woman in Gold" vein, heirs of a Jewish family are trying to recover a Camille Pissarro painting, Rue St Honoré, Apres-midi, Effet de Pluie (1897) (pictured), that came into the possession of respondent Museo Nacional Thyssen-Bornemisza in Madrid.

In its present iteration, the case involves a choice-of-law problem.  Because the Spanish museum is a public entity, the Foreign Sovereign Immunities Act is implicated; claimants are threading the immunity needle through the FSIA "expropriation" exception.  Ownership subsequently hinges on the substantive law of California or Spain.  The district court used federal common law to choose Spanish law and reach a conclusion in favor of the museum.  The claimants assert that California choice-of-law rules should pertain—though it remains arguable that California choice-of-law rules would render a different outcome.

The U.S. Solicitor General is favoring the claimants' position, which generated a curious exchange in oral argument.  Chief Justice Roberts admitted "surprise" that the government wasn't worried about a potential conflict between the federal prerogative in foreign affairs and the application of state choice-of-law rules.  Assistant to the S.G. Masha Hansford responded that if a federal interest were implicated, that problem could be dealt with upon the application of substantive law; and that, meanwhile, state choice-of-law rules employed in other cases have proven fair in choosing between foreign and domestic law.

Boston-based lawyer and writer Martha Lufkin wrote a superb review and analysis for The Art Newspaper (free account after limited access) (HT @ James Romoser). 

The Boston flag case is Shurtleff v. City of Boston, No. 20-1800 (U.S. argued Jan. 18, 2022).  The Pissarro case is Cassirer v. Thyssen-Bornemisza Collection Foundation, No. 20-1566 (U.S. argued Jan. 18, 2022).

Family in fatal police shooting demands transparency

Fall River Police Department
Photo by Kenneth C. Zirkel (CC BY-SA 4.0)

At a rally in Fall River, Mass., on January 15, the family of Anthony Harden, who was killed by police in November, demanded transparency in the investigation into the shooting.

News reports state that Harden, 30, became involved in a physical altercation with two police officers trying to arrest him at his home.  Harden was confined to the home with a GPS bracelet while charges were pending in an assault case, WBZ reported in December.  According to police, Harden repeatedly stabbed at one of the officers with a metal object, possibly a steak knife, and the other officer shot and killed him.

Bristol County District Attorney (DA) Thomas M. Quinn III investigated and announced in December that police had complied with the department use-of-force policy, WBZ reported.  But the family has not yet seen the full record of the investigation, the Fall River Herald News reported after the "Justice for Anthony" rally on Saturday, and the family alleges inconsistencies between a private autopsy and the DA's conclusion.

In light of the police accountability movement that erupted in recent years in the United States, my Freedom of Information (FOI) Law seminar in the fall semester took up law enforcement transparency as a special topic.  Sifting the voluminous writing on police accountability in scholarly, NGO, and popular literature, I found, probably unsurprisingly, that lack of transparency is often a volatile fuel of misunderstanding and vehement distrust between people and police in these matters.  Worse, it doesn't always have to be.

At risk of generalizing to the detriment of the many, many police officers and departments that uphold the law with integrity, there remains the conventional wisdom that police are notorious for resistance to transparency.  My own youthful interest in FOI law was spurred by, and, in fact, a factor in my decision to go to law school in the 1990s was, frustration dealing with the Rockbridge County Sheriff's Office when I was a student journalist in Virginia.  

FOI "audits," occasionally carried out by media and NGOs to test state open records compliance, invariably test police, because a characteristic reluctance to comply with the law, ironically, juxtaposes so sharply with the urgent life and liberty interests of persons subject to police power.  The classic tension in this vein is nicely encapsulated by Amy Sherrill's report on police compliance for a 1999 Arkansas audit.  The piece might as well have been written yesterday; secrecy in policing is a persistent devil.

For my October class, besides some introductory material such as the law enforcement exemption in the federal FOI Act (FOIA) (subpart (b)(7)), after which the states have modeled many statutory open records exemptions, I assigned:

• State ex rel. Standifer v. City of Cleveland, 2021 Ohio 3100 (Ct. App. Sept. 3, 2021);
• Emanuel Powell, Unlawful Silence: St. Louis Families’ Fight for Records After the Killing of a Loved One by Police, 57 Am. Crim. L. Rev. 65 (2020); and
  
• Somebody: Police, The Intercept (Apr. 14, 2020) (podcast ep. 3).

There is so much to unpack on this topic that I had to be judicious.  The Standifer case, arising from an investigation into police violence in Connecticut, frames the subject with First Amendment access implications and the balance between police transparency and the rights of persons named in police records, including police officers themselves.

I can't say enough about the Powell article.  An attorney with ArchCity Defenders, Emanuel Powell related a personal and powerful narrative with a well informed and reasoned call for reform.

The entirety of The Intercept podcast, "Somebody" season, is worth the time.  For this class, I chose the "Police" episode, especially for its audio recordings of a mourning mother, Shapearl Wells, desperately seeking answers in the death of her son, and what she faces with police who are sometimes understanding but more often defensive, guarded, and harsh with her.  The audio medium demonstrates, in a way a cold transcript could not, the communicative disconnect between Wells and police, and the insult, however unintended, of unnecessary opacity upon an already tragic injury.  Somebody was a joint project of the Invisible Institute and comes with, especially useful for secondary school, a 10-unit teaching guide. 

There are some fascinating online clearinghouses on police data, such as NGO Mapping Police Violence and the Invisible Institute's Citizens Police Data Project, the latter focusing on Chicago, having begun as a collaboration with the University of Chicago.  The annual program of the National Freedom of Information Coalition (NFOIC) in fall 2021 featured informative sessions on police transparency reform and tracking police misconduct records (latter trailer only).  Tomorrow, I plan to attend virtually a plenary panel of the Communications Law Forum of the American Bar Association, "Racial Injustice Exposed on Camera: Police Transparency and Government Access in a Viral World."

I am open to persuasion on the basis of what I might not know about the investigation into Harden's death.  But on the face of it, I see no reason at this point for withholding investigative records, especially the autopsy.  Law enforcement authorities sometimes fear record release because it might compromise the public's position in seemingly inevitable litigation.  But discovery will bring the evidence to light anyway, and public entities shouldn't get to hold their cards tightly when accountability for lost life is at stake.

It's especially troubling that on the Bristol County DA website, there is, at the time of this writing, not a single mention of Anthony Harden.   The last two press releases from the office, before and after announcement of the conclusion in the Harden investigation, regard sentencing in other matters, touting the DA's success.  The 11-page report on the Harden matter, described by The Herald News, I cannot find online, not at the DA's site, nor from the State Police Detective Unit that conducted the investigation.

So one might understand how the Harden family, and families similarly situation around the country, might worry that the political heads of law enforcement are concerned more with reelection than with justice.  Transparency would not necessarily solve all ills, but it might diffuse tension and enhance public confidence by some measure.