April 01, 2014

From The Bench: A Reasonable Expectation of Privacy

When it comes to privacy, lay understanding, legal authority, and technological reality are often in tension--what does the Fourth Amendment mean today?

Hon. Jeremy Fogel

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In 2012, California’s Fair Political Practices Commission announced that it intended to make the annual financial disclosure statements of the state’s judges, all of whom are subject to some form of electoral process, available on its public website. Although an interested party otherwise would have to make an in-person or written request to obtain them, the statements already were public records, and the commission already had the authority to redact information that might endanger a judge’s security.

Many judges, however, were horrified. Both in comments to the media and later in testimony before the commission, they expressed deep concern about the potential misuse of their disclosures by unhappy litigants and others with an ax to grind. They argued that putting the disclosure statements on the website would make it too easy for such persons to act impulsively and that, conversely, requiring them to go to the courthouse or submit a written request might allow emotions to cool. Supporters of the commission’s proposal noted that even more sensitive personal information about judges, such as home addresses, can be found relatively easily on the Internet and that at least one organization—Judicial Watch—has been posting the annual disclosure statements of federal judges for years. After reaffirming its authority to redact sensitive information, the commission proceeded with its plan.

In August 2013, the U.S. District Court for the Northern District of California heard argument in In re Google Inc. Gmail Litigation, a multidistrict proceeding in which users of Google’s Gmail program claim that Google has violated their right to privacy by scanning their email messages to find words and other information that might be of relevance to Google’s advertisers. In response to the plaintiffs’ claims that such scanning without their prior consent violates their right to privacy, Google’s counsel contended that scanning is an “ordinary business practice” and “an unavoidable part of the email business.” He pointed out that other, desirable features of most email programs, such as spam filtering and virus protection, also involve scanning. Julia Love, “In Privacy Cases, Google Defends Email Snooping,” Recorder, Sept. 9, 2013, at 3. The court subsequently denied Google’s motion to dismiss the action, concluding that “the statutory scheme suggests that Congress did not intend to allow electronic communication service providers unlimited leeway to engage in any interception that would benefit their business models, as Google contends.” In re Google Inc. Gmail Litig., No. 5:13-md-02430-LHK, 2013 U.S. Dist. LEXIS 172784, at *9 (N.D. Cal. Sept. 26, 2013).


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