Circuit Splits

Does the Constitution Create a Right to Privacy in Information?

Last Thursday a federal court in Florida noted the existence of a split in authority over whether the Constitution creates a right to privacy in information. See Elkins v. Elenz, Case No.: 8:11-cv-2817-T-23AEP(M.D. Fla. July 19, 2012). In Elkins, the plaintiff sued two of his probation officers and a DEA agent for allegedly violating his Fourth Amendment right to privacy. Specifically, the defendant claimed that the officers coerced him into handing over a copy of his personal psychological evaluation by threatening jail time if he refused.

To determine whether the federal officers were entitled to qualified immunity, the district court considered whether there is a clearly established constitutional right to privacy in information. The court turned to the Supreme Court’s 2011 decision in Nasa v. Nelson for guidance, but found none because the Court decided Nelson on narrow grounds, leaving the broad constitutional question for another day. 131 S. Ct. 746, 757 n.10 (2011). “In short,” the district court remarked, “the verdict on informational privacy is an unequivocal ‘who knows.’”

As a result, the following circuit split still exists over the question:

Many courts hold that disclosure of at least some kinds of personal information should be subject to a test that balances the government's interests against the individual's interest in avoiding disclosure. E.g., Barry v. New York, 712 F.2d 1554, 1559 (CA2 1983); Fraternal Order of Police v. Philadelphia, 812 F.2d 105, 110 (CA3 1987); Woodland v. Houston, 940 F.2d 134, 138 (CA5 1991) (per curiam); In re Crawford, 194 F.3d 954, 959 (CA9 1999); State v. Russo, 259 Conn. 436, 459-464, 790 A.2d 1132, 1147-1150 (2002). The Sixth Circuit has held that the right to informational privacy protects only intrusions upon interests “that can be deemed fundamental or implicit in the concept of ordered liberty.” J. P. v. DeSanti, 653 F.2d 1080, 1090 (1981) (internal quotation marks omitted). The D. C. Circuit has expressed “grave doubts” about the existence of a constitutional right to informational privacy. American Federation of Govt. Employees v. HUD, 118 F.3d 786, 791 (1997).

 Nelson, 131 S. Ct. at 756 n.9.

Circuit Split Roundup

For the latest news and commentary on areas of law dividing the courts or recently resolved, check out the following links:

• Lee Beck, DOJ’s “Departure Bar” Regulation to Reopening Immigration Cases: Another Circuit, Another Loss, Federal Regulations Advisor (May 24, 2012) (HTML).

• Rudolph J. Di Massa, Jr. & Aaron J. Margolis, Supreme Court Addresses Circuit Split Over Cramdown Plans Precluding Credit Bidding, The Legal Intelligencer (May 22, 2012) (HTML).

• Christopher M. Loveland & Jonathan S. Aronie, United States: Another U.S. District Court Follows The Lead Of The D.C. Circuit In Addressing The "First-To-File Bar" Circuit Split And Pushes Back Against An Opportunistic Relator, mondaq.com (May 21, 2012) (HTML).

• Jonathan H. Adler, Court to Consider Standing to Challenge FISA Surveillance, The Volokh Conspiracy (May 21, 2012) (HTML).

• Laura Fishwick, Application Of the First Sale Doctrine To Exclusive Importation Rights After Quality King, Harv. J. L. & Tech. Jolt Digest (May 20, 2012) (HTML).

Ultrasound Laws, Abortion Rights, and the Supreme Court

As Nick Wagoner has pointed out in his post earlier today, a split is emerging over the constitutionality of pre-abortion ultrasound requirements by states. Nick's post has the links to the North Carolina district court and Fifth Circuit decisions on this issue. I'm not sure if the Supreme Court will take the issue this time around, or if will wait for more circuit courts to reach decisions on it - ultrasound statutes are now springing up in states all over the country, especially since the Fifth Circuit decision upholding the Texas statute. If no other circuit courts strike down this type of legislation, the Supreme Court could just dodge this politically controversial issue.

Unfortunately, most commentators on both sides treat the ultrasound statute simply as a proxy for abortion itself. Pro-choice advocates treat the statute as if it is a de facto ban on abortions (which it clearly is not, from a legal standpoint), and some pro-lifers talk about this as if this is the pro-life movement's last stand (which it also clearly is not - the pro-life movement is making progress on many fronts right now). So the public debate right now is largely ignoring the law itself and just hollering about women's bodies etc. My thoughts on the statute continue below the line break - click "read more."

Illusory Circuit Split Over the Special Needs Doctrine?

Adam Pie has a new article on SSRN about the split among federal circuit courts over the "special needs doctrine."  The title is a bit hefty: The Monster Under the Bed: The Imaginary Circuit Split and the Nightmares Created in the Special Needs Doctrine’s Application to Child Abuse.  Here is the SSRN abstract:

Child protective services (“CPS”) agencies often face the difficult task of walking the fine line between protecting the child from abuse and preserving familial privacy. Included in this familial privacy consideration is the privacy of the child from intrusive and potentially traumatic searches. What makes this task more difficult is the federal judiciary’s lack of guidance in determining the Fourth Amendment protections that bind CPS investigations. The states and the federal circuits must answer the following question: When child welfare officials are investigating allegations of abuse and neglect, are they bound by the probable cause and warrant requirements of the Fourth Amendment, or can a court loosen the Fourth Amendment requirements for the state and its actors? Specifically, do the searches qualify for the “special needs doctrine,” an exception to the Fourth Amendment where a court replaces traditional warrant and probable cause requirements with a two-step test considering whether the search and seizure was conducted to meet a state’s “special need” and whether the search was reasonable in light of the individual privacy interests and the government’s goals? Furthermore, if the special needs doctrine applies, when and how does it apply? 

Currently, the federal circuits appear to be divided in a three-way circuit split when answering that question, but this Note will show that circuit split is an illusion. Through a series of cases involving a variety of investigatory techniques, this complicated web of opinions from the federal circuits creates more questions than answers in the realm of Fourth Amendment jurisprudence. Factual differences and a complicated balancing test involving state, parent, and child interests make the courts’ job difficult. Although many of the decisions rely on the same logic and recognize the same privacy and state interests, factual differences between the cases produce different outcomes. These factual differences create the illusion that the circuits are divided, despite their ideological similarities. This Note exposes the circuit split illusion and develops a unified special needs approach by combining the circuit opinions.

This is a nice contribution to the literature in this field.  Most academic articles highlight differences between courts; it is refreshing to see someone whose scholarly agenda is to show that the differences are less significant than others have perceived.

 - Dru Stevenson

Are Mugshots Subject to Public Disclosure?

On Wednesday the Wall Street Journal’s Law Blog wrote about an emerging circuit split over the issue of whether the “Feds May Withhold Prisoner Mugshots.” In a decision issued the same day, the Tenth Circuit joined the Eleventh Circuit in finding that detainees have a right to privacy in their booking photos. World Publishing Co. v. Dep’t of Justice, No. 11-5063 (10th Cir. Feb. 22, 2010) (finding that the privacy interest in the photos outweighs the public’s interest in disclosure); Karantsalis v. U.S. Dep’t of Justice, 635 F.3d 497, 499 (11th Cir. 2011) (per curiam) (denying a reporter’s request for the mugshot of a man who had pleaded guilty to securities fraud for the same reason).

The Sixth Circuit, on the other hand, has taken the opposite position, holding “that disclosure of a booking photo ‘in an ongoing criminal proceeding . . . does not implicate privacy rights.'” Detroit Free Press, Inc. v. Dep’t of Justice, 73 F.3d 93, 97 (6th Cir. 1996).

Why would anyone other than, perhaps, celebrity gossip columnists want to see someone else’s mugshot? The World Publishing Company offered the Tenth Circuit no fewer than nine public interests at stake:

(1) determining the arrest of the correct detainee

(2) detecting favorable or unfavorable or abusive treatment

(3) detecting fair versus disparate treatment

(4) racial, sexual, or ethnic profiling in arrests

(5) the outward appearance of the detainee; whether they may be competent or incompetent or impaired

(6) a comparison in a detainee’s appearance at arrest and at the time of trial

(7) allowing witnesses to come forward and assist in other arrests and solving crimes

(8) capturing a fugitive

(9) to show whether the indictee took the charges seriously

It’s worth noting that just last month the Supreme Court passed up a chance to resolve this circuit split by denying cert in Karantsalis. 2012 WL 171139 (U.S. Jan. 23, 2012). As for the Tenth Circuit’s decision to protect the privacy of mugshots, the Journal believes that “it’s anyone’s guess whether the Supreme Court would take the case” if Tulsa World decides to appeal.

As an added bonus, here is a sampling of some of the more memorable mugshots made public over the years, for your viewing pleasure:

Flixster - Share Movies

Actor Nick Nolte.

Wikimedia Commons

Microsoft founder and philanthropist Bill Gates.

Wikimedia Commons

Legendary crooner Frank Sinatra.

[*Hat tip to Lee Beck over at http://www.fedregsadvisor.com/].