Sui Generis--a New York law blog

Temptations of Utopia

This week's Legal Currents column, which is published in The Daily Record, is entitled "Temptations of Utopia"  The article is set forth in full below and a pdf of the article can be found here.

My past Legal Currents articles can be accessed here.

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Temptations of Utopia

A few weeks ago, my family ventured forth from the cold, barren wasteland that is Upstate New York in January and traveled to a strange, exotic and Utopian wonderland: Walt Disney World.

Our two young children were atwitter with anticipation, while my husband and I were cautiously optimistic about the prospects of a daylong visit to the wonderful world of Disney, free of major meltdowns by our over-stimulated offspring.

As we approached the gates, tickets in hand, my kids barely able to contain their excitement, imagine the surprise and consternation of this Bill-of-Rights-thumping, anti-surveillance, criminal defense attorney when faced with a fingerprint scanner as a condition of admission.

My children, who are under 10 years of age, were exempt from the fingerprinting requirement, and already passed through the gates. They were chomping at the bit, raring to go.

For a brief moment, the civil rights advocate in me envisioned standing up to The Man and refusing to comply, but my children’s imploring eyes eagerly beckoned.

I was torn: Fight the power or enjoy a fun-filled day spending a small fortune on the consumption of Disney products?

Secure in the knowledge that I had no intention of committing any major felonies while at Disney World, I reluctantly allowed my fingerprint to be scanned and off we went.

I have since learned that Disney World began using this biometric pass system in January 2005. Disney claims the technology reduces wait times and prevents ticket fraud from occurring in the form of the re-sale of multiday passes. The option of providing photo identification in lieu of a fingerprint scan is available, although this alternative is not advertised to visitors.

According to Disney’s privacy policy on its Web site, any personal information — which presumably includes fingerprint data — collected by Disney about its guests may be disclosed when the company: “[B]elieve[s] in good faith that such disclosures (a) are required by law, including, without limitation, for example, to comply with a court order or subpoena, or (b) will help to: … protect your safety or security … and/or protect the safety and security of us, other subsidiaries of The Walt Disney Co., and/or third parties, including, without limitation, the safety and security of property that belongs to us, other subsidiaries of The Walt Disney Company or third parties.”

I’ve since learned Disney is on the cutting edge of biometrics, and now is looking into the use of automated face recognition, a more advanced form of technology.

In fact, after Sept. 11, the federal government consulted Disney for their expertise in the use of biometrics for security and intelligence purposes. Following 9/11, a Disney executive served on a panel convened by a number of governmental agencies to explore the use of biometrics in airports as a way to verify the identity of air travelers. Former Disney employees also have joined the ranks of and assisted the National Security Administration and the U.S. Department of Homeland Security.

Newt Gingrich, in an article published July 2007 and entitled “Report from the World That Works, Part II” posited that the world would be a better place if our federal government were more like Disney World:

As I walked around that happy, functioning, efficient place, I concluded the difference between Disney World and the federal government is that there are certain, basic principles that Disney understands.

If those basic principles are the loss of our citizen’s privacy and liberty in the never-ending search for “security” and a false sense of Utopia, then I absolutely agree with Gingrich’s statement.

Not surprisingly, I sincerely regret my split second decision to provide my fingerprint data. As far as I’m concerned, our constitutional rights trump the temptations of Utopia any day of the week.

Big Brother Is Tracking You

As predicted in one of my recent Daily Record articles and in this post in February of 2006, when this blog was in its infancy, the State Department recently approved the use of technology in US passports that allows information stored on the passport to be read from a distance. 

As explained in this AP article:

Passport cards for Americans who travel to Canada, Mexico, Bermuda and the Caribbean will be equipped with technology that allows information on the card to be read from a distance...The technology would allow the cards to be read from up to 20 feet away. This process only takes one or two seconds, said Ann Barrett, deputy assistant secretary for passport services at the State Department. The card would not have to be physically swiped through a reader, as is the current process with passports.

Gee, that "technology" sounds an awful lot like the "solution" that I reported that the Department of Homeland Security was seeking in my February 2006 post:

• The solution must...identify the exact location of the read such as a specific pedestrian or vehicle lane in which the token is read. • The solution presented must sense the remote data capture technology carried by a pedestrian traveler at distances up to 25 ft. • The solution presented must sense all tokens carried by travelers seated in a single automobile, truck, or bus at a distance up to 25 ft. while moving at speeds up to 55 mph. • For bus traffic, the solution must sense up to 55 tokens. • For a successful read, the traveler should not have to hold or present the token in any special way to enable the reading of the token's information. The goal is for the reader to sense a token carried on a traveler's person or anywhere in a vehicle.

Imagine that. 

Tinfoil-hat-wearing conspiracy theorist or eerily prescient?  You decide.

I'll Need to See Your Papers, Ma'am.

This week's Legal Currents column, which is published in The Daily Record, is entitled "I'll need to see your papers,ma'am."  The article is set forth in full below, and a pdf of the article can be found here.

My prior articles can be accessed here.

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I'll Need to See Your Papers, Ma'am

“Once the exact identity or some demographics or other characteristics of the person have been determined, the person tracking unit relies on this information to track the person as the person moves through the roaming areas. The person tracking unit may assign a tracking number to each identified person and store the tracking number in association with the collection of RFID tagged product information.” — IBM U.S. Patent Application No. 20020165758; Identification and Tracking of Persons Using RFID-Tagged Items

In May 2005, as part of the Iraq War/Tsunami relief appropriations bill, Congress passed the Real ID Act.

This Act, scheduled to go into effect in May 2008, will require anyone living or working in the United States to have a federally approved identification card in order to open a bank account, travel on an airplane, collect Social Security payments or take advantage of virtually any government service.

It also is expected that all driver’s licenses will have to be re-issued by each state to meet federal standards set by Homeland Security.

The goal of the Act is to create a 50-state, interlinked database making the information in each person’s file available to all states and the federal government. As explained at the Department of Homeland Security’s Web site (www.dhs. gov/xprevprot/laws/gc_1172767635686.shtm): “DHS is proposing minimum standards that will appear on the face of the card. The proposed regulation would require each of the following on the face of REAL IDs; space available for 39 characters for full legal name; address of principal residence; digital photograph; gender; date of birth; signature, document number; and machine readable technology.”

Machine-readable technology options available to the states include Orwellian technology such as storing fingerprints or retinal scans into government-owned computer databases or using identification cards with embedded RFID chips.

RFID chips are a form of embedded technology that can be detected from up to 25 feet away. They can be used to pinpoint the location of pedestrians and individuals in vehicles traveling up to 55 miles per hour.

In late October, Gov. Eliot Spitzer signed a Memorandum of Agreement with Homeland Security Secretary Michael Chertoff that outlines New York’s plan to become one of the first states to be fully compliant with the Real ID Act. Reports surfaced in mid-November stating that Spitzer appears to be backing away from this commitment, however.

I certainly hope so. Our privacy rights are being chiseled away on a daily basis across the country as the government continually seeks to obtain increasing amounts of information while offering less justification for the intrusion. It’s a slippery slope, and it seems we are barreling down the mountain at a high rate of speed while the brake lines on our collective vehicle seemingly have been cut.

Every time I learn of yet another instance of our liberties being washed away in our endless quest for safety from the nebulous concept of “terrorists,” I feel an ominous sense of foreboding. Our country has reached a crossroads and I, for one, am not at all comfortable with the direction it seems to have chosen.
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And, now, a video explaining how trackable we all are as a aresult of the devices, such as RFID chips, that are being built into new technologies:

It Looks Like We'll Never Know if There's a Right to Privacy in Times Square.

A case that I discussed in March of 2006, when this blog was in its infancy, has made its way to the New York Court of Appeals.  The case is Nussenzweig v diCorcia, 2007 NY Slip Op 08783 and involves an Hasidic Jew, a photographer and an art exhibition.

It seems that one of the defendants, a famous photographer, snapped a picture of the plaintiff, a Hasidic Jew, sometime between 1999-2001.  The plaintiff was unaware that his image had been captured.

In the Fall of 2001, the disputed image was included in an art exhibition.  The plaintiff learned of this fact in March of 2005 and shortly thereafter, commenced this lawsuit alleging that the defendants had violated his statutory right of privacy as set forth in Civil Rights Law §§ 50 and 51.

The Court of Appeals concluded that the lawsuit was untimely, sinnce the statute begins to run from the date of publication, rather than the date of discovery of the publication:

Pursuant to CPLR 215(3), "an action to recover damages for . . . libel, slander . . . or a violation of the right of privacy under section fifty-one of the civil rights law" must be brought within one year. In Gregoire v G.P. Putnam's Sons, this Court formulated the single publication rule, which states that a cause of action for defamation accrues on the date the offending material is first published (298 NY 119, 125-126 [1948])...

The policy underlying the adoption of that rule is likewise implicated here and we therefore hold that the single publication rule applies to claims brought pursuant to Civil Rights Law §§ 50 and 51. Because the publishing event giving rise to plaintiff's right of privacy claims first occurred no later than the fall of 2001, more than one year before he commenced suit, plaintiff's claims are time-barred.

Bummer for the plaintiff and for the rest of us.  Although we now know that standing around in Times Square is not an unlawful offense, it seems that we're still left to ponder the issue of whether New York's Civil Rights laws apply there. 

Civil Rights and Wrongs

It's been a while since I regularly posted about civil rights issues.  Quite frankly, I think that the news was becoming so depressing that I needed a break from it.  But, things are only getting worse and I feel a civic duty to chronicle the  dissolution of our civil rights.

So, on that cheery note, let's begin, shall we?

• Wave to Big Brother, y'all:  Mark Klein, a whistleblower and former AT&T employee claims that NSA is screening internet data of all US citizens.  No, really? I never could have predicted that!
• Because privacy is so yesterday:  Apparently, we, the American People, had better run out and buy neo-con dictionaries now that a " a top intelligence official says it is time that people in the United States changed their definition of privacy."  This, as Congress debates whether to revise the Foreign Intelligence Surveillance Act so as to grant immunity to telecom giants facing over 40 wiretapping lawsuits. (AP)
• Resistance is futile:  The LAPD is mapping Muslim communities so that we can perfect them "map the locations of these closed, vulnerable communities, and in partnership with these communities . . . help [weave] these enclaves into the fabric of the larger society..."  (LA Times)

My Kid and Homeland Security?

Put on your tin foil hats folks.  You're in for quite a ride.   

At the outset, I apologize in advance for what I expect will be a lengthy post, but it's out of necessity.   And, while it's a bit off the beaten path from my typical subject matter, it arguably falls under the civil rights issues that I occasionally blog about.

Yesterday we received a letter from my kindergartner's school advising that the school district will be participating in a "Survey of Internet and At-Risk Behaviors" in order to provide "Internet safety, information security and cyber ethics education for our students."  (Update to clarify post:  The survey would be administered at school by teachers after each teacher had received 2 hours of training.)  We were advised that we could obtain additional information regarding the survey online.  And, of course, we could opt our child out of the survey if we chose to do so.

Sounds good, right?  That's what I initially thought, but since my kid is a big fan of routine and predictability, I decided to investigate a bit more before subjecting her to the survey process which might make her uncomfortable, given her particular constitution.

So, investigate I did.  I started with the website referred to in the letter--that of the "Rochester Regional Cyber Safety & Ethics Initiative".  I learned that 20 area school districts were participating in this initiative and from the Executive Summary learned that:

The Rochester Regional Cyber Safety and Ethics Initiative (The Initiative) is a non-profit partnership between the Rochester Institute of Technology (RIT), more than 20 area school districts, the Diocese of Rochester Department of Catholic Schools, Cambria Health Alliance (of Harvard Medical School) Division on Addictions, and regional offices of three national organizations, including: (1) The National Center for Missing and Exploited Children (NCMEC), (2) the Information Systems Security Association (ISSA), and (3) InfraGard, a program of the Federal Bureau of Investigation dedicated to information sharing between public and private sectors to help protect critical infrastructure. (Emphasis added).

"The problem" being addressed by the initiative was explained as follows:

What is the Problem? Research indicates that cyber offenses among kids are increasing. This includes:     * Academic dishonesty     * Intellectual property theft     * Piracy of music, movies and software     * Online threats and harassment “cyber bullying”     * Credit card fraud     * Unwanted exposure to pornography     * Unwanted solicitations for sex     * Illicit purchasing of prescription and illegal drugs     * Writing and distributing malicious computer code     * Computer hacking.

The objective of the program were explained as follows:

What are the goals and objectives? • Act inclusively from ‘the ground up with a safer, more secure and responsible computing future in mind • Create, pilot, implement and evaluate research-driven Internet safety, information security and cyber ethics training for students, parents, educators and the adult workforce • Position the Rochester Region to assume a national leadership role on this issue and develop a template that can be applied nationally.

On the "Links" page, the organizations listed included the following:

• Department of Homeland Security
• The National Institute of Justice
• Infraguard Members Alliance (FBI)

An example of the peculiar (in my mind) survey that my child was being asked to participate in can be found here (Internet Explorer compatible only).

And, finally, we learn on the website that the initiative is headed by "Dr. Samuel McQuade, MPA, PhD, Graduate Program Coordinator at RIT's (Rochester Institute of Technology) Center for Multidisciplinary Studies and author of "Understanding and Managing Cybercrime" [Allyn & Bacon, 2005]", who is also a Graduate Program Coordinator - RIT, Fellow - Center for Advanced Defense Studies.

His bio. at the Center for Advanced Defense Studies is as follows:

SDNY Judge Rules Sections of US Patriot Unconstitutional

Yesterday, U.S. District Court Judge Victor Marrero struck down the sections of the Amended Patriot Act relating to National Security Letters, as reported in this AP article.  From the article:

He said Congress, in the original USA Patriot Act and less so in a 2005 revision, had essentially tried to legislate how the judiciary must review challenges to the law. If done to other bills, they ultimately could all "be styled to make the validation of the law foolproof."

Noting that the courthouse where he resides is several blocks from the fallen World Trade Center, the judge said the Constitution was designed so that the dangers of any given moment could never justify discarding fundamental individual liberties.

He said when "the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of liberty."

Regarding the national security letters, he said, Congress crossed its boundaries so dramatically that to let the law stand might turn an innocent legislative step into "the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values."

He said the ruling does not mean the FBI must obtain the approval of a court prior to ordering records be turned over, but rather must justify to a court the need for secrecy if the orders will last longer than a reasonable and brief period of time.

In his decision, Judge Marrero wrote:

In light of the seriousness of the potential intrusion into the individual's personal affairs and the significant possibility of a chilling effect on speech and association -- particularly of expression that is critical of the government or its policies -- a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes.

It's a pleasure to read such lofty and accurate language regarding our constitutionally guaranteed civil rights and this administration's blatant violation of the same.  And, more importantly, it's about time!

"Ring of Steel" Around Manhattan--The Allure of a False Sense of Security

In the past I've discussed  New York City's plans to build a "ring of steel" in the form of hundreds, if not thousands of security cameras, around Lower Manhattan.  In spite of financial setbacks last summer resulting from a 40% cut in a Homeland security grant, it now appears that the plan may now be moving ahead. 

Last week, in a New York Times article, the security plan to be implemented was described as follows:

Mr. Kelly said last week that the department had since obtained $25 million toward the estimated $90 million cost of the plan. Fifteen million dollars came from the city, he said, while another $10 million came from Homeland Security grants, more than enough to install 116 license plate readers in fixed and mobile locations, including cars and helicopters, in the coming months...

The license plate readers would check the plates’ numbers and send out alerts if suspect vehicles were detected. The city is already seeking state approval to charge drivers a fee to enter Manhattan below 86th Street, which would require the use of license plate readers. If the plan is approved, the police will most likely collect information from those readers too, Mr. Kelly said.

But the downtown security plan involves much more than keeping track of license plates. Three thousand surveillance cameras would be installed below Canal Street by the end of 2008, about two-thirds of them owned by downtown companies. Some of those are already in place. Pivoting gates would be installed at critical intersections; they would swing out to block traffic or a suspect car at the push of a button.

Unlike the 250 or so cameras the police have already placed in high-crime areas throughout the city, which capture moving images that have to be downloaded, the security initiative cameras would transmit live information instantly...

The Police Department is still considering whether to use face-recognition technology, an inexact science that matches images against those in an electronic database, or biohazard detectors in its Lower Manhattan network, Mr. Browne said.

Ah yes, I feel safer already.  So what if that feeling is illusory, as evidenced by the fact that the ridiculous number of surveillance cameras in London did nothing to prevent the subway bombings or the recent terrorist attacks?  Even if the cameras don't protect us in the all-important-reality that we actually live in, at least we feel better about it, right? 

And damned if the cameras don't help us to catch the bad guys after the fact!  We may not be able to prevent a future attack, but at least we can locate the the bad guys that caused it!   And then, we can fry 'em to boot!

Take a deep cleansing breath.  Do you smell that?  No, no, not the smell of the bad guy's burning flesh.  The other smell.  You smell it now?  The sweet, sweet smell of vindication.  Vindication to the tune of 25 million dollars or more.

Hey, it's a lotta cash, but, it's the price we've got to pay to ensure that we'll never, ever die, no matter what.  Or, at least if we do die in Lower Manhatten, rest assured it will be caught on tape, in real time, as it happens. 

I sure feel better now, don't you?

Is Collection of DNA From Probationers Convicted of Non-violent Federal Crimes Constitutional?

You may recall that one of my recent Legal Currents articles for the  Daily Record focused on Gov. Spitzer's proposal to broaden the DNA database.  The article was entitled "Distracted by bright and shiny objects?" and can be found here.

I recently received an email from a regular reader who informed me of a decision by the United States Court of Appeals for the 2d Circuit in US v. Amerson,  Docket Nos. 05-1423-cr; 05-1063-cr, in which the Court concluded that the collection of DNA from probationers convicted of non-violent federal crimes pursuant to the DNA Analysis Backlog Elimination Act 10 of 2000 (“the 2000 DNA Act”), Pub. L. No. 106-546, 114 Stat. 2726 (2000) does not violate the probationers' 4th Amendment right to be free of unreasonable searches and seizures.

The decision, in its entirety, can be found here.

In upholding the DNA collection, the Court relied on the "special needs" exception to the Fourth Amendment, a doctrine which I have examined in the past here and here:

This Court and the Seventh Circuit, on the other hand, have applied the “special9 needs” test to uphold the constitutionality of earlier DNA indexing laws...

(W)e (will) analyze the constitutionality of the 2004 DNA Act as it applies to 16 Appellants under the two-prong special-needs approach. First, in Part I, we consider whether thesearch and seizure is justified by a special need beyond the ordinary needs of normal law enforcement. Concluding that under Nicholas it is, we examine in Part II whether the search was reasonable in light of that special need. We do so by weighing the government’s interest against the intrusion on the Appellants’ privacy interests...

While we do not hold that a probationer has no expectation of privacy in his or her identity,we agree that, like all convicted felons, a probationer’s expectation of privacy in his or her identity is severely diminished...As a result, we conclude that for probationers, as for 4 the incarcerated felons in Nicholas, “[g]iven that the state likely already has a plethora of identifying 5 information about [them], in light of their status as convicted felons,” id., the additional intrusion 6 of privacy entailed by the taking of the DNA sample is small...

(T)he government’s interest in getting appellants’ DNA 5 samples is not much attenuated by the fact that appellants are non-violent felons.  And appellants’ expectation of privacy (as probationers) is no less diminished than that of other categories of probationers. Nor is the degree of intrusion any greater for appellants than for others as to whom DNA testing has been upheld. Under the circumstances, the reasonableness balance can only come  out one way...

Taking and storing samples of DNA under the restrictions of the DNA Act fulfills many  important governmental interests, only some of which are limited to the criminal history of the  subjects of the DNA testing. The invasion of privacy, both immediate, and long term, from DNA testing of convicted felons—even those convicted of non-violent crimes and sentenced only to probation—is, given the safeguards of the 2004 DNA Act, relatively small. Accordingly we conclude that the 2004 DNA Act, as applied to appellants, does not constitute an unreasonable search or seizure and hence does not violate the Fourth Amendment.

Needless to say, I disagree with the Court's conclusion.  As in the cases relying upon the special needs doctrine that I'd discussed in the past, the special needs doctrine should be inapplicable in this case since it is obvious that the primary purpose of collecting DNA is law enforcement--a recognized exception to the special needs doctrine.

The defendants/appellants disagreed with the Court's decision as well, and as such will be filing a petition for certiorari with the United States Supreme Court in July.

I'll keep you advised as to any developments in this case.

Big Brother's Eyes Are On Us

This week's Legal Currents column, which is published in The Daily Record, is entitled "Lady Law Is Not Entirely Inflexible."  The article is set forth in full below, and a pdf of the article can be found here.

My prior articles can be accessed here.

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I always thought that George Orwell’s novel 1984 was, at most, a disturbing work of fiction.

Inexplicably, in the wake of 9/11, many aspects of the horrifying and surreal society described in Or-well’s most famous novel have become reality in America.

Pervasive video surveillance is one of the more obvious and disturbing manifestations of this fictional work. In many cities across America, intricate video surveillance networks, both publicly and privately owned, are being established to capture the day-to-day activities of ordinary citizens.

By way of example, in 1998 there were only 769 surveillance cameras in New York City. Today, it is estimated that there are more than 10,000, with more being added each day. At this rate, the city will soon catch up to London, which has more than 500,000 video surveillance cameras monitoring citizens’ every move.

Other cities throughout the country are following in step and our fair city of Rochester is not immune to the phenomenon: In November 2006, Roch-ester was awarded funding to establish a video surveillance network and the Rochester Police Department is in the process of implementing a surveillance system.

Some fear that at this rate, in just a few years, the United States will soon have more surveillance cameras within its borders than the 4 million video cameras currently installed throughout Britain.

Proponents of video surveillance contend “video never lies.” Recent court decisions suggest that the appropriate inquiry is not whether video is truthful, but rather, what isthe meaning of the images portrayed on video?

In the recent U.S. Supreme Court decision, Scott v. Harris, no. 05-1631, the answer to this inquiry was, not surprisingly, that reasonable minds can differ. In Scott, the court viewed videotape of a high speed chase and concluded that: “[W]ith regard to the factual issue [of] whether respondent was driving in such fashion as to endanger human life … [r]espondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him.”

The decision was reached despite the fact that the 11th Circuit Court of Appeals viewed the tape and concluded there were issues of fact concerning that issue, as Justice John Paul Stevens did in his dissent.

Similarly, in a recent First Department decision, Rivera v. City of New York, 2007 N.Y. Slip Op 04153, videotape of a protest, which resulted in arrests the plaintiffs alleged were unlawful, was viewed by a jury, the trial court and the First Department.

The jury concluded that the arrest was unlawful and awarded $80,375,000 to the plaintiffs. The trial court agreed with the jury’s factual findings, but determined the award to be excessive, reducing it to $635,000.

The First Department, after watching the same videotape viewed by the jury and the trial court, vacated the judgment and dismissed the complaint against the defendants, concluding that: “Any rational person, objectively looking at the video and reviewing the other evidence, would find the police more than justified in their concern that this episode might escalate into violence.”

It would seem that the lesson to be learned is that while a video never lies, interpretations of its content can be drastically different.

In the post-9/11 era of increasing video surveillance, is it the new rule of law that, when facts can be gleaned from videotape, the interpretations of judges on higher courts trump the less rational perspective of lower court judges and juries? Will the need for juries and lower courts be erased with the advent of increasingly invasive and pervasive video surveillance? Will appellate judges take on the role of Big Brother and decide the facts for us?

For the sake of our country and our judicial system, I certainly hope not.

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Here's a disturbing CNBC video on how American's lives are being monitored by our government and by private parties.

And, the following video is an NBC report on the use of "talking" video surveillance cameras in the UK.  The wave of the future for the US, perhaps?  Let's hope not.