the ACLU drops the ball on Achmed. they stood by him in the Spring of 2004 when he protested against Abu Graib, but when he was arrested and charged with "going jihad" by U.S. Attorney General John Ashcroft in 2004, where was the ACLU?
I was not in Nashville anymore. Perhaps we relied too strongly on the fact that the ACLU would be there for Ahmed. I mean they came to his aid once, by why not another time? On October 24, 2005Ahmed was sentencd to five years prison with a possibility of deportation. He chose to plead guilty instead of face the wrath of Americans plagued by FOX-news induced anti-Islamist sentiment at the time.
I'm not blaming the ACLU ... many other factors could have played a part in this, but why were the factors different?
Tuesday, January 30, 2007
Saturday, January 20, 2007
Constitutional Adaptation to Techno-America
Some states give more protection than others. This paper covers the most progressive state constitutional rights to privacy in the country...of course, the California State Constitution. Perhaps we should consider doing this for the U.S. Constitution, too, what with all the private companies selling our personal information to third parties against our wishes; so that we can regain control of our personal information and private rights. Footnotes excluded.
THE CALIFORNIA PRIVACY AMENDMENT
On November 7, 1972, the people of California voted in favor of the “Privacy Initiative,” and became one of few states to amend their state constitutions to explicitly include “Privacy” as one of the enumerated individual rights to be protected. The amended California constitution now reads: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” There is no legislative history, other than the Ballot Pamphlet to the Privacy Initiative that reflects the intent of the people at the time the California constitution was amended to explicitly include privacy rights, thus the California courts look to the Ballot Pamphlet literature when analyzing privacy interests under the California constitution. The Ballot Pamphlet identifies four principal mischiefs at which the Privacy Amendment is directed:
(1) government snooping and secret gathering of personal information; (2) the overbroad collection and retention of unnecessary personal information by government and business interests; (3) the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party; and (4) the lack of a reasonable check on the accuracy of existing records.
California is the only state to extend state constitutional privacy protections to intrusive acts by private, nongovernmental entities, in addition to state actors. California courts have found that repeated references in the ballot argument regarding dangers to individual privacy interests from the acts of government and business is indicative of the people’s intent that the California state constitution now protects the individual from intrusive practices by both state actors and private actors. The ballot argument in favor of the Privacy Amendment states:
At present there are no effective restraints on the information activities of government and business. The right of privacy … prevents government and business interests from collecting and stockpiling unnecessary information … [E]ven more dangerous is the loss of control over the accuracy of government and business records on individuals. … [F]ew government agencies or private businesses permit individuals to review their files and correct errors. … Each time we apply for a credit card or a life insurance policy, file a tax return, interview for a job, or get a drivers’ license, a dossier is opened and an informational profile is sketched.”
Another California court noted:
Common experience makes it only too evident that personal privacy is threatened by the information-gathering capabilities and activities not just of government, but of private business as well. If the right of privacy is to exist as more than a memory or a dream, the power of both pubic and private institutions to collect and preserve data about individual citizens must be subject to constitutional control. Any expectations of privacy would indeed be illusory if only the government’s collection and retention of data were restricted.
The California Supreme Court found that there are differences between state action and private action in the context of privacy rights, warranting greater protection for state action than private action.
Government power is more pervasive than private power in basic areas of human life, posing greater dangers to the freedom of the citizenry. The government not only has the ability to affect more than a limited sector of the populace through its actions, it has both economic power, in the form of taxes, grants, and control over social welfare programs, and physical power, through law enforcement agencies, which are capable of coercion far beyond that of the most powerful private actors.
The California Supreme Court also reasoned that private conduct, particularly the activities of voluntary associations of persons, “carries its own mantle of constitutional protection in the form of freedom of association, which was recognized by the drafters of the Privacy Initiative.” Thus, private actors, unlike state actors, also have privacy rights guaranteed by the Privacy Amendment to the California constitution. Private actors have the freedom to choose with whom to associate, freedom to choose whom to hire or with whom to do business, which means that private actors can reasonably intrude into the private lives of individuals in some areas where state actors are forbidden. In terms of relaxing constitutional scrutiny for private actors, the California Supreme Court stated, "Judicial assessment of the relative strength and importance of privacy norms and countervailing interests may differ in cases of private, as opposed to government, action. Private entities pursue private ends and interests, not those of government. If every private organization had to establish a ‘compelling public interest’ or ‘compelling state interest’ to justify any activity that had an impact on individual privacy, it would fail to do so in most, if not all, conceivable cases.”
The California Supreme Court established two different types of private actors, one which might subject the private actor to a heightened constitutional scrutiny similar to that of a state actor, and the other with a more relaxed constitutional scrutiny. First, if a private actor functions more like a monopoly, or if it “controls access to a vitally necessary item, it may have a correspondingly greater impact on privacy rights of those with whom it deals.” Second, if the individual is “able to choose freely among competing public or private entities in obtaining access to some opportunity, commodity, or service, his or her privacy interest [may] weigh less in the balance.
The Privacy Amendment Test
The California Supreme Court established a three-pronged test for determining whether there has been a violation of the state constitutional right to privacy. First, the plaintiff must satisfy the three elements to establish a prima facie cause of action for invasion of privacy which include: “(1) a specific, legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by the defendant constituting a serious invasion of privacy.” Second, after the plaintiff establishes her prima facie case, the burden shifts to the defendant to either disprove any one of the three elements of the Plaintiff’s prima facie case, or establish that its invasive conduct is justified because it substantially furthers one or more countervailing interests, and that countervailing interest is greater than the plaintiff’s privacy interest. Third, once the defendant proves that the invasion is justified, the plaintiff may establish that there are less intrusive alternatives to furthering the defendant’s countervailing interests.
Although the Ballot Pamphlet states that a compelling interest is required before the intrusive acts of a state or private entity are constitutionally permissible, California courts have declined to require that the defendant establish a compelling interest in every situation. In some situations, the intruding act may be permissible if the state or private entity merely has a “legitimate interest” that outweighs the individual privacy interests. The California Supreme Court in Hill v. NCAA found that not every assertion of a privacy interest under article I, §1 of the California constitution must be overcome by a compelling interest, because “neither the language nor the history of the Privacy Initiative unambiguously supports such a requirement, [and] in view of the far-reaching and multifaceted character of the right to privacy, [a compelling interest standard] imports an impermissible inflexibility into the process of constitutional adjudication.” When determining whether a compelling interest is required, the California Supreme Court in Hill v. NCAA found that [t]he particular context, i.e., the specific kind of privacy interest involved and the nature and seriousness of the invasion and countervailing interests, remains the critical factor in the analysis [of whether a compelling interest must be established by the defendant]. Where the case involves an obvious invasion of an interest to personal autonomy, e.g. freedom from involuntary sterilization or the freedom to pursue consensual familial relationships, a ‘compelling interest’ must be present to overcome the privacy interest. If, in contrast, the privacy interest is less central, or in bona fide dispute, general balancing tests are employed.”
Informational Privacy and Autonomy Privacy
The Ballot Pamphlet addresses both informational privacy interests and autonomy privacy interests. Personal information is defined to include “any information that is maintained by an agency that identifies or describes an individual, including, but not limited to, his or her name, social security number, physical description, home address, home telephone number, education, financial matters, and medical or employment history … [and also] includes statements made by, or attributed to, the individual.” The California Supreme Court noted that the ballot argument addressed how “[c]omputerization of records makes it possible to create cradle-to-grave profiles of every American. At present there are no effective restraints on the information activities of government and business. This amendment creates a legal and enforceable right of privacy for every Californian. Informational privacy also protects the individual from misuse of sensitive and confidential information, and the drafters of the Ballot Pamphlet addressed the individual’s ability to control the accuracy of the information collected about them:
Often we do not know that these records even exist and we are certainly unable to determine who has access to them. Even more dangerous is the loss of control over the accuracy of government and business records of individuals. Obviously if the person is unaware of the record, he or she cannot review the file and correct inevitable mistakes … [T]he average citizen … does not have control over what information is collected about him.
The Privacy Amendment explicitly guaranteeing privacy rights for the individual creates a way for individuals to regain some control over how their personal information is collected and used, the accuracy of that information, and who has access to that personal information.
In Perkey v. Department of Motor Vehicles the California Supreme Court found that a statute requiring all individuals to submit their fingerprints to the DMV, as a condition of the issuance of drivers’ licenses, violated the state constitutional right to privacy. Fingerprints and fingerprint files are “personal information” within the meaning of the Privacy Amendment of the California Constitution, because fingerprints fall within “the category of information that identifies or describes an individual.” Furthermore, there was evidence of unrestricted use of the DMV’s fingerprint files by numerous entities who did not have a “right to know,” such as government agencies and private parties who were acquiring information on anti-nuclear activists, to identify individuals without their knowledge or consent. Thus the California Supreme Court found that the collection and retention of fingerprints for such “unspecified and widespread usage flagrantly disregards the purpose of protecting confidential information,” that the individual privacy interests outweighed the State’s interests in road and traffic safety, and that any other interpretation of the statute, which would permit the DMV to freely disseminate its fingerprint files to all interested parties “would raise serious concerns under the state constitutional right of privacy.”
In White v. Davis, the California Supreme Court applied the Privacy Amendment to ongoing police surveillance of students and professors in a university community. Police officers, posing as students, enrolled at UCLA and engaged in covert recording of class discussions, compiling police dossiers, and filing “intelligence” reports, so that the police would have “records” on the professors and students. The undercover agents also joined university-recognized organizations, attended public and private meetings of the organizations and made reports on discussions at the meetings. The police reports “pertained to no illegal activity or acts.” The California Supreme Court found that although the Privacy Amendment “does not purport to invalidate all such information gathering, it does require that the government establish a compelling justification for such conduct.” This practice of police surveillance violated the California constitutional guarantees of privacy, because it constituted “government snooping to the extreme.”
The California courts have found that language in the ballot argument also addresses autonomy privacy. Autonomy privacy includes “interests in making intimate personal decisions or conducting activities without observation, intrusion or interference.” The Ballot Pamphlet in favor of the Privacy Amendment states, "The right to privacy is the right to be left alone. It “protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with people we choose … and control over circulation of our personal information “is essential to social relationships and personal freedom.”
Two California Court of Appeal cases addressed the issue of state constitutional autonomy privacy rights in the context of the media invading the private premises of the individual for the purpose of newsgathering. In Miller v. NBC the media entered the plaintiff’s and decedent’s home, without their consent, to document the life-saving techniques administered by the paramedics who were called to the scene when the decedent suffered a heart attack. The plaintiff was flipping through the channels one night when the broadcast of the paramedics trying to save her husband’s life appeared on the televeision, and she found herself reliving the incident all over again. The Court of Appeal found that the “plaintiff’s physical solitude and home [were] wrongfully invaded by her viewing … [the] telecasts, and [she] received numerous telephone calls about the telecast, all of which … resulted in the disruption [of her] life and the peace and tranquility of her mind.”
The Court of Appeal found that public education about life-saving techniques is within the purview of First Amendment, however, that right extends only to documenting public information as part of the “public’s right to know.” This prohibition from the media’s unauthorized entry into the private premises of individuals would not have a “chilling effect” on news gathering, and that the plaintiff’s right to be left alone was greater than the media’s First Amendment rights in this context.
In Shulman v. Group W Productions, the plaintiff claimed that her state constitutional privacy rights had been violated when the defendant recorded and broadcasted the rescue efforts of the plaintiff at the accident scene and while riding to the hospital in a rescue helicopter, after she had been involved in an automobile accident. The Court of Appeal found that the plaintiff did not have a state constitutional privacy claim as to the filming at the accident scene, because this was a public place; however, the plaintiff had a reasonable expectation of privacy inside the helicopter. Following Miller v. NBC, the Court of Appeal found that the helicopter was like the home or any other private place, and that “it is neither custom nor habit of our society that any member or the public at large or its media representatives may hitch a ride in an ambulance and ogle as paramedics care for an injured stranger.”
Drug Testing and the Privacy Amendment
The first landmark California Supreme Court case applying the Privacy Amendment to private entities was in the context of drug testing by direct, monitored observation of urinalysis of college athletes by the NCAA. The NCAA drug testing program implicated both categories of privacy interests; autonomy privacy and informational privacy. The drug testing program provided the NCAA with “information about the internal medical state of an athlete’s body that is regarded as personal and confidential, and the athletes also provide information about the medications they are currently taking.” The testing intruded upon a student’s autonomy privacy interests where it required the athletes to provide a urine sample in a monitored setting, because “this is a function that is recognized by law and social custom as a private bodily function that is generally performed without observers, which embarrasses the individual.”
Although the drug testing program constituted a serous invasion into the athlete’s reasonable expectation of privacy, the athlete’s expectations were diminished. The athlete had a diminished expectation of privacy over her personal information.
Athletes exchange information about their physical condition and medical treatment with coaches, trainers, and others who have a ‘need to know, …. [and] are subject to required physical examinations (including urinalysis), and special regulation of sleep habits, diet, fitness, and other activities that intrude significantly on privacy interests [which are] routine aspects of a college athlete’s life not shared by the rest of the student body.
The Hill Court found that the athlete’s autonomy privacy interests were diminished because “private urination must be viewed within the context of intercollegiate athletic activity and the normal conditions under which it is undertaken, …[including] elements of communal undress, sharing locker rooms, and the central role of physical examinations in athletic training and evaluation.”
The NCAA did not need to establish a compelling interest in justifying the serious invasion into the privacy rights of the athletes because the athletes had a diminished expectation of privacy, and because the NCAA was a private entity rather than a governmental entity. Instead, the NCAA only needed to establish a legitimate, countervailing interest. The NCAA’s highly intrusive drug testing program was constitutionally valid based on the NCAA’s two legitimate interests, (1) safeguarding the integrity of intercollegiate athletic competition; and (2) protecting the health and safety of student athletes. The California Supreme Court found that “direct monitoring was necessary to accomplish accurate testing,” because the students could alter or substitute their urine samples in order to avoid a positive test under unsupervised drug testing conditions.
In light of the student athlete’s diminished expectations of privacy, the NCAA’s countervailing interests were legitimately furthered by the drug testing program. In validating the NCAA’s drug testing program the California Supreme Court expressly stated that it did not decide the issue of the constitutionality of random drug testing in the employment context.
Drug Testing in the Employment Context
The California Privacy Amendment protects existing employees from random, monitored drug testing in both the private and public employment context, so long as there is no sufficient nexus between the employee’s job duties and safety. The Privacy Amendment does not give much protection to job applicants who are required to submit to a drug test as a condition of their employment, in conjunction with a preemployment medical examination. California courts have not addressed the issue of whether drug testing of job applicants as a condition of employment is constitutional under the Privacy Amendment if the drug test is not implemented in conjunction with preemployment medical screening.
In Loder v.City of Glendale the California Supreme Court found that the city’s random drug testing under monitored conditions in the employment context as applied to job applicants did not violate the Privacy Amendment of the state constitution. The Loder Court did not need to address the issue of whether the random drug testing of existing employees seeking promotion violated the state constitution, because it found the city’s random drug testing program of existing employees violated the Fourth Amendment of the United States Constitution.
The California Supreme Court looked to United States Supreme Court precedent on the issue of the constitutionality of random drug tests, because the employer was a state actor. The Loder Court found that “urinalysis testing constitutes a ‘search’ for Fourth Amendment purposes, thus, the city’s drug testing program is constitutionally permissible only if the program satisfies the reasonableness requirement of the Fourth Amendment as established by the United States Supreme Court. Federal court precedent established that “it is not constitutionally ‘reasonable’ under the Fourth Amendment for a governmental employer to conduct suspicionless urinalysis drug testing of all current public employees seeking promotion, regardless of the nature or duties of the position at issue.”
The California Supreme Court found that “in the preemployment context, unlike the prepromotional context, [random] drug testing is reasonable, and hence constitutionally permissible under the Fourth Amendment.” Unlike existing employees, “when deciding whether to hire a job applicant, … an employer has not had a[n] … opportunity to observe the applicant over a period of time, … and an employer [might reasonably] lack total confidence in the reliability of information supplied by a former employer or other references.” The job applicant had a diminished expectation of privacy because the monitored drug testing was conducted as part of a preemployment medical examination, which involves a lesser intrusion on reasonable expectations of privacy than does testing conducted independently of such [preemployment medical] examination. Thus, the applicant’s diminished privacy expectations were outweighed by the employer’s countervailing interests, and although a search, the random preemployment drug testing as a condition of employment was constitutionally reasonable under the Fourth Amendment of the United States Constitution.
The drug testing of job applicants next had to pass state constitutional scrutiny. The California Supreme Court agreed with Hill and found that:
[T]he city’s drug testing program … implicates privacy interests protected by the state constitution … because it requires individuals to provide urine samples under monitored conditions, it authorizes the administering entity to test the sample in order to acquire information concerning the internal state of the individual’s body, and it requires an individual to disclose medications that she is currently taking, … [thus it] clearly intrudes upon both autonomy privacy interests and informational privacy interests that are protected by the state constitution.
The Loder Court found that because the drug testing was part of a required preemployment medical examination which typically includes urinalysis for medical conditions or diseases, “the testing does not impose the usual intrusion on privacy that results when an individual is required to provide a separate urine sample on demand.” Thus, a compelling interest was not required; the employer need only establish that it had a legitimate interest in conducting the preemployment drug testing, and that the drug testing reasonably furthered that interest.
The Loder Court found that the employer had a legitimate interest in employee absenteeism, safety concerns, tardiness, reduced productivity, and increased risk of turnover, which is “typically posed by an employee who abuses drugs or alcohol.” The Loder Court found that the city’s drug testing program furthered the public employer’s legitimate interests and those interests outweighed the job applicant’s diminished privacy expectations, thus the drug testing program as applied to job applicants did not violate the Privacy Amendment of the state constitution.
In Wilkinson v. Times Mirror Corporation the California Court of Appeal found that the state constitution “is not violated when a private employer asks private job applicants to consent to urinalysis drug tests as a condition of employment if: (1) notice is provided to prospective employees, (2) there is limited intrusion in the collection process, and (3) the procedural safeguards restricting access to the test results are met.” Private actors, unlike state actors, are not subject to Fourth Amendment prohibitions, but analysis of the Fourth Amendment of the United States constitution provides the foundation for determining whether an individual’s privacy rights have been violated in the private employment context.
The Wilkinson court found that the private employer is not required to establish a compelling interest and the private employer’s conduct need only be reasonable if “the challenged conduct has some impact on the right of privacy, as long as that right is not substantially burdened or affected.” In this case, the private employer’s mandatory drug testing program did not “substantially burden” the plaintiffs’ right of privacy because the plaintiffs were merely applicants for employment, they were asked to voluntarily disclose their personal information which might be revealed by drug testing as a condition of their employment and because the drug testing was part of a preemployment medical examination. The Court of Appeal found that these job applicants “have a choice; they may consent to the drug test or they may decline the test and the conditional offer of employment and seek employment elsewhere.” Like public employers, private employers have a legitimate interest in a drug and alcohol free workplace.
The private employer satisfied the notice requirement in this case, because “successful applicants who receive a conditional offer of employment are informed that their employment is contingent upon taking and passing a drug test.” There was limited intrusion into the collection process in this case because “all job applicants were subject to a preemployment physical examination conducted by medical personnel under conditions designed to minimize the intrusiveness of the procedure and restrict access to the test results.” The California Court of Appeal found that several factors minimized the intrusiveness of the drug screening program:
There was no direct monitoring of the employee, and the testing was done in a medical environment rather than by employer personnel. [N]o pregnancy tests are conducted, medical history and other information provided by the applicants and the results of the urinalysis are confidential, and none of the information provided by the applicant’s medical history is revealed to the private employer; instead [the employer] is informed only of the applicant’s numerical rating on a scale of one to five, with five meaning that the applicant is not recommended for employment. A rating of five does not mean that the applicant had a positive drug test, and any applicant who receives a rating of five is entitled to know which portion of the test she failed and to challenge the results if she feels that the rating is erroneous.
In Luck v. Southern Pacific Transportation Company, the plaintiff, a computer programmer was fired by Southern Pacific Transportation Company, a private employer, when she refused to submit a urine sample as part of an unannounced, random drug test by her employer, even though company officials told the plaintiff that they had no reason to believe she was impaired in her job performance when they asked her to submit to the drug test. Unlike Wilkinson, a compelling interest was required in this case, rather than a reasonableness test, because the plaintiff was an existing employee and the plaintiff was terminated from employment for refusing to submit to the drug test. Furthermore, the existing employee’s choices are more limited than a job applicant’s. This case can also be distinguished from Wilkinson, because the Luck employee was not given notice that she would be subject to random drug tests.
Referring to federal precedent to determine whether an employer has a compelling interest in safety warranting drug testing of existing employees, the Luck court found that this plaintiff’s work did not involve the same kinds of safety issues satisfying the compelling interest requirement as illustrated by federal court precedent. The Luck court found that before random drug testing of existing employees is justified, federal court precedent requires “a clear, direct nexus between employee duties and the nature of the feared harm, and a compelling reason to expect drug use will result in misplaced sympathies for responsibilities.” The defendant’s interest in railroad safety did not justify the invasion into plaintiff’s privacy, because the plaintiff’s job was not safety-related; she was not a railroad operating employee nor did she work on or around rail rolling stock. The Luck court also found that federal courts have also “refused to find safety as a compelling interest justifying urinalysis drug testing of criminal prosecutors and Justice Department employees with access to grand jury proceedings,” and federal courts have “questioned the propriety of random drug testing of secretaries, engineering technicians, research biologists, and animal caretakers who work in chemical and nuclear safety facilities.”
Although the defendant may have a compelling interest in the safety of its railroad operations there was “no sufficient nexus between random drug testing of employees like the plaintiff in furthering that interest.” The defendant suggested only “indirect, potential safety ramifications that might result from an imprudent decision that an employee working as the plaintiff in this case might make if her judgment was impaired by drugs.” The defendant also asserted nonsafety interests such as “deterrence, efficiency, competence, a drug-free work environment, enforcing rules against drug use, and ensuring public confidence in the integrity of the railroad industry,” but the California Court of Appeal affirmed the trial court’s determination that none of the defendant’s nonsafety interests were compelling. The Luck Court found that the defendant’s interests could not withstand state constitutional scrutiny because the defendant could not even satisfy the Fourth Amendment ‘reasonableness’ test.”
In Semore v. Pool the California Court of Appeal held that the trial court erred in dismissing the plaintiff’s case in favor of the defendant, Kerr-McGee, a private employer, where the defendant terminated the plaintiff after he refused to submit to a pupillary eye reaction test to determine whether the plaintiff was under the influence of drugs, and where the test was conducted on a random, suspicionless basis. Although the pupillary reaction test is not as intrusive as urinalysis drug testing, the California Court of Appeal found that the plaintiff’s reasonable expectations of privacy are equivalent to those of urinalysis drug testing.
The defendants argued that the purpose of the test was to provide “individualized suspicion of drug use that would justify more intrusive drug testing such as urinalysis,” but the Court of Appeal found that this issue could not be decided on demurrer, because facts such as “the nature of the test, the equipment used, the manner of administration, its reliability, the handling of test results, and similar concerns,” are issues of fact that need to be decided at trial, as part of balancing the plaintiff’s reasonable privacy expectations against Kerr McGee’s need to regulate the conduct of its employees at work. Furthermore, issues of whether Kerr-McGee’s interest in the safe operation of its chemical plant outweigh the plaintiff’s privacy interests can not be decided on demurrer, because the court needs to determine “whether the plaintiff is within a class of employees of which random testing is justified.”
Mental Privacy and the Employment Context
In Long Beach City Employees Association v. City of Long Beach the California Supreme Court found that a public employer requiring city employees to submit to polygraph examinations as a condition of their employment “intruded upon the employees’ constitutionally protected zone of mental privacy.” The California Supreme Court found:
The polygraph was specifically designed to overcome mental privacy by compelling involuntary communication of thoughts, sentiments, and emotions which the examinee may have chosen not to reveal. The circumstances of the test were coercive, as employees were forced to divulge private information or risk losing their jobs…thus the challenged conduct in Long Beach not only substantially burdened the employee’s right of mental privacy; it effectively annulled those rights.
The government in this case has a compelling interest in preventing theft of public funds, but the California Supreme Court found that the polygraph testing was “greater than necessary … [in protecting that interest, thus] …the state must establish the unavailability of less offensive alternatives and demonstrate that the … intrusion on the cherished right of privacy is drawn with narrow specificity.”
In Privacy Amendment cases, the defendants are not required to prove that they implemented the least-intrusive alternative means of serving their countervailing interests, where [the plaintiff’s interests] … “involve (1) broad-based assertions of autonomy privacy interests (i.e. freedom of action as opposed to freedom of expression and association), [or] (2) in circumstances [where the plaintiff has a] diminished expectation of privacy.”
[L]ike the “compelling interest” standard, the argument that such a “least restrictive alternative” burden must invariably be imposed on the defendants in privacy cases derives from decisions that: (1) involve clear invasions of central, autonomy-based privacy rights, particularly in the areas of free expression and association, procreation, or government-provided benefits in areas of basic human need, or (2) are directed against the invasive conduct of government agencies rather than private, voluntary organizations.
However, “if sensitive information is gathered and feasible safeguards are slipshod or nonexistent, or if the defendant’s legitimate objectives can be readily accomplished by alternate means having little or no impact on privacy interests, the prospect of actionable invasion of privacy is enhanced.” Thus, the California Supreme Court found that less intrusive alternatives must be implemented if it better serves the purpose of preventing disclosure of personal information to those who do not have a “legitimate need to know.”
In City of Long Beach, both “alternative means factors” were present: (1) the compulsory, suspicionless polygraph testing of the city employees involved clear invasions of central, autonomy-based privacy rights (intrusion into the mental processes of the individual); and (2) the invasive conduct involved a government agency, rather than a private, voluntary organization. The California Supreme Court found that there were “alternative and less intrusive means” to furthering that compelling interest. An employer is only constitutionally permitted to ask employees questions that are “related directly and narrowly to the performance of their official duties … [and] the pretest questions asked here clearly exceed [this] limited exception.”
A similar issue was addressed when Target Stores, a private actor, required all applicants for the security officer position to undergo a psychological exam as a condition of employment. The psychological test was used to screen out emotionally unfit applicants, and included questions regarding the job applicants’ religious beliefs and sexual orientation. The tests were conducted by a consulting psychologist who rates the applicant’s results based on five traits: emotional stability, interpersonal style, addiction potential, dependability and reliability, and socialization – i.e. a tendency to follow established rules.
Plaintiffs were job applicants who argued that the test asked invasive questions that were not job-related, and violated their state constitutional rights to privacy. Expert testimony established that the tests had a 61% rate of false positives and Target officials testified that they did not believe there was a problem with the security officer employees before the psychological testing of job applicants was implemented as a hiring policy.
Target argued that the intrusion was limited and that the court should apply a reasonableness standard rather than the compelling interest test because Target was a private employer, not a public employer, and the state constitution has been interpreted to apply greater protections when a state actor is involved as opposed to a private actor. The plaintiff job applicants and the ACLU by amicus brief argued that job applicants are entitled to the compelling interest test just as existing employees are. The California Court of Appeal found that appellate court decisions predating Wilkinson applied the compelling interest test to job applicants as well as to existing employees. Thus, Target was required to justify the psychological test with a compelling interest, keeping in mind that one of the “principal mischiefs” to which the Privacy Amendment was aimed was the “overbroad collection of unnecessary information.”
Although Target does not have access to the psychological tests, the test was an “unjustifiable violation” of the individual’s state constitutional rights to privacy, because Target did not establish that its interests in employing emotionally stable persons as security officers were “compelling,” nor did these questions pose a significant nexus to Target’s asserted interest. As a result, the California Court of Appeal found that the issue of whether there was a “less-intrusive alternative means” did not need to be addressed. The California Court of Appeal then granted the plaintiff’s injunction, reasoning “absent injunctive relief, plaintiffs will be left with the choice of giving up supposedly inalienable privacy rights or foregoing the possibility of employment at Target.”
The Privacy Amendment to the California constitution is not just a mere symbolic gesture. It grants greater protections to Californians than most other state constitutions. By including privacy protections to individuals from intrusive acts by private actors, the Privacy Amendment to the California constitution can be viewed as an evolutionary adaptation to the modern technological environment. The people of California recognized that technological advancements have made it easier for people to intrude into their autonomy privacy interests, with the advent of drug and DNA testing, for example. Modern technology, such as computers and digital recording devices have also created problems for the individual who wants to keep his information from being disseminated to entities that do not have a “right to know.”
Although many states address these issues by using common law tort or by enacting statutes, California has decided to add this protection to its constitution. The people of California were motivated by the fact that they wanted to regain the right to control their personal lives, and by explicitly including “privacy” in their state constitution, no state legislation can take that right away.
THE CALIFORNIA PRIVACY AMENDMENT
On November 7, 1972, the people of California voted in favor of the “Privacy Initiative,” and became one of few states to amend their state constitutions to explicitly include “Privacy” as one of the enumerated individual rights to be protected. The amended California constitution now reads: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” There is no legislative history, other than the Ballot Pamphlet to the Privacy Initiative that reflects the intent of the people at the time the California constitution was amended to explicitly include privacy rights, thus the California courts look to the Ballot Pamphlet literature when analyzing privacy interests under the California constitution. The Ballot Pamphlet identifies four principal mischiefs at which the Privacy Amendment is directed:
(1) government snooping and secret gathering of personal information; (2) the overbroad collection and retention of unnecessary personal information by government and business interests; (3) the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party; and (4) the lack of a reasonable check on the accuracy of existing records.
California is the only state to extend state constitutional privacy protections to intrusive acts by private, nongovernmental entities, in addition to state actors. California courts have found that repeated references in the ballot argument regarding dangers to individual privacy interests from the acts of government and business is indicative of the people’s intent that the California state constitution now protects the individual from intrusive practices by both state actors and private actors. The ballot argument in favor of the Privacy Amendment states:
At present there are no effective restraints on the information activities of government and business. The right of privacy … prevents government and business interests from collecting and stockpiling unnecessary information … [E]ven more dangerous is the loss of control over the accuracy of government and business records on individuals. … [F]ew government agencies or private businesses permit individuals to review their files and correct errors. … Each time we apply for a credit card or a life insurance policy, file a tax return, interview for a job, or get a drivers’ license, a dossier is opened and an informational profile is sketched.”
Another California court noted:
Common experience makes it only too evident that personal privacy is threatened by the information-gathering capabilities and activities not just of government, but of private business as well. If the right of privacy is to exist as more than a memory or a dream, the power of both pubic and private institutions to collect and preserve data about individual citizens must be subject to constitutional control. Any expectations of privacy would indeed be illusory if only the government’s collection and retention of data were restricted.
The California Supreme Court found that there are differences between state action and private action in the context of privacy rights, warranting greater protection for state action than private action.
Government power is more pervasive than private power in basic areas of human life, posing greater dangers to the freedom of the citizenry. The government not only has the ability to affect more than a limited sector of the populace through its actions, it has both economic power, in the form of taxes, grants, and control over social welfare programs, and physical power, through law enforcement agencies, which are capable of coercion far beyond that of the most powerful private actors.
The California Supreme Court also reasoned that private conduct, particularly the activities of voluntary associations of persons, “carries its own mantle of constitutional protection in the form of freedom of association, which was recognized by the drafters of the Privacy Initiative.” Thus, private actors, unlike state actors, also have privacy rights guaranteed by the Privacy Amendment to the California constitution. Private actors have the freedom to choose with whom to associate, freedom to choose whom to hire or with whom to do business, which means that private actors can reasonably intrude into the private lives of individuals in some areas where state actors are forbidden. In terms of relaxing constitutional scrutiny for private actors, the California Supreme Court stated, "Judicial assessment of the relative strength and importance of privacy norms and countervailing interests may differ in cases of private, as opposed to government, action. Private entities pursue private ends and interests, not those of government. If every private organization had to establish a ‘compelling public interest’ or ‘compelling state interest’ to justify any activity that had an impact on individual privacy, it would fail to do so in most, if not all, conceivable cases.”
The California Supreme Court established two different types of private actors, one which might subject the private actor to a heightened constitutional scrutiny similar to that of a state actor, and the other with a more relaxed constitutional scrutiny. First, if a private actor functions more like a monopoly, or if it “controls access to a vitally necessary item, it may have a correspondingly greater impact on privacy rights of those with whom it deals.” Second, if the individual is “able to choose freely among competing public or private entities in obtaining access to some opportunity, commodity, or service, his or her privacy interest [may] weigh less in the balance.
The Privacy Amendment Test
The California Supreme Court established a three-pronged test for determining whether there has been a violation of the state constitutional right to privacy. First, the plaintiff must satisfy the three elements to establish a prima facie cause of action for invasion of privacy which include: “(1) a specific, legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by the defendant constituting a serious invasion of privacy.” Second, after the plaintiff establishes her prima facie case, the burden shifts to the defendant to either disprove any one of the three elements of the Plaintiff’s prima facie case, or establish that its invasive conduct is justified because it substantially furthers one or more countervailing interests, and that countervailing interest is greater than the plaintiff’s privacy interest. Third, once the defendant proves that the invasion is justified, the plaintiff may establish that there are less intrusive alternatives to furthering the defendant’s countervailing interests.
Although the Ballot Pamphlet states that a compelling interest is required before the intrusive acts of a state or private entity are constitutionally permissible, California courts have declined to require that the defendant establish a compelling interest in every situation. In some situations, the intruding act may be permissible if the state or private entity merely has a “legitimate interest” that outweighs the individual privacy interests. The California Supreme Court in Hill v. NCAA found that not every assertion of a privacy interest under article I, §1 of the California constitution must be overcome by a compelling interest, because “neither the language nor the history of the Privacy Initiative unambiguously supports such a requirement, [and] in view of the far-reaching and multifaceted character of the right to privacy, [a compelling interest standard] imports an impermissible inflexibility into the process of constitutional adjudication.” When determining whether a compelling interest is required, the California Supreme Court in Hill v. NCAA found that [t]he particular context, i.e., the specific kind of privacy interest involved and the nature and seriousness of the invasion and countervailing interests, remains the critical factor in the analysis [of whether a compelling interest must be established by the defendant]. Where the case involves an obvious invasion of an interest to personal autonomy, e.g. freedom from involuntary sterilization or the freedom to pursue consensual familial relationships, a ‘compelling interest’ must be present to overcome the privacy interest. If, in contrast, the privacy interest is less central, or in bona fide dispute, general balancing tests are employed.”
Informational Privacy and Autonomy Privacy
The Ballot Pamphlet addresses both informational privacy interests and autonomy privacy interests. Personal information is defined to include “any information that is maintained by an agency that identifies or describes an individual, including, but not limited to, his or her name, social security number, physical description, home address, home telephone number, education, financial matters, and medical or employment history … [and also] includes statements made by, or attributed to, the individual.” The California Supreme Court noted that the ballot argument addressed how “[c]omputerization of records makes it possible to create cradle-to-grave profiles of every American. At present there are no effective restraints on the information activities of government and business. This amendment creates a legal and enforceable right of privacy for every Californian. Informational privacy also protects the individual from misuse of sensitive and confidential information, and the drafters of the Ballot Pamphlet addressed the individual’s ability to control the accuracy of the information collected about them:
Often we do not know that these records even exist and we are certainly unable to determine who has access to them. Even more dangerous is the loss of control over the accuracy of government and business records of individuals. Obviously if the person is unaware of the record, he or she cannot review the file and correct inevitable mistakes … [T]he average citizen … does not have control over what information is collected about him.
The Privacy Amendment explicitly guaranteeing privacy rights for the individual creates a way for individuals to regain some control over how their personal information is collected and used, the accuracy of that information, and who has access to that personal information.
In Perkey v. Department of Motor Vehicles the California Supreme Court found that a statute requiring all individuals to submit their fingerprints to the DMV, as a condition of the issuance of drivers’ licenses, violated the state constitutional right to privacy. Fingerprints and fingerprint files are “personal information” within the meaning of the Privacy Amendment of the California Constitution, because fingerprints fall within “the category of information that identifies or describes an individual.” Furthermore, there was evidence of unrestricted use of the DMV’s fingerprint files by numerous entities who did not have a “right to know,” such as government agencies and private parties who were acquiring information on anti-nuclear activists, to identify individuals without their knowledge or consent. Thus the California Supreme Court found that the collection and retention of fingerprints for such “unspecified and widespread usage flagrantly disregards the purpose of protecting confidential information,” that the individual privacy interests outweighed the State’s interests in road and traffic safety, and that any other interpretation of the statute, which would permit the DMV to freely disseminate its fingerprint files to all interested parties “would raise serious concerns under the state constitutional right of privacy.”
In White v. Davis, the California Supreme Court applied the Privacy Amendment to ongoing police surveillance of students and professors in a university community. Police officers, posing as students, enrolled at UCLA and engaged in covert recording of class discussions, compiling police dossiers, and filing “intelligence” reports, so that the police would have “records” on the professors and students. The undercover agents also joined university-recognized organizations, attended public and private meetings of the organizations and made reports on discussions at the meetings. The police reports “pertained to no illegal activity or acts.” The California Supreme Court found that although the Privacy Amendment “does not purport to invalidate all such information gathering, it does require that the government establish a compelling justification for such conduct.” This practice of police surveillance violated the California constitutional guarantees of privacy, because it constituted “government snooping to the extreme.”
The California courts have found that language in the ballot argument also addresses autonomy privacy. Autonomy privacy includes “interests in making intimate personal decisions or conducting activities without observation, intrusion or interference.” The Ballot Pamphlet in favor of the Privacy Amendment states, "The right to privacy is the right to be left alone. It “protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with people we choose … and control over circulation of our personal information “is essential to social relationships and personal freedom.”
Two California Court of Appeal cases addressed the issue of state constitutional autonomy privacy rights in the context of the media invading the private premises of the individual for the purpose of newsgathering. In Miller v. NBC the media entered the plaintiff’s and decedent’s home, without their consent, to document the life-saving techniques administered by the paramedics who were called to the scene when the decedent suffered a heart attack. The plaintiff was flipping through the channels one night when the broadcast of the paramedics trying to save her husband’s life appeared on the televeision, and she found herself reliving the incident all over again. The Court of Appeal found that the “plaintiff’s physical solitude and home [were] wrongfully invaded by her viewing … [the] telecasts, and [she] received numerous telephone calls about the telecast, all of which … resulted in the disruption [of her] life and the peace and tranquility of her mind.”
The Court of Appeal found that public education about life-saving techniques is within the purview of First Amendment, however, that right extends only to documenting public information as part of the “public’s right to know.” This prohibition from the media’s unauthorized entry into the private premises of individuals would not have a “chilling effect” on news gathering, and that the plaintiff’s right to be left alone was greater than the media’s First Amendment rights in this context.
In Shulman v. Group W Productions, the plaintiff claimed that her state constitutional privacy rights had been violated when the defendant recorded and broadcasted the rescue efforts of the plaintiff at the accident scene and while riding to the hospital in a rescue helicopter, after she had been involved in an automobile accident. The Court of Appeal found that the plaintiff did not have a state constitutional privacy claim as to the filming at the accident scene, because this was a public place; however, the plaintiff had a reasonable expectation of privacy inside the helicopter. Following Miller v. NBC, the Court of Appeal found that the helicopter was like the home or any other private place, and that “it is neither custom nor habit of our society that any member or the public at large or its media representatives may hitch a ride in an ambulance and ogle as paramedics care for an injured stranger.”
Drug Testing and the Privacy Amendment
The first landmark California Supreme Court case applying the Privacy Amendment to private entities was in the context of drug testing by direct, monitored observation of urinalysis of college athletes by the NCAA. The NCAA drug testing program implicated both categories of privacy interests; autonomy privacy and informational privacy. The drug testing program provided the NCAA with “information about the internal medical state of an athlete’s body that is regarded as personal and confidential, and the athletes also provide information about the medications they are currently taking.” The testing intruded upon a student’s autonomy privacy interests where it required the athletes to provide a urine sample in a monitored setting, because “this is a function that is recognized by law and social custom as a private bodily function that is generally performed without observers, which embarrasses the individual.”
Although the drug testing program constituted a serous invasion into the athlete’s reasonable expectation of privacy, the athlete’s expectations were diminished. The athlete had a diminished expectation of privacy over her personal information.
Athletes exchange information about their physical condition and medical treatment with coaches, trainers, and others who have a ‘need to know, …. [and] are subject to required physical examinations (including urinalysis), and special regulation of sleep habits, diet, fitness, and other activities that intrude significantly on privacy interests [which are] routine aspects of a college athlete’s life not shared by the rest of the student body.
The Hill Court found that the athlete’s autonomy privacy interests were diminished because “private urination must be viewed within the context of intercollegiate athletic activity and the normal conditions under which it is undertaken, …[including] elements of communal undress, sharing locker rooms, and the central role of physical examinations in athletic training and evaluation.”
The NCAA did not need to establish a compelling interest in justifying the serious invasion into the privacy rights of the athletes because the athletes had a diminished expectation of privacy, and because the NCAA was a private entity rather than a governmental entity. Instead, the NCAA only needed to establish a legitimate, countervailing interest. The NCAA’s highly intrusive drug testing program was constitutionally valid based on the NCAA’s two legitimate interests, (1) safeguarding the integrity of intercollegiate athletic competition; and (2) protecting the health and safety of student athletes. The California Supreme Court found that “direct monitoring was necessary to accomplish accurate testing,” because the students could alter or substitute their urine samples in order to avoid a positive test under unsupervised drug testing conditions.
In light of the student athlete’s diminished expectations of privacy, the NCAA’s countervailing interests were legitimately furthered by the drug testing program. In validating the NCAA’s drug testing program the California Supreme Court expressly stated that it did not decide the issue of the constitutionality of random drug testing in the employment context.
Drug Testing in the Employment Context
The California Privacy Amendment protects existing employees from random, monitored drug testing in both the private and public employment context, so long as there is no sufficient nexus between the employee’s job duties and safety. The Privacy Amendment does not give much protection to job applicants who are required to submit to a drug test as a condition of their employment, in conjunction with a preemployment medical examination. California courts have not addressed the issue of whether drug testing of job applicants as a condition of employment is constitutional under the Privacy Amendment if the drug test is not implemented in conjunction with preemployment medical screening.
In Loder v.City of Glendale the California Supreme Court found that the city’s random drug testing under monitored conditions in the employment context as applied to job applicants did not violate the Privacy Amendment of the state constitution. The Loder Court did not need to address the issue of whether the random drug testing of existing employees seeking promotion violated the state constitution, because it found the city’s random drug testing program of existing employees violated the Fourth Amendment of the United States Constitution.
The California Supreme Court looked to United States Supreme Court precedent on the issue of the constitutionality of random drug tests, because the employer was a state actor. The Loder Court found that “urinalysis testing constitutes a ‘search’ for Fourth Amendment purposes, thus, the city’s drug testing program is constitutionally permissible only if the program satisfies the reasonableness requirement of the Fourth Amendment as established by the United States Supreme Court. Federal court precedent established that “it is not constitutionally ‘reasonable’ under the Fourth Amendment for a governmental employer to conduct suspicionless urinalysis drug testing of all current public employees seeking promotion, regardless of the nature or duties of the position at issue.”
The California Supreme Court found that “in the preemployment context, unlike the prepromotional context, [random] drug testing is reasonable, and hence constitutionally permissible under the Fourth Amendment.” Unlike existing employees, “when deciding whether to hire a job applicant, … an employer has not had a[n] … opportunity to observe the applicant over a period of time, … and an employer [might reasonably] lack total confidence in the reliability of information supplied by a former employer or other references.” The job applicant had a diminished expectation of privacy because the monitored drug testing was conducted as part of a preemployment medical examination, which involves a lesser intrusion on reasonable expectations of privacy than does testing conducted independently of such [preemployment medical] examination. Thus, the applicant’s diminished privacy expectations were outweighed by the employer’s countervailing interests, and although a search, the random preemployment drug testing as a condition of employment was constitutionally reasonable under the Fourth Amendment of the United States Constitution.
The drug testing of job applicants next had to pass state constitutional scrutiny. The California Supreme Court agreed with Hill and found that:
[T]he city’s drug testing program … implicates privacy interests protected by the state constitution … because it requires individuals to provide urine samples under monitored conditions, it authorizes the administering entity to test the sample in order to acquire information concerning the internal state of the individual’s body, and it requires an individual to disclose medications that she is currently taking, … [thus it] clearly intrudes upon both autonomy privacy interests and informational privacy interests that are protected by the state constitution.
The Loder Court found that because the drug testing was part of a required preemployment medical examination which typically includes urinalysis for medical conditions or diseases, “the testing does not impose the usual intrusion on privacy that results when an individual is required to provide a separate urine sample on demand.” Thus, a compelling interest was not required; the employer need only establish that it had a legitimate interest in conducting the preemployment drug testing, and that the drug testing reasonably furthered that interest.
The Loder Court found that the employer had a legitimate interest in employee absenteeism, safety concerns, tardiness, reduced productivity, and increased risk of turnover, which is “typically posed by an employee who abuses drugs or alcohol.” The Loder Court found that the city’s drug testing program furthered the public employer’s legitimate interests and those interests outweighed the job applicant’s diminished privacy expectations, thus the drug testing program as applied to job applicants did not violate the Privacy Amendment of the state constitution.
In Wilkinson v. Times Mirror Corporation the California Court of Appeal found that the state constitution “is not violated when a private employer asks private job applicants to consent to urinalysis drug tests as a condition of employment if: (1) notice is provided to prospective employees, (2) there is limited intrusion in the collection process, and (3) the procedural safeguards restricting access to the test results are met.” Private actors, unlike state actors, are not subject to Fourth Amendment prohibitions, but analysis of the Fourth Amendment of the United States constitution provides the foundation for determining whether an individual’s privacy rights have been violated in the private employment context.
The Wilkinson court found that the private employer is not required to establish a compelling interest and the private employer’s conduct need only be reasonable if “the challenged conduct has some impact on the right of privacy, as long as that right is not substantially burdened or affected.” In this case, the private employer’s mandatory drug testing program did not “substantially burden” the plaintiffs’ right of privacy because the plaintiffs were merely applicants for employment, they were asked to voluntarily disclose their personal information which might be revealed by drug testing as a condition of their employment and because the drug testing was part of a preemployment medical examination. The Court of Appeal found that these job applicants “have a choice; they may consent to the drug test or they may decline the test and the conditional offer of employment and seek employment elsewhere.” Like public employers, private employers have a legitimate interest in a drug and alcohol free workplace.
The private employer satisfied the notice requirement in this case, because “successful applicants who receive a conditional offer of employment are informed that their employment is contingent upon taking and passing a drug test.” There was limited intrusion into the collection process in this case because “all job applicants were subject to a preemployment physical examination conducted by medical personnel under conditions designed to minimize the intrusiveness of the procedure and restrict access to the test results.” The California Court of Appeal found that several factors minimized the intrusiveness of the drug screening program:
There was no direct monitoring of the employee, and the testing was done in a medical environment rather than by employer personnel. [N]o pregnancy tests are conducted, medical history and other information provided by the applicants and the results of the urinalysis are confidential, and none of the information provided by the applicant’s medical history is revealed to the private employer; instead [the employer] is informed only of the applicant’s numerical rating on a scale of one to five, with five meaning that the applicant is not recommended for employment. A rating of five does not mean that the applicant had a positive drug test, and any applicant who receives a rating of five is entitled to know which portion of the test she failed and to challenge the results if she feels that the rating is erroneous.
In Luck v. Southern Pacific Transportation Company, the plaintiff, a computer programmer was fired by Southern Pacific Transportation Company, a private employer, when she refused to submit a urine sample as part of an unannounced, random drug test by her employer, even though company officials told the plaintiff that they had no reason to believe she was impaired in her job performance when they asked her to submit to the drug test. Unlike Wilkinson, a compelling interest was required in this case, rather than a reasonableness test, because the plaintiff was an existing employee and the plaintiff was terminated from employment for refusing to submit to the drug test. Furthermore, the existing employee’s choices are more limited than a job applicant’s. This case can also be distinguished from Wilkinson, because the Luck employee was not given notice that she would be subject to random drug tests.
Referring to federal precedent to determine whether an employer has a compelling interest in safety warranting drug testing of existing employees, the Luck court found that this plaintiff’s work did not involve the same kinds of safety issues satisfying the compelling interest requirement as illustrated by federal court precedent. The Luck court found that before random drug testing of existing employees is justified, federal court precedent requires “a clear, direct nexus between employee duties and the nature of the feared harm, and a compelling reason to expect drug use will result in misplaced sympathies for responsibilities.” The defendant’s interest in railroad safety did not justify the invasion into plaintiff’s privacy, because the plaintiff’s job was not safety-related; she was not a railroad operating employee nor did she work on or around rail rolling stock. The Luck court also found that federal courts have also “refused to find safety as a compelling interest justifying urinalysis drug testing of criminal prosecutors and Justice Department employees with access to grand jury proceedings,” and federal courts have “questioned the propriety of random drug testing of secretaries, engineering technicians, research biologists, and animal caretakers who work in chemical and nuclear safety facilities.”
Although the defendant may have a compelling interest in the safety of its railroad operations there was “no sufficient nexus between random drug testing of employees like the plaintiff in furthering that interest.” The defendant suggested only “indirect, potential safety ramifications that might result from an imprudent decision that an employee working as the plaintiff in this case might make if her judgment was impaired by drugs.” The defendant also asserted nonsafety interests such as “deterrence, efficiency, competence, a drug-free work environment, enforcing rules against drug use, and ensuring public confidence in the integrity of the railroad industry,” but the California Court of Appeal affirmed the trial court’s determination that none of the defendant’s nonsafety interests were compelling. The Luck Court found that the defendant’s interests could not withstand state constitutional scrutiny because the defendant could not even satisfy the Fourth Amendment ‘reasonableness’ test.”
In Semore v. Pool the California Court of Appeal held that the trial court erred in dismissing the plaintiff’s case in favor of the defendant, Kerr-McGee, a private employer, where the defendant terminated the plaintiff after he refused to submit to a pupillary eye reaction test to determine whether the plaintiff was under the influence of drugs, and where the test was conducted on a random, suspicionless basis. Although the pupillary reaction test is not as intrusive as urinalysis drug testing, the California Court of Appeal found that the plaintiff’s reasonable expectations of privacy are equivalent to those of urinalysis drug testing.
The defendants argued that the purpose of the test was to provide “individualized suspicion of drug use that would justify more intrusive drug testing such as urinalysis,” but the Court of Appeal found that this issue could not be decided on demurrer, because facts such as “the nature of the test, the equipment used, the manner of administration, its reliability, the handling of test results, and similar concerns,” are issues of fact that need to be decided at trial, as part of balancing the plaintiff’s reasonable privacy expectations against Kerr McGee’s need to regulate the conduct of its employees at work. Furthermore, issues of whether Kerr-McGee’s interest in the safe operation of its chemical plant outweigh the plaintiff’s privacy interests can not be decided on demurrer, because the court needs to determine “whether the plaintiff is within a class of employees of which random testing is justified.”
Mental Privacy and the Employment Context
In Long Beach City Employees Association v. City of Long Beach the California Supreme Court found that a public employer requiring city employees to submit to polygraph examinations as a condition of their employment “intruded upon the employees’ constitutionally protected zone of mental privacy.” The California Supreme Court found:
The polygraph was specifically designed to overcome mental privacy by compelling involuntary communication of thoughts, sentiments, and emotions which the examinee may have chosen not to reveal. The circumstances of the test were coercive, as employees were forced to divulge private information or risk losing their jobs…thus the challenged conduct in Long Beach not only substantially burdened the employee’s right of mental privacy; it effectively annulled those rights.
The government in this case has a compelling interest in preventing theft of public funds, but the California Supreme Court found that the polygraph testing was “greater than necessary … [in protecting that interest, thus] …the state must establish the unavailability of less offensive alternatives and demonstrate that the … intrusion on the cherished right of privacy is drawn with narrow specificity.”
In Privacy Amendment cases, the defendants are not required to prove that they implemented the least-intrusive alternative means of serving their countervailing interests, where [the plaintiff’s interests] … “involve (1) broad-based assertions of autonomy privacy interests (i.e. freedom of action as opposed to freedom of expression and association), [or] (2) in circumstances [where the plaintiff has a] diminished expectation of privacy.”
[L]ike the “compelling interest” standard, the argument that such a “least restrictive alternative” burden must invariably be imposed on the defendants in privacy cases derives from decisions that: (1) involve clear invasions of central, autonomy-based privacy rights, particularly in the areas of free expression and association, procreation, or government-provided benefits in areas of basic human need, or (2) are directed against the invasive conduct of government agencies rather than private, voluntary organizations.
However, “if sensitive information is gathered and feasible safeguards are slipshod or nonexistent, or if the defendant’s legitimate objectives can be readily accomplished by alternate means having little or no impact on privacy interests, the prospect of actionable invasion of privacy is enhanced.” Thus, the California Supreme Court found that less intrusive alternatives must be implemented if it better serves the purpose of preventing disclosure of personal information to those who do not have a “legitimate need to know.”
In City of Long Beach, both “alternative means factors” were present: (1) the compulsory, suspicionless polygraph testing of the city employees involved clear invasions of central, autonomy-based privacy rights (intrusion into the mental processes of the individual); and (2) the invasive conduct involved a government agency, rather than a private, voluntary organization. The California Supreme Court found that there were “alternative and less intrusive means” to furthering that compelling interest. An employer is only constitutionally permitted to ask employees questions that are “related directly and narrowly to the performance of their official duties … [and] the pretest questions asked here clearly exceed [this] limited exception.”
A similar issue was addressed when Target Stores, a private actor, required all applicants for the security officer position to undergo a psychological exam as a condition of employment. The psychological test was used to screen out emotionally unfit applicants, and included questions regarding the job applicants’ religious beliefs and sexual orientation. The tests were conducted by a consulting psychologist who rates the applicant’s results based on five traits: emotional stability, interpersonal style, addiction potential, dependability and reliability, and socialization – i.e. a tendency to follow established rules.
Plaintiffs were job applicants who argued that the test asked invasive questions that were not job-related, and violated their state constitutional rights to privacy. Expert testimony established that the tests had a 61% rate of false positives and Target officials testified that they did not believe there was a problem with the security officer employees before the psychological testing of job applicants was implemented as a hiring policy.
Target argued that the intrusion was limited and that the court should apply a reasonableness standard rather than the compelling interest test because Target was a private employer, not a public employer, and the state constitution has been interpreted to apply greater protections when a state actor is involved as opposed to a private actor. The plaintiff job applicants and the ACLU by amicus brief argued that job applicants are entitled to the compelling interest test just as existing employees are. The California Court of Appeal found that appellate court decisions predating Wilkinson applied the compelling interest test to job applicants as well as to existing employees. Thus, Target was required to justify the psychological test with a compelling interest, keeping in mind that one of the “principal mischiefs” to which the Privacy Amendment was aimed was the “overbroad collection of unnecessary information.”
Although Target does not have access to the psychological tests, the test was an “unjustifiable violation” of the individual’s state constitutional rights to privacy, because Target did not establish that its interests in employing emotionally stable persons as security officers were “compelling,” nor did these questions pose a significant nexus to Target’s asserted interest. As a result, the California Court of Appeal found that the issue of whether there was a “less-intrusive alternative means” did not need to be addressed. The California Court of Appeal then granted the plaintiff’s injunction, reasoning “absent injunctive relief, plaintiffs will be left with the choice of giving up supposedly inalienable privacy rights or foregoing the possibility of employment at Target.”
The Privacy Amendment to the California constitution is not just a mere symbolic gesture. It grants greater protections to Californians than most other state constitutions. By including privacy protections to individuals from intrusive acts by private actors, the Privacy Amendment to the California constitution can be viewed as an evolutionary adaptation to the modern technological environment. The people of California recognized that technological advancements have made it easier for people to intrude into their autonomy privacy interests, with the advent of drug and DNA testing, for example. Modern technology, such as computers and digital recording devices have also created problems for the individual who wants to keep his information from being disseminated to entities that do not have a “right to know.”
Although many states address these issues by using common law tort or by enacting statutes, California has decided to add this protection to its constitution. The people of California were motivated by the fact that they wanted to regain the right to control their personal lives, and by explicitly including “privacy” in their state constitution, no state legislation can take that right away.
Wednesday, January 17, 2007
BLACK OUT
Below are two images that I "print-screened" and saved as .gif files to Paint. One can click the images for an enlarged view, where one will find in the bottom right corner of the 2 images the time when I took the two "snapshots." One is the Save The Internet website and the other is Jon Stewart's "The Daily Show" website. One will find that Save the Internet was shut down while at the same time "the Daily Show" was not. Another website that was shut down at the same time was Free Press (dot) net. Another website that was accessible (not shut down) was CNN. I thought that was fishy enough that I wanted to document it. Both Save the Internt and Free Press websites were down for at least 30 minutes.
Tuesday, January 16, 2007
books to read ASAP
Pema Chadron
Charlotte Ioko Beck
Ken wilber - No Boundaries
Thick Nhat Hanh - Being Peace, Peace is Every Step
Sharon Salzburg - Loving Kindness Meditation
Charlotte Ioko Beck
Ken wilber - No Boundaries
Thick Nhat Hanh - Being Peace, Peace is Every Step
Sharon Salzburg - Loving Kindness Meditation
Wednesday, January 10, 2007
Lucy
time goes so fast. must do this must do that. must learn to do this while doing that. it rises and falls and then rises higher again and again, and the 'board is waxed.
Sunday, January 7, 2007
USA v. SHELBY COUNTY , et al.
source: US Dept of Justice
See also this article from Salon.com
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA, Plaintiff,
v.
SHELBY COUNTY, TENNESSEE;
JIM ROUT, MAYOR OF SHELBY COUNTY;
A.C. GILLESS, SHELBY COUNTY
SHERIFF, Defendants.
COMPLAINT
THE UNITED STATES OF AMERICA alleges:
1. The Attorney General files this complaint on behalf of the United States of America pursuant to the Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. § 1997, to enjoin the named Defendants from depriving persons incarcerated in the Shelby County Jail, located in Memphis, Tennessee, of rights, privileges, or immunities secured and protected by the Constitution of the United States.
JURISDICTION AND VENUE
2. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345.
3. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 1997a.
4. The Attorney General has certified that all pre-filing requirements specified in 42 U.S.C. § 1997b have been met. The Certificate of the Attorney General is appended to this Complaint and is incorporated herein.
5. Venue in the Western District of Tennessee is proper pursuant to 28 U.S.C. § 1391.
DEFENDANTS
6. Defendant SHELBY COUNTY is a governmental subdivision created under the laws of the State of Tennessee. The SHELBY COUNTY SHERIFF'S OFFICE is a division of the Shelby County government. The County owns and operates the Shelby County Jail ("SCJ"), located in Memphis, Tennessee.
7. Defendant SHELBY COUNTY is the entity charged by the laws of the State of Tennessee with authority to maintain the SCJ and is responsible for the conditions of confinement and health and safety of persons incarcerated at SCJ.
8. Defendant MAYOR JIM ROUT is the mayor of Shelby County and serves as the chief administrator of the County government. Mayor ROUT is sued in his official capacity.
9. Defendant A.C. GILLESS is the Sheriff of Shelby County and is responsible for the day-to-day operations of SCJ. In his official capacity as Sheriff, he has the custody, control and charge of the SCJ and inmates. Sheriff GILLESS is sued in his official capacity.
10. Defendants are legally responsible, in whole or in part, for the operation of the SCJ, for the conditions there and the health and safety of persons confined or incarcerated there.
11. At all relevant times, Defendants acted or failed to act, as alleged herein, under color of state law.
FACTUAL ALLEGATIONS
12. The SCJ is an institution within the meaning of 42 U.S.C. § 1997(1).
13. Persons confined to the SCJ are primarily pre-trial detainees, including both men and women of minimum, medium, and maximum security custody, plus a varying number of juvenile detainees who have been remanded, under state law, to face criminal charges as adults, plus a number of state-convicted inmates.
14. Defendants have engaged and continue to engage in a pattern or practice of failing to protect inmates in the SCJ from undue risk of harm by (inter alia), failing to provide adequate classification and supervision of inmates; failing to provide adequate medical and mental health care; failing to provide adequate food and shelter; failing to provide sufficient access to the courts; and failing to provide sufficient access to exercise.
15. Defendants have been aware of the unlawful conditions alleged in paragraphs 14 for a substantial period of time and have failed adequately to address these conditions, despite their knowledge of the deficiencies.
VIOLATIONS ALLEGED
16. The acts and omissions alleged in paragraphs 14 and 15 violate the rights, privileges or immunities secured or protected by the Eighth and Fourteenth Amendments to the Constitution of the United States of persons confined in the SCJ.
17. Unless restrained by this Court, Defendants will continue to engage in the conduct and practices set forth in paragraphs 14 and 15 that deprives persons confined in the SCJ of their rights, privileges, or immunities secured or protected by the Eighth and Fourteenth Amendments to the Constitution of the United States, and causes them irreparable harm.
PRAYER FOR RELIEF
18. The Attorney General is authorized under 42 U.S.C. § 1997 et seq. to seek equitable and declaratory relief.
WHEREFORE, the United States prays that this Court enter an order permanently enjoining Defendants, their officers, agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts, omissions, and practices set forth in paragraphs 14 and 15 above, and that this Court require Defendants to take such actions as will ensure lawful conditions of confinement are afforded to inmates at the Shelby County Jail. The United States further prays that this Court grant such other and further equitable relief as it may deem just and proper.
Respectfully submitted,
JOHN ASHCROFT
Attorney General of the United States
TERRELL L. HARRIS
United States Attorney
Western District of Tennessee
167 N. Main Street
Memphis, TN 38103-1898
RALPH F. BOYD, JR.
Assistant Attorney General
Civil Rights Division
STEVEN H. ROSENBAUM
Chief
Special Litigation Section
MELLIE H. NELSON
Deputy Chief
MARY R. BOHAN
TAMMIE M. GREGG
Trial Attorneys
U.S. Department of Justice
Civil Rights Division
Special Litigation Section
P.O. Box 66400
Washington, D.C. 20035-6400
(202) 616-2325
CERTIFICATE OF THE ATTORNEY GENERAL
I, John Ashcroft, Attorney General of the United States, certify that with regard to the foregoing Complaint, United States v. Shelby County, et al., I have complied with all subsections of 42 U.S.C. § 1997b(a)(1). I certify as well that I have complied with all subsections of 42 U.S.C. § 1997b(a)(2). I further certify, pursuant to 42 U.S.C. § 1997b(a)(3), my belief that this action by the United States is of general public importance and will materially further the vindication of rights, privileges, or immunities secured or protected by the Constitution of the United States.
In addition, I certify that I have the "reasonable cause to believe", set forth in 42 U.S.C. § 1997a, to initiate this action. Finally, I certify that all prerequisites to the initiation of this suit under 42 U.S.C. § 1997, et seq., have been met.
Pursuant to 42 U.S.C. § 1997a(c), I have personally signed the foregoing Complaint. Pursuant to 42 U.S.C. § 1997b(b), I am personally signing this Certificate.
Signed this _____ day of _____ , 2002, at Washington, D.C.
JOHN ASHCROFT
Attorney General of the United States
See also this article from Salon.com
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA, Plaintiff,
v.
SHELBY COUNTY, TENNESSEE;
JIM ROUT, MAYOR OF SHELBY COUNTY;
A.C. GILLESS, SHELBY COUNTY
SHERIFF, Defendants.
COMPLAINT
THE UNITED STATES OF AMERICA alleges:
1. The Attorney General files this complaint on behalf of the United States of America pursuant to the Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. § 1997, to enjoin the named Defendants from depriving persons incarcerated in the Shelby County Jail, located in Memphis, Tennessee, of rights, privileges, or immunities secured and protected by the Constitution of the United States.
JURISDICTION AND VENUE
2. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345.
3. The United States is authorized to initiate this action pursuant to 42 U.S.C. § 1997a.
4. The Attorney General has certified that all pre-filing requirements specified in 42 U.S.C. § 1997b have been met. The Certificate of the Attorney General is appended to this Complaint and is incorporated herein.
5. Venue in the Western District of Tennessee is proper pursuant to 28 U.S.C. § 1391.
DEFENDANTS
6. Defendant SHELBY COUNTY is a governmental subdivision created under the laws of the State of Tennessee. The SHELBY COUNTY SHERIFF'S OFFICE is a division of the Shelby County government. The County owns and operates the Shelby County Jail ("SCJ"), located in Memphis, Tennessee.
7. Defendant SHELBY COUNTY is the entity charged by the laws of the State of Tennessee with authority to maintain the SCJ and is responsible for the conditions of confinement and health and safety of persons incarcerated at SCJ.
8. Defendant MAYOR JIM ROUT is the mayor of Shelby County and serves as the chief administrator of the County government. Mayor ROUT is sued in his official capacity.
9. Defendant A.C. GILLESS is the Sheriff of Shelby County and is responsible for the day-to-day operations of SCJ. In his official capacity as Sheriff, he has the custody, control and charge of the SCJ and inmates. Sheriff GILLESS is sued in his official capacity.
10. Defendants are legally responsible, in whole or in part, for the operation of the SCJ, for the conditions there and the health and safety of persons confined or incarcerated there.
11. At all relevant times, Defendants acted or failed to act, as alleged herein, under color of state law.
FACTUAL ALLEGATIONS
12. The SCJ is an institution within the meaning of 42 U.S.C. § 1997(1).
13. Persons confined to the SCJ are primarily pre-trial detainees, including both men and women of minimum, medium, and maximum security custody, plus a varying number of juvenile detainees who have been remanded, under state law, to face criminal charges as adults, plus a number of state-convicted inmates.
14. Defendants have engaged and continue to engage in a pattern or practice of failing to protect inmates in the SCJ from undue risk of harm by (inter alia), failing to provide adequate classification and supervision of inmates; failing to provide adequate medical and mental health care; failing to provide adequate food and shelter; failing to provide sufficient access to the courts; and failing to provide sufficient access to exercise.
15. Defendants have been aware of the unlawful conditions alleged in paragraphs 14 for a substantial period of time and have failed adequately to address these conditions, despite their knowledge of the deficiencies.
VIOLATIONS ALLEGED
16. The acts and omissions alleged in paragraphs 14 and 15 violate the rights, privileges or immunities secured or protected by the Eighth and Fourteenth Amendments to the Constitution of the United States of persons confined in the SCJ.
17. Unless restrained by this Court, Defendants will continue to engage in the conduct and practices set forth in paragraphs 14 and 15 that deprives persons confined in the SCJ of their rights, privileges, or immunities secured or protected by the Eighth and Fourteenth Amendments to the Constitution of the United States, and causes them irreparable harm.
PRAYER FOR RELIEF
18. The Attorney General is authorized under 42 U.S.C. § 1997 et seq. to seek equitable and declaratory relief.
WHEREFORE, the United States prays that this Court enter an order permanently enjoining Defendants, their officers, agents, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the acts, omissions, and practices set forth in paragraphs 14 and 15 above, and that this Court require Defendants to take such actions as will ensure lawful conditions of confinement are afforded to inmates at the Shelby County Jail. The United States further prays that this Court grant such other and further equitable relief as it may deem just and proper.
Respectfully submitted,
JOHN ASHCROFT
Attorney General of the United States
TERRELL L. HARRIS
United States Attorney
Western District of Tennessee
167 N. Main Street
Memphis, TN 38103-1898
RALPH F. BOYD, JR.
Assistant Attorney General
Civil Rights Division
STEVEN H. ROSENBAUM
Chief
Special Litigation Section
MELLIE H. NELSON
Deputy Chief
MARY R. BOHAN
TAMMIE M. GREGG
Trial Attorneys
U.S. Department of Justice
Civil Rights Division
Special Litigation Section
P.O. Box 66400
Washington, D.C. 20035-6400
(202) 616-2325
CERTIFICATE OF THE ATTORNEY GENERAL
I, John Ashcroft, Attorney General of the United States, certify that with regard to the foregoing Complaint, United States v. Shelby County, et al., I have complied with all subsections of 42 U.S.C. § 1997b(a)(1). I certify as well that I have complied with all subsections of 42 U.S.C. § 1997b(a)(2). I further certify, pursuant to 42 U.S.C. § 1997b(a)(3), my belief that this action by the United States is of general public importance and will materially further the vindication of rights, privileges, or immunities secured or protected by the Constitution of the United States.
In addition, I certify that I have the "reasonable cause to believe", set forth in 42 U.S.C. § 1997a, to initiate this action. Finally, I certify that all prerequisites to the initiation of this suit under 42 U.S.C. § 1997, et seq., have been met.
Pursuant to 42 U.S.C. § 1997a(c), I have personally signed the foregoing Complaint. Pursuant to 42 U.S.C. § 1997b(b), I am personally signing this Certificate.
Signed this _____ day of _____ , 2002, at Washington, D.C.
JOHN ASHCROFT
Attorney General of the United States
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