Tag Archive: Privacy

The Selective-Sex Abortion Ban Debate in the United States

The debate over selective-sex abortion bans remains a contentious issue in state legislatures across the country. On January 16, 2012, Republicans in the Colorado state senate proposed outlawing abortions that are performed based on the sex of the fetus. The proposed legislation defines sex-based abortion as one “undertaken for purposes of eliminating an unborn child of an undesired sex.” Similar legislation has been considered in the past decade on both the national and state level. Arizona, Oklahoma, Pennsylvania, and Illinois have passed statutes banning the procedure in recent years. In May 2012, the U.S. House of Representatives rejected the Prenatal Nondiscrimination Act (PreNDA) that would have imposed fines and prison terms on doctors who perform sex-selective abortions. In a statement opposing the legislation, Representative Diana DeGette, a Democrat from Colorado, said, “I don’t support abortion for gender selection…I don’t know anyone who does. Maybe that’s because there is no problem in this country of abortion for gender selection.”

Supporters of legislative bans on selective-sex abortions argue that there is evidence of the practice in the U.S. among certain ethnic groups from countries where there is a traditional preference for male children, most notably India and China. U.S. Congressman Christopher Smith, a co-sponsor of the PreNDA, argues that the selective-sex abortion procedure “is part of a deliberate plan of population control” and “is the real war on women.” However, critics of the PreNDA argue that conservative Republicans are targeting a non-issue and have effectually created a staw man.

The selective-sex abortion ban debate implicates some serious constitutional and policy concerns. The chief concern is that the legislation would restrict women’s access to abortion by requiring women to disclose why they are choosing abortion. Similarly, there is a concern that the legislation intrudes on a woman’s relationship with her doctor. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the U.S. Supreme Court held that regulations that place a substantial burden on a woman’s right to have an abortion are unconstitutional. Requiring women to disclose why they are choosing abortion and the imposition of fines and prison terms on doctors would likely be deemed an undue burden on abortion rights. Furthermore, critics assert that legislation could lead to racial profiling of Asian-American women. The constitutional and policy concerns certainly seem to weigh against the selective-sex abortion bans.

The EU, Google, and Personal Data Protections

The European Union (EU) has expressed concerns over Google’s privacy policies. Google is a global technology company focused on online products and services, notably internet search and email services, advertising, and software technologies. On October 16, 2012, the data collection authorities for all 27 EU Member States signed a letter that was sent to Google addressing the EU’s privacy concerns. In short, the EU’s concern is that Google may be collecting too much information on users and keeping the information stored on its system for too long. The EU letter claims that Google has not “endorse[d] the key data protection principles of purpose limitation, data quality, data minimisation, proportionality and right to object.” The increased worry over Google’s policies was sparked by Google’s new privacy policy which allows the company to combine data collected from its internet-related services such as YouTube and Gmail. This data collection enables Google to improve its advertising efforts by targeting users based on specific interests and browsing history.

In order to better understand the quarrel between Google and the EU, it is important to discuss briefly EU law regarding data collection. Article 7 of the EU Charter of Fundamental Rights guarantees the right to respect for one’s private and family life, home, and communications. More specifically, Article 8 provides explicit protection of the right to the protection of personal data. Article 8 specifically includes the “right of access to data which has been collected concerning him or her, and the right to have it rectified.” The right to data protection is also enshrined in Article 16(1) of the Treaty on the Functioning of the European Union (TFEU). In 1995, the EU adopted the Data Protection Directive (95/46/EC).  The Data Protection Directive’s Article 29 created the “Working party on the Protection of Individuals with regard to the Processing of Personal Data.” The Article 29 Working Party has broad powers over data protection in the EU. Data protections were reinforced by the E-Privacy Directive (2002/58/EC). In January 2012, the Commission proposed a comprehensive reform of the EU legal framework on the protection of personal data. The 2012 proposals seek to enhance users’ control of their data and account for changes in technology.  In February 2012, Viviane Reding, the EU justice commissioner, stressed that European authorities need to ensure that Google’s new privacy policy complies with EU law.

The EU’s latest row with Google raises an interesting test regarding the future of European data protection. Specifically, the EU regulators want Google to (1) clarify its privacy policies; (2) get express permission from individual users to use and collect their data; (3) make it easier for users to opt out of certain requirements; and (4) publish how it uses and processes personal data. Google has four months to comply. If Google does not sufficiently comply with the EU’s requests, the EU regulators will consider disciplinary measures such as fines. Google has not responded at this time. However, Peter Fleischer, Google’s global privacy counsel, said, “Our new privacy policy demonstrates our long-standing commitment to protecting our users’ information and creating great products. We are confident that our privacy notices respect European law.”

Google has certainly faced its fair share of privacy complaints in EU countries in the past. In 2010, EU regulators demanded that Google warn people before taking pictures for Google’s Street View service. Furthermore, the EU demanded that Google shorten the amount of time the pictures were kept on the company’s system. In 2011, Spanish data protection authorities demanded that Google remove links to online news articles which infringed on the privacy of Spanish citizens.

At the end of the day, the latest dispute between Google and the EU underscores the difficulty in harmonizing EU data protection laws and maintaining the health of the global internet-based economy. On one hand, Google wants highly targeted advertising because advertising is the chief revenue source for the company. On the other hand, European countries want to ensure that EU users’ data is protected and that Google complies with EU law. The outcome of this row will likely have long-term implications for many other companies such as Facebook which rely on Europe’s significant market of 500 million citizens.

Parody or Publicity

Saturday Night Live‘s 36th season premiered on September 25, 2010.  The cold open depicted a meeting between Christine O’Donnell, the Republican nominee for the Delaware Senate special election, and two members of the Republican National Committee.  Kristen Wiig portrayed O’Donnell and Jason Sudeikis and Bill Hader appeared as the members of the RNC.

The skit’s humor came from the portrayal of O’Donnell participating in activities that would either be controversial or condemned during a campaign.  Skits like this one, which are a staple of Saturday Night Live, make jokes at the expense of celebrities and political personalities.  Such skits are parodies of the person and are  protected under the First Amendment.

Those whose lives are in the public eye and are subjected to media discussion have less privacy because of their status.  Status as a celebrity also provides that person the ability to access the media as the public has an interest in the lives of celebrities.  As a candidate for U.S. Senate, O’Donnell is considered a public official. (see Ocala Star-Banner v. Damron (1971))  O’Donnell also has status similar to that of a celebrity as she has made many appearances on television.

Political commentary, skits and cartoons like those that appear on The Daily Show, Saturday Night Live and in magazines and newspapers are considered satire.  Some of these portrayals may seem to have the intent to show actual malice, however they are not subject to defamation claims.  Such portrayals are parodies and are protected by the First Amendment to the Constitution of the United States.  The framers of the Constitution protected these rights in order to prevent censorship of the media and provide the right for the media to criticize the government.

Saturday Night Live’s long tradition of political satire began in its first season when Chevy Chase portrayed Gerald Ford as a clumsy man.  Since then, each political figure or celebrity has been a potential subject for a parody.  Christine O’Donnell’s status as a political candidate and TV contributor reduces her right of privacy compared to a private individual.  Shows like Saturday Night Live are protected by the First Amendment and therefore do not infringe on the rights of celebrities like Christine O’Donnell.

Losing Yourself In Plain View

In the final episode of the seventh season of “Entourage” entitled “Lose Yourself,” which aired Sunday, September 13, 2010, the character Vincent Chase spirals out of control through drug use and alcohol abuse.  After a season of self-destructive behavior, Vince ends up in the hospital being treated for injuries sustained in a fight at a hotel.  As he attempts to leave the hospital, the investigating officer, who is present to take his statement concerning the fight, discovers a bag of cocaine in Vince’s hospital room and confronts Vince about it.

The officer’s discovery raises the question of whether the discovery of the drugs is the result of an illegal search. Since we do not know why the officer is in Vince’s hospital room rather than in the corridor or the waiting room, and we do not know how he discovers the drugs, we don’t know whether the search and seizure is legal.

The Fourth Amendment to the United States Constitution protects against illegal search and seizures.  In Katz v. United States, the Supreme Court held that a search occurs when a person has a reasonable expectation of privacy in a thing and society considers that expectation reasonable.  A hospital room is generally considered to be a place with that expectation of privacy. There is no indication that Vince is in custody based upon his ability to leave the room at the beginning of the scene.  This also hints that the officer was invited into the room.  According to Terry v. Ohio, an officer is permitted to conduct a limited search if he witnesses  unusual conduct or there is indication of criminal activity.  The extent of a search is also limited to the activity which is directly associated with the unusual activity.

Vince’s actions at the party, including starting a fight after he was asked to leave, would not indicate sufficient suspicious behavior.  Although Vince was clearly drunk, his actions would not have spurred the reasonable suspicion requirement of the officer to justify a frisk or search that could have resulted in the discovery of the narcotics.  As stated earlier, there is also no indication Vince was in custody, which also may have justified a search.

In order for the officer to discover the narcotics legally, they must be in plain sight.  Vince wore a jacket at the hotel. However, he emerged from the hospital room without that jacket.  It is likely that he removed the jacket in the hospital room.  When Vince removed the jacket,  the drugs could have fallen out of a pocket.  If the drugs were discovered in a series of events similar to those described, the procurement of the evidence is subject to the plain view doctrine which the Court established in Horton v. California.  If the officer is legally in the room and the narcotics fell out of a jacket pocket through Vince’s normal movement, the officer would also have legal access to the object.  When the officer displayed the drugs to Vince,  it was also clear that they were an illegal substance satisfying the third requirement of the doctrine.

At the time of Vince’s exit from the hospital room, there is no indication that he is in custody.  There is also no indication that the officer had reasonable suspicion to conduct a search within the hospital room.  The officer’s presence in the room seems to be lawful based upon Vince’s body language and nonchalant manner in exiting the room.  It seems that the officer’s seizure of the narcotics are subject to the plain view doctrine.

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