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California’s Public Access Law Requires Access to Professor’s Emails About Articles Later Withdrawn or Corrected

Iloh v. Regents of the University of California and The Center for Scientific Integrity, No. G060856.  Opinion January 13, 2023.

A science watchdog entity submitted a public records request to the University of California after the departure of a professor whose work had been retracted or corrected after publication.  The departed professor failed to obtain injunctive relief, having argued that the records were not public records subject to disclosure, notwithstanding that a university email address was used in discussions about publication. 

The California Court of Appeals has affirmed the denial of injunctive relief.

Ms. Iloh argued that she acted on her own behalf in subjecting material for publication.  

The appellate court observed that California’s Public Records Act compels disclosure of public records unless exempted.  Parties may bring challenges under the act to compel disclosure but parties seeking to prevent disclosure, as here, must initiate an independent investigation to demonstrate that the government lacks discretion to disclose the records in issue.  

The first inquiry is whether the documents in issue are public records, for if they are not, statutory claims do not apply.

To be a public record, a document must be related to the conduct of public business and be prepared, owned, used or retained by the government.

The use of a public entity’s email system makes the correspondence in issue owned, used or retained by a public entity.

In this case, the professor’s publications were related to and in furtherance of her position at a public university, making them part of the “public’s business.”  

Although the appellate court acknowledged Iloh’s ‘catchall” interest in research integrity and freedom, the post-publication documents in issue do not merit the protections afforded pre-publication exchanges, particularly where public interest in academic integrity would favor disclosure.  

The appellate court declined to transform the catchall exemption into one which would create a pre- and post- publication bright line rule:  each case must be evaluated independently.

The Court of Appeals, like the trial court, could not find the personnel records exemption applicable, particularly where correspondence was in issue and where, even if some documents made their wa to Iloh’s personnel file, the public interest in disclosure outweighs any claim to privacy Iloh asserts with respect to public records.

The appellate court declined to reverse the trial court order because the trial court relied on CPRA and not “reverse” CPRA cases, reasoning that the trial court’s conclusion may be sustained if it can be seen as correct on any theory.  As the court’s reasons for denial of injunctive relief were sound, there is no abuse of discretion, and the trial court’s order is upheld. 

Iloh v. Univerity of California, No. G060856. California Court of Appeal, January 13, 2023.

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Monitoring the Unblinking Mechanical Eye: Unlimited Static Pole Camera Surveillance of Personal Residence Requires Probable Cause and Warrant Under Massachusetts Constitution, State Supreme Court Concludes

Commonwealth v. Nelson Mora, SJC-12890 (August 6, 2020).

In investigating a drug distribution network, Massachusetts police installed video cameras on telephone and electric poles (“pole cameras”), some of which faced the homes of alleged drug distributors. 

Evidence from the video cameras, as well as other evidence, resulted in indictments.  Several defendants moved to suppress the pole camera evidence and the fruits thereof, arguing that evidence garnered in this way violated Article 14 of the Massachusetts Constitution and the Fourth Amendment of the U.S. Constitution.  

On interlocutory appeal from denial of defendants’ motion to suppress, the Supreme Judicial Court of the Commonwealth of Massachusetts concluded that protracted warrantless video surveillance violated the state constitution.  Having done so, the court declined to address the U.S. Constitutional issues.  

The court remanded the case to permit the trial court to determine whether probable cause supported the installation of the cameras surveilling the personal residences from the outset.

How it happened.  A confidential informant identified defendant Mora as a drug dealer. After a staged purchase of drugs, cameras were installed outside Moran’s and another defendant’s houses.  The cameras provided a view of the front of the house as well as the sidewalk and the adjacent street.  The cameras recorded continuously — for five months in Mora’s case –without audio and were static except for the capacity to zoom in and out.  The interior of homes could not be seen and no particular features permitted nighttime surveillance.  

The trial court found the surveillance unexceptional.  The trial judge denied defendants’ motions to suppress because the cameras captured only information in plain public view.  The cameras aimed at a fixed point and were not capable of capturing detailed activities and associations.  Observation of matters on public display traditionally does not carry a reasonable expectation of privacy and does not require a warrant.  The court concluded that pole cameras did no more than that.  

In de novo review of the central question whether the pole cameras’ surveillance were unconstitutional warrantless searches, the Supreme Judicial Court asked first whether there was a search.  A search may be unconstitutional if it intrudes upon an individual’s reasonable expectation of privacy, but no such expectation is ordinarily found where the observation is of matters in plain view of the publix. 

Pole cameras have been in use for several decades.  Other courts’ reviews have yielded mixed results. 

The court found it unnecessary to address federal issues and noted that the Massachusetts Constitution may afford more protections than the U.S. Constitution.  The court framed the central question is whether a defendant had a reasonable subjective expectation of privacy and whether society would recognize the expectation as unreasonable.  

The appellate court recognized that defendants had subjective expectations that their homes would not be subjected to extended surveillance.  There was no need to create barriers around the property to obtain constitutional protection.  Such a requirement would make the constitutional resource dependant, and an impermissible result, as the home is a castle no matter how humble.  (Slip Op. at 14.)

What society may recognize as objectively reasonable is a large and difficult question, the court opined, but noted that case law has recognized that extended surveillance without probable cause and judicial supervision is problematic.

Location, location, location…and duration. The duration and location of surveillance matters, the court found, making it possible to extend protection to protracted video recording of houses but not to public places, particularly as surveillance cameras are abundant there and in commercial venues.

The Founders’ Prescience. Protecting the home from government intrusion is the reason that federal and state constitutions were drafted as they were.  The promise that the sanctity of the home will not be needlessly or recklessly breached is historically significant, and the framers may be thanked for a prescience that precludes a contemporary Orwellian state.  (Slip. Op. at 22.)

The argument that pole cameras outside the home catch no more than a police officer might see must faile, as the very inexhaustibility of the machines negates comparison.

As heretofore it has not been thought necessary to obtain a warrant to conduct pole camera surveillance, the Supreme Judicial Court decided that remand to determine whether propane cause for use of the cameras existed at the time of installation, which might be established by review of existing evidence submitted in support of warrants that were obtained or by supplementary evidence if needed.  If probable cause existed for installation of all of the cameras, suppression of evidence must be denied, but if probable cause did not exist, suppression as to the cameras surveilling the homes only may be allowed. 

Commonwealth v. Mora, SJC 12890 (August 6 2020)

  

 

 

 

 

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Surveillance Without Surcease: Massachusetts’ Highest Court to Review Constitutionality of Continuous, Warrantless Videorecording of Criminal Defendants’ Houses

Nelson Mora, et al. v. Commonwealth of Massachusetts, SJC-12890.  Oral argument scheduled for May 5, 2020.

Related:   Commonwealth v. McCarthy, SJC-12750.  Opinion issued April 16, 2020.

Defendants were arrested as part of an ongoing state effort to interrupt commerce in drugs.  As part of that effort, police installed, without warrants, video cameras in public spaces outside defendants’ houses.  These “poll cameras” permitted uninterrupted video recording of the outside of these houses and were equipped with zoom features to permit closer scrutiny.  

Defendants moved to suppress the video evidence as violative of the Fourth Amendment of the U.S. Constitution and Article 14 of the Constitution of the Commonwealth of Massachusetts.  The Superior Court denied relief, finding that defendants have no reasonable expectation of privacy in the exteriors of their homes, which were plainly visible to the world.

Interlocutory review was sought and granted.

Appellants/Defendants argue that incessant videorecording denies defendants’ constitutionally promised privacy interests, which are not defined with reference to brightline distinctions between exteriors and interiors, but rather with respect to the reasonable expectations of privacy enunciated in Katz v. United States, 389 U.S. 347 (1969).  Static, unceasing and warrantless mechanical surveillance is a search which intrudes beyond any reasonable bounds of police powers.  

Defendants are supported by several civil rights and technology advocacy entities, who join in characterizing the surveillance in issue as “Orwellian.”

The state stands firm in its view that that which is in plain view is not private, and that even if issues were to be found in these searches, error should be excused on the basis of the police’s good faith.

Just weeks ago the Supreme Judicial Court outlined constitutional parameters of static camera recordings of vehicles permanently placed at the ends of bridges linking the main land of Massachusetts with Cape Cod.   Following an extensive review of the foundational ideas that support the law of searches and privacy, and after concluding that the camera surveillance in issue could be a search, the court found no constitutional violation as the car in question could be seen without technology and any intrusion was of limited duration.   Chief Justice Gant wrote separately in concurrence, suggesting that the course going forward might be better served if authorizations based on reasonable suspicion and subsequent probable cause were obtained in advance of surveillance. 

Appellants/Defendants embrace McCarthy as pointing the way for a decision in their favor.  The state has tradition on its side: many considerations of poll cameras have found their use to be constitutionally innocuous, with only a few courts demanding that this form of surveillance  be cabinned by time limits.

Justlawful’s Observation.  The “in plain sight” argument offered by the state, if woodenly applied, could lead to results that would undermine Katz.  Moreover, the argument that recording shows only what a passerby might see becomes problematic if human rather than mechanical supervision were in issue.  Were a person to stand in observation of a residence without interruption, the homeowner or resident might well feel intruded upon, even if the onlooker could see only the exterior of the home, and might be justified in seeking injunctive relief to cause the behavior to cease.   

Briefs of the Parties

Commonwealth v. Mora – SJC-12890 Appellants’ Brief

Commonwealth v. Mora — Commonwealth’s Brief

Commonwealth v. Mora — Appellants’ Reply Brief

The McCarthy Decision

2020 04 16 Commonwealth v. McCarthy SJC-12750

For those fond of legal history, an 1890 Harvard Law Review article outlining Warren and Brandeis’ Views of Privacy

Warren and Brandeis, _The Right to Privacy_

 

 

 

 

 

 

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Who’s Zoomin’ Who? Pandemic’s Videoconferencing Darling’s Security Failures Alleged to Have Permitted Data Breaches With Each Use

Cullen, et al.  v. Zoom Video Communications, Inc.,  No. 5:20-cv-02155-SVK (N.D. Cal.). Class action complaint filed March 30, 2020.

Taylor, et al. v. Zoom Video Communications, Inc., No. 5:20-cv-02170 (N.D. Cal.)  Class action complaint filed March 31, 2020. 

Motion to consider cases to be similar filed in the Cullen case on April 8, 2020.  

Videoconferencing exploded exponentially with the COVID-19 pandemic, as a declaration of national emergency and state and local stay-at-home orders inspired ingenuity in communications for business, personal, health and other reasons.  

“Zoom,” as the platform is known, emerged as a most popular platform, somehow almost immediately eclipsing other platforms such as Google Meet.

In signing on to use Zoom, Zoom represented to users that their privacy interests would be protected.  For health care practitioners, Zoom permitted the creation of business associate agreements that would, ostensibly, aid in attaining compliance with the Health Insurance Portability and Accountability Act (HIPAA).

All to the good, one might think.

Except Zoom seems to have been incorrect in its privacy and data assurances.

Zoom’s application sent data identifying the user to Facebook every time the application was downloaded and every time the user logged in.

This discovery irked more than health care providers, for whom the federal government’s relaxation of compliance requirements for telehealth during the COVID-19 crisis did nothing to relieve providers of ethical obligations to clients to maintain confidentiality.

Likewise distressed were non-professionals whose functioning depends on assurances of confidentiality.

Along with disclosures about the software insecurity came a flood of pranksters practicing “zoom bombing,” interrupting online meetings with pornography and toxic messaging.  Some churches were not amused. 

Within days of discovery and disclosure two class actions were filed in federal court in the Northern District of California.  The complaints allege violations of several consumer and privacy protection statutes and aver that even if Zoom Video Communications remedies its technology, it remains responsible for the damage incurred prior to that time.

Since disclosure, Zoom has launched a campaign to underscore its innocence, its concern, and its plans for repair.  Many of the statements come quite close to admissions, perhaps reflecting the confidence of technology scions who are, in their own minds, intent on doing good and refraining from being evil.

Or perhaps Zoom believes that it has so captivated the market that all it needs to do is to appear contrite, fix the application, and move on.  

Simple, but time-honored, security measures not prevalent in the past have come to be required, such as passwords.

And Zoom has hired Facebook’s former security chief to head Zoom’s mitigation maneuvers. 

At this time, it does not appear that Facebook has acknowledged any relationship with Zoom nor is it known whether or how much money was paid to Zoom for user information.

At the same time, Facebook is taking steps to persuade some of the market to use Facebook’s platform rather than Zoom’s.

In addition to private lawsuits, it appears that the Federal Bureau of Investigation and state attorney generals have questioned Zoom’s practices. 

Cyberspace privacy concerns and pointers for managing Zoom have been proffered by non-profits such as the Electronic Frontier Foundation.

The class actions are in their early stages.  With courts either shuttered or (ironically) reliant on videoconferencing for proceedings, it is not known when or if the court will rule on the recently filed motion to treat the Cullen and Taylor cases as related.  An initial case conference in Cullen is scheduled for June 30, 2020.  

Northern District of California Case Information

Cullen, et al. v. Zoom Video Communications, No. 5:20-cv-02155-SVK (N.D. Cal.).

Taylor, et al. v. Zoom Video Communications, Inc., No. 5:20-cv-02170 (N.D. Cal.)

Related Media

iMore.com, March 27, 2020: Responding to Backlash, Zoom Stops Sharing User Data with Facebook

New York Times, March 30, 2020: Attorney General Looks Into Zoom’s Privacy Practices

Zoom Blog, April 1, 2020: A Message to Our Users

Forbes, April 2, 2020: Why Zoom Really Needs Better Privacy: $1.9M Orders Show the Government’s COVID-19 Response is Now Relying On It

Electronic Frontier Foundation, April 4, 2020: Harden Your Zoom Settings to Protect Your Privacy and Avoid Trolls

Motley Fool, April 4, 2020: Facebook Wants to Take a Bite Out of Zoom Video’s Growth

Wall Street Journal, April 4, 2020: Zoom CEO: “I really messed up,” on Security as Coronavirus Drove Video Tool’s Appeal

Boston.com, April 7, 2020: Massachusetts Schools, Churches, Have Been Targeted by Hackers on Zoom

Forbes, April 8, 2020: Zoom Brings on Former Facebook Security Head to Fix Privacy Problems

 

 

 

 

 

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Communications Breakdown: Political Consultants and the United States Both Sought — and Obtained — Certiorari Review of the Constitutionality of Exceptions to the Federal Ban on Automated Cell Phone Calling

William P. Barr, Attorney General, et al. v. American Association of Political Consultants, No. 19-631.  Petition for Certiorari granted January 8, 2020.

The near-universal adoption of cell phone telephony thirty years ago ushered in a new era of liberation from landline tethers, but not of freedom from unsolicited, unwanted, and not infrequently noisome automated calls and messages.  Called (among other things) robo-calls, the perceived nuisance of such practices by telemarketers and others prompted Congress to enact the 1991 Telephone Consumer Protection Act, Pub. L. No. 102-243, 105 Stat. 2394.  

The TCPA prohibits calling cell phones without consent absent an emergency.  This gesture of federal consideration of individual interests has spawned a cavalcade of lawsuits challenging its meaning, including the instant case, in which certiorari was granted to determine whether an exception to the act which permits calls to collect a federal or federally guaranteed debt violates the First Amendment Free Speech Clause.   

The Fourth Circuit, in an opinion issued in April, 2019 perceived that the TCPA and its government debt exception created constitutionally unacceptable content based restrictions but did not conclude that the entire statute was invalid, determining only that the federal debt exception ought to be severed and the rest of the statute left intact.

The federal government asserts that there is no First Amendment violation, as strict scrutiny analysis does not apply where the economic purpose of a federal debt call is grounded in the relationship between the federal government and a debtor and where the privacy protections foundational to the TCPA remain intact.  Government speech not constrained by the First Amendment, should not be hamstrung by imposing the highest level of constitutional scrutiny where in essence commercial speech, subject only to limited review, is in issue.

The federal government argues that severability is wholly appropriate as the entire statute need not be done away with in order to address an exception to its general applicability.  

The American Association of Political Consultants’ views are diametrically opposed on both grounds.  The group asserts that it defies reason to classify debt collection calls as “purpose” based where the content of such calls is grounded in satisfying a debt.  Where calls linked to federal debts are permitted and those linked to private debts are not, this, the association advocates, makes a distinction based on the content of calls.  

It cannot be that severability is apt where the Fourth Circuit found the statute to be unconstitutional, the political consultants submit.  Severing an exception to an unconstitutional statute works no remedy, they argue.

A scheduling order has not yet been published.  There are two other petitions for certiorari pending in on related issues for which no action has been taken.

Petition for Certiorari: Barr, Attorney General, et al. v. Am. Assoc. of Political Consultants

Respondents Brief in Support of Certiorari: Barr, Attorney General, et al. v. American Association of Political Consultants

Petitioners’ Reply in Support of Certiorari: Barr, Attorney General, et al. v. American Association of Political Consultants

 

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Court May Limit Public Access Where Proceedings Involve Minors and Intimate Facts

Jane and John Doe, et al. v. Aberdeen School District, et al., No.  18-cv-00125 (N.D. S.D.) September 17, 2019.

The First Amendment requires that judicial proceedings be open to the public, the Rules of Federal Procedure require identification of the parties before the court.  Nonetheless, courts may permit pseudonymous proceedings where the totality of the circumstances indicate there is a substantial privacy right that permits limitations of access rights. Courts may consider whether the government is being challenged,  whether intimate facts are involved in the case, whether criminal prosecution may ensue, and, in the Sixth Circuit, whether minor children are plaintiffs.  As the facts in the case are both intimate and involve children, the court will permit pseudonymous proceedings.

Doe v. Aberdeen Sch. Dist. (D. S.D., 2019)

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Compelling Convict to Disclose Sexual History Within State Interest in Public Safety

State v. Alvarez, No. No. 35567-5-III, Wash. Ct. App., September 17, 2019. (Unpublished).

Alvarez, convicted of rape of a child, cannot prevail on a his claim that the requirement that he notify the state of his current sexual partners and disclose his sexual crimes to partners violates his First Amendment rights. The state may impose restrictions in order to accomplish lawful ends.  Alvarez is not restricted in his freedom of association, although his privacy is affected.  That privacy interest may be compromised where the state has a legitimate interest in alerting the public about potentially dangerous individuals.  The disclosures required reasonably serve that end.

State v. Alvarez (Wash. App., 2019)