Not Quite Down Pat: New First Amendment Bivens Action Emerges from TSA Employees’ Interference with Recording of “Pat Down” Search

Dyer v. Smith et al., No. 3:19-cv-921 (E.D. Va.) February 23, 2021


The United States District Court for the Eastern District of Virginia recently denied transportation security agents’ motion to dismiss in a suit precipitated by the agents’ insistence that a travelling couple stop  video recording agents patting down — physically searching outside the clothes — one partner, and that anything already recorded be destroyed. 

The federal district court reviewed and rejected factors cautioning against expansion of Bivens actions, observing that the law is clear not only through decisions but also by custom that there exists a recognized First Amendment right to gather news and, as a corollary proposition, to record officials in the conduct of official business.  The court concluded that in the absence of any available remedy, the couple’s Bivens action may proceed.  

JustLawful Observation:  This straightforward summary may provoke an “of course!” response, but that response might be a bit hasty, given that the court recognized a new Bivens action, when in the wake of Hernadez v. Mesa, 528 U.S. ____ (2020), decided during the last Supreme Court term, it was thought that Bivens actions would soon be unicorns:  fanciful but imaginary.

Counsel for the transportation agents thinks so, too, and is pursuing interlocutory review.E.D. Virginia Opinion:

Dyer v Smith, No. 3:19-cv-921 (E.D. Va.) February 23, 2021

Request for Interlocutory Review:

Dyer v. Smith, No. 3:19-cv-921. Defendants’ Memorandum Supporting Motion to Certify Interlocutory Review

Recent U.S. Supreme Court Consideration of Bivens Actions:

Hernandez v Mesa, 528 U.S. , 140 SCt 735, 206 LEd2d 29 (2020)

Commentary on the Future of Bivens Actions

SCOTUS Sharply Limits Bivens Claims—and Hints at Further Retrenchment. Robertson, C. ABA Practice Points. April, 2020.

“Sure sounds like a termination.”–Judge in Parler Dispute With Amazon Web Services Appears to Appreciate Impact, But Questions Need for Injunctive Relief

Parler LLC v. Amazon Web Services, No. 2:21-cv-00031(BJR) (W.D. Wash). Argument concerning injunctive relief held January 14, 2021.


Today the U.S. District Court for the Western District of Washington heard arguments concerning whether Amazon Web Services (AWS) ought to be ordered to restore service to Parler, LLC, whose site was deplatformed on short notice provided on January 9 because, AWS believed, Parler was not ably managing removal of unacceptable content in compliance with its agreement with Amazon.

 

Counsel for Amazon downplayed any non-compliance on Amazon’s part, asserting that Parler had not and could not comply with its obligations whether AWS  had suspended or terminated Parler.

 

AWS noted that as of January 6, 2021, what had been long feared became painfully real in the attacks at the U.S. Capitol. AWS perceived a need for action.  

 

Amazon Web Services noted that AWS’ actions respecting Twitter differ from its actions with Parler because Amazon Web Services does not access or engage with Twitter’s live feed as it does with Parler.

 

Parler submitted that losses to Parler are irreparable.  Advertisers, the site’s sole revenue source, no longer provide income, and fifteen million account holders no longer can access Parler.

 

Although Parler offered that just recently Parler had been discussing adopting AWS’ software and obtaining venture capital, no counsel present would opine concerning whether their respective clients would be interested in further discussions.

 

Parler has admitted that some harms might be remedied by money damages, but pointed to the immediate present losses of income and customers as worthy of injunctive redress.

 

On inquiry by the court, counsel for Parler did not articulate a present emergency which would justify injunctive relief.

 

The court, without elaboration, promised its order would issue promptly.

David Versus Goliath (and Goliath). Parler Challenges Amazon Web Services’ Suspension as Anti-Competitive and in Breach of Contract

Parler LLC v. Amazon Web Services, No 2:21-cv-00031 (BJR) (W.D. Wash.) Verified Complaint filed January 11, 2021.


Amazon Web Services (AWS) has suspended webhosting services to Parler, a relative newcomer to the social media marketplace because, AWS has stated, AWS doubts Parler’s capacity to monitor postings that incite violence.

 

AWS suspended  Parler almost immediately after Parler’s competitor Twitter permanently terminated the account of Donald J Trump.  This  termination prompted a mass migration of customers from Twitter to Parler as well as a significant spike in new customers. 

 

AWS towers above other web hosting services globally.  By comparison with the shuttered Parler, Parler observes that AWS has promised Twitter timeline and enhanced services.

 

Parler asserts in its Complaint in federal court in Washington that because of the suspension, which Parler says has been presented like a termination, AWS has irreparably damaged Parler’s business and reputation.  

 

Even if Parler is able to find another platform, Parler avers, the time and other costs associated with rewriting Parler’s AWS-compatible code will be extraordinary.

 

Parler alleges that AWS’ agreement to enhance services to Twitter while forcing Parler from the marketplace violates the Sherman Antitrust Act. 

 

Parler also asserts that by effectively terminating Parler without the thirty day’s notice required by the agreement between the two, AWS has breached its agreement with Parler.  

 

Parler denies any breach of its agreement with AWS, stating that it removed any allegedly unacceptable comments that AWS brought to Parler’s attention.  Parler observes that similar content has been retained without comment on Twitter.

 

Briefing concerning injunctive relief will close January 13th.  A time for oral argument has not been set.

Parler LLC v. Amazon Web Services, No. 2:21-cv-00031 (W.D. Wash.) Verified Complaint

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

 

 

 

 

 

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