Law Enforcement’s Use of License Plate Detection Technology Raises Privacy Concerns

This past Monday, the Boston Globe discussed the increased use of license-plate reading cameras and other technology law enforcement organizations around Massachusetts have utilized over the past several years.[1]  The cameras have proven to be incredibly effective for law enforcement in detecting vehicles that are stolen, unregistered or uninsured.  Moreover, they have proven to be a remarkable return on investment.  One Sergeant insisted that the camera on his vehicle paid itself back within a matter of the first 11 days on the road.

An effective and efficient piece of technology to assist law enforcement, what’s not to love?  Not surprisingly, the technology’s popularity is on the rise in police departments throughout the Commonwealth.  They are useful in solving crimes, mainly because they are able to better track the movement of vehicles. “Most of the departments that deploy license plate readers use them primarily for traffic enforcement. But the scanners — sometimes called by the acronym ALPR — are also used for missing persons, AMBER alerts, active warrants, and open cases.”

But is this technology empowering government to the detriment of our civil liberties?  After all, nobody wants to live in a society where their every movement is monitored and recorded.

Should this useful technology be utilized to help law enforcement? 

Some would argue no.  As Benjamin Franklin once stated: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

Many citizens would not go as far as Dr. Franklin.  Indeed, most Americans are willing to forego some privacy for the sake of enhanced security.

Of course, there is a larger question of what is a reasonable expectation of privacy?  Many of us have smartphones with GPS tracking technology, have we already ceded some of our privacy?  In the course of an ordinary day, most Americans come in contact with several forms of technology (smartphones, debit cards, laptops, tablets, etc) that make it easier to track our habits and whereabouts.  Again, what is reasonable?

If so, how do we prevent this technology from creating a dystopian, 1984-like society? 

The Boston Globe highlighted various instances of abuse by other Police Departments utilizing this technology.  Our law enforcement agencies are neither above the law nor infallible.  There must be a check on their usage of this data.

Currently, many police departments lack any formal policies and procedures to guide their use of the data collected.  This is clearly problematic.  Uniform policies and procedures must be established across the Commonwealth; and regular testing and reviews must be conducted to ensure compliance.  A good example to follow is Brookline.  As noted in the article: Brookline’s policy prohibits using camera scanners to intimidate or harass, to infringe free speech, or to conduct discriminatory surveillance based on race, gender, sexual orientation, disability, or other protected characteristics. The Brookline policy also requires civilian oversight and biannual audits for the town’s camera scanner system, which will be online within the next two months ….”

This technology is a boon to law enforcement.  It can and should be utilized, but it must be closely monitored and scrutinized with the utmost deference to the right to privacy.

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New Facebook Friend? Be Careful or You Might Find Yourself Served!

Written by Muthena Alsahlani and Edited By Wassem M. Amin

Social networking site likes Facebook and Twitter play a significant role in society and in most people’s daily life. So big, in fact, that a court ruled that Service of Process via Facebook is permissible under Federal Rules of Civil Procedure 4(f) .

Facts of the Case

The Defendants allegedly operated a scheme that tricked American consumers into spending money to fix non-existent problems with their computers. This scheme was operated in large part out of call centers located in India.

The U. S. District Court of Southern District of New York issued a temporary restraining order on the defendants’ business practices. On September 27, 2012, the Federal Trade Commission (FTC) submitted the Summons, Complaint, and related documents to the Indian Central Authority for service on defendants, in accordance with Federal Rule of Civil Procedure 4(f)(1) and The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention” or “Convention”). The FTC also sent these documents to defendants by three alternative means: (1) by email to defendants’ known email addresses; (2) by Federal Express (“FedEx”); and (3) by personal service via a process server.

The FTC moved for leave to effect service by alternative means, mainly email and Facebook, on five of the defendants. The defendants sought a preliminary injunction to prevent this method of service.

Holding

The District Court enjoys discretion of whether to order service of process under Rule 4(f)(3) . Both the United States and India are signatories to the Hague Service Convention, mentioned in Rule 4(f). Article 10 of the Hague Convention allows for service of process through alternative means, provided the destination state does not object to those means. Thus far, service by email and Facebook are not among the means listed in Article 10 and India has not specifically objected to them. As well, service via email comports with due process where a plaintiff demonstrates that the email is likely to reach the defendant.

The District Court noted that if the plaintiff proposed serving the defendants only through Facebook, without a supplemental form of service, then a substantial question of due process would arise. However, the FTC’s proposal does not suffer that defect. The FTC proposes service via Facebook in conjunction with traditional email. The plaintiffs were able to establish that the Facebook accounts identified are actually operated by the defendants. Thus, there is a likelihood that the message will be received.

Important to note that Facebook is routinely used to serve claims in Australia, New Zeland, and Britain to a lesser extent.

Implications

Foreign defendants can be served process via Facebook, in addition to email, provided that the message will likely reach its intended target, under Fed. Rule of Civil Procedure 4(f). The Court did not that “[H]istory teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.”

It’s only natural to wonder: will this open the door for an eventual change in Federal Rule of Civil Procedure, which applies to service of process for defendants residing in the U.S.? It’s plausible the traditional rules of service may evolve in order to appropriately reflect the technological shift. Electronic service is more effective and the more common mode of communication in many respects. The challenge, of course, is establishing receipt or acknowledgment of electronic service. Given the struggles of the U.S. Postal Service and the uncertain future of traditional mail, there may not be an option but to evolve and accommodate.

Obama’s Recess Appointments Struck Down by Court of Appeals

DCC_of_Appeals_5-5-09

The  Court of Appeals for the D.C. Circuit, which has jurisdiction to review Cases arising from decision involving federal agencies, struck down three recess appointments President Obama made to the National Labor Relations Board (NLRB) in January 2012.

The case arose following a routine review of the NLRB.  The Petitioner, Noel Canning, challenged the NLRB’s authority to render a verdict.  He argued that a quorum, at least three of a five-member Board, were required to act, and because three of the five members were appointed unconstitutionally, the decision is null and void.  The Court of Appeals concurred.

At the heart of the decision is Article II Section 2 of the Constitution:

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

The case hinged on whether President Obama’s appointment did, in fact, occur during the recess of the Senate, and what is the meaning of “recess” for constitutional interpretation purposes.

The Court of Appeals rejected the Department of Justice’s Office of Legal Counsel’s interpretation of “the Recess” which grants the President the discretion to determine when the Senate is in recess. Granting the President such discretion flies completely in the face of checks and balances and would “eviscerate the Constitution’s separation of powers.”  The Court of Appeals also rejected an interpretation of “the Recess” as an adjournment lasting more than three days.

The Court of Appeals held that “the Recess” is limited to intersession recession.  Congress began a new session on January 3, 2012, while the President made his three appointments to the NLRB on January 4, 2012.   As a result, his three appointments were invalid, and a quorum was lacking to render a binding decision.

Link to Court’s Opinion

 

First Circuit Upholds Planned Parenthood “Buffer Zone” Against Protestors

The First Circuit Court of Appeals recently upheld a Massachusetts law creating a “buffer zone”[1] — a 35 feet radius around a reproductive health care facility that is off-limits to protestors[2].  The Act states[3]:

 (b) No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet of any portion of an entrance, exit or driveway of a reproductive health care facility or within the area within a rectangle created by extending the outside boundaries of any entrance, exit or driveway of a reproductive health care facility in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit or driveway. This subsection shall not apply to the following:—

(1) persons entering or leaving such facility; (2) employees or agents of such facility acting within the scope of their employment; (3) law enforcement, ambulance, firefighting, construction, utilities, public works and other municipal agents acting within the scope of their employment; and (4) persons using the public sidewalk or street right-of-way adjacent to such facility solely for the purpose of reaching a destination other than such facility.

Although viewpoint neutral, the intent of this law is mainly to prevent protestors from harassing, intimidating, or otherwise interfere with, women seeking certain reproductive services, like abortions.  Opponents of the law regularly challenge such statutes under the First Amendment’s right to free speech.  While Americans enjoy freedom of speech, that freedom is not unfettered.  The District Court previously ruled against the plaintiffs and upheld the constitutionality of the statute[4].

The First Circuit Court of Appeals affirmed that decision, stating:

Few subjects have proven more controversial in modern times than the issue of abortion. The nation is sharply divided about the morality of the practice and its place in a caring society. But the right of the state to take reasonable steps to ensure the safe passage of persons wishing to enter healthcare facilities cannot seriously be questioned. The Massachusetts statute at issue here is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others.[5] 


[3] Mass. Gen. Laws ch. 266, § 120E 1/2

[4] McCullen v. Coakley, 573 F. Supp. 2d 382 (D. Mass. 2008)

Supreme Court Agrees to Hear Gay Marriage Cases

The Supreme Court announced today that it will hear two critical cases involving gay marriage.  The first involved a challenge the Defense of Marriage Act[1] (DOMA).  Passed in 1996, DOMA denies federal recognition of gay couples married in states legalizing gay marriage.  As a result of DOMA, Congress has thus far been able to prevent legally married gay Americans from receiving the same federal benefits heterosexual married couples receive – a violation of the 14th Amendment’s Equal Protection Clause. The Appeals Courts in both Massachusetts and New York have struck down the law as unconstitutional.

The second case involves a challenge to California’s notorious 2008 Proposition 8 law, which was passed after that state’s Supreme Court ruled homosexual couples defined marriage as between a man and a woman. Although it passed as a ballot measure, the constitutional amendment was struck down by the 9th Circuit Court of Appeals.

Gay marriage is legal, or will be soon, in: Connecticut, District of Columbia, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington.  Although national support for gay marriage has steadily risen over the years, thirty-one states have amended their state’s constitution to ban gay marriage.

The rights of millions of Americans are at stake in this case.  A broadly stated decision in favor of gay marriage could overturn every state constitutional provision and law banning same-sex marriages.  A ruling in support of Proposition 8 and/or DOMA, will be seen as a victory for states’ rights.  However the Court rules, this promises to be the most significant ruling the Court has had since it upheld the Affordable Care Act earlier this year.