Legal Issues Concerning Transit Agency Use of Electronic Customer Data (2017) / Chapter Skim
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Pages 20-29
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From page 21... ...
21 After the Griswold decision, the Supreme Court and lower courts interpreted the scope of privacy rights to include a "seemingly disparate cluster of constitutional rights against government intrusion."219 As privacy rights evolved after Griswold, they came to include protection against "government intrusion into a person's mind and thought processes,"220 "intrusion into a person's zone of private seclusion,"221 and "intrusion into a person's right to make certain personal decisions, such as whether to use contraceptives or have an abortion."222 More recently, however, the Supreme Court and lower federal courts have limited the zone of privacy established by the Griswold case and its progeny. Rather than expand the zone of privacy so that it would apply to an individual's right to control the collection and use of personal data, the Supreme Court has narrowed the zone.223 There is at present neither a "specific constitutional right to privacy," nor a constitutional right to privacy in one's personal or locational information.224 Thus, there is no constitutional prohibition of the government or more particularly government-owned transit agencies collecting customers' personal data electronically.
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From page 22... ...
22 The court reversed the district court's dismissal of the complaint.235 In Fadjo, the court seems to be clear that when confidentiality is the privacy issue, "a balancing standard is appropriate as opposed to [a] compelling state interest analysis that is required when the autonomy of decisionmaking is at issue."236 The Fadjo court did not hold that when the confidentiality of personal information is at stake, the governmental interest has to be compelling, but did indicate that "‘more than mere rationality must be demonstrated' to justify a state intrusion."237 In Borucki v.
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From page 23... ...
23 nature…."252 Neither of the two instances seems to apply to transit agencies' collection and use of customers' electronic data. The Lambert court stated that the holdings in Whalen, supra, and in Nixon v.
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24 Relevant to the issue of the collection of customers' electronic data, however, is that the Katz Court stated that "the Fourth Amendment cannot be translated into a general constitutional ‘right to privacy.'"266 Furthermore, "what a person knowingly exposes to the public…is not a subject of Fourth Amendment protection."267 Although Supreme Court precedents since Katz fail to show a "clear pattern" on what the "acceptable limits of government action" are under the Fourth Amendment,268 the Supreme Court "has not found information about an individual's activities in public to be protected."269 A case relevant to whether a government-owned transit agency's collection or use of a customer's locational data is protected by the Fourteenth Amendment is United States v. Knotts,270 decided in 1983.
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From page 25... ...
25 In United States v. Jones in 2012,285 the Supreme Court held that the government's installation of a GPS device on a vehicle to monitor it without a warrant was a search under the Fourth Amendment.286 Over a 4-week period, the device relayed more than 2,000 pages of data, allowing the government to obtain a multiple-count indictment.
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From page 26... ...
26 "implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse."303 Finally, the Court observed that the "fact that technology now allows an individual to carry such [private] information in his hand does not make the information any less worthy of the protection for which the Founders fought."304 In summary, the Court has held that individuals' actions conducted in public, such as travel, have a diminished expectation of privacy.305 Present case law suggests that transit agencies' collection and/or use of customers' electronic personal data, including their travel or locational data, does not violate a constitutional right to privacy.
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From page 27... ...
27 some readers of this digest.314 In brief, in the Westfall Act, Congress "virtually" immunized federal government officials from liability under state common law by "substituting the government as a defendant under the FTCA [Federal Tort Claims Act] for these claims," while "preserving the right of individuals to pursue Bivens actions for a ‘violation of the Constitution of the United States.'"315 The Supreme Court's decision in 2012 in Minneci v.
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28 Second, a particularly difficult obstacle to a Bivens claim is the defense of qualified immunity, discussed in the next subsection.330 Finally, a threshold and likely dispositive issue that would preclude a Bivens claim, as well as a § 1983 claim, against a state or local public official, is that there is no case holding that a transit agency's collection or use of customers' electronic data, including PII or locational data, violates a right to privacy under the U.S. Constitution.
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From page 29... ...
29 In Borucki v. Ryan,346 supra, the First Circuit relied on Harlow in holding that the defendant was entitled to qualified immunity because the "alleged right of privacy was not clearly established as of the date" of the alleged violation of a right to privacy.347 The Borucki court appears to attach an additional requirement, one that goes beyond determining whether a constitutional or statutory right has been clearly established: "when the law requires a balancing of competing interests, it may be unfair to charge an official with knowledge of the law in the absence of a previously decided case with clearly analogous facts."348 In Toomer, supra, a former state government employee alleged that the Secretary of the North Carolina Department of Transportation (NCDOT)
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