Legal Issues Concerning Transit Agency Use of Electronic Customer Data (2017)

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20 VII. WHETHER PRIVACY RIGHTS UNDER THE U.S. CONSTITUTION APPLY TO TRANSIT CUSTOMERS’ ELECTRONIC PERSONAL DATA A. Evolution of Privacy Rights This part of the digest addresses whether under current Supreme Court precedent an individual has a constitutional right to privacy with regard to the individual’s personal data being collected by transit agencies. In brief, with one or two possible excep- tions, the answer appears to be no. Privacy law in the United States is a “disorga- nized body of law”201 in part because it lacks a “comprehensive national regulatory structure.”202 Rather, privacy rights are created sporadically for a specific reason, often in response to changes in tech- nology.203 Most privacy law in the United States is a matter of state law—and to some extent the common law—at least insofar as transit agencies’ collection of electronic personal data is concerned. Privacy rights have been defined as the right to both control the dissemination of one’s informa- tion204 and to be free from government intrusion.205 Although a “cluster of constitutional rights” protects citizens from various forms of government intru- sion, decisions by the U.S. Supreme Court in recent years have narrowed an individual’s zone of privacy that is protected by the U.S. Constitution.206 An 1890 article by Samuel D. Warren and Louis D. Brandeis entitled “The Right to Privacy”207 articulated a basis of a right to privacy in the United States.208 Although some courts held after publication of the Warren and Brandeis article that privacy rights are funda- mentally rooted in natural law,209 other courts rejected claims that a right to privacy exists.210 A leading case on privacy rights is the U.S. Supreme Court’s 1965 decision in Griswold v. Connecticut,211 in which the Court held that there is a right to privacy under the U.S. Constitution.212 In Griswold, the petitioners were physicians who had provided their patients with contraceptives in viola- tion of Connecticut law.213 When the petitioners argued that the Connecticut statute violated the Fourteenth Amendment, the Court agreed that the petitioners had “standing to raise the constitutional rights of the married people with whom they had a professional relationship.”214 The Court also held, however, that there is a constitutional right to privacy, because the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.”215 Thus, the “right of association” is guaranteed by the First Amendment; the “right of the people to be secure in their persons, houses, papers, and effects[] against unreasonable searches and seizures” is secured by the Fourth Amendment; and a “zone of privacy which government may not force [a person] to surrender to his detriment” exists under the Fifth Amendment.216 Because the constitutional guarantees created a zone of privacy, a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”217 In a concurring opin- ion, Justice Goldberg stated that because personal liberties are grounded in “traditions and conscience,” people’s liberties are “not confined to the specific terms of the Bill of Rights.”218 201 Alain J. Lapter, How the Other Half Lives (Revis- ited): Twenty Years since Midler v. For A Global Perspective on the Right of Publicity, 15 teX. intell. ProP. L J. 239, 247 (2007). 202 Douma & Deckenbach, supra note 196, at 300. 203 Thomas Garry, Frank Douma & Stephen Simon, Intelligent Transportation Systems: Personal Data Needs and Privacy Law, 39 transP. L. J. 97, 102 (2012), hereinafter referred to as “Garry, Douma & Simon.” 204 J. thoMas Mccarthy, the rights of Publicity anD Privacy, at § 1.6 (2013) (citing U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 761, 109 S. Ct. 1468, 1775–76, 103 L. Ed. 2d 774, 788 (1989)), hereinafter referred to as “McCarthy.” 205 Ken Gormley, One Hundred Years of Privacy, wis. l. rev. 1335, 1361 (1992). 206 McCarthy, supra note 204, at § 5.57. 207 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 harv. l. rev. 193 (1890), hereinafter referred to as “Warren & Brandeis.” 208 McCarthy, supra note 204, at § 1.10. The authors pos- ited that an individual should have a legal remedy when the press “overstep[s] in every direction…the obvious bounds of propriety and of decency.” Warren & Brandeis, supra note 207, at 196. Although Warren and Brandeis recognized six limitations on the right to privacy, they argued that society should uphold an individual’s privacy rights and that a vio- lation of privacy rights should be remediable either by com- pensation or in rare cases by an injunction. Id. at 219–20. 209 McCarthy, supra note 204, at § 1.16 (citing Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (N.Y. 1902)). 210 Id. at § 1.17 (citing Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (Ga. 1905)). 211 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). 212 Griswold, 381 U.S. at 485–86, 85 S. Ct. at 1682, 14 L. Ed. 2d at 515–16. 213 Id., 381 U.S. at 480, 85 S. Ct. at 1679, 14 L. Ed. 2d at 512 (citing conn. gen. stat. §§ 53-32, 54-196 (1958)). 214 Id., 381 U.S. at 484, 85 S. Ct. at 1681, 14 L. Ed. 2d at 514. 215 Id., 381 U.S. at 484, 85 S. Ct. at 1681, 14 L. Ed. 2d at 514 (citation omitted). 216 Id., 381 U.S. at 480–81, 85 S. Ct. at 1679, 14 L. Ed. 2d at 512. 217 Id., 381 U.S. at 485, 85 S. Ct. at 1682, 14 L. Ed. 2d at 515–16 (internal citation omitted). 218 Id., 381 U.S. at 486, 85 S. Ct. at 1683, 14 L. Ed. 2d at 516–17 (Goldberg, J., concurring).

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 intru- sion.”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 consti- tutional prohibition of the government or more particularly government-owned transit agencies collecting customers’ personal data electronically. The Supreme Court unanimously held in 1977 in Whalen v. Roe225 “that New York State had the right to collect data about individuals and create a data- base if for the public good and with adequate security measures taken to protect the privacy and identifica- tion of individuals.”226 In an opinion by Justice Stevens, the Court stated that it was not “unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computer- ized data banks or other massive government files…, much of which is personal in character and poten- tially embarrassing or harmful if disclosed.”227 Justice Stevens continued: The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regu- latory duty to avoid unwarranted disclosures. Recognizing that in some circumstances that duty arguably has its roots in the Constitution, nevertheless New York’s statutory scheme, and its implementing administrative procedures, evidence a proper concern with, and protection of, the indi- vidual’s interest in privacy. We therefore need not, and do not, decide any question which might be presented by the unwarranted disclosure of accumulated private data— whether intentional or unintentional—or by a system that did not contain comparable security provisions.228 The Whalen Court held that the record did “not establish an invasion of any right or liberty protected by the Fourteenth Amendment.”229 There may be some protection under the Constitution when the government collects and/or uses personal data without a legitimate purpose or when the government fails to secure and protect an individual’s personal data from disclosure. In a 1981 Fifth Circuit case, Fadjo v. Coon,230 the plaintiff alleged that the State of Florida had conspired with others to divulge “the most private details” of the plaintiff ’s life.231 The court recognized a privacy right in the plaintiff ’s confidential information but held that the right had to be balanced against any state interest in disclosure. The question was “whether Fadjo has alleged [the] deprivation of a constitutional right.”232 The court stated that [t]he privacy right has been held to protect decisionmaking when the decision in question relates to matters such as “marriage, procreation, contraception, family relationships, and child rearing and education.” …Matters falling outside the scope of the decisionmaking branch of the privacy right may yet implicate the individual’s interest in nondisclosure or confidentiality.233 The court held that Fadjo clearly states a claim under the confidentiality branch of the privacy right. He does not claim that the state lacked authority to obtain personal information from him while pursuing a criminal investigation. However, even if the information was properly obtained, the state may have invaded Fadjo’s privacy in revealing it to Julson and the insurance companies. Alternatively, although the state could compel Fadjo’s testimony it could delve into his privacy only in pursuit of aims recognized as legitimate and proper. Implicit in both formulations of the complaint is the allegation that no legitimate state purpose existed sufficient to outweigh the invasion into Fadjo’s privacy.234 228 Id., 429 U.S. at 605–06, 97 S. Ct. at 879, 51 L. Ed. 2d at 77 (emphasis supplied). 229 Id., 429 U.S. at 606, 97 S. Ct. at 879–80, 51 L. Ed. 2d at 77. 230 633 F.2d 1172 (5th Cir. 1981). 231 Id. at 1174. 232 Id. at 1175. 233 Id. (citations omitted). 234 Id (emphasis supplied).. 219 McCarthy, supra note 204, at § 5.57. 220 Id. (citing Ramie v. City of Hedwig Village, Tex., 765 F.2d 490, 492 (5th Cir. 1985)). 221 Id. (citing Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969)). 222 Id. See Paul v. Davis, 424 U.S. 693, 713, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976) and Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986). 223 Phillips & Kohm, supra note 200, at P6. 224 Id. at P4. 225 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977). 226 Phillips & Kohm, supra note 200, at P6. 227 Whalen, 429 U.S. at 605, 97 S. Ct. at 879, 51 L. Ed. 2d at 77.

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 confidential- ity of personal information is at stake, the govern- mental interest has to be compelling, but did indicate that “‘more than mere rationality must be demon- strated’ to justify a state intrusion.”237 In Borucki v. Ryan in 1987,238 the First Circuit agreed that since the Griswold decision, a “‘right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.’”239 Nevertheless, the court held that the right to privacy does not emanate from the “penumbra of other fundamental rights,” but is “founded” in the Fourteenth Amendment’s “concept of personal liberty.”240 The Borucki court recognized that the Third and Fifth Circuits had held “that there is an independent right of confidentiality appli- cable to personal information contained in medical, financial, and other personal records.”241 The court held, however, that “[t]he personal rights found in this guarantee of personal privacy must be limited to those which are ‘fundamental’ or ‘implicit’ within the concept of ordered liberty….”242 Although the court observed that “[m]ost of the courts finding a right of confidentiality had used a balancing test to assess violations of that right,”243 the court held that the plaintiff ’s complaint based on the prosecutor’s disclo- sure of information about the plaintiff ’s competency to stand trial in another case failed to state a claim.244 In its opinion in Borucki, the court was guided by the Supreme Court’s decision in 1976 in Paul v. Davis.245 In Paul, although the plaintiff had been arrested but not convicted of shoplifting, the state police had distributed a flyer identifying the plaintiff as an “active shoplifter.” The Borucki court stated: Under Paul, an allegation that government dissemination of information or government defamation has caused damage to reputation, even with all attendant emotional anguish and social stigma, does not in itself state a cause of action for violation of a constitutional right; infringement of more “tangible interests”…must be alleged as well.246 In a similar analysis made in 1998 in Kallstrom v. City of Columbus,247 the Sixth Circuit held that it is only when an individual’s privacy interest is one of “constitutional dimension” that the court will find it necessary to “balance an individual’s interest in nondisclosure of informational privacy against the public’s interest in and need for the invasion of privacy….”248 Moreover, as the same court would explain later in 2008 in Lambert v. Hartman,249 the Supreme Court has identified only two types of interests that come within the substantive due process protection of the Fourteenth Amendment. The first interest has to do with “independence in making certain kinds of important decisions,” such as “matters relating to procreation, marriage, contraception, family relationships, and child rear- ing and education.”250 The second privacy interest recognized by the Supreme Court is “in avoiding disclosure of personal matters.”251 Nevertheless, in regard to the privacy interest in avoiding disclosure of personal data, the Sixth Circuit stated in Lambert that the court had “recog- nized an informational-privacy interest of constitu- tional dimension in only two instances: (1) where the release of personal information could lead to bodily harm…, and (2) where the information released was of a sexual, personal, and humiliating 245 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976). 246 Borucki, 827 F.2d at 842–843 (citations omitted) (emphasis supplied). 247 136 F.3d 1055, 1061 (6th Cir. 1998) (overruled in part as stated in Frost v. Blom, 2011 U.S. Dist. LEXIS 52571, at *12 (W.D. Mo. May 17, 2011) (stating that the Eighth Circuit has rejected the Kallstrom decision because the court “erroneously applied a negligence standard instead of the subjective deliberate indiffer- ence standard”) (citation omitted)). 248 Kallstrom, 136 F.3d at 1061 (citation omitted). 249 517 F.3d 433 (6th Cir. 2008), cert. denied, 2009 U.S. LEXIS 272 (U.S., Jan. 12, 2009). 250 Id. at 440 (citations omitted) (internal quotation marks omitted). 251 Id. (citations omitted) (internal quotation marks omitted). 235 Id. at 1177. 236 Id. at 1176 (citations omitted) (emphasis supplied). 237 Id. (citations omitted). 238 827 F.2d 836, 839 (1st Cir. 1987). 239 Borucki, 827 F.2d at 839 (quoting Roe v. Wade, 410 U.S. 113, 152, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973)). 240 Id. (citing Roe v. Wade, 410 U.S. 113, 153, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) and Whalen v. Roe, 429 U.S. 589, 598–99 N 23, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977)). 241 Id. at 845 (citing United States v. Westinghouse Electric Corp., 638 F.2d 570 (3d Cir. 1980); Plante v. Gonzalez, 575 F.2d 1119, 1132 (5th Cir. 1978), cert. denied, 439 U.S. 1129, 99 S. Ct. 1047, 59 L. Ed. 2d 90 (1979); Duplantier v. United States, 606 F.2d 654, 670 (5th Cir. 1979), cert. denied, 449 U.S. 1076, 101 S. Ct. 854, 66 L. Ed. 2d 798 (1981); and Fadjo v. Coon, 633 F.2d 1172 (5th Cir. 1981)). 242 Id. at 839 (citations omitted) (some internal quota- tion marks omitted). 243 Id. at 848 (citations omitted). 244 Id. at 849.

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. Administrator of General Services253 had been “narrowly construed” so as “‘to extend the right to informational privacy only to interests that implicate a fundamental liberty interest.’”254 The Lambert court’s analysis appears to impose an additional requirement before a constitu- tional privacy interest would be implicated—the State’s action in disclosing personal data must have “created a special danger” that led to the plaintiff ’s harm or humiliation.255 The Lambert court was clear that the government’s disclosure, for example, of a person’s Social Security number (SSN) does not rise to the level of a “fundamental right” or a right that is “‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty.’”256 Thus, there is authority holding, on the one hand, that when a privacy interest that comes within the confidentiality branch of privacy law has been violated, the government must show something more than “mere rationality” as justification for disseminating the personal information. On the other hand, a privacy interest violated by govern- ment intrusion does not implicate a constitutional right unless the privacy interest at stake is a funda- mental right or one that is implicit in the concept of ordered liberty. In the latter situation, the privacy interest must be balanced against a compelling governmental interest in disclosure. As noted, privacy law in the United States is largely a creature of state law. At least one Supreme Court justice has suggested that state legislatures are better suited than the federal courts to decide whether privacy rights should be enlarged. In a concurring opinion in Riley v. California,257 discussed infra, Justice Alito stated that [i]n light of the growing privacy concerns of modern tech- nology, it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment. Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred.258 Justice Alito’s opinion is that the “Court is poorly positioned to understand and evaluate” sensitive privacy interests arising, for example, from the use of modern cell phones.259 In summary, it does not appear that the collec- tion, use, or disclosure by the government of a customer’s personal data violates a right to privacy under the U.S. Constitution.260 Another factor that augurs well for the constitutionality of transit agen- cies’ collection and/or use of such customer data is that transit patrons have expressly or impliedly authorized transit agencies to collect and use their data. See Section II. B. The Fourth Amendment and a Constitutional Right to Privacy As with the preceding Section VII.A, this part of the digest concerns whether a government agency’s collection or dissemination of an individual’s personal data violates a person’s constitutional right in his or her personal data under the Fourteenth Amendment. As held in Lambert, supra, the Court has recognized two informational privacy interests of “constitutional dimension” because they come within the substantive due process protection of the Fourteenth Amendment. Under the Fourth Amendment, “warrantless searches are permissible only when an individual has a substantially reduced expectation of privacy.”261 Although the collection or disclosure of data by government transit agencies may raise privacy concerns, the courts have held that a person’s reasonable expectation of privacy is reduced when the privacy interest concerns travel or other activities conducted in public.262 Thus, depending on the circumstances, the courts have upheld automobile searches, searches incident to an arrest, and seizures of items in plain view that are believed to be contraband.263 In Katz v. United States,264 the Supreme Court held that because the Federal Bureau of Investigation (FBI) failed to obtain a warrant prior to listening to and recording the petitioner’s conversations, the petitioner’s conviction had to be reversed.265 252 Id. 253 433 U.S. 425, 97 S. Ct. 2777, 53 L. Ed. 2d (1977). 254 Lambert, 517 F.3d at 440 (citation omitted). 255 Id. at 439 (citations omitted). 256 Id. at 443 (citations omitted). 257 134 S. Ct. 2473, 2497, 189 L. Ed. 2d 430, 456 (2014) (Alito, J., concurring). 258 Id., 134 S. Ct. at 2497, 189 L. Ed. 2d at 456. 259 Id., 134 S. Ct. at 2497, 189 L. Ed. 2d at 455. 260 See Lambert, 517 F.3d at 440. See also Phillips & Kohm, supra note 200, at P4. 261 Bourgeois v. Peters, 387 F.3d 1303, 1314 (11th Cir. 2004). 262 Id. at 1314–1315 (citations omitted). 263 Id. at 1314–1315 (citations omitted). 264 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Some courts regard the Katz decision as having been abro- gated or superseded. See, e.g., State v. Earls, 214 N.J. 564, 70 A.3d 630 (2013) (stating abrogated) and United States v. Koyomejian, 946 F.2d 1450 (9th Cir. Cal. 1991) (stating superseded). 265 Katz, 389 U.S. at 358–359, 88 S. Ct. at 514–515, 19 L. Ed. 2d at 586.

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 loca- tional data is protected by the Fourteenth Amend- ment is United States v. Knotts,270 decided in 1983. In Knotts, Minnesota law enforcement officers had placed a beeper in a drum containing chloroform purchased by the respondent’s codefendants to track them from Minnesota to a cabin in Wisconsin.271 The law enforcement agents obtained a search warrant for the cabin, discovered a drug lab on the premises, and charged the respondent with conspiracy to manu- facture controlled substances.272 The respondent argued that his conviction had to be reversed because the use of the beeper to track his movements violated his right to privacy under the Fourth Amendment.273 The Knotts Court held that there is “no reasonable expectation of privacy” for “a person traveling in an automobile on public thoroughfares.”274 Thus, law enforcement could place a beeper in a container and monitor the movements of the car in which the container was placed.275 The only issue in Knotts was whether the monitoring of the car, not the installation of the beeper in the container, was a violation of the Fourth Amendment. The Court held that the govern- ment’s action in monitoring the beeper signals was neither a “search” nor a “seizure” within the meaning of the Fourth Amendment; therefore, a warrant was not required.276 The Court reversed the appellate court’s reversal of the appellant’s conviction.277 Likewise, in regard to a transit customer’s public activity, the Supreme Court held in Wyoming v. Houghton278 in 1999 that a police officer’s search of a passenger’s purse during a traffic stop was a legiti- mate exception to the warrant requirement of the Fourth Amendment. The Court, in an opinion by Justice Scalia, held that although the search intruded on the passenger’s privacy, “the governmen- tal interests at stake [were] substantial.”279 Further- more, because a passenger’s privacy interests are “considerably diminished” when the passenger is traveling on a public thoroughfare, the weighing of the passenger’s and the government’s interests “militate in favor of the needs of law enforcement.”280 Being on a public highway or a transit system does not obviate completely, of course, a person’s right to a reasonable expectation of privacy that is protected by the Fourth Amendment. In Arizona v. Gant in 2009, the Court stated that “[a]lthough we have recognized that a motorist’s privacy interest in his vehicle is less substantial than in his home…the former interest is nevertheless important and deserving of constitutional protection.”281 In 2010, Justice Kennedy stated in his opinion for the Court in City of Ontario v. Quon282 that “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging tech- nology before its role in society has become clear.”283 Justice Kennedy stated that the Court would refrain from issuing a broad ruling that might fail to consider the evolution of technology and society’s response to developments; thus, it was “preferable to dispose of this case on narrower grounds.”284 266 Id., 389 U.S. at 350, 88 S. Ct. at 510, 19 L. Ed. 2d at 581 (footnotes omitted). 267 Id., 389 U.S. at 351, 88 S. Ct. at 511, 19 L. Ed. 2d at 58 (citation omitted). 268 Phillips & Kohm, supra note 200, at P35. 269 Douma & Deckenbach, supra note 196, at 305. 270 460 U.S. 276, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983). 271 Id., 460 U.S. at 277, 103 S. Ct. at 1083, 75 L. Ed. 2d at 59. 272 Id., 460 U.S. at 277–279, 103 S. Ct. at 1084, 75 L. Ed. 2d at 59–60. 273 Id., 460 U.S. at 279, 103 S. Ct. at 1084, 75 L. Ed. 2d at 60. 274 Id., 460 U.S. at 281, 103 S. Ct. at 1085, 75 L. Ed. 2d at 62. 275 Id., 460 U.S. at 277–280, 103 S. Ct. at 1083–1084, 75 L. Ed. 2d at 59–60. 276 Id., 460 U.S. at 284–285, 103 S. Ct. at 1087, 75 L. Ed. 2d at 64. 277 Id., 460 U.S. at 285, 103 S. Ct. at 1087, 75 L. Ed. 2d at 64. 278 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999). 279 Id., 526 U.S. at 304, 119 S. Ct. at 1302, 143 L. Ed. 2d at 417. 280 Id., 526 U.S. at 303, 306, 119 S. Ct. at 1302-1303, 143 L. Ed. 2d at 417. 281 556 U.S. 332, 345, 129 S. Ct. 1710, 1720, 173 L. Ed. 2d 485, 497 (2009) (holding that the police are authorized to search a vehicle incident to an arrest only when the person under arrest was unsecured and within reaching distance of the passenger compartment at the time of the search). 282 560 U.S. 746, 130 S. Ct. 2619, 177 L. Ed. 2d 216 (2010). 283 Id., 560 U.S. at 759, 130 S. Ct. at 2629, 177 L. Ed. 2d at 227. 284 Id., 560 U.S. at 760, 130 S. Ct. at 2630, 177 L. Ed. 2d at 227.

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. The district court suppressed the admission of data obtained while the vehicle was parked in a garage adjacent to the Jones’ residence, but allowed the admission of the remain- ing data on the basis that “‘[a] person traveling in an automobile on public thoroughfares has no reason- able expectation of privacy in his movements from one place to another.’”287 The District of Columbia Circuit reversed the conviction because of the admis- sion of evidence obtained by a “warrantless use of the GPS device….”288 In an opinion by Justice Scalia, the Supreme Court unanimously affirmed the circuit court’s deci- sion. Justice Scalia explained that the Court was not abandoning prior precedent that a violation of the Fourth Amendment occurs when government offi- cers violate a person’s “‘reasonable expectation of privacy….’”289 Justice Scalia further explained that the Court’s decision in Jones was entirely consistent with its prior decisions because “the Katz reason- able-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.”290 In other cases, the government had installed a beeper in property that belonged to a third party with the consent of the original owner of the prop- erty and before the property came into the posses- sion of the defendant; thus, in those cases there was no violation of the Fourth Amendment.291 In this case, Jones possessed the vehicle before “the Govern- ment trespassorily inserted the information- gathering device,” a detail that put the Jones case “on a much different footing.”292 Thus, the “physical intrusion” that occurred in the Jones case “would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”293 Relevant to the digest is that Justice Scalia stated in Jones that “[s]ituations involving merely the transmission of electronic signals without trespass… remain subject to Katz analysis.”294 To date the Court has “not deviated from the understanding that mere visual observation does not constitute a search.”295 Justice Scalia reiterated that “‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’”296 A violation of the Fourth Amendment occurs when the government violates a person’s reasonable expec- tation of privacy without a warrant.297 The methods that transit agencies use to collect customers’ elec- tronic data, however, do not involve a warrantless physical trespass and search as occurred in the Jones case. Notably, the Jones Court did not decide whether the collection of the same information electronically and nontrespassorily by visual observation would be an unconstitutional invasion of privacy. The Court stated that an attempt to answer that question in the Jones case would “lead[] us needlessly in addi- tional thorny problems.”298 Nevertheless, the Court’s opinions in Gant, Jones, and Quon, supra, illustrate the Supreme Court’s appreciation of the privacy issues presented by the use of technology to collect and retain data on individuals. In a concurring opin- ion in Jones, Justice Sotomayor observed that the use of electronic surveillance may “‘alter the rela- tionship between citizen and government in a way that is inimical to democratic society.’”299 The use of electronic payment systems permits transit agencies to collect vast quantities of personal data on their customers. It is noteworthy that in 2014 in Riley v. California,300 supra, the Supreme Court held that absent a warrant, the police may not search digital information on a cell phone seized from an individual who has been arrested.301 The Court’s reasoning was that, because cell phones contain “vast quantities of personal information,” searches of cell phones are distinguishable from other physical searches.302 Searches of cell phones 285 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012). 286 Id., 132 S. Ct. at 948–949, 181 L. Ed. 2d at 917. 287 Id., 132 S. Ct. at 948, 181 L. Ed. 2d at 917 (citation omitted). 288 Id., 132 S. Ct. at 949, 181 L. Ed. 2d at 917 (citation omitted). 289 Id., 132 S. Ct. at 950, 181 L. Ed. 2d at 916–919 (citations omitted). 290 Id., 132 S. Ct. at 952, 181 L. Ed. 2d at 921 (empha- sis in original). 291 Id. (discussing and distinguishing cases). 292 Id. 293 Id., 132 S. Ct. at 949, 181 L. Ed. 2d at 918. 294 Id., 132 S. Ct. at 953, 181 L. Ed. 2d at 922 (emphasis in original). 295 Id., 132 S. Ct. at 953, 181 L. Ed. 2d at 922 (citing Kyllo, 533 U.S. at 31–32, 121 S. Ct. 2038, 150 L. Ed. 2d 941). 296 Id., 132 S. Ct. at 953, 181 L. Ed. 2d at 923 (citation omitted). 297 Id., 132 S. Ct. at 949, 181 L. Ed. 2d at 919 (citing Katz v. United States, 389 U.S. 347, 360, 88 S. Ct. 507, 196 L. Ed. 2d 576 (1967)). 298 Id., 132 S. Ct. at 954, 181 L. Ed. 2d at 923. 299 Id., 132 S. Ct. at 956, 181 L. Ed. 2d at 925 (Sotomayor, J., concurring) (quoting United States v. Cuevas-Perez, 640 F.3d 272, 285 (7th Cir. 2011) (vacated and remanded, 2012 U.S. LEXIS 1667 (U.S., Feb. 21, 2012))). 300 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014). 301 Id., 134 S. Ct. at 2485, 2495, 189 L. Ed. 2d at 442, 452. 302 Id., 134 S. Ct. at 2485, 189 L. Ed. 2d at 442.

26 “implicate privacy concerns far beyond those impli- cated 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 protec- tion 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. Moreover, transit customers have consented expressly or impliedly to transit agencies’ collection of their personal data. C. Whether There Is an Implied Constitutional Claim for a Privacy Violation A transit agency’s collection of customers’ elec- tronic data does not appear to implicate a federal constitutional right to privacy. Assuming, however, that a privacy violation arising out of the collection of a customer’s personal data is one of constitutional dimension, this part of the digest discusses whether under current law there exists an implied constitu- tional claim for a privacy violation. The scope of implied constitutional claims has narrowed since 1971 when the Supreme Court decided Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.306 The Bivens Court held that an implied cause of action exists when the government violates an individual’s rights under the Fourth Amendment.307 More recently, in Ashcroft, supra, the Court explained that “[i]n the limited settings where Bivens does apply[] the implied cause of action is the ‘federal analog to suits brought against state officials under…§ 1983.’” Section 1983 claims are discussed in Section VII.D.308 In Bivens, without a warrant for a search or for an arrest, Federal Bureau of Narcotics agents entered the petitioner’s apartment, arrested him in front of his family, and searched his apartment for narcotics.309 The Supreme Court held that the Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen. It guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority. And “where feder- ally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.”310 The Bivens Court held that an implied cause of action exists under the Fourth Amendment when a petitioner “can demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rights,” and that the petitioner may “redress his injury…in the federal courts.”311 Cases decided since Bivens as to whether particular kinds of conduct give rise to an implied constitutional claim have been inconsistent, as the courts have held that some claims are viable but that others are not.312 A decision about whether to recognize a Bivens claim has depended in part on an evaluation of the particular constitutional claim and on whether there were alternative remedies available.313 Because of its impact on potential Bivens claims, the Federal Employees Liability Reform and Tort Compen- sation Act of 1988 (Westfall Act) may be relevant to 308 Ashcroft, 556 U.S. at 675, 129 S. Ct. at 1948, 173 L. Ed. 2d at 882 (citations omitted). 309 Bivens, 403 U.S. at 389, 91 S. Ct. at 2001, 29 L. Ed. 2d at 622. 310 Id., 403 U.S. at 392, 91 S. Ct. at 2002, 29 L. Ed. 2d at 624 (citation omitted). 311 Id., 403 U.S. at 397, 91 S. Ct. at 2004, 29 L. Ed. 2d at 627. See Yorinsk v. Imbert, 2014 U.S. Dist. LEXIS 108849, at *2 (D.D.C. 2014) (holding that constitutional tort claims brought pursuant to Bivens do not authorize injunctive relief) and Dorwart v. Caraway, 2002 MT 240, P44, 312 Mont. 1, 15, 58 P.3d 128, 136 (Mont. 2002) (holding that “the Bivens line of authority buttressed by § 874A of the Restatement (Second) of Torts are sound reasons for applying a cause of action for money damages for violations of those self-execut- ing provisions of the Montana Constitution”). See also Wood v. Moss, 134 S. Ct. 2056, 2066, 188 L. Ed. 2d 1039, 1050–1051 (2014) (holding that the “implied right of action for damages against federal officers” extends to First Amendment claims). 312 James E. Pfander & David Baltmanis, Rethinking Bivens: Legitimacy and Constitutional Adjudication, 98 geo. L.J. 117, 118 (2009), hereinafter referred to as “Pfander & Baltmanis.” 313 Id. at 121, 126. 303 Id., 134 S. Ct. at 2488, 189 L. Ed. 2d at 446. 304 Id., 134 S. Ct. at 2495, 189 L. Ed. 2d at 452. 305 Knotts, 460 U.S. at 281, 103 S. Ct. at 1085, 75 L. Ed. 2d at 62. See also California v. Carney, 471 U.S. 386, 390–394, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1956); United States v. Moreno, 1994 U.S. App. LEXIS 31365, at *1 (9th Cir. 1994); South Dakota v. Opperman, 428 U.S. 364, 368, 96 S. Ct. 3092, 3096, 49 L. Ed. 2d 1000, 1004–1005 (1976); Cardwell v. Lewis, 417 U.S. 5823, 590–591, 94 S. Ct. 2464, 2469–2470, 41 L. Ed. 2d 325, 334–336 (1974); and Commonwealth v. Gary, 91 A.3d 102, 110–112 (Pa. 2013). See also People v. Case, 220 Mich. 379, 388–989, 190 N.W. 289, 292 (Mich. 1922). 306 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) (holding that the plaintiff was entitled to redress for his injuries caused by the federal agents’ violation of his Fourth Amendment rights), on remand, 456 F.2d 1339 (2d Cir. N.Y. 1972) (holding that the federal agents were not immune from damages suits based upon allegations of con- stitutional violations, but the defenses of good faith and reasonable belief were available). 307 Bivens, 403 U.S. at 389, 91 S. Ct. at 2001, 29 L. Ed. 2d at 622.

27 some readers of this digest.314 In brief, in the Westfall Act, Congress “virtually” immunized federal govern- ment 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. Pollard316 appears to confirm the view that the Westfall Act preempts “state law remedies against federal officials, even for conduct that violates the Constitution.”317 Thus, “[a] federal official who commits a constitutional tort is not subject to liability under state law (because of the Westfall Act), and no statute similar to § 1983 makes federal officials liable under federal law for violating another person’s constitutional rights.”318 The Westfall Act “leaves the federal Bivens action as the sole remedy against [a federal] official,”319 but “the Court has essentially abandoned the practice of recognizing implied rights of action to enforce federal statutory rights.”320 The plaintiff still must demon- strate that there is “an actionable constitutional viola- tion and overcome any qualified immunity defense.”321 Moreover, alternative federal remedies that are avail- able to the plaintiff could preclude a Bivens claim.322 It may be relatively unlikely that the Supreme Court will create new Bivens claims for privacy violations of the Constitution.323 In 2009, in Ashcraft v. Iqbal,324 Justice Kennedy stated that the Bivens Court “‘recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.’”325 Justice Kennedy also said, however, that “‘[b]ecause implied causes of action are disfavored, the Court has been reluctant to extend Bivens liabil- ity ‘to any new context or new category of defen- dants.’”326 Even when Bivens claims have been allowed, a 2009 Government Accountability Office (GAO) report concluded that monetary recoveries in Bivens cases are quite rare.327 There are other obstacles to Bivens claims. First, “[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”328 Because vicarious liability does not apply in a Bivens case (or in § 1983 actions discussed in Section VII.D), each government official who is a defendant in a Bivens case must be shown to have violated the Constitution; otherwise, a plaintiff does not have a cognizable claim against that defendant.329 314 Federal Employees Liability Reform and Tort Com- pensation Act of 1988 (Westfall Act), Pub. L. No. 100-694, 102 Stat. 4563. 315 Pfander & Baltmanis, supra note 312, at 131. See also Henry Cohen & Vivian S. Chu, Congressional Research Service, Federal Tort Claims Act, at 15–18 (Apr. 27, 2009), hereinafter referred to as “Cohen & Chu” (stating that the Westfall Act immunizes a federal employee from liability under state law but that a federal employee may be sued for violating the Constitution or violating a federal statute that authorizes suit against an individual). Under 28 U.S.C. § 2679(d)(1), if the Attorney General certifies that a defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all refer- ences thereto, and the United States shall be substi- tuted as the party defendant. 316 132 S. Ct. 617, 181 L. Ed. 2d 606 (2012). 317 Carlos M. Vazquez & Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the Bivens Question, 161 U. Pa. l. rev. 509, 517 (2013) (citing Minneci,132 S. Ct. 617, 623, 181 L. Ed. 2d 606 (2012)), hereinafter referred to as “Vazquez & Vladeck.” 318 Cohen & Chu, supra note 315, at 18. 319 Vazquez & Vladeck, supra note 317, at 517. See also Pfander & Baltmanis, supra note 312, at 123 (stating that “[t]oday, Bivens provides the only generally available basis on which individuals can seek an award of damages for federal violations of constitutional rights”). 320 Pfander & Baltmanis, supra note 312, at 126 (citing Wilkie v. Robbins, 551 U.S. 537 (2007)). 321 Id. at 132. 322 Id. 323 Froomkin, supra note 196, at 1055. 324 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). 325 Id., 556 U.S. at 675, 129 S. Ct. at 1947, 173 L. Ed. 2d at 882 (citation omitted). 326 Id., 556 U.S. at 675, 129 S. Ct. at 1947, 173 L. Ed. 2d at 882 (citations omitted). 327 Cohen & Chu, supra note 315, at 21. 328 Ashcraft, 556 U.S. at 676, 129 S. Ct. at 1948, 173 L. Ed. 2d at 882 (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) (finding no vicarious liability for a municipal “person” under 42 U.S.C. § 1983)); Dunlop v. Munroe, 11 U.S. 242, 7 Cranch 242, 269, 3 L. Ed. 329 (1812) (A federal official’s liability “will only result from his own neglect in not properly superintend- ing the discharge” of his subordinates’ duties.); Robertson v. Sichel, 127 U.S. 507, 515–516, 8 S. Ct. 1286, 32 L. Ed. 203 (1888) (stating that a public officer is not responsible for the misfeasance, “positive wrongs,” nonfeasance, negli- gence, or “omissions of duty” of the subagents, servants, or other persons properly employed by or under him “in the discharge of his official duties.”)). 329 Ashcraft, 556 U.S. at 676, 129 S. Ct. at 1948, 173 L. Ed. 2d at 882. The Court further stated that: Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of a clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities. Id., 556 U.S. at 677, 129 S. Ct. at 1949, 173 L. Ed. 2d at 883 (emphasis supplied).

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 agen- cy’s collection or use of customers’ electronic data, including PII or locational data, violates a right to privacy under the U.S. Constitution. D. Whether Transit Agencies Are Subject to § 1983 Actions for Collecting, Using, Disclosing, and/or Retaining Customers’ Electronic Data As previously discussed, a Bivens claim against federal officials is the “federal analog” to 42 U.S.C. § 1983 claims against state officials.331 Unless the Supreme Court recognizes a constitutional right to privacy in a transit customer’s personal data, however, such as PII, travel, or locational data, a complaint against a transit agency or its officers or agents for a disclosure of such data presumably would fail to state a claim under § 1983. Section 1983 states in part that [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the juris- diction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured….332 As explained in Toomer v. Garrett,333 a State and state officials acting in their official capacities are not “persons” within the meaning of § 1983 actions for money damages,334 but they are considered persons for § 1983 purposes when they are sued for injunctive relief.335 When state officials are sued under § 1983 in their individual capacities, they may be held liable for damages.336 When state officials are sued in their individual capacities, however, the defense of qualified immunity will shield them from personal liability, unless it is shown that they have injured a plaintiff by violating a known, clearly established constitu- tional or statutory right.337 As for local governments and officials, the Supreme Court held in Monell v. Department of Social Services338 (overruling prior precedent) that § 1983 does apply to municipalities and other units of local government and their officers. The qualified immunity doctrine may shield completely an official’s conduct, however, even though the individual’s conduct violated the Constitution.339 As one scholar explains the defense, if a reasonable official could have believed that his or her actions were lawful, then the doctrine operates to excuse some “reasonable ignorance” of the law.340 The rationale for the doctrine is that it permits officials to be decisive and exercise their judgment for the public good, but provides them with a “margin of error” when they “make reasonable mistakes about the exact boundaries of constitutional law….”341 Stated differ- ently, “qualified immunity protects from liability all but the ‘plainly incompetent’ or the official who could not reasonably have believed that [his or her] actions were lawful.”342 In Harlow v. Fitzgerald,343 a § 1983 action, the Supreme Court held that government officials who are acting within their discretionary authority but who are sued in their individual capacities have qualified immunity as long as “their conduct does not violate clearly established statutory or constitu- tional rights of which a reasonable person would have known.”344 For government officials to have acted within the scope of their discretionary author- ity means that their “actions were (1) undertaken pursuant to the performance of [their official] duties and (2) within the scope of [their] authority.”345 330 Cohen & Chu, supra note 315, at 21. 331 Ashcraft, 556 U.S. at 675, 129 S. Ct. at 1948, 173 L. Ed. 2d at 882. 332 42 U.S.C. § 1983 (2016). 333 155 N.C. App. 462, 574 S.E.2d 76 (N.C. Ct. App. 2002), review denied, appeal dismissed, 2003 N.C. LEXIS 402 (N.C., Mar. 27, 2003). 334 Toomer, 155 N.C. App. at 472, 574 S.E.2d at 86 (cita- tion omitted). 335 Id., 155 N.C. App. at 472–73, 574 S.E.2d at 86. 336 Id., 155 N.C. App. at 473, 574 S.E.2d at 86. 337 Id. (citing Andrews v. Crump, 144 N.C. App. 68, 75–76, 547 S.E.2d 117, 122, disc. review denied, 354 N.C. 215, 553 S.E.2d 907 (2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 272, 773 L. Ed. 2d 396, 410 (1982))). 338 436 U.S. 658, 690, 98 S. Ct. 2018, 2035, 56 L. Ed. 2d 634 (1978). 339 Barbara E. Armacost, Qualified Immunity: Igno- rance Excused, 51 vanD. l. rev. 581, 584 (1998), hereinaf- ter referred to as “Armacost.” 340 Id. 341 Id. at 586. 342 Id. at 600 (citing Malley v. Briggs, 475 U.S. 335, 341 (1986), and quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987) (stating that qualified immunity obtains “as long as [the officials’] actions could reasonably have been thought consistent with the rights they were alleged to have violated”)). 343 457 U.S. 800, 814, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). 344 Id., 457 U.S. at 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (citation omitted). 345 Lenz v. Winburn, 51 F.3d 1540, 1545 (11th Cir. 1995) (citations omitted) (internal quotation marks omitted).

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 constitu- tional or statutory right has been clearly established: “when the law requires a balancing of competing inter- ests, it may be unfair to charge an official with knowl- edge 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) disclosed the plaintiff ’s personnel file to the news media. The plaintiff alleged that the file contained his SSN and other PII, as well as the history and details of a settlement of a personnel claim between the plaintiff and NCDOT.349 In response to the plain- tiff ’s substantive due process claim, the court held that “one’s privacy interest in the information contained in personnel files does not fall under the recognized fundamental right to privacy” that exists for personal and family decision making.350 The plaintiff ’s allegations were sufficient, however, to state a claim for a violation of the Fourth Amend- ment’s protection “against arbitrary government action that is so egregious that it ‘shocks the conscience’ or offends a ‘sense of justice.’”351 Several cases involving the Driver’s Privacy Protection Act of 1994 (DPPA) illustrate that there is no constitutional claim based on the disclosure of personal data, even though the disclosure of the same data states a claim for a violation of the DPPA. For example, in Collier v. Dickinson,352 the plaintiffs sued executive-level officials with the Florida Department of Highway Safety and Motor Vehicles for selling the plaintiffs’ personal information to mass marketers in violation of the DPPA.353 In addition to a claim under the DPPA, the plaintiffs filed a § 1983 claim. Stating that the court’s decision was consistent with prior precedent in the Eleventh Circuit, the Collier court held that no constitutional right to privacy had been violated.354 There was, however, a statutory violation of privacy because the “DPPA clearly, unambiguously, and expressly creates a statutory right which may be enforced” by the plaintiffs.355 Because the statutory language gave the defendants “clear notice…that releasing the information…violated federal law,” the defen- dants were not entitled to qualified immunity.356 In Kiminski v. Hunt,357 in which a federal court in Minnesota dismissed claims brought under the DPPA, the court likewise dismissed the plaintiffs’ § 1983 claim. The complaint alleged that defendant John Hunt (Hunt), a former employee of the Minnesota Department of Natural Resources (DNR), accessed the motor vehicle record data of the plain- tiffs, as well as the data of 5,000 other individuals.358 The complaint sought to hold various state defen- dants liable under the DPPA and § 1983,359 namely employees of the Minnesota Department of Public Safety and DNR and the departments’ commission- ers in their official capacities. The court granted the state defendants’ motion (which did not include Hunt) to dismiss the § 1983 action for failure to state a claim.360 The court held that in a § 1983 action, the “plaintiff must allege deprivation of a right secured by the Constitution and laws of the United States and must show that the deprivation was committed by a person acting under color of state law.”361 As held in Borucki, supra, it is not enough that a general right exists, “other- wise ‘plaintiffs would be able to convert the rule of qualified immunity…into a rule of virtually unqual- ified liability simply by alleging violation of extremely abstract rights.’”362 The court in Kiminski dismissed the plaintiffs’ § 1983 claim because there is “no constitutional right to privacy in the informa- tion protected by the DPPA.”363 The court observed that the Eighth Circuit has held that even 354 Id. at 1308. 355 Id. at 1308–1309. 356 Id. at 1312. 357 2013 U.S. Dist. LEXIS 157829, at *1 (D. Minn. 2013). 358 Kiminski, 2013 U.S. Dist. LEXIS 157829, at *2. 359 Id. at *1. 360 Id. at *2, 43. 361 Id. at *25 (citing West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988)). 362 Borucki, 827 F.2d at 838 (citations omitted). 363 Kiminski, 2013 U.S. Dist. LEXIS 157829, at *40 (citation omitted). 346 827 F.2d 836, 837 (1st Cir. 1987) (citations omitted). 347 Id. 348 Id. at 848 (footnote omitted) (citations omitted) (emphasis supplied). 349 Toomer, 155 N.C. App. at 467, 574 S.E.2d at 83. 350 Id., 155 N.C. App. at 469, 574 S.E.2d at 84 (citing Kallstrom, supra). 351 Id., 155 N.C. App. at 470, 574 S.E.2d at 84 (citing United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 95 L. Ed. 2d 697, 708 (1987); County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998); and State v. Guice, 141 N.C. App. 177, 541 S.E.2d 474 (2000)). 352 477 F.3d 1306 (11th Cir. 2007), rehearing, en banc, denied, 2007 U.S. App. LEXIS 30359, at *1 (11th Cir., May 4, 2007), cert. denied, 128 S. Ct. 869, 169 L. Ed. 2d 724 (2008). 353 Collier, 477 F.3d at 1307.