Liability of Transportation Entity for the Unintentional Release of Secure Data or the Intentional Release of Monitoring Data on Movements or Activities of the Public (2016) / Chapter Skim
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Pages 20-25
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20 reasonable person would have known, state officials or employees sued in their individual capacities would have qualified immunity for a disclosure of secure data or monitoring data.267 A § 1983 claim could arise if an official commits an egregious, intentional, arbitrary, and malicious act that in and of itself violates the Fourth Amendment as alleged in the Toomer case. However, a claim based on "mere negligence" for a disclosure of personal data ordinarily would be insufficient because "under section 1983 there must be an intentional or deliberate deprivation of life, liberty, or property, or at least ‘deliberate indifference.'"268 IV.
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21 agency must abide by whichever provision allows for the least disclosure.286 Section 552g(1) of the Privacy Act states: Whenever any agency…fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness…or fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.287 Although an individual may bring a civil action when private information allegedly was wrongfully disclosed, a plaintiff has the burden of showing that the agency willfully or intentionally disclosed the information.288 Apparently, the Privacy Act has not been applied to data breaches resulting from unauthorized access.289 There are four essential elements that must be established when a plaintiff makes a claim under the Privacy Act: (1)
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22 plaintiffs received a number of harassing emails, they notified the FBI of the cyber stalking.304 During the investigation, the plaintiffs consented to giving the passwords to their email accounts to the FBI to enable it to track the IP address of the stalker.305 The FBI promised not to release the plaintiffs' names, but their names were released when the media received some of the harassing emails that the plaintiffs had received.306 The plaintiffs alleged that their information and report to the FBI were maintained in a system of records that identified them by name or identification number, that the FBI shared this information with the Department of Defense, and that both agencies disclosed the information to the media.307 As of October 12, 2015, there were no further reported proceedings in the Kelley case. Finally, the Privacy Act provides that a person shall be entitled to recover no less than $1,000.308 In 2004, in Doe v.
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23 "nothing in the [DPPA] interferes with the state's ability to license drivers and remove dangerous ones from the road; it regulates external rather than internal uses of the information."323 Thus, with respect to statutes such as the DPPA, it appears that federal privacy laws are likely to be upheld when they regulate interstate commerce and govern the external uses of information without interfering with a state or local government's performance of its regulatory responsibilities.
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24 Employee Retirement Income Security Act of 1974,339 the Family Educational Rights and Privacy Act,340 Medicare and Medicaid, and the Genetic Information Nondiscrimination Act.341 E Proposed Federal Privacy Legislation 1.
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25 on Crime, Terrorism, Homeland Security, and Investigations in April 2014, the bill has not been reintroduced in the current session of Congress.354 5. Transportation, Housing and Urban Development, and Related Agencies Appropriations Act In 2014, an amendment to the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act would have prohibited the use of funds to mandate GPS tracking or EDRs in personal motor vehicles.
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