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 9-19
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10 area of protected freedoms."100 In a concurring opinion, 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."101 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."102 As privacy rights evolved after Griswold, they came to include protection against "government intrusion into a person's mind and thought processes,"103 "intrusion into a person's zone of private seclusion,"104 and "intrusion into a person's right to make certain personal decisions, such as whether to use contraceptives or have an abortion."105 However, more recent jurisprudence has 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 of personal data or its dissemination, the Supreme Court has narrowed the zone.106 Thus, presently, there is neither a "specific constitutional right to privacy," nor is there a constitutional right to privacy in one's personal or locational information.107 In 1977, in Whalen v.
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11 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 decision making is at issue."119 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."120 In 1987 in Borucki v.
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12 interest.'"137 The Lambert court's analysis appears to impose an additional requirement before a constitutional 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.138 The Lambert court was clear that the government's disclosure, for example, of a person's Social Security number 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.'"139 It appears, therefore, that there is authority holding 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 personal information. On the other hand, a privacy interest violated by government intrusion does not implicate a constitutional right unless the privacy interest at stake is a fundamental right or one that is implicit in the concept of ordered liberty.
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13 substances.154 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.155 The Knotts Court held that there is "no reasonable expectation of privacy" for "a person traveling in an automobile on public thoroughfares."156 Thus, law enforcement could place a beeper in a container and monitor the movements of the car in which the container was placed.157 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 government'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.158 The Court reversed the appellate court's reversal of the appellant's conviction.159 In 1999, in Wyoming v.
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14 the remaining data on the basis that "‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.'"173 The U.S.
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15 privacy.192 It appears that using technology to enhance and record the visual observation of motorists on public highways is not a violation of a constitutional right to privacy. On the other hand, the government's attachment of a GPS device to a vehicle owned or used by one suspected of a crime without a warrant, or the government's seizure of a cell phone in a vehicle without a warrant, are entirely different matters and distinguishable from the routine collection of secure data or monitoring data by transportation agencies.
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16 (Westfall Act) may have some relevance to the digest.202 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 for these claims," while "preserving the right of individuals to pursue Bivens actions for a ‘violation of the Constitution of the United States.'"203 Under 28 U.S.C.
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17 Kennedy also wrote that "[b] ecause implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability ‘to any new context or new category of defendants.'"216 Even when Bivens claims have been allowed, a 2009 Government Accountability Office (GAO)
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18 provides them with a "margin of error" when they "make reasonable mistakes about the exact boundaries of constitutional law…."230 Or, stated differently, "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."231 In Harlow v.
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19 court disagreed, holding that the DPAA and § 1983 enforcement mechanisms are "complementary."249 Because the statutory language gave the defendants "clear notice…that releasing the information…violated federal law," the defendants were not entitled to qualified immunity.250 In Kiminski v. Hunt,251 in which a federal court in Minnesota dismissed claims brought under the DPPA, the court likewise dismissed the plaintiffs' § 1983 claim.
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