Facebook’s Latest Bad Privacy Idea

Facebook has a knack for corroding privacy expectations.  From The Gothamist, a post titled No Stopping Facebook From Using Your Life as an Ad:

Facebook is about to launch a new ad feature called “Sponsored Stories,” in which users who check into Facebook while, say, visiting Starbucks, will simultaneously become potential spokespersons for Starbucks. (It also applies to products you “like” on Facebook.) Corporations interested in this form of “organic advertising” will have the option of paying Facebook for users’ profile images and product comments, to use as an ad that’s seen on their friends’ pages. Facebook users, however, won’t have the option of opting out.

Kudos to The Gothamist for mentioning the generational divide with respect to issues like this.  I’m just an old-fashioned guy; I think there’s nothing to admire or respect about today’s hit song being tomorrow’s Toyota ad, and I cannot comprehend why one would allow their life to be used in this way.  But maybe that’s just me.  Maybe if you are not the star in your own life movie, you can appear in the ads shown during its broadcast.

“Storm of Historic Proportions”

I don’t pay much attention to weather forecasts.  Whatever the prediction the weather is what it is.   But sometimes a forecast jumps up and shouts in one’s face.  Like tonight, when I heard that a “monster storm’ with a track 2100 miles long is projected to bring blizzard conditions from the Great Plains to New England, dropping 21 inches of snow in the Boston area before tomorrow night, followed by sleet and freezing rain.  The last I heard about this storm, from my builder friend John who does pay attention to weather forecasts because they directly affect his business, it called for 3-6 inches of snow.  Not nothing, but not a monster.  What happened between 7 am and 6:30 pm today?

I’m ready.  The back spasms caused by shoveling last week’s snow are almost gone, and I can bend over the sink to brush my teeth without supporting my torso.  Who needs the gym?

Privacy of One’s Wallet

The People v Long case cited in today’s earlier Stop & Identify post was superseded by a later appellate decision (People v Long, 189 Cal. App. 3d 377 (1987)), but its treatment of the constitutional propriety of requiring Long to produce identification was not changed.  Police conducting a premises check of a bar spotted what appeared to be a minor female with Long.  He told police his name but denied having identification on him. “Officer Luca noticed a wallet-sized bulge in his rear pants pocket. He then asked defendant for written identification. Defendant said he had none. The officer then directed defendant to look through his wallet, believing it must have contained identification.”  When defendant turned away from Officer Luca to look in his wallet Luca “turned him back so he could see what he was doing” and observed “several open, clear, plastic baggies or bindles he recognized as common methamphetamine packaging.”  The trial court denied Long’s motion to suppress the evidence seized from his wallet.  The appellate court reviewed “the constitutional propriety of the police officer’s directive to defendant, a lawfully detained person, that he produce written identification”–an issue on which there was then no direct federal or California decision.  The court “recognize[d] there exists a reasonable expectation of privacy in the contents of one’s wallet, including identifying information.”  In the context of a Terry stop that reasonable expectation of privacy is balanced by legitimate state interests:

The voluntary display of identification is a routine experience for most of us. Measured against the obvious and substantial need for police recording the identity of a person suspected of having committed a crime, we find reasonable the minimal intrusion involved here in requiring the production of identification. In addition, defendant’s oral statement of his name was suspect when he insisted he had no identification while appearing to carry a wallet and, in addition, he seemed intoxicated.

The court upheld the constitutionality of the police requiring Long to produce his identification.  Note again that this issue arose during a Terry stop, absent which the police have no right to temporarily detain and question anyone.

Florida Court Strikes Down ACA

A federal court in Florida ruled today that the Affordable Care Act’s individual mandate violated the Commerce Clause and, because the court found the individual mandate could not be severed from the rest of the Act, declared the whole law unconstitutional.  I’ve not carefully read the court’s 78-page opinion, but I’ve read enough to see it relies on activity argument noted in prior posts on this subject:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation  which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.

The court concludes that failure to purchase health insurance is not an activity.  The court rejects the argument that the “three unique elements of the health care market” (no one can opt out, hospitals arerequired to provide care regardless of ability to pay, and unpaid costs are shifted to third parties) relied on by the government are “constitutionally significant.”

What if only one of the three factors identified by the defendants is present? After all, there are lots of markets — especially if defined broadly enough — that people cannot “opt out” of. For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too-low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system.

Upholding the individual mandate would require piling “inference upon inference” to support an attenuated link between “what is being regulated and its effect on interstate commerce.”

Regarding the argument that the decision to forgo the purchase of health-care insurance is an activity, the court states-

There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort. The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that — when aggregated with similar economic decisions — affect the price of that particular product or service and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on interstate commerce; rather, the difficult task is to find a decision that does not.

This is significant because “‘economic decisions’ are a much broader and far-reaching category than are ‘activities that substantially affect interstate commerce.'”  The court ends the Commerce Clause analysis with this paragraph:

Because I find both the “uniqueness” and “economic decision” arguments unpersuasive, I conclude that the individual mandate seeks to regulate economic inactivity, which is the very opposite of economic activity. And because activity is required under the Commerce Clause, the individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law.

More Stop & Identify

A reader tried posting this comment without success, so I’m pasting in here.

To underscore your third conclusion, “if police cannot require a person to identify himself, they do not have the authority to seek, as an end in itself, whether the person is carrying identification,” under Brown v. Texas (1979), if there is no suspicion of a citizen committing misconduct then the police cannot require a person for identification. To quote the court:

“This appeal presents the question whether appellant was validly convicted for refusing to comply with a policeman’s demand that he identify himself pursuant to a provision of the Texas Penal Code which makes it a crime to refuse such identification on request…. The application of Tex. Penal Code Ann., Tit. 8, § 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct.[3] Accordingly, appellant may not be punished for refusing to identify himself, and the conviction is Reversed.”

In regard to Californian law, if a Terry stop occurs, officers may require written ID if a detainee has it in his possession; refusal to furnish it reduces the authority of the officer and is considered obstruction. To quote the District Attorney of Almeda County (http://le.alcoda.org/publications/point_of_view/files/Hiibel.pdf), “Based on Long and the cases we cited with it, it is still the law in California that a detainee’s refusal to disclose his name or furnish written ID if he has it constitutes a violation of Penal Code § 148(a)(1) which, like the Nevada statute, makes it unlawful to willfully delay or obstruct an officer in the performance of his duties.”

In People v. Long (186 Cal. App. 3d 216; 230 Cal. Rptr. 483; 1986), the court found, “At the outset, we recognize that defendant manifested and possessed a reasonable expectation of privacy in the contents of his wallet contained in his pocket … Nevertheless, it was reasonable for the officer to require that defendant produce identification from his wallet. … The voluntary display of identification is a routine experience for most of us. Measured against the substantial need for securing the identity of a person suspected of having committed a crime, we find reasonable the minimal intrusion involved here in requiring the production of identification. We do not imply that an officer may always insist on written identification from a detained individual who has orally identified himself. Much depends on the circumstances. In the instant case defendant’s oral statement of his name was suspect when he insisted that he had no identification on him while he appeared to be carrying a wallet and, in addition, appeared to be intoxicated.”

“May require written ID if a detainee has it in his possession” is still premised on police conducting a lawful Terry stop and does not itself require that a person carry identification.  (Thanks, JU)

Stop and Identify

Yesterday a question arose in class:  are U.S. citizens required to carry personal identification?  I said no, we are not.  The post 9/11 debate about whether the U.S. should require personal identity cards raised the specter of a totalitarian Big Brother state for too many people–thankfully.  One student, however, was adamant that California requires them, so I researched it. The bottom line–failing to carry identification on one’s person is not, by itself, a criminal offense in the United States.

The closest Supreme Court case is Hiibel v Sixth Judicial District Court of Nevada, Humboldt County, 542 U.S 177 (2004).  Larry Hiibel was charged under state law for “willfully resisting, delaying, or obstructing a public officer in discharging or attempting to discharge any legal duty of his office.”  The officer’s legal duty was defined by Nevada’s “stop and identify” statute, NRS §171.123:

1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime . . .

3. T he officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.

Hiibel argued that as applied to his case §171.123 violated the Fourth and Fifth Amendments of the United States Constitution.  The Nevada trial, intermediate appellate, and Supreme courts all disagreed and Hiibel appealed to the U.S. Supreme Court.

The Court cited various state stop and identify statutes and summarized their characteristics:

Stop and identify statutes often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior in the course of investigatory stops. The statutes vary from State to State, but all permit an officer to ask or require a suspect to disclose his identity. A few States model their statutes on the Uniform Arrest Act, a model code that permits an officer to stop a person reasonably suspected of committing a crime and “demand of him his name, address, business abroad and whither he is going.”  Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 344 (1942). Other statutes are based on the text proposed by the American Law Institute as part of the Institute’s Model Penal Code . . . [which] provides that a person who is loitering “under circumstances which justify suspicion that he may be engaged or about to engage in crime commits a violation if he refuses the request of a peace officer that he identify himself and give a reasonably credible account of the lawfulness of his conduct and purposes.”  In some States, a suspect’s refusal to identify himself is a misdemeanor offense or civil violation; in others, it is a factor to be considered in whether the suspect has violated loitering laws. In other States, a suspect may decline to identify himself without penalty.

Note that while the statutes require an individual to state his name during an investigatory stop–which (as the Court describes elsewhere in Hiibel) is premised on “specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity”–none require the individual to produce written identification.

The Court held that as applied to Hiibel’s case the stop and identify statute did not violate the Fourth or Fifth Amendments.  The Court’s decision in Terry v Ohio “recognized that a law enforcement officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further.”  A Terry stop must be “justified at its inception, and . . . reasonably related in scope to the circumstances which justified the interference in the first place.”  The Court said “our decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops” and “serves important government interests:” whether the person stopped has outstanding warrants, “a record of violence or mental disorder.” The Court also held that requiring Hiibel to identify himself does not violate his Fifth Amendment privilege against self-incrimination because “refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it “would furnish a link in the chain of evidence needed to prosecute” him. As best we can tell, petitioner refused to identify himself only because he thought his name was none of the officer’s business.”

Hiibel obviously does not directly address whether one is required to carry identification, but it supports that conclusion.

  • Police only have the authority to stop and identify an individual if there are “specific, objective facts establishing reasonable suspicion to believe [he is] involved in criminal activity”–in other words, if there are grounds to conduct a Terry stop
  • Absent such specific objective facts police cannot require that a person identify himself
  • If police cannot require a person to identify himself, they do not have the authority to seek, as an end in itself, whether the person is carrying identification.

Despite this, researching the issue showed that many people online share my student’s adamant belief, about California and other states.  Some believe it because, they say, police have told them they can be arrested for not carrying identification outside the context of a Terry stop.  I think they are wrong on the law, but I’ve spend enough time on this topic today.  If anyone has a citation to a statute or a case that proves me wrong, let me know.  I’ll defer to another day research on which (if any) stop and identify statutes require an individual to produce written identification during a Terry stop.

Unhappy College Freshman

According to annual survey of 200,000 college freshman, their emotional state in 2010 was at its lowest point in the survey’s 25 years of data collection.  Among the survey’s findings, as reported by the linked article from The New York Times:

  • 52% of students said their emotional health was above average, compared to 64% in 1985, and the percentage of those reporting below average emotional health increased
  • Women surveyed always report “less positive view[s] of their emotional health than men,” and the gap was greatest in 2010
  • Sources of stress include their parents’ financial difficulties, the students’ uncertainty about their own economic futures, and self-generated pressure to excel
    • A record 75% of 2010 freshman reported themselves to be academically above-average

School of Management students continue to complain about grade deflation, even though our mean GPA’s have risen dramatically over the past five years.  Since the majority perceive themselves to be above average–the Lake Wobegon Effect–it’s no wonder their grading perspective is skewed.

One of my responses to this survey is appreciation for the challenges faced by undergraduate academic counselors.

The First Thing We Do, Let’s Kill All The Communication*

“The Eygptian government’s crackdown on protestors intensified Friday with access to most forms of mass communication, including the Internet, mobile and SMS down . . . the government appeared to have unplugged most means of communication—including social network Facebook and Twitter—that activists had been using to coordinate action across the country.”  Egypt’s Web, Mobile Communications Severed, The Wall Street Journal, 28 Jan 2011

*with apologies to William Shakespeare, Henry VI, Act IV, Scene II

If I’m Not Essential, Am I a Luxury?

Per an emergency alert on its website the overnight snowfall has today delayed Boston University’s opening to 11 am, save for employees in essential services.  “Essential services include, but are not limited to,* University Police, Facilities Management and Planning, University Dining Services, Mail Services, Student Health Services and the University Switchboard.”

Maybe I can persuade Mail Services to cover my post-11 am classes.

*Lawyers are everywhere