The Faculty Lounge

Tribal Lands Not Likely to Become Islands of Abortion Rights in Red States

Since the Dobbs leak, questions have been raised by non-Natives about whether tribal lands could become safe havens for non-Native women seeking access to abortion in states that have outlawed it. As my brilliant co-authors, Lauren van Schilfgaarde, Aila Hoss, Sarah Deer, and Stacy Leeds, and I explain in this blog post for the Law & Political Economy Blog, the likely answer is no.  One of the biggest problems is that state civil regulation of non-Native persons on tribal lands may be allowed based on a preemption test, the results of which are difficult to predict. In the criminal context, states are empowered to prosecute crimes by one non-Native against another. We also point out that it is painful that these questions are raised during crises, while tribal interests and needs are so often ignored in other circumstances. 

Stay tuned for a longer article on the topic, which we hope to publish in the next few months.

Information Fiduciaries and the Duty to Care for Data

My colleagues Dave Haendler and Jordan Fisher, and I, have our new article, Negligence at the Breach: Information Fiduciaries and the Duty to Care for Data, up at SSRN.  Here's the abstract:

Personal data is a cost of admission for much of modern life. Employers, tech companies, advertisers, information brokers, and others collect huge quantities of data about us all. Yet outside of a few highly-regulated industries, American companies face few legal restrictions on how they manage and use that data. Until now, individuals have had very limited remedies when their data is stolen from data collectors. But change is afoot. In a significant recent decision, the Pennsylvania Supreme Court took a consequential step holding that entities collecting personal data owe a duty of reasonable care to protect data subjects against harm.

This tort decision left a critical question unresolved. What is “harm” in the context of privacy? What is it exactly that data collectors must protect data subjects against? This paper takes one state's doctrinal move as a jumping-off point to consider a question of immense national importance – how to apply to common-law negligence principles in cases involving the disclosure and misuse of personal data, and specifically, what a “duty to care” means in the unsettled realm of privacy law. Building off Jack Balkin’s work, this article proposes that fiduciary law offers an appealing framework for conceptualizing privacy harms and the corresponding responsibilities of the entities who are collecting our data. In doing so, it begins the conversation of how tort law can take a central place in protecting individuals when data holders betray their trust.

Call for Abstracts: Consuming Genetics: The Ethical and Legal Considerations of Consumer Genetic Technologies

An announcement from our friends at Harvard Law's Petrie-Flom Center

Conference date: May 17, 2019

Abstract Submissions Due: October 15, 2018

The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School is pleased to announce plans for our 2019 annual conference: “Consuming Genetics: The Ethical and Legal Considerations of Consumer Genetic Technologies.” This year’s conference is organized in collaboration with Nita A. Farahany, Duke Law School, and Henry T. Greely, Stanford Law School.

Conference Description: Breakthroughs in genetics have often raised complex ethical and legal questions. Many regard their genetic testing and sequencing as revealing something intensely personal and private. The questions raised by these technologies loom even larger as genetic testing is becoming more commonplace, affordable, and comprehensive. At the same time, advances in CRISPR and other related technologies raise anxieties about the implications of editing our own DNA. One can imagine a future when gene editing may become as widespread as genetic testing is today. As genetic technologies become more accessible to individuals, the ethical and legal questions around the consumer use of these technologies become more pressing. This conference will examine some of these issues.

The rise of genetic testing has allowed individuals to gain new insights into their unique makeup. Already the global genetic testing and consumer/wellness genomics market was valued at $2.24 billion in 2015 and is expected to double by 2025. Amazon noted that Ancestry.com’s DNA test kit was one of their best-selling products on cyber Monday of 2018. The availability of these technologies inspires patients to act proactively to avoid medical conditions, such as when actress Angelina Jolie pursued a double mastectomy after genetic testing revealed that she was in the highest risk category for developing breast and ovarian cancers. The rise of direct-to-consumer genetic testing kits raises questions about the appropriate setting for these activities, however. For example, the Food and Drug Administration expressed concern about 23 and Me’s initial product offering, noting that delivering health-related results directly to consumers might cause these individuals to draw the wrong medical conclusions.

The increased ease of genetic testing and sequencing has also led to a sharp increase in genetic data and the rise of precision medicine. The rise of genetic databases raises significant ethical questions, especially around privacy concerns. In an age where serial killers are caught because their relatives chose to submit DNA to a consumer genealogy database, is genetic privacy for individuals possible? The economics here are significant. Consider the increased value of Myriad’s database of variances of unknown significance after the Supreme Court in Association for Molecular Pathology v. Myriad Genetics held that isolated genes cannot be patented. Does the aggregation of data from genetic testing turn people into products by commercializing their data? How might this data reduce or exacerbate already significant health care disparities?

While gene editing tools such as CRISPR are not yet as widely available as genetic testing technology, in some parts of the world their availability is already spreading. There have been reports that Chinese scientists have used CRISPR-Cas9 technology to genetically engineer the cells of at least 86 patients. Companies in the United States and Europe are expected to begin treating patients with CRISPR-based therapies this year. Many countries have drawn a line against germline modification, but this prohibition may be strained if gene editing technology is widely disseminated. Before we reach that point, this is the time to consider what ethical and regulatory safeguards should be implemented for when the time comes.

The full call for abstracts and registration information are available here.

Limitations on Audit by the IRS: Taxpayer Can Go to Bathroom Alone

When I teach Federal Income Tax, I always describe to my students the broad powers of the IRS to request and inspect records during an audit. It is not uncommon for the IRS to meet with the taxpayer in the taxpayer's home or on the taxpayer's business premises.  Although the IRS typically contacts a taxpayer by mail first, surprise in-person visits may happen, as explained by the IRS here, in cases of "an overdue tax bill, to secure a delinquent tax return or a delinquent employment tax payment, or to tour a business as part of an audit or during criminal investigations." I half-jokingly tell my students not to be surprised if the IRS wants to look in the taxpayer's dresser drawers. 

Until today, though, I've never heard of an IRS agent following a taxpayer to the bathroom and monitoring the taxpayer's ... um... use of the facilities. Today in Ioane v. Hodges (here), the Ninth Circuit ruled that an IRS agent cannot invoke a qualified immunity defense in a case in which the agent allegedly "violated plaintiff’s Fourth Amendment right to bodily privacy when, during the lawful execution of a search warrant at plaintiff’s home, the agent escorted plaintiff to the bathroom and monitored her while she relieved herself."

I don't see a circuit split on this one, and it's doubtful the IRS will appeal.  I predict that SCOTUS will not be taking on this particular aspect of the jurisprudence of toilets any time soon.

 

Image source: Science, Industry and Business Library: General Collection , The New York Public Library. "Visiting-inspectors building ; Toilet for foremen ; North gatehouse ; A shop toilet ; Changehouse locker-room." New York Public Library Digital Collections.

What Deference is Owed to the Wishes of a Deceased Author or Artist?

Foucault. Harper Lee. Lord Byron. Orwell. Auden. Thomas Hardy. Henry James. Beckett. Dickinson. Robert Louis Stevenson. Plath. The executors or administrators of each of these writers' estates have wrestled with the question of how the author's work should be treated after the author's death. Some left specific instructions prohibiting publication or autobiographies, instructions that were ignored. For T&E and IP scholars, these situations raise many interesting questions.

I was curious to read in the (UK) Guardian, this piece by Blake Morrison. He asks in the book section, "Should an Author's Dying Wishes be Obeyed?"  Here is an excerpt:

If book burning stems from anger, however misguided or orchestrated, manuscript burning stems from fear. Better to destroy the evidence than to allow it to get into the “wrong” hands. Even now, in a supposedly confessional age, the potential for vicarious outrage is enormous; it’s only the list of offences that has changed. Where illegitimacy, alcoholism, humble social origins or a history of mental illness might once have been cause for shame, these days it’s racism, misogyny, political extremism and sexual abuse. * * *

Texts have an immense power to cause pain. As Stephen Fry likes to say: “Sticks and stones may break my bones, but words will always hurt me.” * * *

That authors can exert their influence from beyond the grave is no fiction; just because they are past doesn’t stop them tampering with their future. In his lifetime, Samuel Beckett was careful to police new productions of his plays: stage directions had to be followed to the letter. Since Beckett’s death, his nephew Edward Beckett has done the same. * * *

Slavish obedience is one route for an executor, defiance for the sake of literature another. When several parties are involved, each jealously possessive of the author, things get trickier.* * *

For most literary executors doing right by an author is humdrum work: keeping the books in print, looking after royalties, answering letters, selling manuscripts, charging permission fees, and generally ensuring that the authorial brand name goes on even though the author has been discontinued. But it’s not a job to take lightly. The duties are at best thankless (the person who appointed you isn’t around to show gratitude) and at worst it’s an ethical nightmare. Authors are difficult enough to deal with when alive. And things don’t get any easier when they are dead.

The full piece is available here. Food for thought.

Westin Fellowship Applications Open

Via Dennis Hirsch ([email protected]) ...

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The IAPP is opening the application process for the 2018-19 Westin Fellowship. Students can apply here: https://iapp.org/westin-research-center/apply/ Deadline is October 13, 2017.

The Westin Fellowship is a one year program focused on privacy research for recent graduates. Fellows live and work for the year in Portsmouth NH. The program facilitates great connections to industry, attendance in conferences, a pathway into the profession for those interested.

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If you have interested students, feel free to let them know about this opportunity.

 

 

How Should We Think About Whether To Donate Our Leftover, Non-Identified Tissue to Research?

Proposed changes to the federal Common Rule that governs most human subjects research would ask patients for the first time to decide whether to allow their non-identified, leftover tissue to be used for research or thrown away. For that choice to be meaningful, the public needs to be aware of the nature, risks, and benefits of biospecimens research, and of what the proposed changes will—and will not—do. In my latest Forbes essay, "No, Donating Your Leftover Tissue To Research Is Not Like Letting Someone Rifle Through Your Phone," I consider the power of analogies and other reflections on a recent New York Times op-ed on these proposed changes by Rebecca Skloot, author of The Immortal Life of Henrietta Lacks.

Call for Papers: Designing Ethical Review Processes for Big Data Research

The Future of Privacy Forum is hosting an academic workshop supported by the National Science Foundation to discuss ethical, legal, and technical guidance for organizations conducting research on personal information. Authors are invited to submit papers for presentation at a full-day program to take place on December 10, 2015. Papers for presentation will be selected by an academic advisory board and published in the online edition of the Washington and Lee Law Review. Four papers will be selected to serve as “firestarters” for the December workshop, awarding each author with a $1000 stipend. Submissions, which are due by October 25, 2015, at 11:59 PM ET, must be 2,500 to 3,500 words, with minimal footnotes and in a readable style accessible to a wide audience. Publication decisions and workshop invitations will be sent in November. Details here.

Interpreting Fiorina's Comments on Vaccination Law

I've started writing for Forbes as a regular contributor. My first piece, Carly Fiorina Says Her Views On Vaccines Are Unremarkable; For Better Or Worse, She's Right, analyzes GOP presidential candidate Carly Fiorina's recent ad hoc remarks on the relative rights of parents and schools with respect to vaccinations and to some of the hyperbolic reactions to those remarks. Fiorina's remarks are ambiguous, in ways that I discuss. But, as the title of the article suggests, and for better or worse, I think that the best interpretation of them places her stance squarely in the mainstream of current U.S. vaccination law. I end with a call for minimally charitable interpretations of others' views, especially on contentious issues like vaccination.

Two Cheers for Corporate Experimentation

I have a new law review article out, Two Cheers for Corporate Experimentation: The A/B Illusion and the Virtues of Data-Driven Innovation, arising out of last year's terrific Silicon Flatirons annual tech/privacy conference at Colorado Law, the theme of which was "When Companies Study Their Customers."

This article builds on, but goes well beyond, my prior work on the Facebook experiment in Wired (mostly a wonky regulatory explainer of the Common Rule and OHRP engagement guidance as applied to the Facebook-Cornell experiment, albeit with hints of things to come in later work) and Nature (a brief mostly-defense of the ethics of the experiment co-authored with 5 ethicists and signed by an additional 28, which was necessarily limited in breadth and depth by both space constraints and the need to achieve overlapping consensus).

Although I once again turn to the Facebook experiment as a case study (and also to new discussions of the OkCupid matching algorithm experiment and of 401(k) experiments), the new article aims at answering a much broader question than whether any particular experiment was legal or ethical. Here is how the abstract begins:

“Practitioners”—whether business managers, lawmakers, clinicians, or other actors—are constantly innovating, in the broad sense of introducing new products, services, policies, or practices. In some cases (e.g., new drugs and medical devices), we’ve decided that the risks of such innovations require that they be carefully introduced into small populations, and their safety and efficacy measured, before they’re introduced into the general population. But for the vast majority of innovations, ex ante regulation requiring evidence of safety and efficacy neither does—nor feasibly could—exist. In these cases, how should practitioners responsibly innovate?

My short answer to this question is that responsible innovators should inculcate a culture of continuous testing of their products, services, policies, and practices, and that it is a kind of moral-cognitive mistake (which I dub the "A/B illusion") for the rest of us to respond to these laudable (and sometimes morally obligatory) experimental efforts by viewing it as more morally suspicious for innovators to randomize users to one of two (or more) conditions than to simply roll out one of those conditions, untested, for everybody. The long answer, of course, is in the article. (The full abstract, incidentally, explains the relevance of the image that accompanies this post.)

Thanks to Paul Ohm and conference co-sponsor Ryan Calo for inviting me to participate, to the editors of the Colorado Technology Law Journal, and to James Grimmelmann for being a worthy interlocutor over the past almost-year and for generously unfailingly tweeting my work on Facebook despite our sometimes divergent perspectives. James's contribution to the symposium issue is here; I don't know how many other conference participants chose to write, but issue 13.2 will appear fully online here at some point.

If you would rather hear, than read, me drone on about the Facebook and OkCupid experiments (and some other recent digital research, including Apple's ResearchKit and the University of Michigan's Facebook app-based GWAS, "Genes for Good," as well as learning healthcare systems and the future of human subjects research) you may do so by listening to episode 9 of Nic Terry's and Frank Pasquale terrific new weekly podcast, This Week in Health Law.

Facebook Rumored To Be Planning Foray Into the Online Health Space

Image: Flikr

I know, I know. You're tired of hearing me drone on about Facebook. I'm tired of hearing me talk about Facebook, too. But this is actually a different Facebook controversy.

Reuters broke the story on Friday, citing anonymous sources:

The company is exploring creating online "support communities" that would connect Facebook users suffering from various ailments. . . . Recently, Facebook executives have come to realize that healthcare might work as a tool to increase engagement with the site. One catalyst: the unexpected success of Facebook's "organ-donor status initiative," introduced in 2012. The day that Facebook altered profile pages to allow members to specify their organ donor-status, 13,054 people registered to be organ donors online in the United States, a 21 fold increase over the daily average of 616 registrations . . . . Separately, Facebook product teams noticed that people with chronic ailments such as diabetes would search the social networking site for advice, said one former Facebook insider. In addition, the proliferation of patient networks such as PatientsLikeMe demonstrate that people are increasingly comfortable sharing symptoms and treatment experiences online. . . . Facebook may already have a few ideas to alleviate privacy concerns around its health initiatives. The company is considering rolling out its first health application quietly and under a different name, a source said.

I'm quoted in this International Business Times article about Facebook's rumored plans. What follows is the full statement I provided to the reporter (links added). (I love it when a journalist will let me email my thoughts to him or her; I can better control what I say and after they use one or two sentences, the rest becomes an instant blog post.)

It's hard to comment too much, since the details are at this point so vague. But here are some thoughts. There's nothing inherently wrong with creating free online fora centered around particular medical conditions, including very serious ones, inviting patients suffering from those conditions to share their experiences with each other, and conducting research on and even selling that data to third parties. That's exactly the model that PatientsLikeMe uses. That patient network was created by the brothers and friend of a man with ALS and it has proved critical for many patients suffering from some 1500 diseases and critical for science. The Personal Genome Project, begun by Harvard geneticist George Church and now with additional university sites in Canada and the UK, is similar. [Disclosure: I'm a PGP research subject through which I have published by whole genome sequence and sensitive medical data online. I have not identified my PGP profile by name, although genomic data is inherently re-identifiable and PGP subjects were the target of a pair of re-identification attacks by privacy scholars last year. I'm also a member of the board of directors of PersonalGenomes.org, the nonprofit created to support the PGP and similar initiatives.]

Openly sharing such sensitive information online is the last thing many people would want to do, and it's not for everybody. But there are lots of reasons why many benefit from such fora. Connecting with others who share and can understand your experience can be psychologically critical, and for some ill people, such as those with limited mobility or rare conditions, an online forum may be the only feasible way of achieving this benefit. Such online fora needn't be open to researchers and others, but again, many patients prefer to openly share their experiences. Privacy can be important, but secrecy can also take a toll, especially for those with stigmatized conditions. Sharing patient data as widely as possible is the best way to accelerate research into those conditions, and many patients feel that playing even a modest role in accelerating research is empowering.

Notwithstanding the benefits for many patients, and for science, of data sharing, people have very different preferences about sharing their personal information. It's essential that Facebook — like PatientsLikeMe and the PGP — be absolutely transparent about who will have access to the data users provide (just other forum members? a user's entire Facebook network? third parties to whom Facebook sells the data? everyone with an Internet connection?), how user data will be used (to conduct research? to target ads to patients?), and whether users will be identified with their data (will they be permitted to post anonymously or pseudonymously, and if so, will Facebook ever attempt to re-identify users and how will it react if third parties attempt to do so?). Facebook should also be very clear about the risks of sharing potentially identifying data online and of following any medical advice offered by fellow users.

If true, it's troubling that Facebook is considering initially launching its health application under a different name, presumably in order to conceal its connection to Facebook and what many view as its checkered history of privacy practices. Individuals have the right to decide how open they want to be with their personal information, and they also have the right to decide for themselves whether Facebook can be trusted to stick to whatever terms it offers the users of its health application.

Facebook Announces New Research Policies

A WSJ reporter just tipped me off to this news release by Facebook regarding the changes it has made in its research practices in response to public outrage about its emotional contagion experiment, published in PNAS. I had a brief window of time in which to respond with my comments, so these are rushed and a first reaction, but for what they're worth, here's what I told her (plus links and less a couple of typos):

There’s a lot to like in this announcement. I’m delighted that, despite the backlash it received, Facebook will continue to publish at least some of their research in peer-reviewed journals and to post reprints of that research on their website, where everyone can benefit from it. It’s also encouraging that the company acknowledges the importance of user trust and that it has expressed a commitment to better communicate its research goals and results.

As for Facebook’s promise to subject future research to more extensive review by a wider and more senior group of people within the company, with an enhanced review process for research that concerns, say, minors or sensitive topics, it’s impossible to assess whether this is ethically good or bad without knowing a lot more about both the people who comprise the panel and their review process (including but not limited to Facebook's policy on when, if ever, the default requirements of informed consent may be modified or waived). It’s tempting to conclude that more review is always better. But research ethics committees (IRBs) can and do make mistakes in both directions – by approving research that should not have gone forward and by unreasonably thwarting important research. Do Facebook’s law, privacy, and policy people have any training in research ethics? Is there any sort of appeal process for Facebook’s data scientists if the panel arbitrarily rejects their proposal? These are the tip of the iceberg of challenges that the academic IRBs continue to face, and I fear that we are unthinkingly exporting an unhealthy system into the corporate world. Discussion is just beginning among academic scientists, corporate data scientists, and ethicists about the ethics of mass-scale digital experimentation (see, ahem, here and here). It’s theoretically possible, but unlikely, that in its new, but unclear, guidelines and review process Facebook has struck the optimal balance among the competing values and interests that this work involves.

Most alarming is Facebook’s suggestion that it retreat from experimental methods in favor of what are often second-best methods resorted to only when randomized, controlled studies are impossible. Academics, including those Facebook’s statement references in its announcement, often have to resort to non-experimental methods in studying social media because they lack access to corporate data and algorithms. “Manipulation” has a negative connotation outside of science but it is the heart of the scientific method and the best way of inferring causation. Studies have found that people perceive research to be more risky when it is described by words like “experiment” or “manipulation” rather than “study,” but it’s not always the case that randomized, controlled studies pose more risk than do observational studies. The incremental risk that a study — of whatever type — imposes on users is clearly ethically relevant, and that's what we should focus on, not this crude proxy for risk. I would rather see Facebook and other companies engage in ethical experiments than retreat from the scientific method.

It’s also unclear to me why guidelines require more extensive review if the work involves a collaboration with someone in the academic community.

Fall Facebook/OKCupid & the Future of Research Tour

I’m participating in several public events this fall pertaining to research ethics and regulation, most of them arising out of my recent work (in Wired and in Nature and elsewhere) on how to think about corporations conducting behavioral testing (in collaboration with academic researchers or not) on users and their online environments (think the recent Facebook and OKCupid experiments). These issues raise legal and ethical questions at the intersection of research, business, informational privacy, and innovation policy, and the mix of speakers in most of these events reflect that.

The first, and most accessible, is a “tweet chat” today, from 1-2 p.m. EST, on “Research Ethics in a Modern World.” It’s being sponsored by the Milken Institute’s FasterCures, “an action tank driven by a singular goal — to save lives by speeding up and improving the medical research system.” Other participants are Susannah Fox (RWJF's first Entrepreneur in Residence), John Wilbanks (a very interesting guy whose work, largely on empowering patients and research participants to share their data in ways that are consistent with their values, and bio defy concise description), and Margaret Anderson (FasterCures’s Executive Director).

Likely discussion topics include the impact of social media on research and research ethics; the ethics of A/B testing and similar behavioral testing of user environments (i.e., websites) by corporations, and who should be empowered to conduct research risk-benefit analysis (patients/participants? scientists? legal systems?). You don’t need to have a Twitter account to read the conversation, either as it unfolds in real time or at any time thereafter. Just point your web browser to this URL. But to ask a question or otherwise participate in the discussion (which is encouraged!), you do need a Twitter account.

On October 22, I’ll be at Harvard Law participating in a panel discussion of the Petrie-Flom Center’s latest anthology, “Human Subjects Research Regulation: Perspectives on the Future,” with Glenn Cohen, Holly Fernandez Lynch, and Barbara Bierer.

On December 4, I’ll be at Colorado Law participating in a day-long conference, “When Companies Study Their Customers: The Changing Face of Science, Research, and Ethics,” sponsored by the Silicon Flatirons Center for Law, Technology, and Entrepreneurship and the Tech Policy Lab at the University of Washington. Other participants include law profs Paul Ohm, Ryan Calo, and James Grimmelman, Princeton Center for Internet Technology Policy Director Edward Felten, FTC Commissioner Julie Brill, and UT-Austin psychologist Tal Yarkoni.

On December 5, I’ll be in Baltimore participating in a Meet the Authors lunch event at the annual PRIM&R conference with the editors and several other contributors to the aforementioned book.

And on December 6, I’ll be participating in a PRIM&R session on “Manipulating Emotions on the Internet: The Cases of Facebook, OkCupid,” with OHRP Director Jerry Menikoff, privacy and Internet research ethics scholar Michael Zimmer, and Berkeley Director of Research Subject Protection Rebecca Armstrong.

On April 13, I’ll be giving a seminar at Wharton in the Legal Studies and Business Ethics Speaker Series, in which I may present something related to these themes.

Many thanks to the organizers for including me in these very interesting events (interesting least of all due to my inclusion, needless to say), and I hope to see some readers at some of them.

How an IRB Could Have Legitimately Approved the Facebook Experiment—and Why that May Be a Good Thing

Image courtesy Flickr

By now, most of you have probably heard—perhaps via your Facebook feed itself—that for one week in January of 2012, Facebook altered the algorithms it uses to determine which status updates appeared in the News Feed of 689,003 randomly-selected users (about 1 of every 2500 Facebook users). The results of this study—conducted by Adam Kramer of Facebook, Jamie Guillory of the University of California, San Francisco, and Jeffrey Hancock of Cornell—were just published in the Proceedings of the National Academy of Sciences (PNAS).

Although some have defended the study, most have criticized it as unethical, primarily because the closest that these 689,003 users came to giving voluntary, informed consent to participate was when they—and the rest of us—created a Facebook account and thereby agreed to Facebook’s Data Use Policy, which in its current iteration warns users that Facebook “may use the information we receive about you . . . for internal operations, including troubleshooting, data analysis, testing, research and service improvement.”   

Some of the discussion has reflected quite a bit of misunderstanding about the applicability of federal research regulations and IRB review to various kinds of actors, about when informed consent is and isn’t required under those regulations, and about what the study itself entailed. In this post, after going over the details of the study, I explain (more or less in order):

• How the federal regulations define “human subjects research” (HSR)
• Why HSR conducted and funded solely by an entity like Facebook is not subject to the federal regulations
• Why HSR conducted by academics at some institutions (like Cornell and UCSF) may be subject to IRB review, even when that research is not federally funded
• Why involvement in the Facebook study by two academics nevertheless probably did not trigger Cornell’s and UCSF’s requirements of IRB review
• Why an IRB—had one reviewed the study—might plausibly have approved the study with reduced (though not waived) informed consent requirements
• And why we should think twice before holding academics to a higher standard than corporations

A Plea for Bayesian Reasoning in Assessing the Appropriateness of Anal/Vaginal Probes Following K-9 Alerts

I wrote previously about a pending lawsuit to be filed by the ACLU on behalf of 54-year-old Jane Doe, a U.S. citizen who alleges that she was subjected to six hours of increasingly invasive cavity searches by U.S. Customs and Border Protection (CBP) agents and clinicians at the University Medical Center of El Paso as she attempted to return to the U.S. from Mexico via the Cordova Bridge in El Paso, Texas. That lawsuit has now been filed.

The facts alleged in the complaint, which are more or less those previously alleged in the media by Doe through her lawyer, are horrific. Here's the gist (Doe consented to none of the following searches, and none turned up any evidence of contraband):

• After she presented herself for inspection at the check point, a CBP agent confiscated her passport and told her she'd been randomly selected for additional screening.
• She was then subjected to an over-the-clothes frisk, in which a female agent "ran her finger over Ms. Doe’s genital area" and then, after ordering Doe to squat, "put her finger in the waistband of Ms. Doe’s pants and inserted her finger in the crevice of Ms. Doe’s buttocks."
• Doe was then told to stand in line with other people, at which point a drug dog appeared to alert to her.
• Doe was taken to a private room, where she was told to drop her pants and crouch. An agent examined her anus with a flashlight. An agent then "parted Ms. Doe’s vulva with her hand, pressed her fingers into Ms. Doe’s vagina and visually examined her genitalia with a flashlight."
• Agents sealed the cuffs of Doe’s pants by taping her pants to her legs. They then transported her, handcuffed, to University Medical Center of El Paso, where they handcuffed her to an exam table.
• Medical staff wheeled a portable toilet into the room, instructed Doe to take a laxative, and waited for it to take effect. They then observed her produce a bowel movement.
• Doctors x-rayed Doe's abdomen.
• Agents once again handcuffed Doe to an exam table and watched (along with passersby, since the exam room door was left open) while doctors inserted a speculum into Doe's vagina.
• Doctors conducted a digital probe of Doe's vagina while palpating her abdomen.
• Doctors conducted a digital anal probe of Doe.
• Finally, doctors gave Doe a CT scan.

Having found absolutely nothing incriminating, agents then gave her a choice: Retroactively sign a medical "consent" form and CBP will pick up the medical bill, or refuse to sign and be billed. Doe refused to sign and was later billed over $5,000 for her "treatment." She has not paid.

If true, this fact pattern suggests either that those involved are sadists or—far more likely—that they, like those who searched David Eckert and Timothy Young, are grossly overconfident in the evidentiary signal provided by a K-9 alert.

Under Florida v. Harris,

If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.

I have no earthly idea what a "bona fide" organization means, but my understanding is that there is wide variation in the standards employed by various training and certification organizations, some of which will "pass" a K-9 with a very high false positive rate. Among other things, K-9 responses have been shown to be significantly influenced by their handlers' beliefs about the presence of contraband. Or, on second thought, maybe not.

But even if we assume a very reliable K-9, and whatever we deem the predictive value of a positive test (i.e., an alert), it will be less than 100%. We should update our confidence in the presence of contraband when subsequent human searches yield nothing. And at some point in a series of false human searches following an initial K-9 alert, our updated belief should be considered insufficient to justify continued searches.

Agents and clinicians in this case — who had no reason to suspect Doe other than the K-9 alert combined with  the base rate of drug smugglers among those who enter the U.S. at El Paso — behaved as if the reliability of K-9 alerts were 100%, or something very closely approaching it. Since these are the same principles that govern when it is appropriate to offer, and how to interpret the results of, medical screening tests, it's more than a little ironic than so many doctors seem willing to go to the mat for these K-9s and their handlers.

One Traffic Stop-Turned-Anal Probe Is a Nightmare; Two Is a Coincidence? Three Is a Pattern?

Just when you thought David Eckert's ordeal had to be a one-off incident comes news of (1) a second, similar lawsuit filed against the Hidalgo County Sheriff's Office, and (2) allegations (and an impending lawsuit) from a woman who characterizes as sexual assault the repeated, invasive, ultimately fruitless — and warrantless — search of her person by federal agents from U.S. Customs and Border Protection and doctors at University Medical Center of El Paso, Texas (just across the New Mexico border and not far from Hidalgo County).

Second Lawsuit: Young v. Hidalgo County et al.

The second lawsuit was filed on Friday on behalf of Timothy Young, who, like Eckert, is represented by the Kennedy Law Firm (which says it has been receiving still other calls from individuals with similar stories). Young’s case interacts in interesting ways with Eckert’s. Recall that the first of two traffic stops that Eckert has sued over reportedly took place on September 6, 2012 at around 6:26 pm. Eckert says he was stopped by an officer (Rodriguez) from the Hidalgo County Sherriff’s Office for having a cracked windshield and ordered to exit his vehicle because, the officer said, his hands were shaking. The officer wrote him a warning for the windshield and told Eckert he was free to go but continued to interrogate him about what he had been doing and whether he had illegal drugs in his car. Eckert says that Rodriguez then “seized” the car and called K-9 Officer Green and K-9 Luis “Leo” Duffmar to the scene, where Leo apparently alerted to Eckert’s car. The complaint alleges that a search warrant was obtained for Eckert’s car on September 7, but yielded nothing.

In his complaint, Young alleges as follows: On October 13, 2012, around 9:42 pm, he had just pulled into a gas station and begun pumping gas when Officer Peru, of the Hidalgo County Sherriff’s Office — “with several other police vehicles as back up” — “initiated a pre-textual traffic stop" against Young, “falsely asserting that [Young] failed to use a turn signal.” Peru commented that Young looked nervous and that his hands and legs were shaking. Peru began asking Young about his activities that day and about tires in the bed of his truck before noticing that Young’s passenger had an open container.

Peru asked Young to consent to a search of his vehicle based on the nervousness and open container, and said that if Young didn’t consent, that he would only be detained longer while officers obtained a warrant. Young reluctantly consented. Peru noted in the police report that he suspected that Young was under the influence of narcotics because he looked “jittery,” licked his lips, and took his hat off and put it back on. Peru asked Officer Arredondo to call for a K-9 unit, and Green and Leo responded to the scene around 10:30 pm. Leo allegedly alerted to the center of the driver’s seat, the center console, and the left open door of the vehicle. Officers conducted “several searches” of the vehicle but turned up nothing. Around 11 pm, Young withdrew his consent and asked if he could go. Officers said no and continued to search the vehicle.

I’m No Fourth Amendment Expert, But…

UPDATE 11/7/13, 1:50 pm: Thanks to MacK for providing a link to Eckert's motion for partial summary judgment in the comments below. That motion cites much of the search warrant affidavit, but Ken White at Popehat has now posted and analyzed the affidavit itself.

In the affidavit, Officer Chavez does allege that Eckert's posture was "erect" and that he "kept his legs together" — but also that: Eckert avoided making eye contact with the officer as he asked him for his license and registration; that Eckert's left hand was shaking as he handed Chavez the documents; that Eckert "stated that he had a problem with [Chavez] searching his person"; that the canine LEO, upon being walked around the outside of the vehicle, "alerted to the driver's side of the vehicle"; that the canine LEO, upon making entry into the cab of the vehicle "a short time later," alerted to the "driver's side seat"; and that the K-9 officer said that he "had dealt with Mr. Eckert on a previous case and stated that Mr. Eckert was known to insert drugs into his anal cavity and had been caught in Hidalgo County with drugs in his anal cavity."

UPDATE 11/7/13, 6:15 am: As I implied in the OP (which is now below the fold), and as I stated explicitly in my comment at 7:26 pm last night, "what primarily struck me as remarkable about the Eckert case is that the apparent bare (no pun intended) fact of buttock clenching could constitute probable cause of drug possession." Unfortunately, as I had acknowledged by 10:14 pm, after I had finally gotten around to reading the complaint,

it seems that, contrary to what I complained about above, and how the media has portrayed the case, there were, in fact, additional alleged bases for probable cause beyond the infamous clenched buttocks -- namely, a canine LEO that alerted to Eckert's car seat and one officer who claimed that Eckert was known to conceal drugs in his anal cavity.

To be sure, as I also noted in that 10:14 pm comment, "the complaint alleges that there were problems with the canine LEO known to the officers and that the officer who made allegations about Eckert's habit of drug concealment knowingly lied about this." And to be sure, even if there was probable cause for an initial one, or even two or three, searches, that doesn't resolve questions about the appropriateness of either the officers' or the doctors' roles in performing eight invasive-but-fruitless searches over the course of several hours. Still, I was initially moved to blog about this case primarily because of the absurdity of concluding probable cause from buttock-clenching-without-more. I maintain that that would indeed be absurd. Yet even the plaintiff's own complaint presents a much more complex (if not necessarily benign) picture of the alleged basis for the searches.

I wrote the OP entirely on the basis of the two media/blog reports that I linked to in the OP, both of which framed this as the Buttocks Clenching Case, and neither of which included a link to the complaint (both sources have since updated their posts to embed the complaint or include a link to it). A successful Google search for a publicly accessible copy of the complaint, and the resulting link to it, was a last-minute addition to the OP as I rushed out the door. I did glance at the first few pages, where I noticed that the suit covers an earlier traffic stop as well, something that I hadn't seen mentioned in the media reports on which I was relying. That fact alone should have alerted me to the likelihood that there was more to the story—even from the plaintiff's own perspective, as articulated in the complaint—than the media were reporting, and persuaded me to hold off on pressing the publish button.

As he promised in the comments here, Orin Kerr has offered early this morning a typically thoughtful analysis of the case over at VC. Read the whole thing, but for present purposes, this is worth highlighting:

Some media coverage on this case focuses on the line in the affidavit that the officer had apparently said that Eckert had a stiff posture and kept his legs together, which some blog posts are reporting as the sole basis for the warrant. The HuffPost article on the case offers this inflammatory opening line: “A New Mexico man is alleging abuse after authorities conducted three enemas, a colonoscopy, an X-ray and several cavity searches on him simply because he appeared to clench his buttocks.” As a result, a lot of folks in the blogosphere seems to be thinking of this as the “clenched buttocks” case (thus the title of this post, so people know which case I have in mind). But that seems like at most a very small picture of the alleged cause, and we don’t even know if that was in the affidavit. The likely basis for the alleged cause is mostly the drug-sniffing dog’s alert to the driver’s seat that is the likely basis for probable cause.

Orin ends his post by noting that although "some readers are going to be irate that I am providing a legal analysis on an emotional case, and others will be annoyed that I haven’t reached a clear answer," his "comparative advantage is analysis rather than emotion." I actually like to think that that is more often than not my comparative advantage as well, and I regret that it wasn't this time. Mea culpa.

Call for Papers: AALS Defamation and Privacy Section

 

Call for Papers

AALS Defamation and Privacy Section

2014 AALS Annual Meeting, New York

 

 

The AALS Section on Defamation and Privacy invites papers for its program on “Children’s Privacy Rights Against their Parents” for the Annual Meeting, to be held on January 2-5, 2014 in New York.

 

Topic Description: Electronic surveillance technology and social media have significantly changed childhood in the Twenty-First Century. The digitization and electronic monitoring of children have altered the parent-child relationship and have significant ramifications for children’s privacy. At the same time, privacy scholars’ discussion of children’s privacy has focused mainly on the privacy of children from third parties, such as companies that collect personal information on the Internet. Similarly, family law scholars have paid little attention to children’s privacy, limiting the discussion to medical decision-making, and particularly abortion decisions. Yet, few have explored whether children have a general right to privacy against their parents.

 

The panel will explore areas of tension involving privacy rights of children against their parents. Panelists will address, among other issues, the impact of parental electronic surveillance online and offline, such as GPS monitoring and use of software to monitor online surfing. It will also explore potential parental privacy threatening activities online, such as posting information on children on Facebook or intervening in the creation of a child online persona.

 

This program is co-sponsored by the Section on Juvenile and Family Law and the Section on Children and the Law.

 

Eligibility: Full-time faculty members of AALS member law schools are eligible to submit papers. Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses.

 

Submission: 1-2 papers will be selected from this call for papers. There is no formal requirement as to the form or length of proposals. Preference will be given to proposals that are substantially complete papers. However, shorter proposals will also be considered. Papers will be selected by the Section’s Program Committee. Please email submissions to Gaia Bernstein at: [email protected] no later than August 15, 2013.

 

 

 

 

 

Looking for the Next Maryland v. King

In my last post on Maryland v. King, I suggested that both proponents and opponents of King should find the philosophical case for a universal DNA database stronger than they might otherwise have thought. Obviously, moving in that direction — or even including mere suspects in a database — would raise legal questions that would merit (and, one hopes, receive) further consideration by the Supreme Court. But how likely is it that the Court will have another opportunity to consider the constitutionality of a statute that continues to draw the line at arrestees?

The Supreme Court’s decision in King was necessarily limited to the fact pattern presented by Maryland’s particular statute authorizing the collection of DNA from arrestees. For instance, the Court repeatedly noted that the Maryland statute at issue limited DNA collection from arrestees to those who had been “charged” (not, in fact, merely arrested) with “serious crimes,” defined as crimes of violence or burglary, or attempts to commit these crimes. (Although Justice Scalia expressed skepticism that, under the Court’s analysis, it would or could find in any subsequent case a limiting principle preventing the collection of DNA from, say, those arrested for traffic violations, it is of course possible that the Court could find such a distinction.) The Court also noted that in Maryland, samples may not be processed or added to the database until after arraignment, when a judicial officer “ensures that there is probable cause to detain the arrestee.” The presence of probable cause, and the arrestee’s corresponding reduced expectation of privacy, were “fundamental” to the Court’s decision to uphold the collection of DNA from “arrestees.” The Court also noted that samples must be expunged if the arrestee is not convicted. Finally, the Maryland statute strictly limits use of the DNA database to solving cold cases and identifying remains and missing persons; use of the database for other purposes (research, to test for paternity, to analyze health or other traits) is criminalized. The Court explicitly said that a database that was not so limited would raise additional privacy concerns that would require a new analysis.

As usual, it’s more likely that the Court will have another opportunity to examine the constitutionality of DNA collection from arrestees if a circuit split arises regarding one or more of these or other practices. And that, in turn, depends, on how widely states and the federal government vary in their authorizing statutes. An Urban Institute report from May 2013 suggests that variation is, in fact, widespread on these potentially constitutionally relevant factors:

Seriousness of offense

Of the 28 arrestee DNA states, 13 collect DNA from those arrested or charged with any felony; 14 (like MD) collect only from a subset of felonies, typically involving violence, sexual assault, or property crimes; 7 collect from anyone arrested or charged with select misdemeanors; 1 (OK) collects from “any alien unlawfully present under federal immigration law”; and the federal government accepts profiles of any arrestee and any non-US citizen detained by the US government. In addition, 2 states collect DNA immediately upon arrest only if the arrestee has been previously convicted of a felony (CT) or other qualifying crime (TX).

Maryland v. King, Low-Stringency DNA Database Searches, and the Case for a Universal Database

Disclaimer: I’m not a Fourth Amendment person. Rather, my interest in King is in its implications for policies for the use of DNA in the criminal justice system. I spent the better part of a year after my Ph.D and before beginning law school helping to research and edit a book on DNA and the criminal justice system and co-authoring its final chapter with the book's editor, David Lazer. Although that was ten years ago now, most of the major policy issues in this area have not much changed over the last decade. So, with that caveat, and an invitation to readers to point out anything I say that is out of date or otherwise inaccurate, here are a few quick thoughts on King.

The majority and dissenting opinions spill most of their respective ink taking contrary positions on the primary purpose served by collecting DNA from arrestees. The majority somehow manages to argue with a straight face that the primary purpose (and indeed, to guess from its analysis, apparently the only purpose) of collecting DNA from arrestees is to identify the body of the arrested individual sitting in the booking room. As Justice Scalia wrote in dissent, this claim by the Court “taxes the credulity of the credulous” (slip op. dissent at 1). The clear primary purpose and actual use of statutes authorizing the routine collection of DNA from arrestees is to solve other cases than the one “at bar,” if you will, in the booking room.

One might have thought that the Court went out of its way to avoid finding that the primary purpose of the DNA collection at issue is “to detect evidence of ordinary criminal wrongdoing,” (Indianapolis v. Edmond, 531 U. S. 32, 38 (2000), in order to avail itself of the "special needs" exception to the Fourth Amendment's usual requirement that searches be conducted pursuant to individualized suspicion. But no. The Court ultimately concludes that the special needs cases “do not have a direct bearing on the issues presented in this case, because unlike the search of a citizen who has not been suspected of a wrong, a detainee has a reduced expectation of privacy” (slip op. at 25). In upholding the state’s power to collect DNA from arrestees, then, the Court relied on — along with the minimally intrusive nature of the search — the arrestee’s reduced expectation of privacy. Indeed, the Court deemed the latter feature “fundamental” to its analysis (id. at 24).

Consider, then, that no such reduced expectation of privacy can be attributed to an even larger class of individuals who are indirectly included in DNA offender databases: the relatives of arrestees (and others who are directly included in offender databases).