Issues to Watch

National Debates Surrounding Immigration and Voting to Converge at College Park City Council


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National Debates Surrounding Immigration and Voting to Converge at College Park City Council

                                                                                                                              Connor Smith*

The City Council of College Park, Maryland, is set to debate and vote on a controversial proposal regarding noncitizens’ right to vote in municipal elections.  Rachel Chason, College Park Postpones Decision on Allowing Noncitizens to Vote, Wash. Post (Aug. 9, 2017), https://www.washingtonpost.com/local/md-politics/college-park-md-debates-whether-non-citizens-should-be-able-to-vote/2017/08/08/29bb7a64-7c54-11e7-83c7-5bd5460f0d7e_story.html?utm_term=.b6a952934a09.  The proposal would amend the city’s charter to allow noncitizens, including residents with green cards, undocumented immigrants, and student-visa holders, to vote in the November elections for the city’s mayor and city council.  See id.; see also John Fritze, Amid Immigration Battles, College Park Considers Giving Noncitizens Voting Rights, Balt. Sun (Aug. 6, 2017, 6:00 AM), http://www.baltimoresun.com/news/maryland/politics/blog/bs-md-immigrant-voting-20170805-story.html (discussing the controversy surrounding the proposed amendment).

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Issues to Watch, Uncategorized

Are U.S. Appeals Court Judges the New Stewards of the Environment?


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Are U.S. Appeals Court Judges the New Stewards of the Environment?

                                                                                                         Caitlin Rayhart*

Between President Trump vowing to pull the United States out of the Paris Climate Accord and appointing Scott Pruitt, a known climate change skeptic, as head of the Environmental Protection Agency, it did not seem like the federal government would be taking any steps to reduce carbon emissions in the near future.  See Camila Domonoske & Colin Dwyer, Trump Announces U.S. Withdrawal from Paris Climate Accord, NPR (June 1, 2017, 10:54 AM), http://www.npr.org/sections/thetwo-way/2017/06/01/530748899/watch-live-trump-announces-decision-on-paris-climate-agreement); see also Doina Chiacu & Valerie Volcovici, EPA Chief Pruitt Refuses to Link CO2 and Global Warming, Sci. Am., https://www.scientificamerican.com/article/epa-chief-pruitt-refuses-to-link-co2-and-global-warming/ (last visited Nov. 29, 2017). (more…)

Issues to Watch, Uncategorized

Internet Privacy and the Fourth Amendment: Web Host Required to Turn Over Data


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Internet Privacy and the Fourth Amendment: Web Host Required to Turn Over Data

                                                                                                                          Lauren Mullin*

In the modern internet era, the judiciary must decide how the Constitution applies to internet usage and what constitutional protections it gives to the privacy of personal information obtained through internet accounts.  A recently decided federal case implicated these exact issues arising from the internet and Fourth Amendment privacy rights.  See Tiffany Hsu, DreamHost Ordered to Release Some Trump Protest Website Data to U.S., N.Y. Times (Aug. 25, 2017), https://www.nytimes.com/2017/08/25/business/dreamhost-trump-doj-privacy-ddos-dailystormer.html?mcubz=3.

On August 24, 2017, a District of Columbia Superior Court judge ruled that DreamHost was required to provide the United States Government with data from disruptj20.org, a website it hosts, which helped organizers plan protests against President Trump on Inauguration Day.  Id.; see also In re DreamHost, No. 2017 CSW 003438, 2017 WL 4169713, at *1 (D.C. Super. Ct. Sept. 15, 2017) (discussing the August 24, 2017, hearing and order).

  Following the protests, about 200 individuals were arrested on various charges.  Hsu, supra.  The Government executed a search warrant on DreamHost in an attempt to collect information related to the arrested individuals.  Robert Iafolla, D.C. Judge Approves Government Warrant for Data from Anti-Trump Website, Reuters (Aug. 24, 2017, 11:57 AM), https://www.reuters.com/article/us-usa-court-dreamhost-idUSKCN1B41ZC.  DreamHost argued that the warrant, which required, inter alia, a visitor’s IP address, the pages that visitor viewed, and private email information, was overbroad and violated users’ rights.  Laurel Wamsley, DOJ Demands Files on Anti-Trump Activists, and a Web Hosting Company Resists, NPR (Aug. 15, 2017, 9:10 PM), http://www.npr.org/sections/thetwo-way/2017/08/15/543782396/doj-demands-files-on-anti-trump-activists-and-a-web-hosting-company-resists.  Although the Government eventually narrowed its request to exclude the IP addresses of website visitors, it still included emails and mailing lists.  See, e.g., Hsu, supra; Iafolla, supra.

Nevertheless, the court ruled that DreamHost needed to turn over information in compliance with the more limited search warrant.  In re DreamHost, 2017 WL 4169713, at *3; Iafolla, supra.  However, in his Order, the judge limited what the Government could do with the information and decided to oversee the Government’s examination of such information.  In re DreamHost, 2017 WL 4169713, at *3–4.  Pursuant to the ruling, the Government was permitted to sort through information that may be unnecessary to the investigation of the arrested protestors.  See id.  Although several media outlets have focused on the First Amendment implications of the case, the DreamHost issue presents Fourth Amendment concerns relating to internet privacy and the protection of personal information stored on the internet.  See, e.g., Hsu, supra; Wamsley, supra.

On October 10, 2017, the court ordered the Government to adhere to specific “safeguards” in order to protect the identities of innocent persons.  In re http://www.disruptj20.org, No. 17 CSW 3438, 2017 WL 4569548, at *1 (D.C. Super. Ct. Oct. 10, 2017).   The judge acknowledged the Fourth and First Amendment concerns and explained that the Government has a right to execute its warrant, but that “it does not have the right to rummage” through information provided by the individuals who did not participate in the criminal activity being prosecuted, or the “non-subscribers” as they are referred to in the Order.  Id.  The court ordered that the Government must adhere to the following procedures:

(1) [F]ile a report with the Court explaining the government’s intended search protocol and review procedures designed to minimize access to data and information not covered by the Warrant; (2) if the Court approves the report, the government may only conduct its search on a redacted data set that omits non-subscriber identifying information; (3) upon completion of review, the government must file an itemized list of the materials it seeks to retain with the Court, and explain how such materials are relevant to its investigation and its basis for removing any redactions; and (4) only upon a finding by the Court that the requested information is evidence of criminal activity, as described in the Warrant for which this Court has found probable cause, may the government obtain any un-redacted information, such as the identity of the user.

 

Id.  The Order spelled out the redactions that DreamHost was required to comply with and mandated that the Government shall permanently delete any information that does not fall within the scope of the warrant.  Id. at *2, *5.

Fourth Amendment Supreme Court Cases

Although there is not an abundance of recent Fourth Amendment case law relating to the Government seizing personal data from the internet, several older Fourth Amendment cases are instructive on the DreamHost issue.  See Orin S. Kerr, The Effect of Legislation on Fourth Amendment Protection, 115 Mich. L. Rev. 1117, 1148–49 (2017) (“Fourth Amendment cases are sparse because the technology is so new.”).  The Supreme Court has established a “reasonable expectation of privacy” rule, which Justice Harlan articulated to be a “twofold requirement”: “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”  Katz v. United States, 389 U.S. 347, 360–61 (1967) (Harlan, J., concurring).  In California v. Greenwood, the Supreme Court noted that Fourth Amendment protections extend to individuals who “manifest[] a subjective expectation of privacy . . . that society accepts as objectively reasonable.”  486 U.S. 35, 39 (1988).  Potential explorations of future courts, in relation to this case, include what society currently “accepts as objectively reasonable” in the digital age.  Id. 

Kyllo v. United States made clear that the Supreme Court is highly aware of the continuing pressure that modern technology has put on Fourth Amendment rights.  533 U.S. 27, 33–34 (2001).  In the context of thermodynamic technology, the Court explored how technology has affected the “degree of privacy secured to citizens by the Fourth Amendment” and addressed the question of “what limits there are upon this power of technology to shrink the realm of guaranteed privacy.”  Id.

More recently, in his concurring opinion in United States v. Jones, Justice Alito addressed the Katz test and the difficulty of determining reasonable privacy expectations when technology can change those expectations.  565 U.S. 400, 427 (2012) (Alito, J., concurring).  He discussed the tradeoff between the “convenience or security” of new technology “at the expense of privacy,” and explained that “many people may find the tradeoff worthwhile.”  Id.  Justice Sotomayor, also in a concurring opinion, discussed the potential implications of allowing the Government to access GPS surveillance monitoring.  Id. at 416 (Sotomayor, J., concurring).  Justice Sotomayor posed the following question: “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”  Id.

The DreamHost case poses a similar question as the one presented in United States v. Jones; the information obtained from DreamHost’s website does include personally sensitive information, even from individuals who did not participate in the violence that the government is prosecuting.  See In re http://www.disruptj20.org, 2017 WL 4569548, at *1.

An Alternative

Conversely, courts have the option of leaving technology and privacy decisions to the legislature.  See Ryan C. Chapman, The Outer Limits: IMSI-Catchers, Technology, and the Future of the Fourth Amendment, 44 Pepp. L. Rev. 841, 876–78 (2017).  In Riley v. California, Justice Alito, again in a concurring opinion, highlighted potential issues stemming from judicial activism that creates privacy protections for citizens.  134 S. Ct. 2473, 2497–98 (2014) (Alito, J., concurring).  He argued that legislatures are better suited to address these issues and respond to the changes of technology.  Id.  Legislatures may be able to provide solutions in relation to rapidly changing technology faster than the courts.  Chapman, supra, at 876–77.

Conclusion

Although the October 10, 2017, DreamHost Order addresses First and Fourth Amendment concerns, it seems that some private information belonging to innocent individuals may still slip through the cracks due to the sheer mass of data that is involved in the case.  See In re http://www.disruptj20.org, 2017 WL 4569548, at *1.  However, the court appropriately took action to curtail the risk that the Government will just sort through and keep innocent individuals’ personal information.  See id. at *4–5.  If faced with similar questions, other courts around the country should look to this Order as a model for detailed safeguards that help protect individuals’ Fourth Amendment rights.  While the Supreme Court has not made it clear how far Fourth Amendment rights will extend in the realm of growing technology, the DreamHost issue is one that will only continue to develop in the digital age.

*Lauren Mullin is a second-year law student at the University of Baltimore School of Law, where she serves as a staff editor for Law Review and a research assistant for Professor Charles Tiefer.  In the Summer of 2017, Lauren interned with the Honorable Stuart R. Berger on the Maryland Court of Special Appeals and the Honorable Michael A. DiPietro on the Circuit Court for Baltimore City.  This upcoming summer, Lauren will join Eccleston and Wolf, P.C. as a Law Clerk.

Issues to Watch, Uncategorized

Will President Trump’s Ban Against Transgender People Serving in the Military Survive a Legal Challenge?


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Will President Trump’s Ban Against Transgender People Serving in the Military Survive a Legal Challenge?[1]

                                                                                                                              Herman Brown*

In June 2016, the Pentagon lifted the ban against transgender people serving openly in the military.  W.J. Hennigan, U.S. Military to Allow Transgender Men and Women to Serve Openly, L.A. Times (June 30, 2016, 2:59 PM), http://www.latimes.com/nation/la-na-pentagon-transgender-ban-20160630-snap-story.html.  The new policy allowed transgender service members currently on duty to immediately serve openly and receive all medical care their doctor believed was necessary, which could include hormone therapy and gender reassignment surgery.  Id.

The announcement came after an extensive one-year review by the RAND National Defense Research Institute determining how allowing transgender people to serve openly in the military would impact the readiness of the armed forces and the cost of extending health care coverage for transition-related treatment.  Agnes Gereben Schaefer et al., Rand Corp., Assessing the Implications of Allowing Transgender Personnel to Serve Openly 1 (2016), https://www.rand.org/content/dam/rand/pubs/research_reports/RR1500/RR1530/RAND_RR1530.pdf.  The report found that allowing transgender personnel to serve openly would not “affect unit cohesion—a critical input for unit readiness.”  Id. at 44.  “The underlying assumption is that if service members discover that a member of their unit is transgender, this could inhibit bonding within the unit, which, in turn, would reduce operational readiness.”  Id.

The report noted that similar concerns were raised over whether to allow gays and lesbians to serve openly in the military.  Id.  The evidence suggested that allowing gays and lesbians to serve openly did not reduce operational readiness.  Id.  The report also examined foreign militaries that allowed transgender people to serve openly in the military, and the report found that allowing transgender people to serve openly did not have a significant effect on “cohesion, operational effectiveness, or readiness.”  Id.

The RAND Institute also found that extending healthcare coverage for gender transition-related treatment would not have a significant impact on the military’s budget.  Id. at 36.  Providing coverage for transition-related treatment would only increase healthcare spending by between 0.038 and 0.13 percent.  Id. at 34–36.

On July 26, 2017, President Trump announced via Twitter that transgender people would not be able to serve in the military.  Trump Bans Transgender People from the U.S. Military, via Twitter, Reuters (July 26, 2017, 10:42 AM), https://www.reuters.com/article/usa-military-transgender/trump-bans-transgender-people-from-the-u-s-military-via-twitter-idUSL1N1KH0S5.  He cited the “medical costs and disruption” of the military’s operation that would result from allowing transgender people to serve in the military.  Id.  Many transgender people serving in the military were very concerned about the President’s “announcement . . . that he would ban transgender people from serving in the military.”  Derek Hawkins, ‘People Are Scared’: LGBT Groups Say They’ll Rush to Fight Trump’s Transgender Military Ban in Court, Wash. Post (July 27, 2017), https://www.washingtonpost.com/news/morning-mix/wp/2017/07/27/people-are-scared-lgbt-groups-say-theyll-rush-to-fight-trumps-military-ban-in-court/?utm_term=.35b9dccc5fa3. Some transgender military personnel fear they will be discharged from the military.  See id.

The President formally issued his ban against transgender people serving in the military in a memorandum directed to the Secretary of Defense and the Secretary of Homeland Security on August 25, 2017.  Memorandum on Military Service by Transgender Individuals, 2017 Daily Comp. Pres. Doc. 1–2 (Aug. 25, 2017), https://www.gpo.gov/fdsys/pkg/DCPD-201700587/pdf/DCPD-201700587.pdf.  In the memorandum, President Trump stated:

In my judgment, the previous Administration failed to identify a sufficient basis to conclude that terminating the Departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources, and there remain meaningful concerns that further study is needed to ensure that continued implementation of last year’s policy change would not have those negative effects.

Id. at 1.  The President then directed the Secretary of Defense and Secretary of Homeland Security “to return to the longstanding policy” of banning transgender people from military service.  Id.

The President’s ban against transgender people serving in the military raises serious legal questions and has caused litigation to ensue.  See Camila Domonoske, Transgender Service Members Sue over Planned Ban on Trans People in Military, NPR (Aug. 9, 2017, 5:31 PM), http://www.npr.org/sections/thetwo-way/2017/08/09/542472312/transgender-service-members-sue-over-planned-ban-on-trans-people-in-military.  On August 9, 2017, five transgender service members filed a lawsuit against President Trump and others in the United States District Court for the District of Columbia, alleging that the ban against transgender people serving openly in the military violates the Due Process and Equal Protection clauses of the Fifth Amendment.  Complaint for Declaratory & Injunctive Relief at 1, 12–13, Doe 1 v. Trump, No. 17-cv-1597 (D.D.C. Aug. 9, 2017).  They argued that the President’s ban is unconstitutional because it is “arbitrary and capricious.”  Id. at 13.  They also argued that President Trump is estopped from reinstating the ban because the plaintiffs informed their commanding officers that they were transgender based on the military’s June 2016 policy change.  Id. at 13–14.

Some legal experts have weighed in on whether the President’s ban against transgender people serving in the military will survive a legal challenge.  Shannon Minter, legal director for the National Center for Lesbian Rights, believes the court will likely hold that the soldiers that came out in reliance on the military’s policy change cannot “be subsequently penalized for doing so.”  Shannon Minter, Trump’s Tweets on Trans Soldiers Won’t Hold Up in Court, CNN (July 27, 2017, 6:07 PM), http://www.cnn.com/2017/07/27/opinions/trans-military-ban-opinion-minter/index.html.  To support her conclusion, Minter relies on Watkins v. U.S. Army, 875 F.2d 669 (9th Cir. 1989).  Id.

In Watkins, the plaintiff was a homosexual at the time when homosexuals were not allowed to serve openly in the military.  875 F.2d at 701–04.  The court held the Army was “estopped from refusing to reenlist Watkins on the basis of his homosexuality” because the army continued to reenlist Watkins, even though the Army knew he was gay, and it would be unjust to allow the Army to now enforce the policy against Watkins.  Id. at 709–11.  Minter correctly notes that the principle would likely apply to current transgender soldiers, who relied on the military’s 2016 policy change.  Minter, supra.

There is a colorable argument that the ban against transgender people serving in the military violates the Equal Protection and Due Process clauses of the Fifth Amendment.  President Trump’s new policy only excludes transgender people from serving in the military.  See Memorandum on Military Service by Transgender Individuals, supra, at 1.  John Culhane, a constitutional law professor at Widener University Delaware Law School, opines that “[t]he Trump administration may soon learn that singling out a class of people for exclusion violates the constitutional guarantee of equal protection under the law.”  John Culhane, Trump’s Transgender Ban Is a Legal Land Mine, Politico (July 26, 2017), http://www.politico.com/magazine/story/2017/07/26/trump-transgender-troops-ban-legal-landmine-215425.  It is unclear whether rational basis, which is applied for non-suspect classifications, or intermediate scrutiny would apply to the President’s new policy.  Id.  The Supreme Court has not provided a clear standard of review for Equal Protection claims involving transgender people, and the lower federal courts are split on the issue.  See, e.g., Johnston v. Univ. of Pittsburgh, 97 F. Supp. 3d 657, 668 (W.D. Pa. 2015) (explaining that transgender is not a suspect classification under the Equal Protection Clause and applying rational basis review); Glenn v. Brumby, 663 F.3d 1312, 1315 (11th Cir. 2011) (noting that “more than a rational basis is required” when classifications are made based on gender and sex).

There is a good chance that the President’s policy could fail both heightened scrutiny and rational basis review.  The fact that the Pentagon conducted an intensive review of the issue and found that allowing transgender people to serve in the military would not be disruptive or costly may lead a federal court to conclude that the unequal treatment is not substantially related to an important government interest, nor rationally related to a legitimate government interest.  Schaefer et al., supra, at 36, 44.

 

*Herman Brown is a second-year law student at the University of Baltimore School of Law, where he is a member of the Royal Graham Shannonhouse Honor Society. In the Summer of 2017, Herman worked as a Summer Associate at Whiteford, Taylor & Preston.  Herman is currently an intern with the Honorable George L. Russell on the United States District Court for the District of Maryland.  For the Summer of 2018, Herman will join Hogan Lovells as a Summer Associate.

[1] Judge Colleen Kollar-Kotelly of the United States District Court for the District of Columbia temporarily blocked the implementation of President Trump’s transgender ban because the administration provided “absolutely no support for the claim that the ongoing service of transgender people would have any negative effect[] on the military at all.”  Doe 1 v. Trump, No. 17-1597 (CKK), 2017 WL 4873042, at *33 (D.D.C. Oct. 30, 2017); see also Dave Philipps, Judge Blocks Trump’s Ban on Transgender Troops in Military, N.Y. Times (Oct. 30, 2017), https://www.nytimes.com/2017/10/30/us/military-transgender-ban.html (discussing Judge Kollar Kotelly’s opinion and its implications).  Judge Kollar-Kotelly also noted that the transgender ban likely violates the Equal Protection Clause because of the “sheer breadth of the exclusion,” the military’s rejection of the proferred justifications under the Obama Administration, and the circumstances surrounding President Trump’s announcement of the transgender ban.  Philipps, supra.

Issues to Watch, Uncategorized

The Florida Free Kill Law Examined


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The Florida Free Kill Law Examined   

                                                                                                                   Hayley Hassan*

Florida is known for beautiful sandy beaches, carefree living, and the glowing sun.  For many Floridians, however, life is not always so sunny.  Section 768.21(8) of Florida’s statute governing negligence, more commonly known as the “Free Kill Law,” has many Florida natives feeling alienated, sidelined, and hopeless.  See Marcus J. Michles, Florida’s Free Kill Law: Protecting Doctors from Responsibility for Malpractice, Michles & Booth (Feb. 18, 2015, 2:33 PM), http://www.michlesbooth.com/medical-malpractice-law/floridas-free-kill-law-protecting-doctors-from-responsibility-for-malpractice/#top.  The statute, frequently challenged for its constitutionality, separates the survivors of wrongful death victims into two classes: survivors of victims as a result of general negligence and survivors of victims as a result of medical malpractice.  See Fla. Stat. Ann. § 768.21(3)–(4), (8) (West 2017).  The latter class is particularly limited, excluding all but the spouse or minor child of a victim from bringing a claim.  Id. § 768.21(8).

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