Meanwhile, Marvin Bynum’s Golden Quill-winning comment addresses the feasibility of establishing offshore wind farms in Lakes Michigan and Superior. 

Bynum begins his analysis by describing Europe’s commitment to renewable energy and the highs and lows of the offshore windpower industry abroad.  He then explores the federal and state regulatory regimes that govern such projects in Wisconsin and observes that there are significant obstacles facing developers.  Bynum argues that we should learn from the European experience and concludes by offering several proposals, such as providing federal loan guarantees and creating a new state office of “offshore wind coordinator,” to promote the development of offshore wind projects in Wisconsin.

Donald Stroud’s comment, which garnered the Silver Quill Award last spring, focuses on the use of Wisconsin’s Deceptive Trade Practices Act (DTPA) to adjudicate simple breach of contract claims in commercial transactions.  He describes the Wisconsin Supreme Court’s decision in K & S Tool & Die Corporation v. Perfection Machinery Sales, Inc. (2007), which created a way for a contracting party to avoid legitimate but unfavorable terms (in K&S, a restrictive forum selection clause) in the contract by asserting a DTPA claim.  Stroud observes that indiscriminate applications of the DTPA may (1) disrupt expectations and risk allocations that are fairly negotiated into contracts, (2) conflict with UCC provisions, and (3) go beyond the intent behind DTPA.  He recommends the adoption of a “public interest standard” to distinguish between cases that fall within the ambit of the DTPA and those that should be governed by ordinary contract law.  He also suggests that the UCC should trump the DTPA whenever the two are in conflict.

Jessica Farley’s comment undertakes an examination of the conflict between Wisconsin’s open records law and the intellectual property interests of private companies that keep public records on behalf of municipalities in a copyrighted format.  Farley criticizes the state supreme court decision in WIREdata, Inc. v. Village of Sussex (2008), which held that a municipality complied with the state’s open records law when it provided the plaintiff with PDF versions of requested records, even though the data contained in such files were not manipulable and, therefore, useless to the plaintiff.  She observes that the court dodged the central issue in the case – whether the open records law requires a municipality to provide records in a more usable format when so requested – and argues that the statutory language and purpose of the open records law demand meaningful access to information.  Farley concludes that in light of this important public interest copyright must yield, and proposes an amendment to the law that would include usability as a factor for determining compliance with the open records law.

Last but not least, Rachel Helmers has written a comment critiquing federal courts’ treatment of negative equity that is rolled into a new car loan as a purchase money security interest (PMSI).  PMSI status not only grants super-priority on the collateral (here, the car) to the lender under the UCC, but it also protects the lender from cramdown under the 2005 amendments to the Bankruptcy Code.  Helmers argues that shielding the negative equity portion of a car loan from cramdown in a Chapter 13 bankruptcy does not effectuate congressional intent in the 2005 amendments and fails to treat similarly-situated creditors alike.  She urges courts to follow the “dual status” rule, which would separate the negative equity from the remaining amount of the loan used to purchase the car and treat only the latter as a PMSI.

Here are some highlights: 

Having read the transcript, it seems likely that the Court will reverse the Ninth Circuit and hold that the government may ask open-ended questions as part of a security clearance process for government employees. Beyond that, though, very little is clear . . . .

Justice Scalia’s approach to the case seems fairly straightforward.  Justice Scalia believes on originalist grounds that the Constitution does not protect a constitutional right to information privacy.  He — and the other justices — recognized that the two 1970s Supreme Court decisions invoked by the plaintiffs — Whalen and Nixon — do not squarely hold that the Constitution protects such a right.  Scalia would therefore answer the open constitutional question and hold that limitations on the government’s ability to ask its employees and job applicants questions do not arise under the Constitution . . . .

Chief Justice Roberts did not seem particularly interested in Justice Scalia’s approach to Nelson.  So my hunch is that the Scalia approach ultimately wins over just his own vote and that of Justice Thomas, along with perhaps Justice Alito.  (Justice Alito asked one question that followed Scalia’s lead, but most of his questions went in other directions.)  With Justice Kagan recused, it is possible that five or six of the remaining justices will favor an approach that maintains ambiguity about the existence of the constitutional right but holds that NASA has not violated such a right even if it exists.  That would require the other justices to develop a framework for determining when the Constitution is violated.

While Lior finds Justice Scalia’s analysis persuasive, I am not similarly persuaded. I think the right of privacy previously recognized in other constitutional contexts also can be seen to include a right to informational privacy.

As to the scope of that right and how constitutional violations should be determined, I would suggest a balancing of interest approach that the Court has already established in both the Pickering First Amendment speech context and the Quon/Ortega Fourth Amendment privacy context.  Indeed, in a previous paper, I have argued that where rights under the substantive due process clause have been violated (as in Lawrence v. Texas), the Court should adopt a balancing test to balance the public employee’s right to privacy against the government’s interest in running an efficient government service.

I agree with Lior that Justice Scalia will not have more than three votes and that may lead to a very splintered decision since Justice Kagan has recused herself. Maybe something like 3-2-3, with the issue of a whether a constitutional right to privacy exists not being decided (think of the Court’s analysis in Quon in this regard).

But let’s say that you have a Facebook account. The other side believes that some of your Facebook communications might be relevant to the case, so they specifically request access to your account. You refuse, and the issue goes to the court to sort out (if you’re in federal court, under Rule 37, for those of you playing at home). How should the court rule? Specifically, what should the court order you to do? Do you have to give the password for your account over to a party that, to put it mildly, you are probably not on the best of terms with?

Surprisingly, at least one court has said yes [Update: see comments below], and I believe similar requests are being made in courts all around the country. I believe this is a deeply disturbing development and is the result of either a failure to understand social networking technology, the rules of civil procedure, or both.

The case is Romano v. Steelcase Inc., 2010 N.Y. Slip Op. 20388 (Sept. 21, 2010). (H/T NY Law Journal, via Kashmir Hill, via Dan Solove.) In Romano, the plaintiff, Kathleen Romano, is suing Steelcase, the manufacturer of her office desk chair, for injuries she received as a result of alleged defects in the chair. Steelcase requested access to her Facebook and MySpace accounts, the public portions of which they claimed “reveal[ ] that she has an active lifestyle and can travel and apparently engages in many other physical activities inconsistent with her claims in this litigation.” The court — properly, in my view — held that the requested information was relevant and rejected the plaintiff’s privacy arguments that she should not have to produce any information at all from her Facebook and Myspace accounts. The court then ordered the following relief:

ORDERED, that Defendant STEELCASE’s motion for an Order granting said Defendant access to Plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information, is hereby granted in all respects; and it is further

ORDERED, that, within 30 days from the date of service of a copy of this Order, as directed herein below, Plaintiff shall deliver to Counsel for Defendant STEELCASE a properly executed consent and authorization as may be required by the operators of Facebook and MySpace, permitting said Defendant to gain access to Plaintiff’s Facebook and MySpace records, including any records previously deleted or archived by said operators . . . .

As I indicated, I don’t believe this is an isolated incident. I’ve heard of similar requests being made here in Wisconsin, and there are probably other court orders out there that just haven’t made the news. In fact, this is probably the initial wave of a growing trend. So what’s wrong with issuing such an order?

Plenty. First of all, Romano was overreaching in trying to block any production at all of information from her Facebook account on privacy grounds. Parties in American courts are given broad latitude in seeking relevant materials; the general standard under the federal rules is “any nonprivileged matter that is relevant to any party’s claim or defense,” including finding leads to other admissible evidence. (R.26(b)(1). Romano is a New York case under N.Y. C.P.L.R. § 3101, but the differences are immaterial.) If the information is particularly sensitive and not terribly useful, Romano might have been able to seek a protective order, but there’s no across-the-board principle that says that individuals can never be forced to turn over private but relevant communications with third parties in a litigation. Certainly photos or descriptions of Romano engaged in vigorous activity pass the relevance test.

But in ordering Romano to turn over her account password access to her account, the court went way too far. The proper order would have been to require Romano to produce the requested material to Steelcase, not to allow Steelcase to go rummaging around in her account for it. The court spends quite some time talking about how Romano has no privacy interest in her Facebook and Myspace accounts, but that is not only false, it’s irrelevant to the question of how the requested information should be produced.

Social networking communications come in many forms. Some are communications made publicly available to the world. Others are posts visible to one’s entire network of “friends,” which can number in the dozens (if you’re like me) or even thousands. Still others are posts visible to some subset of that network, such as a group labeled “close friends.” Finally, social network sites can be used to send one-to-one communications that act just like emails.

In other words, communications on social networks have varying levels of privacy and relevance, just like other forms of communication, such as written documents. The ordinary discovery procedures for written documents are clear: one party must file a request with the other to produce relevant documents. The other party’s attorneys then do what litigation associates everywhere lovingly call a “document review”; they review the documents first to cull out documents that have not been asked for, then documents the production of which would be objectionable for some reason–for instance, privileged communications with counsel or material discussing litigation strategy. Only then are the remaining documents turned over to the other side for inspection.

It would be a highly intrusive system if the normal procedure was, instead of a party producing its own documents, the other party’s attorneys entering your house or business, looking through all your papers and effects, and taking away the material that in their judgement was relevant and non-privileged. That’s why the default is that parties produce their own materials after reviewing them first, except in very unusual cases. That default procedure does not depend on the producing party being able to show any special privacy interest in the materials — the general rule is that strangers shouldn’t be allowed to go rifling through your stuff, no matter how private you’ve kept it.

There aren’t many cases on point; it appears that few litigants have tried to make an argument in the pen-and-paper world that they should be allowed to go fishing for documents on the other side’s premises. At least one court has held that a Rule 34 request to permit inspection does not allow the requesting party to go roving around the other side’s facilities, questioning employees in mini-unsworn depositions without notice or the opportunity for objections. See Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 907-908 (4th Cir. 1978).

The electronic world is no different. There may be unusual circumstances where direct access to a hard drive or server is required, as the Rules Advisory Committee recognized in 2006 in updating the federal rules to account for electronically stored information. The committee was careful to note that “addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances.” As Moore’s Federal Practice concludes, “Any order for such discovery should define parameters of time and scope, and place sufficient access restrictions to protect the party from whom discovery is requested.” 7 Moore’s Federal Practice § 34.12.

There’s all sorts of irrelevant and embarrassing information that might be social networking sites. An individual might have sent flirting messages to someone. Satirical political posts might be misinterpreted out of context. Drunken party pictures or photos of one’s children might have no relevance to the case. Granting the opposing party access to the account means that they will see everything you’ve ever done with the account, no matter how irrelevant to the facts of the case. Indeed, it means that they will have continuing access to all of your communications, and friends’ communications, on the site going forward until you change the password. There’s even the risk that a malicious opposing party could send messages under your name — unlikely and dangerous for any opposing party to do, but there’s no need for civil litigants to even have to worry that such a thing will be possible. Civil litigants with relevant, nonprivileged Facebook or MySpace material should be required to produce that material and nothing else.

So far, courts have been unreceptive to my claims that post-Lawrence v. Texas, the right to sexual privacy represents a heightened constitutional right which should lead only to employer interference with that right if the employer has a legitimate and substantial justification for so doing.  The most recent example of courts’ lack of receptivity to this argument comes from the Eleventh Circuit yesterday. 

Ross Runkel provides the following summary of the 11th Circuit case of Starling v. Board of County Commissioners (11th Cir 04/06/2010), in which the court upheld a public employee’s demotion where the firefighter had been caught in an extramarital affair:

Starling sued the employer under 42 USC Section 1983 for violation of his First Amendment right to intimate association. The trial court granted the employer’s motion for summary judgment. The 11th Circuit affirmed.

The court framed the question in the appeal as whether the employer violated a firefighter’s First Amendment right to intimate association by demoting him for an extramarital affair with one of his subordinates. The court concluded that the public employer’s interest in discouraging intimate association between supervisors and subordinates was so critical to the effective functioning of its fire department that it outweighed Starling’s interest in his relationship with the subordinate in the workplace. The court assumed arguendo that Starling’s right to intimate, extramarital association with a subordinate was fundamental, but did not address whether the First Amendment protected intimate, extramarital  association.

I have many issues with not only the conclusion of the court, but also, perhaps more fundamentally, about the way the legal issue is framed (and I’m not sure if this is the fault of the plaintiff’s attorney or the court):

1.    I do not think there is such a thing as a claim to intimate association under the First Amendment.  I read Roberts v. U.S. Jaycees as finding an expressive association right under the First Amendment, and an intimate association right under the substantive due process provisions of the Fourteenth Amendment.  I am aware of Stanley v. Georgia and the right to have pornography in one’s home, but I submit that is not an intimate association case at all.

2.  Even if Roberts‘ location of the intimate association claim is properly in the Fourteenth Amendment, I do not think that a public employee plaintiff would get much constitutional protection under this precedent. Courts have been reluctant to give heightened protected to intimate association claims in the 25 years since the Roberts case was decided.

3.  I would have argued that the right here is one of sexual privacy under Lawrence v. Texas.  I would have also argued that although it is unclear as to what the appropriate standard of scrutiny is in Lawrence cases, at the very least some form of heightened scrutiny is involved.  Indeed, I would compare Lawrence to the Pickering line of First Amendment cases and ask the court to conduct a balance of the employee’s sexual privacy interests against the rights of the public employer to run an efficient government workplace.  Unless the employer had a legitimate and substantial justification for demoting/firing the employee, I would find that sexual privacy interest had been violated by the public employer’s actions.  I do not believe that all cases of sex between supervisors and subordinates automatically meet this standard but we would need to inquire more into the nature of the relationship.

4. What is striking about this case is that the court assumes arguendo that there is a fundamental right to intimate association, but that such fundamental right is outweighed by the efficiency interests of the employer.  If indeed the intimate association right, wherever found, is a fundamental one, I would think the narrowly tailored means to meet a compelling state interest standard would be involved and a mere government interest in efficiency would hardly be enough to permit the demotion in these circumstances. Note also that the court affirms a summary judgment, holding that there is no genuine issues of material fact and the case can be decided as a matter of law.  But my approach in #3 suggests many important disputed facts need to be determined by a fact-finder.

General Kagan, for the government, filed the petition for cert and is asking the Court to overturn the 9th Circuit decision which directed a district court to issue a preliminary injunction on behalf of contract workers at NASA’s Jet Propulsion Laboratory (JPL) operated by the California Institute of Technology under a contract with the federal government.  The General maintains that the privacy expectations of the employees are minimal because they have are in the government employment context, these are standard background forms that the government is using, and the Privacy Act of 1974 protects this information from disclosure to the public.

The case was originally brought in 2007 by twenty-eight scientists and engineers employed as contractors at JPL on behalf of a potential class of 9,000 employees that NASA classifies as low-risk employees. Questions included in the background check ask about “any treatment or counseling” for illegal drug use, and forms issued to references seek “adverse information” about the workers’ employment, residence, and activities regarding violations of the law, financial integrity, abuse of alcohol or drugs, mental or emotional stability, general behavior, and “other matters.”

This will be an interesting case for a number of reasons. First, it does not squarely fit into either the public employee drug testing cases (Von Raab & Skinner), nor does it focuses on a public employee’s privacy rights in their physical belongings (Ortega). Rather, it focuses on an area of public employment constitutional law that has received less attention: the informational privacy rights of these employees.  The Court has “hinted” at a constitutional right to informational privacy in two cases in the 1970s and then “never said another word about it.” Judge Kozinski is his dissent from denial of rehearing en banc (citing Whalen v. Roe, 429 U.S. 589 (1977), and Nixon v. Administrator of Gen. Servs., 433 U.S. 425 (1977)).

Normally, because of the fact that the government is acting in its employer capacity, it would have more latitude to infringe on its employee’s rights under the Fourth Amendment. This means that a balancing test is most appropriate. Such a test would balance the need of the employee for informational privacy against the needs of the government employer.  In this case, it would appear that employees are seeking to protect confidential and potentially embarrassing personal information against the government’s need to obtain information to protect and secure its federal facilities.

I do not know how such a balance will be made in this case (or even if one will be made (Judge Posner in the 7th Circuit said a “search” hasn’t even occurred under these circumstances)), though one thing that appears to favor the workers is that they are employed in low-risk, non-sensitive positions.  This clearly distinguishes Nelson v. NASA from the Custom Agents who were required to undergo drug testing in Von Raab.  Finally, one might say that the legitimate expectation to privacy for employees in the post-9/11 environment might lead the Court to conclude that whatever privacy expectations they have are minimal.

My early prediction: the Supreme Court will overturn the 9th Circuit. I suspect the decision to recognize a right to informational privacy under the 4th Amdt, but to suggest in this context that the right is only minimally burdened by the government’s background check documents.

Google’s new social networking service, Google Buzz, has obviously been all over the news lately, in part for various complaints about Google’s privacy practices. Those complaints have focused on the way in which Buzz, enrollment in which was automatic for Gmail users, initially defaulted to effectively sharing users’ email contacts with the public. EPIC has filed a complaint with the FTC arguing that this combination of automatic enrollment and “opt-out” of information-sharing was an unfair or deceptive trade practice in violation of Section 5 of the FTC Act.

But that’s not what caught my attention in Danielle’s post. What really set off alarm bells in my head was Danielle’s recounting how her children and their friends, all under the age of 13, suddenly had their Gmail accounts turned into Google Buzz accounts, and then proceeded to upload all sorts of information about themselves using the service. That raises the prospect that Google Buzz, by collecting such information without getting the appropriate parental consent, violated the Children’s Online Privacy Protection Act, or COPPA. I haven’t seen any discussion of this issue anywhere else.

COPPA is one of the few privacy statutes with real bite: it has strict rules that require substantial effort to follow, and the FTC has shown itself to be a vigorous enforcer. Indeed, the FTC has gone after two social networking sites for COPPA violations recently, and in one case imposed a fine of $1 million. So is Google violating COPPA? The answer is unclear but there’s definitely risk for Google here.

COPPA regulates the online collection of information from children under the age of 13. It applies to two classes of websites: those that have “actual knowledge” that they are collecting information from children, and those that are “directed to children.” If a website in either category is going to collect personally identifiable information (PII) from children, it first has to get “verifiable consent” from a parent. The FTC uses a “sliding scale” to determine what sort of verifiable parental consent is required; for information that is going to be publicly disclosed, as here, the FTC’s COPPA regulations require something like a mail-in form or a credit card.

It’s clear that Google has been collecting PII from children and that it hasn’t been getting prior verifiable consent. But it doesn’t need to comply with COPPA if it doesn’t either have actual knowledge or if the site is not directed to children. “Actual knowledge” typically comes about because the site asks for an age or birth date in the registration process—whether or not a human actually looks at it, the site will have “actual knowledge” if a user provides a birth date that is less than 13 years ago. This is in fact the most common vector for COPPA violations: a site asks for the user’s age, but doesn’t bar the user or get verifiable consent if the user responds that they are less than 13. But Buzz didn’t ask for an age when its users joined, so Google doesn’t appear to have “actual knowledge” of Buzz’s users’ ages. [Update: it occurs to me that Google might very well know that some of its Gmail users are under 13, despite what its terms say (see below). So this could still be a problem for Google.]

Even if Google lacks “actual knowledge,” it might still need to comply with COPPA if Buzz is “directed to children.” Buzz users are Gmail users, and Gmail’s terms appear to bar users under 18:

2.3 You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with Google . . . .

But the FTC has taken the sensible position that merely stating a rule barring users under 13 is not enough to avoid COPPA compliance if the rule is not enforced. So we need to look at the definition of “directed to children,” According to the FTC regulations, a website is “directed to children” if it is “a commercial website . . . that is targeted to children,” which is not terribly helpful. The FTC looks at the following factors to determine whether a website is “targeted” at children: “its subject matter, visual or audio content, age of models, language or other characteristics of the website or online service, as well as whether advertising promoting or appearing on the website or online service is directed to children.” The Commission will also consider empirical evidence concerning who’s using the service, and who the intended audience is.

Buzz doesn’t seem to satisfy many of those factors. There’s not much about the site design that screams out “young children.” The short video promoting Buzz I watched had only adult cartoon figures in it. But focusing on the list of factors ignores the fact that we are talking about a social networking site here, which may be inherently “targeted at children.” Children are drawn to such sites like catnip. It’s worth noting that Facebook has made a different choice than Google: it asks for your age on registering, and bars those under 13. Google would be wise to adopt a similar policy.

I’m not certain the FTC has yet brought a COPPA enforcement action against a company that didn’t have any actual knowledge of users’ ages. As a result, there’s not much to go on in terms of deciding when a site might be found to be “directed to children.” And perhaps an enforcement action is unlikely here. But I’m sure Google doesn’t want to be the test case.

A new Wall Street Journal article suggests that is what exactly may be happening, but now there is some push back from employees and their advocates:

Big Brother is watching. That is the message corporations routinely send their employees about using email.

But recent cases have shown that employees sometimes have more privacy rights than they might expect when it comes to the corporate email server. Legal experts say that courts in some instances are showing more consideration for employees who feel their employer has violated their privacy electronically . . .

In past years, courts showed sympathy for corporations that monitored personal email accounts accessed over corporate computer networks. Generally, judges treated corporate computers, and anything on them, as company property.

Now, courts are increasingly taking into account whether employers have explicitly described how email is monitored to their employees.

That was what happened in a case earlier this year in New Jersey, when an appeals court ruled that an employee of a home health-care company had a reasonable expectation that email sent on a personal account wouldn’t be read.

To be honest, I don’t think this a new trend at all (though it makes a nice theme in a WSJ story). Since I was practicing management side employment law back in the late 90s, we would advise clients routinely that they had to have clear language in their employee handbooks that employees had no expectation of privacy in their computers, internet browsing, or emails.

Nothing new, but still a good practice for employers to follow if they want to avoid this type of lawsuit.

Hat Tip: Joe Seiner

I have come to believe that the underlying presumptions of proponents and opponents of same-sex marriage are almost ontological in their differences about the nature of the law and the way in which it shapes and is shaped by society. We are all hard-wired now days to think of constitutional law as, largely, the mediation between the “rights” of individuals and the “demands” of the state. The former are seen as radically subjective, while the latter are the sum of their legal incidents. The former are not to be judged, and the latter are often examined for their “fit” without regard for their interaction with extralegal norms and institutions.

We also are steeped in an almost eschatological view of the law in which we see the claims of some new “discrete and insular minority” as analogous to those advanced during the civil rights movement and somehow validated by an Hegelian move toward “equality” and progressivism.

I understand the attraction of those assumptions, but they are not universally shared and do not underlie the arguments against same-sex marriage. This makes it hard — or so it seems to me — for proponents of same-sex marriage to see the point that opponents are making. We are speaking in a way that cuts against the grain of much of postwar legal and political theory.  As a consequence, much of what I have seen in debates on the issue are charges of religious zealotry, bigotry and, as in Varnum, “irrationality.” I congratulate Mr. Samis for trying to steer clear of these.

The other interesting thing in the academic literature on same-sex marriage is the degree of agreement between the right and the left regarding the consequences of same-sex marriage. They believe that it will change marriage profoundly, only differing as to whether this is a good or bad thing. Yet, at the level of popular discourse, proponents of same-sex marriage deny — even claim to be puzzled by — the very results  that theorists of their position expect and desire.

Mr. Samis says that he had hoped (really?) that I would offer “the reasons that same-sex marriage should be banned, but alas it was not to be so . . . .” Of course, he need not be -– probably will not be -– persuaded by those reasons, but my post expressly distinguished between the differences that justify the state’s distinction of same-sex relationships with respect to marriage as a matter of equal protection and those arguments that say it should not redefine marriage as a matter of policy.

The former dispose of Varnum. I am fairly confident that Mr. Samis did not learn in Con Law 2 that, in this context, “all one needs show is that the right at issue satisfies some legitimate purpose and avoids significant harms” (and I’ll assume that he did not really mean to claim that this is some test for the recognition of constitutional rights or for application of the equal protection guarantee).  Nor do I believe that the analogy to forms of speech that serve different purposes but that, nevertheless, each deserve constitutional protection is apt. There is a difference between defining the express constitutional protection of speech and the application of the equal protection guarantee. The latter does look for similarities between classes, but the heart of the matter is not the similarities but the distinctions. What are the differences between classes and how do they justify differential treatment?

Mr. Samis claims to agree with me on the “purposes” of marriage. I think he does not. What I said is that marriage involves (we hope) the union of two people who love each other and commit to mutual support. Mr. Samis would argue that these are sufficient reasons to extend civil marriage to relationships that exhibit these characteristics. As important as these relationships may be to the people who are in them and as admirable as these people may be, I don’t.

While love and commitment may explain much about why people marry, it does not tell us why the state recognizes civil marriage. Any number of relationships might satisfy the first two requirements, but we don’t allow the participants to marry.

The reason that we allow civil marriage does have to do with channeling potentially procreative relationships into a certain context. It is to communicate the norm that sexual relationships between men and women ought to take place within a marital relationship and that this relationship should be governed by a set of expectations that, whether we acknowledge it or not, are designed and have been developed to facilitate the care of any children that the relationship might create. It assumes — in fact, insists — that children have a right to be – are best off if they are — raised by their biological mothers and fathers.

This is why the charge of “discrimination” on the basis of sexual orientation is unhelpful. While it would certainly be irrational to discriminate on the basis of sexual orientation in, say, hiring law professors, it is not irrational to do so when it comes to marriage. The state acted to encourage certain types of heterosexual relationships (married ones) over others (cohabitation and casual sex) because a man and woman who sleep together might make a baby.

But two men or two women cannot do so. Because of that, the state simply does not have the same reasons to create and encourage a marriage-like status for same-sex couples. It does not have the same interest in structuring their sexual relationships.

I am fully aware of and have spent much time responding to the argument that this cannot be so because we allow men and woman who cannot or will not procreate to marry. That argument is wholly beside the point. For the most part, we cannot know which ones these will turn out to be and it would be intrusive on individual privacy (as well as, in many cases, impossible) to try to find out.

More fundamentally, channeling nonprocreative heterosexual relationships strengthens the norms of conjugal marriage. In fact, if we channeled –- or regarded as equally desirable — heterosexual relationships outside the marital norm whenever a couple could not — or intended not to have — children, we’d actually weaken the marital norm for heterosexual couples, as we have done with no-fault divorce laws and other manifestations of the sexual revolution.

Nor am I much moved by the argument that, having weakened the marriage norm and the value of fathers as fathers in other ways, we are no longer in a position to insist upon it. While it’s true that we no longer criminalize adultery and fornication (and should not), that doesn’t undercut the cultural norm that marriage is trying to preserve. While it’s true that we have weakened the marital norm and weakened fatherhood through liberalized divorce law and more generous attitudes toward out-of-wedlock births and nonmarital relationships, that has come at a cost — one that has been devastating among the poor. Mr. Samis may be right -– unfortunately, he is right — that society has sent the the message that fathers as fathers do not matter. But I would rather rail against the darkness than conclude that we must now live in that long night.

The decline of the marital norm and fatherhood has resulted in enormous human misery. There is nothing in our social policy — not the decline of unions, not free trade, not welfare reform, not the imagined scaling back of government over the past 30 years — that has harmed the poor more. While that doesn’t mean we should or can go back to 1959, it is foolish to ignore the harm and see only the benefits.

There is a much better point for proponents to make here, although they rarely do so. Why, they might say, wouldn’t trying to channel same-sex relationships into marriage help underscore the norm as well? Why might it not help the children (admittedly very few) that are raised by same-sex couples. If gays and lesbians want to commit to the norms that have evolved to restrain and channel heterosexual relationships, why not encourage it?

Here is where we get Burkean. Marriage is a fundamental institution that has been weakened (by no fault of gays and lesbians) at great social cost. The practical problems of the very small number of same-sex couples who would marry (and the almost infinitesimal number of children who would be raised by them –- particularly under circumstances where both partners could have parental rights) can be addressed in other ways. In other words, there is great risk and relatively little need — unless you are compelled by a desire to, as same-sex marriage proponent Andrew Koppelman says, “sanctify” gay and lesbian relationships. To say, incidentally, that this is tantamount to a claim that amounts to no more than “society isn’t ready” strikes me as an extraordinary assertion of hubris and ignores the past fifty years of the social history of marriage.

Nor am I simply alluding so some unknown and unspecified threats. The difficulties with the “no harm” argument are many. The redefinition of marriage would underscore the “close relationship” model of marriage which, as Mary Ann Glendon of Harvard and other scholars have noted, ineluctably weakens the norms of conjugal marriage by loosening the social (if not legal) strictures on individual choice in matters of sexuality and family structure. Remember marriage — at least our traditional conjugal model — absolutely does “endorse” the relationships to which it applies. In fact, it must endorse them because its very purpose is — at least for men and women — to encourage them as opposed to other forms of relationships.

If you don’t believe me (or her), read what the theorists of genderless marriage have to say. They believe that it will advance the close relationship, as opposed to the conjugal, model of marriage. They say that it will change the public meaning of marriage. As one of them noted, “the right wing gets it.” Of course they count this change as a good thing. I do not.

I agree that all children cannot be raised by their biological father and mother. Sometimes the ideal is not possible and we should not let the perfect be the enemy of the good. Divorce is sometimes the best of bad choices and adoption is an attempt to take lemons and make lemonade. But we don’t — at least not yet — marry people with the expectation that they ought to get divorced and thereby impair or eliminate the relationship between a child and her mother or (usually) father. Same-sex marriage necessarily sends a message that it is perfectly fine for children to lack a father or to lack a mother.

Will expanding marriage to same-sex couples have no impact on the norms of marriage itself? Perhaps, but it strikes me as unlikely and, once again, the more sophisticated proponents of same-sex marriage do not believe that. Thus, the Ontario Court of Appeals, in mandating same-sex marriage, expressly demanded that its incidents be changed to accommodate same-sex couples, suggesting that it might require the recognition of (at least) tripartite forms of parental rights since, even if Heather has two daddies, she will also have a mommy. Others have suggested modification of norms and legal rules regarding financial interdependence and the presumption of marriage. Still others have argued that the sexual exclusivity that is a norm of conjugal marriage need not be –- and perhaps should not be –- an expectation of genderless marriage.

This shouldn’t be surprising. To believe otherwise is to believe that sexuality is nongendered in the sense that a relationship between two men or two women is likely to be the same — save for some physical details — than one between a man and a woman. If the norms of marriage developed from a need to bridge the sexual divide between men and women – which is itself a function of the fact that sex makes babies — then why would we expect partners in other forms of relationships to develop — or at least to experience in the same way — the same norms and expectations? There may be much about homosexual relationships that are the same, but it also makes sense to think that there will be much that is different.

Nothing I have said here implicates religion or morality. In fact, it’s probably more rooted in evolutionary biology. To extend marriage to relationships that cannot produce children and whose participants, as a result, are unlikely by evolution or socialization to see them in light of norms and expectations that grow from the nature of relationships that are potentially procreative, seems likely to change them.

It is not an adequate response to say that, well, “I don’t see how your homosexual marriage can affect my heterosexual one.” As Maggie Gallagher writes, that is a sound bite and not a serious thought. Of course, it may not, just as your neighbor’s no-fault divorce did not cause your parents to break up. (Incidentally, Helen Alvare recently wrote an excellent piece in the Stanford Journal of Law & Public Policy demonstrating the way in which arguments for no-fault divorce track those now made for same-sex marriage.)

The consequences that concern me are not an immediate impact on individuals, but a change in cultural understanding — and eventually the law — that would occur over time and in ways that are almost impossible for us to see today. Proponents can shake their heads, praise “progress,” condemn “reaction,” and denounce fear-mongering, but the law of unintended consequences has held up rather well.

If we are concerned by the practical (mostly financial) problems facing same-sex couples that cannot be remedied by private agreement, then I think a better approach would be reciprocal beneficiary schemes.

Here’s the situation: wrongdoing on the Internet is often difficult to track down, because often the only reliable traces a malfeaser leaves behind is their computer’s IP address. It’s a bit like having someone’s phone number show up on caller ID. But unlike phone numbers, IP addresses often change. If the phone company didn’t keep any track of who had what phone numbers, the police or victims of harassment wouldn’t have any way of using the number to track the perpetrator down. It’s the same with IP addresses. Usually internet access providers keep track of who they assign IP addresses to, but there’s no requirement that they do so. There’s also no requirement that they keep such information for any particular length of time—it’s purely up to them, and storing data costs money, so ISPs purge their logs on a regular basis. So suppose a kidnapper logs into Gmail and sends an email with a ransom demand to the victim’s family. If Google chooses not to keep any access logs, there may be no way for the police to track the kidnapper down, even if the kidnapper took no steps to cover his or her tracks.

Enter the Internet SAFETY Act, yet another in the long line of recent Congressional bills with cutesy acronyms.

The Internet SAFETY Act (S.423, H.R.1076) has been bandied around for a while; an early variant was first introduced in 2006. The basic idea is to combat a particular problem—in this case, child pornography—by, in part, imposing a record-keeping requirement on ISPs. Of course, once those records are retained, they can be used for more than just combatting child pornography. They’ll also be useful in investigating other crimes, or even as evidence in civil lawsuits (e.g., copyright infringement suits). As long as there’s sufficient legal process protecting the disclosure of these records, however, that doesn’t seem that troubling to me (your mileage may vary—but that’s not my issue right now).

“That’s great,” you might say, “but what does that have to do with home networks?” The record-keeping requirement would be imposed via an addition to the Stored Communications Act, 18 U.S.C. § 2702. Here’s the new subsection that would get added:

(h) Retention of Certain Records and Information.—A provider of an electronic communication service or remote computing service shall retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user.

The problem here is in the definitions of “electronic communication service” provider and “remote computing service” provider. Call them “ECS providers” and “RCS providers” for short. These terms aren’t new to the Internet SAFETY Act; they’re from the Electronic Communications Privacy Act, a law passed in 1986, when Congress understandably was a bit foggy on this newfangled Internet technology. (Not that they’re such big experts now, but they had more excuse back then.) It’s clear from the legislative history that Congress envisioned ECS providers and RCS providers as, essentially, big telecommunications companies that provide commercial internet access or data storage/processing service to paying subscribers. Indeed, from the statements of legislators concerning the Internet SAFETY Act quoted in the CNET story, it’s clear that members of Congress still view ECS providers and RCS providers that way.

The problem is that the statutory language doesn’t make that crystal clear. Here’s the definition of an ECS:

(15) “electronic communication service” means any service which provides to users thereof the ability to send or receive wire or electronic communications;

Read broadly, that means that any device that provides to users the ability to send or receive voice or data communications provides an “electronic communication service.” That would include routers, web servers, telephones, fax machines—indeed, every device connected to a telephone or computer network. And since every such device allows other users on the network to “send” communications to that device, then every owner of a networked device is an ECS provider to the public, subject to the nondisclosure requirements of the ECPA in Section 2702—the very same provision that would get the record-keeping obligations above.

That sounds ridiculous, but another portion of the ECPA gives courts a reason to interpret “ECS” broadly, in order to reach certain bad actors. Section 2701 provides that breaking into a “facility” through which ECS is provided in order to obtain electronic communications violates the statute. So, can you break into someone’s home computer to read their email? What if you access the hidden area of a website? Some courts have held that home computers and web servers are ECS facilities, making those unarguably bad actions violations of the statute. But if they are ECS facilities, aren’t their owners ECS providers?

Most courts have rejected the argument that web servers and home computer users are ECS providers, but they’ve never really offered a good explanation of why. One theory that’s been bandied about is the idea that you don’t pay home network or website operators to allow you to send or receive messages. But there’s nothing in the statute that limits ECS’s to commercial services.

A better distinction, it seems to me, hinges on the meaning of the word “provide.” “Providing” a service in this context seems to me to entail providing it directly to someone else. As I’ve written in a treatise chapter on the ECPA, a provider of ECS is therefore someone who provides to someone else the ability to send or receive messages; it’s the next link up from the “user” in the chain from endpoint to endpoint. If you think of a network as being like a spider web, a provider of ECS can only be towards the middle, where several strands come together, and never at the margins, where a single thread ends. A home network is at the edge of the network; although multiple individuals may use a home network, they are all members of a single group (a household), and therefore are not “providing” ECS to anyone. Read this way, the record-keeping requirement above would not apply to home networks.

This creates a tension with the cases saying that businesses provide ECS to their employees, but I’ll save that issue for another day.

Naturally, I had the same reaction to this story that anyone else would: Is that a violation of the Wiretap Act?

It’s pretty well established that you can’t bug a phone, even one that you own and pay for the service on, just to spy on someone. There are countless cases where jealous spouses have gotten hung up on this rule.  And the secret bcc here would seem to qualify as bugging (or, more properly, “acquisition of the contents of a communication”), unless an exception applies.

But I think an exception does apply, although it takes a little work to get there. The Act prohibits “interception,” defined as “acquisition of the contents of [a] communication” through the use of a “device.” The term “device” does not include telephone or telegraph equipment “furnished by [a] subscriber or user [of a wire or electronic communication service] for connection to the facilities of such service and used in the ordinary course of its [the subscriber or user's] business.” 18 U.S.C. § 2510(5)(a)(1). The phone here was “furnished by a subscriber or user” of a communication service, either the original owner or the “finder,” but the phone is not the relevant device, I don’t think — it’s the bcc rule on the phone that is the device doing the intercepting. (If the phone is the relevant device, this would be a huge loophole in the statute, as any bug or secret program installed in such a phone would be within the exception even if the user/subscriber of the phone service didn’t know about it.)  If I’m right and the bcc rule, or perhaps the entire email functionality on the phone, is the relevant device, then that device is telephone or telegraph equipment “furnished by the subscriber . . . for connection to the facilities” of a communication service, and that bcc rule is being used “in the ordinary course of [the subscriber's] business” — namely, finding lost property.

If that doesn’t work, well, there’s always the fact that the acquisition has to be intentional to violate the Wiretap Act. If the original owner of the phone set up the bcc rule for any other purpose — say, just so they would have a copy of all of their emails — then its use in tracking down the possessor of the phone in this case was accidental, not intentional. Hence, no Wiretap Act violation.

Side note: an acquaintance of mine once told me of his experience trying to access the outgoing call log on his own phone, using the account he was paying for, from Verizon, after he had been mugged and his cell phone stolen. Somewhat maddeningly, Verizon Wireless would not give him that information, even though it was arguably customer records pertaining to him.

Dan comments on the heartening aspect of the opinion, which is that it avoids the “trap” of assuming that privacy is all or nothing. In Jahnke, the defendant recorded his then-girlfriend as they were having sex without her permission. She obviously consented to being viewed naked by the defendant, but did not consent to it being recorded. The issue before the court was whether the girlfriend had a “reasonable expectation of privacy” under the statute.

The majority said yes, and Dan cogently explains why that’s a good outcome as a policy matter. But of course, judges don’t usually get to make policy decisions, they make interpretation decisions, and their power to interpret is cabined by all sorts of rules. That’s where the dissent, authored by Judge Charles P. Dykman, veers off from the majority opinion.

The main argument of the dissent is procedural: the Court of Appeals already decided this issue, Judge Dykman argues, in State v. Nelson, 294 Wis. 2d 578 (Ct. App. 2006), and it decided it in a way inconsistent with the majority’s interpretation in Jahnke. Court of Appeals panels cannot overrule the decisions of prior panels. (Say! That’s an excellent rule. Maybe the Federal Circuit should consider adopting it.) Here’s the key language from Nelson, interpreting the phrase “reasonable expectation of privacy”:

If we apply the common meanings of “expectation” and “privacy” . . . , [the statute] requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others . . . .

“Reasonable expectation of privacy,” of course, is a magic phrase in Fourth Amendment law. One thing the Nelson court did was reject the argument that “reasonable expectation of privacy” in the video voyeurism statute should get the same interpretation it does in the Fourth Amendment context. That’s good, because “reasonable expectation of privacy” under the Fourth Amendment actually means nothing like a reasonable expectation of privacy. It would be better termed a “Supreme Court expectation of privacy.” For example, despite what you might think, individuals do not have a Supreme-Court-expectation-of-privacy that strangers will not stare into their windows. That’s what Nelson was arguing, and what the Nelson court rejected.

The trouble for the Jahnke majority is that, in the course of rejecting the “plain view” exception, the Nelson court wrote the passage quoted above, including the italicized phrase. Thus, under Nelson, in order for a recording to violate the statute, the subject of the recording must assume he or she is “secluded from the presence or view of others.” That was true in Nelson, where the subjects were recorded through their bathroom window by a neighbor. But Jahnke’s girlfriend could hardly assume she was “secluded from the presence or view of others,” Judge Dykman argues: Jahnke himself was right there. Dykman concludes that under Nelson, which the court is bound by, Jahnke’s recording did not violate the statute.

The majority opinion, by Judge Paul Lundsten, agrees with Jahnke and the dissent that under the Nelson definition, “anyone who knowingly exposes his or her nude body to another necessarily relinquishes his or her protection under Wis. Stat. § 942.09(2)(am)1., regardless whether there was a reasonable expectation that the person would not be recorded in the nude.” The majority tries to get around this without overruling Nelson by arguing that the Nelson definition was not “incorrect” per se, but was rather “incomplete”: “in Nelson, we did not purport to provide a definition covering all circumstances.”

This is yet another example of what H.L.A. Hart called the “open texture of law”—legislatures and courts, in writing rules (or interpretations of them), confront the ordinary human limitations of imprecise language and non-omniscience. Did the Nelson court really mean to define “reasonable expectations of privacy” in such a way as to exclude all situations in which at least one other person is present at the time of recording? The Jahnke majority doubts it, and so do I. The Nelson facts did not present that issue, and it seems likely that the panel (which included Presiding Judge Paul B. Higginbotham, present but silent in the majorities of both cases) did not consider them. The main point of that part of the opinion was to reject the idea that “reasonable expectation of privacy” meant what it means in Fourth Amendment law, complete with the “plain view” exception. The Nelson court held instead that it has an ordinary language meaning—and to determine the ordinary-language meaning, the court looked up “expectation” and “privacy” in the dictionary. The phrase italicized above comes straight out of the American Heritage College Dictionary (3d ed. 1993) definition of “privacy”: “1.a. the quality or condition of being secluded from the presence or view of others.” It seems likely that, in simply grabbing a definition from the dictionary to defeat the “plain view” exception argument, the Nelson court really did not intend to eliminate Jahnke-type situations from coverage under the statute.

That still doesn’t answer the question of how later courts like the Jahnke court should handle such a situation. Judge Dykman is correct to be concerned that the technique of modifying an earlier opinion by dubbing it “incomplete” creates opportunities for abuse. But the opposite extreme—sticking to the text of a statute or holding even in the face of good evidence that the current outcome was not intended—would put too much pressure on legislatures or courts to make their writings dense with clarity-killing caveats, provisos, and weasel words. (Or, alternatively, it would unjustly subject parties to the Kafkaesque interpretative method of reading poetry literally.) At some point, an author has to simply have faith that his or her readers will give the text a reasonable interpretation under the circumstances.

It seems to me that in this case, there’s a way out of this conundrum that both the majority and dissent missed, one that does not require drawing the difficult (perhaps impossible) line between permissible interpretation of an authoritative text and impermissible modification of it. The language in question was drawn from the dictionary. So the question naturally arises, does the dictionary definition of “privacy” exclude all situations in which two or more people are together? The answer to that seems clearly to be “no.” Dictionary definitions are drawn from common usage, and we speak all the time of two or more people enjoying “privacy”—e.g., a family.

In my opinion, the majority was therefore wrong to concede that under a strict reading of the Nelson definition, “anyone who knowingly exposes his or her nude body to another necessarily relinquishes his or her protection under Wis. Stat. § 942.09(2)(am)1.” When the dictionary says that privacy means being “secluded from the presence or view of others,” it doesn’t mean all others. No one uses the term that way. (If they do, they often qualify the word “private,” by saying such things as “totally private” or “completely private,” and maybe even going on to explicitly state that no one else was present.) Rather, privacy exists if one is secluded from the view of at least some others. That is what the majority is getting at in posing various hypotheticals where naked people are in the presence of others and yet seem to retain their privacy. But instead of saying the Nelson definition needed to be expanded, the majority should have challenged Jahnke’s and the dissent’s reading of the literal text: there’s nothing in it that requires “privacy” to be equivalent to “solitude.”

So what “others” does one need to be secluded from to have an expectation of privacy? Well, that depends on social context, and so the lines can get murky. But as with any line-drawing exercise (e.g., when is a rock “heavy”?) there is clarity at the extremes (a 1,000-pound boulder is “heavy”). A couple having sex in their bedroom, ostensibly shielded from the view of third parties, is at the extreme, not near any of the murky boundaries.

Pursuant to state regulations and the policies of the nursing home, the husband sometimes closed the door to his wife’s private room during his frequent visits.  Staff at the nursing home suspected “sexually inappropriate interaction” between the husband and his wife on one of these occasions. 

After receiving an administrative waiver from the state and a search warrant (which proved to be defective), local law enforcement set up a hidden video camera, which recorded events in the wife’s room over a three-week period.  The defective search warrant prompted the suppression of the video recording, the court having concluded that the husband had a reasonable expectation of privacy during his visits with his wife.

The case is fascinating in terms of the decisions and decision-makers involved, including the husband, the staff of the nursing home, the state agency that granted the waiver, the law enforcement officers that undertook the investigation, the court that issued the warrant, and the prosecutor who charged a serious felony.  Of course, it is essential to recognize that the unconscious wife was not a decision-maker at any stage of this unfolding drama.

The decision-makers, other than the husband, apparently regarded the wife’s freedom from sex without express consent to be the paramount privacy interest in these circumstances.  The wife’s privacy interest in marital intimacy was apparently an inferior interest to this, in their view.  They thought she was being sexually abused, and they acted to protect her, even at her dignitary cost of being surreptitiously filmed having sex with her husband.

And the Wisconsin sexual assault statute lends some support to their view, although quite ambiguously so.  The statute says only that the “defendant shall not be presumed to be incapable [of sexual assault] because of marriage to the complainant.”  Lots of wiggle room in the phrase “shall not be presumed to be incapable.”  And of course the wife has not complained, but apparently she would be unable to do so, even if she wanted to. 

These various decision-makers, except the husband, were prepared to end the sexual relationship between these spouses because one of them was unconscious.  Should the state declare an end to marital sex in such circumstances?