All posts in Supreme Court US

The Trouble with Spokeo: Standing, Privacy Harms, and Biometric Information

Daniel Solove
Founder of TeachPrivacy

Rivera v Google BIPA - Illinois Biometric Information Privacy Act - Facial Recognition - Spokeo

A recent case involving the Illinois Biometric Information Privacy Act (BIPA), Rivera v Google (N.D. Ill. No. 16 C 02714, Dec. 28, 2018), puts the ills of Spokeo Inc. v. Robins on full display.  In Riveraplaintiffs sued Google under BIPA, which prohibits companies from collecting and storing specific types of biometric data without people’s consent.  The plaintiffs alleged that Google collected and used their face-geometry scans through Google Photos without their consent.  Google’s face recognition feature is defaulted to being on unless users opt out.  Instead of addressing the merits of the plaintiffs’ lawsuit under BIPA, the court dismissed the case for lack of standing based on Spokeo, a fairly recent U.S. Supreme Court case on standing.

Spokeo is a terrible decision by the U.S. Supreme Court.  It purports to be an attempt to clarify the test for standing to sue in federal court, but it flunks on clarity and coherence.  I previously wrote an extensive critique of Spokeo when the decision came out in 2016.

Beyond Spokeo‘s incoherent mess, there is another part of the opinion that is far worse — Spokeo authorizes courts to override legislatures in determining whether there’s a cognizable privacy harm under a legislature’s own statute.  This part of Spokeo is a major usurpation of legislative power — it undermines a legislature’s determination about the proper remedies for violations of its own laws.

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NASA v. Nelson

Daniel Solove
Founder of TeachPrivacy

NASA v Nelson

The U.S. Supreme Court has decided NASA v. Nelson, reversing the 9th Circuit 8-0.  My thoughts about the case are here and here, and as I predicted, the Court rejected the 9th Circuit holding that the government employment background check questionnaires violated the constitutional right to information privacy.  Fortunately, the Court kept its opinion narrow and didn’t use it as an opportunity to wipe out the constitutional right to information privacy, a right that the Court mentioned just a few times but that has taken on more of a life in the circuit courts.
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How to Fix the Supreme Court Justice Confirmation Process

Daniel Solove
Founder of TeachPrivacy

Supreme Court Justices

There are few defenders of the Supreme Court Justice confirmation process. Every time it occurs, we go through a charade of hearings, where candidates are coy about their positions on most issues and talk about “neutrality” and being a mere “umpire.”

Who are they kidding? We all know that no judge is neutral or a mere umpire. We all know that the Supreme Court doesn’t divine some objectively true meaning of the Constitution or the laws it interprets. We all know that ideology has some effect on judicial decisions. And we all know that judges don’t find the law but make it.

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Thoughts on City of Ontario v. Quon: The Fourth Amendment and Privacy of Electronic Communications in the Workplace

Daniel Solove
Founder of TeachPrivacy

City of Ontario v. Quon

The Supreme Court will soon hear arguments in City of Ontario v. Quon, an important Fourth Amendment case involving the privacy of electronic communications in the workplace.

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What Is Empathy? Obama’s Philosophy of Law and the Next Supreme Court Justice

Daniel Solove
Founder of TeachPrivacy

Supreme Court

There has been a lot of discussion on what President Obama meant when he said he wanted to choose a person who would judge with “empathy” for the U.S. Supreme Court.   When articulating his decision to vote against Chief Justice John Roberts, Obama noted that 95 percent of cases would be relatively straightforward where most justices would agree, but “what matters on the Supreme Court is those 5 percent of cases that are truly difficult.”  Obama further explained:

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