Dad was a lawyer, so I got exposed to a lot of legal ideas as a kid and a young adult. One of them is that there is no right if there is not remedy if that right is violated. This is a critical factor for anyone who lives under any kind of government.
If you are afforded rights, they don’t mean anything if you can not get those same rights enforced, especially when we are talking about the government infringing your rights. Today the Supreme Court will hear a case that gets to the heart of this.
The facts are as follows; Mr. Stan Cooper was a private pilot. He let his pilot’s license laps. Later on he wanted to renew it, but in the intervening years he had been diagnosed with and treated for HIV, even spending some time on the Social Security disability payment program.
When he went to renew his health certificate, fearing discrimination, he omitted his HIV status. He then continued to renew the health certificate 4 more times, always with the omission.
Let’s be clear, this omission is a felony. To do what he did was a clear violation of the law.
Then in 2005 there was an amnesty program for folks like Mr. Cooper and he applied for it. Unfortunately for him, the FAA and the Social Security Administration has been engaged in a secret program that compared the Social Security numbers of active pilots with those who had received SS disability benefits, specifically to look for people who were fudging their health certificate information.
The program looked at over 45,000 pilots in Northern California.
The problem here is that in catching Mr. Cooper, the federal government broke its own laws about privacy. The Privacy Act says, in part:
Fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.
This is important because even though Mr. Cooper was breaking the law and there is a law enforcement exemption what was done here is not inside that exemption. It is one thing to have a suspicion about a particular person and then look into their records, that happens all the time. It is quite another to just run a mass number of Social Security numbers through the database to see if there are any law breakers that pop up.
The fact is that the government has actually admitted that it broke the law, but it is trying to weasel out of this corner the criminal Bush administration put it in. You see Mr. Cooper if not suing for specific economic damages.
He is contending that this egregious violation of his privacy by the government caused humiliation, embarrassment, mental anguish and emotional distress. Recent High Court decisions have found that your right to sue is often limited to being harmed economically, and being able to prove it.
While I have a big enough problem with this thinking in suits against individuals and businesses, it is even worse when it is the government claiming it can only be liable for provable economic damages.
One of the major points of the Constitution is to limit the awesome power of the State in order to put the individual citizen at less of a disadvantage when that power is focused on them. If the government can only be limited in its violation of your privacy when it is economically damaging then it leaves a gigantic hole in the protections for the people.
Data mining is a tool that is being developed to higher and higher levels everyday. In our new internet enabled society we leave literally tens of thousands of bits of information every year, which when properly correlated, can tell things about us that we would probably not choose to reveal.
The government has some of the biggest databases in the nation. The only thing that prevents a digital surveillance state are laws like the Privacy Act. But as I said above a right to privacy without a way to remedy it if it is violated is not really a right at all.
It does us no good at all if the government can violate that right with impunity. Part of the egrious violation that Mr. Cooper experience is that his name and HIV status are still up on a government website for everyone to see.
He has pleaded to his crime of false reporting and paid $1,000 and two years probation, as well as an estimated $200,000 in legal fees. Under our system of justice he has paid for his crime, but the federal government, who also committed a crime in catching him, has gotten away Scot free thus far.
It might seem that it is not a big deal, this one guy gets swept up in the gears of law enforcement. The problem is that NPR is reporting that another 3,200 people were also found out threw this large scale violation of the Privacy Act. And that is just one program in Northern California.
Think about the possibility for abuse if this kind of thing is allowed to continue as long as it does not impact someone economically (outside of the cost of defending oneself). Which brings up another point, not everyone has the money to sue the federal government for its abuses like Mr. Cooper has.
The combination of a loophole and the very high long term cost of fighting the federal government in court are exactly the kinds of things that Founders worried about in terms of the imbalance between the power of the State and the Citizen.
It is hard to know where the Supreme Court will come down on this issue. If past decisions are any indication they are going to side with the Obama Administration and say that since Mr. Cooper was not harmed economically there is no standing for him to sue.
That would be a straight up tragedy for the nation in the long run. Democracy is about balancing power. We have already seen abuse after abuse after abuse in this regard over the last 10 years, and to codify the ability of the government to fish without specific knowledge for law breakers using its huge databases as legal and unchallengeable would be another step on a slippery slope that is getting steeper all the time.
Here is a hope against hope that the Supreme Court finds that there must be a remedy and it must be read broadly if privacy is to mean anything in our new digital age. To find otherwise is a step closer to a panopticon surveillance state, in the Home of the Brave and Land of the Free.
The floor is yours.