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    New York Times Sidebar Column: The Turducken Approach to Privacy Law

    In a column for the New York Times, Adam Liptak talks about “The Turducken Approach” to privacy law. A turducken is a chicken stuffed into a duck, which is stuffed into a turkey.

    “It’s a bit like building a dinosaur from a jawbone or skull fragment,” a dissenting federal appeals court judge wrote of his colleagues’ expansive reasoning, “and the result looks more like a turducken.” […]

    The dissenter was Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, in San Francisco. He is a master of the dissent that might as well be a petition for Supreme Court review of the majority’s decision. This one, protesting his court’s refusal to rehear a case about the privacy rights of employees, said the law in that area had become a tangled thicket.

    “It’s time to clear the brush,” Judge Kozinski wrote. “We didn’t undertake that chore today, but we’ll have to sooner or later, unless” — nudge, nudge — “the Supreme Court should intervene.”

    Last month, the federal government took the hint and asked the Supreme Court to hear the case.

    The case concerns a George W. Bush-era security policy at the Jet Propulsion Laboratory in La Cañada Flintridge, which has raised substantial privacy questions. In a recent op-ed for the Los Angeles Times, Tim Rutten said, “NASA demanded that Caltech, which operates JPL on the space agency’s behalf, require all of the lab’s civilian scientists and engineers to sign a waiver allowing federal investigators to ransack their personal lives. The waiver empowered the feds to secretly question ex-husbands and wives, disgruntled neighbors and resentful colleagues about every detail of the subjects’ lives. If the investigators turned up anything they felt disqualified somebody, there was no provision for appeal. Anyone who refused to sign the waiver was to be fired.” Rutten wrote that this was the case though “less than 10% of the work carried out at JPL involves classified science, and the employees working on those projects already are covered by the government’s security clearance system.”

    Liptak writes:

    It is not clear how the government was to use the information it gathered. But a document briefly posted on an internal Web site at the laboratory said employees might be deemed unsuitable for, among many other things, loitering, homosexuality, illegal gambling, mutilation of public records, “indecent proposal,” “black market activities (nonprofit),” “carnal knowledge” and “sodomy.” The document is available on a Web site about the suit created by the plaintiffs.

    The government has neither confirmed nor disavowed that last document, and there is no indication that the criteria it listed were ever used. […]

    As the turducken metaphor suggests, the law in this area is unclear. Privacy law mostly regulates disclosure of information, not gathering it. And the law gives less protection to people who are free to refuse to cooperate, even at the risk of losing their jobs, than to people compelled to cooperate regardless.

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