The current UCLA Law Review has three articles about privacy and civil liberties. (1) From Privacy To Liberty: The Fourth Amendment After Lawrence by Thomas P. Crocker, (2) Who Can Sue Over Government Surveillance? by Scott Michelman, and (3) The Right to Control One’s Name by Julia Shear Kushner.
University of South Carolina law professor Thomas Crocker’s article, From Privacy To Liberty: The Fourth Amendment After Lawrence (pdf), “explores a conflict between the protections afforded interpersonal relations in Lawrence v. Texas and the vulnerability experienced under the Fourth Amendment by individuals who share their lives with others.” He says, “As far as the Fourth Amendment is concerned, government officials are entitled to access information that individuals publicly reveal. The Supreme Court has construed the Fourth Amendment to provide no protection for information voluntarily revealed to third parties […] Effectively, what a person reveals to one, she reveals to all.” Crocker makes the stakes clear:
Wanting to stay more closely connected with her close social network of friends, Jane signs up for a new cell-phone service. Utilizing her phone’s global positioning technology, she subscribes to a service that tracks her and her friends’ whereabouts. With this service, she can find her friends easily and they can find her—down to the exact spot where she is currently reading a book over a cup of coffee. Joe does not have to wonder if Jane is currently at their favorite coffee shop. His phone will tell him. Neither Jane nor Joe intend to reveal to all the world their whereabouts. Their phones help them keep track of their friends and family—their chosen close social networks. Through the same service, each of their phones will also inform the police of their location, should the police become interested. No Fourth Amendment requirements of warrants or probable cause stand between the police and Jane’s social network.
Who Can Sue Over Government Surveillance? (pdf) is by ACLU Staff Attorney Scott Michelman, who brings a unique perspective because he was “one of the plaintiffs’ attorneys in the district court proceedings in ACLU v. NSA, the challenge to the Bush Administration’s warrantless wiretapping program,” which I’ve discussed before. Michelman focuses on the issue of standing (who has the right to sue) that has plagued recent lawsuits challenging the legality of some of the government’s electronic surveillance programs. He says, “In light of the fundamental civil liberties and separation of powers questions that remain unanswered, it is vital to identify who, if anyone, has standing to challenge government surveillance.” Michelman says, however, “Unfortunately, the law of standing in the context of secretive government surveillance is in disarray.”
In order to facilitate the maintenance of constitutional checks and balances, this Article seeks to clarify the law of standing in the surveillance context and provide a concrete answer to the question of who can sue to enjoin allegedly illegal government surveillance. My analysis begins by identifying the two categories of harms that flow from surveillance regimes: first, the invasion of privacy that results from actually being spied on by the government (what I will call the “loss-of-privacy injury”); and second, the inhibiting or chilling effect that surveillance programs exert on the exercise of protected freedoms such as speech and association (the “chilling-effect injury”). I then trace how courts have applied the Supreme Court’s Laird decision to claims of standing based on each type of injury. In considering loss-of-privacy injuries (that is, claims brought by plaintiffs alleging they were, or were going to be, targets of unlawful spying), I conclude that some courts have over the years departed from generally applicable principles of standing law to create a standard that is uniquely and unnecessarily stringent, recognizing standing only for plaintiffs who can prove with certainty that they have been spied on—a difficult showing to make in light of the broad “state secrets” doctrine that prevents most foreign intelligence surveillance targets from ever learning whether they are being surveilled. Regarding chilling-effect claims, I find that many courts have interpreted Laird too broadly, reading its narrow, context- specific holding as a nearly categorical barrier to standing for plaintiffs who allege that government surveillance has chilled their speech, association, or other activities. […]
Two caveats about the scope of my discussion are appropriate here. First, I consider only the issue of standing to enjoin surveillance programs, not to seek damages for surveillance-related injuries. […]
Second, although the familiar standing test contains three constitutional prongs (injury-in-fact, causation, and redressability), the heart of the battle over standing to challenge government surveillance concerns who, if anyone, has suffered a judicially recognized injury-in-fact. Therefore, this first prong of the standing test will be the focus for this Article.
UCLA law student Julia Shear Kushner discusses In The Right to Control One’s Name (pdf), UCLA law student Julia Shear Kushner seeks “to determine whether control of one’s name is constitutionally protected by the First Amendment right to free speech and as a fundamental privacy right under the Fourteenth Amendment.”
Part II describes the law of name changes in the Anglo-American legal tradition. Most states continue to recognize a person’s right at common law to change names through use and passage of time, without resort to judicial procedure. I assert, as do most others who write on the topic, that this right includes the right to change one’s name with legal affect without resort to state assistance or approval. However, given the proof-of-identity requirements to obtain government identification, and the practical necessity of such identification, regardless of the contours of the common law right, I argue that government recognition of name changes no longer occurs outside of the statutory process. […] Part II argues that, despite the general uniformity of judicially developed standards, judges retain broad discretion to grant or deny name-change petitions. This discretion results in rejections of petitions that are undesir- able for policy reasons and may in fact violate a denied petitioner’s First and Fourteenth Amendment rights. In practice, denials often appear to be influenced by personal opinion or governing social values.
Part III explores potential constitutional challenges to the statutory name-change process. […] I conclude that existing name law does not impose direct restrictions on speech. However, state regulation of naming may be viewed as giving a speech-related benefit. Applying cases that discuss government subsidy of speech, I argue that denial of name-change petitions may be challenged as impermissible viewpoint discrimination in deciding to whom to grant a government subsidy/benefit for speech—but that this argument has limitations. Finally, I argue that denying a name change may result in a constitutionally impermissible speech compulsion. […]
Second, I argue that control over one’s names should be protected as a fundamental privacy right. I argue that considering control over one’s name as a privacy right satisfies both the liberal and conservative fundamental rights tests set forth by the U.S. Supreme Court, and fits well in the existing privacy rights framework, because the proposed right shares important similarities with other well-established privacy rights.
Found via Concurring Opinions.