Wednesday, October 26, 2016

PF Dec 2016 - Topics Open For Voting

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** UPDATED (Nov. 1 2016) **

The NSDA has announced option 2 as the topic for December 2016.

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The NSDA topic area for December 2016 Public Forum Debate is Federal Drug Policy

These are the topics awaiting your vote.

OPTION 1 – Resolved: On balance, the benefits of market exclusivity incentives of pharmaceutical drugs outweigh the harms.
This topic will claim that granting market exclusivity (usually in the form of exclusive rights to produce a  particular drug or device for a specified period of time) will stimulate research and development of new pharma-products.

OPTION 2 – Resolved: The United States should end Plan Colombia
I am very surprised at this one. To be honest, I did not know Plan Columbia was still "a thing".  I recall this was the Bush-era war on Colombian drug cartels that many claim, gave rise to the Mexican cartels. If this one is selected, I am pulling out our old evidence from April 2013.




Monday, October 10, 2016

LD Nov/Dec 2016 - Limited Qualified Immunity - Neg Position

Resolved: The United States ought to limit qualified immunity for police officers.


Negative Position

I strongly suggest checking out part 1 of the Affirmative Position before going through this analysis since it will assume many of the points made previously are known.  I don't wish to use space repeating previously described concepts. The Neg, has the benefit of defending the status quo but because of the nature of this topic and complexities, the time constraints in a Neg speech will be challenging. Aff is obviously going to suggest unlimited qualified immunity as it is now conceived creates some kinds of harms which are substantial enough to warrant placing limits on its application.  And really this is a very significant point for the Neg. Aff is not asked to advocate for an unlimited, much improved version of immunity of police officers. Instead, the Aff must advocate limits on the qualified immunity as it exists in the status quo. So what does it mean to limit something? We talked about it in the topic Introduction for this topic. It means to establish a point beyond which one should not go.  For example, allowing a particular number of cases annually would establish a limit but it is unclear how that would work fairly.  Another way to limit is only allow certain classes of cases, say excessive force cases, or fourth amendment cases to be considered but this too would leave other classes of injury unresolved.  It is also possible to limit qualified immunity by altering the criteria required to determine if qualified immunity is applicable in such a way that fewer cases may win qualified immunity and this is most likely what we will hear argued. Presently, claimants by design are under significant burdens of proof in order to prevent a flood of frivolous actions which impede the ability of government employees to carry out their business. Of course, Aff is under no obligation to propose a plan or specific solvency.  However, Aff should at least meet a burden of showing that change is possible, and some kind of solvency mechanism will at least meet the resolution requirement of limiting qualified immunity. Otherwise, Aff is forced to defend a kind of "alternative world" case which is difficult when faced with the more practical realities of a real-world status quo in which police officers face tough, split-second decisions.

Neg Advocacy

While I am unaware of any NSDA mandated burdens for Lincoln Douglas debate, (if they exist, please enlighten me because a search of their site is unfruitful) it is reasonable to expect since the Affirmative has the first and the last speech and since this resolution proposes a change to the status quo, Aff has the burden of proof to show the resolution is true.  Neg, on the other hand should not face any burden of proof with respect to this resolution. This means it is sufficient for the Neg to take a three tracks to win.  First and foremost, the neg should oppose the basis of the Affirmative case and show how Aff fails to achieve its own value premise or the Neg position achieves the Aff value at least equally as well or better than Aff; show there are factual errors or logic errors; or show there is a solvency deficit meaning the Aff position cannot achieve its claimed goals. This goes hand-in-hand with the Aff claims of supporting its value framework.  Secondly, Neg can show that Aff advocacy creates harms that would not otherwise exist in the status quo. This is particularly important with respect to the Neg value framework.  For example, Neg can show how the Aff advocacy harms the Neg value or creates other problems which a judge would find unfavorable. Third, the Neg can claim, there are no harms in the status quo that need corrected by the Aff advocacy.

For this analysis, I intend to first examine the question of whether or not qualified immunity really needs to be limited as the Aff proposes. Then I will look at the harms which will arise if the judge votes Aff. Finally I will look at the value framework.



No Limits

The history of the right to bring litigation against public officials has its roots in Section 1983 (42 U.S. Code § 1983) Title 42 as a measure to provide relief for recently freed slaves after the Civil War. It is recognized as an important step forward in providing redress for individuals who's constitutional rights were clearly violated and believed to be useful for deterring governmental abuse and misconduct against individuals. The case of Bivens v. Six Unknown Named Agents 456 F.2d 1339 (1972), firmly established that violations of constitutional rights may give way to actions for damages, in particular with respect to Fourth Amendment violations.  Today, when plaintives sue the government for these violations, they are known as "Bivens" cases.

Noll (2008):
Various rationales have been offered for permitting individuals to recover damages for a violation of their constitutional rights. One is that “‘where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.’” A somewhat more sophisticated account suggests that a damages remedy is a necessary, if perhaps suboptimal, means of assuring that public officials comply with the Constitution. For courts confronted after the fact with a violation of an individual’s constitutional rights, a damages remedy (with its intrinsic power to deter) may be the only way of guaranteeing that the illegal conduct does not recur.[916]

However, the courts recognized there are dertrimental consequences to allowing a flood of civil lawsuits to be levied against public officials and so extended qualified immunity to public officials operating within their official capacity.

Putnam & Ferris (1992):
On the other hand, society cannot have a system in which law enforcement officials are unable to carry out their duties due to the fear of being subjected to groundless lawsuits. Furthermore, a system which permits the filing of dubious constitutional claims in overcrowded courts mocks the Constitution and serves as a considerable detriment in our society's quest for justice. Hoping to avoid the creation of such a system, the Supreme Court has held that law enforcement officials claiming a qualified immunity from suit are not held responsible for keeping up with every changing legal nuance; rather, qualified immunity is waived only when the defendant has violated federal statutory or constitutionally protected rights of the plaintiff of which a reasonable law enforcement official would have known.1[690-691]

Noll isolates several indirect social costs beside the obvious, chilling effect of officials being restrained from executing their duties for fear of some after-the-fact damage claim (Noll:917).

The Court has constrained the flood of litigation by placing a burden of discovery and proof of violation of the plaintiff (the accuser). However, despite the burdens imposed by the court, citizens who meet the burdens are successful in winning their cases. In fact, some scholars claim the system does exactly what is was designed to do and strikes an appropriate balance between limiting official misconduct and and deterring officials from carrying out their lawful duties.

Putnam & Ferris (1992):
[I]t appears to the authors that the qualified immunity defense operates reasonably well in excessive force cases to vindicate its underlying purposes. The defense in this context does appear to promote the Fourth Amendment's goal of requiring law enforcement officials to use reasonable methods, and does not appear, at least on the surface, to lead to overdeterrence. Indeed, the modern paradigm for the section 1983 action is set forth in Monroe v. Pape," an excessive force case;[693]

The appearance of success, however, may not be sufficient in some contexts.  Others will claim, it appears that qualified immunity imposes an enormous barrier to the success of the cases, even to the extent it is useless to attempt recovery for damages. In fact, the assumption is made that consitutional violations claims (Bivens cases) in particular are most unsuccessful.However, Reinert disagrees.

Reinert (2011):
Despite the widespread assumption that qualified immunity plays a large role in the inability of many Bivens plaintiffs to prevail against federal officials, there is little empirical support for the proposition. Some authors have relied on data from reported decisions, but data from a wider range of cases have not suggested that qualified immunity plays a substantial role in the resolution of Bivens claims.[479]

In other words, Reinert claims the success rate of Bivens cases proves that qualified immunity does not impose an insurmountable barrier. From this and the implication that other challenges to qualified immunity have sufficient success Neg may claim there is no need to impose limits on qualified immunity as Aff is claiming.

Reinert (2010):
After conducting a detailed study of case dockets over three years in five district courts, I conclude here that Bivens cases are much more successful than has been assumed by the legal community, and that in some respects they are nearly as successful as other kinds of challenges to governmental misconduct. Depending on the procedural posture, presence of counsel, and type of case, success rates for Bivens suits range from 16% to more than 40%, which is at least an order of magnitude greater than has previously been estimated. In addition, by specifically reporting how Bivens claims are resolved when they do fail, the data reported here show that the availability of qualified immunity plays a limited role in Bivens failures. This sharply contrasts with estimates of the role of qualified immunity based solely on published case studies, demonstrating the hazards of overlooking unpublished case reports and dockets. [813]

While Reinert acknowledges the Bivens claims in particular have a more modest success rate than other kinds of litigation brought aginst government officials, it does not justify calls for change without empircal study.  Changing the status quo risks potentional harms to interests of the parties involved.

Reinert (2010):
Whatever the causes of the modestly lower rates of success of Bivens litigation, these data do not support the view that a system of formal governmental liability would better serve the interests of deterrence or full compensation. Any further proposals for reform should be preceded by further empirical study, lest a hasty transition do harm to important interests currently vindicated by Bivens litigation. [851-852]

Therefore, the observations of Putnam & Ferris noted above are justified based upon the empirical research of Reinert. While there may be some struggles within the adjudication process which the courts need to continue to tweak, the fundamental mission of section 1983 and general right of citizens to seek damages for violations of their rights, strikes an appropriate balance between checking government misconduct and over-deterrence to the point where officials back away from the duties. If it isn't broke, don't fix it.


The Harms of Voting Aff

Based upon the previous analysis, that qualified immunity does not erect an insurmountable barrier to justice we can establish there is no need to place limits on the application of qualified immunity. Moreover, the Neg contends that limits will in fact create harms which are deleterious to society and to the officials charged with upholding the law. Much of the opposition to qualified immunity is rooted in the fact courts are willing to allow some errors for the overall good of society. It is essential that police who operate on the front lines of law enforcement are allowed the freedom to operate in all reasonableness given the situations they are required to face. Courts are very reluctant to over-regulate police.  It would be nearly impossible to foresee every situation and create appropriate legislative responses and then expect the police to know and abide by those restrictions on a moment-by-moment basis when confronted with life-threatening consequences. Thus the courts rely on a objective standard of evaluation.

Putnam & Ferris (1992):
[T]he relevant question is whether a reasonable official could have believed the actions taken by the defendants to be lawful in light of clearly established law and the information available to the defendants. Even an allegation of malice against the defendant is not sufficient to defeat qualified immunity if the defendant acted in an objectively reasonable manner.[686]

The standard of what constitutes "reasonable" is a contextual evaluation given the circumstances of the situation. It is impossible for jurists, lawyers, or judges to objectively comprehend an officer's decision calculus without confronting a similar context. Thus the court looks to those who operate on the front-lines. Beyer clarifies with respect to Bivens cases.

Beyer (2005):
To comply with the Fourth Amendment, the use of force must be objectively reasonable. But the application of that standard to the rough and tumble topography of the streets creates some uncertainty. Police officers are often required to make split second decisions in life-threatening situations involving subjects with firearms, knives, and motor vehicles they are using as weapons. In qualified immunity, the Supreme Court tipped the margin of error in favor of the police. So there are two steps in the analysis. First, did the shooting violate the Fourth Amendment right to be free from unreasonable force? Second, under the specific circumstances the defendant officers confronted and the information they possessed, could they have reasonably believed that the shooting complied with clearly established Fourth Amendment law? In laypersons' terms, could reasonable officers differ on whether the shooting was justified? [56]

Police must be allowed to make mistakes given the circumstances in recognition of the fact humans are fallible. The issue is whether or not the mistakes in law for which the officer is subject to litigation was objectively reasonable. Would other officers in the same situation always act within the full constraints of the applicable law, or would others have made the same error given the circumstances? Generally if other officers agree the actions taken were clearly unreasonable given the circumstances, qualified immunity will not apply.

Rosen (2005):
Justice Kennedy explained the "further dimension" that qualified immunity adds to the standard reasonableness calculus:
The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.
In other words, for the officer to lose the benefit of qualified immunity, not only must the conduct be unreasonable but the officer's application of the most relevant legal standard to the situation at hand must also lack a reasonable basis.[144]

So we consider the effect of affirming the resolution would have on law enforcement. The deterrent effect of litigation can create situations where offciers and innocent bystanders are physically harmed. Consider the case of Clark v Evans, 840 F.2d 876 (1988). A suicidal prisoner in a Georgia State Prison who had previously attacked a guard was attempting escape and was shot and killed.  His survivors sued claiming his constitutional rights were violated. In this situation, the prisoner represented a danger to himself, to prison officials and to society at large if his escape was successful.

Putnam & Ferris (1992):
An example of the post-Anderson approach is the framing of the question in Clark v. Evans. In Clark, the court framed the question in a prison shooting case as "could a reasonable officer under these circumstances have believed it was lawful to shoot rather than permitting [the prisoner] to proceed in reliance upon the ability [of another guard] to subdue [the prisoner] without using deadly force?"
Under this test, the defendant is concerned primarily with proving two facts: One, that the law was not clearly established at the time of the act or omission; and two, that a reasonable official would not have known that such action was violative of the plaintiff's rights. To understand the test, a defense lawyer must first understand the meaning of a key concept - the definition of "clearly established."[687]

In the Clark case, the defendant was protected by qualified immunity. The problem this kind of case presents in a world where the Affirmative succeeds in limiting qualified immunity, is the fact that officers must add one more decisions to their list of split-second evaluations as to whether to use deadly force or not. The decision about, "if I take this action and after-the-fact I can be sued should I shoot?" may result in sufficient hesitation or lack of action to the harm of the innocent, other police or the officer in question.  If an officer's failure to act at the instant required is based upon concern for litigation, it is likely to release the entirely unintended consequence of a flood of litigation seeking damages for the state failing to protect citizens.

Finally, the effects of increased personal liability for officers has proven consequences which tips the balance which qualified immunity and litigation is intended to maintain.

Rosen (2005):
Nonetheless, despite the unlikelihood of an officer facing personal liability, frivolous litigation imposes serious secondary costs on his or her conduct. First, contributions or premiums paid to a legal defense insurance plan will likely increase with the amount of litigation the officer faces. Second, the officer's career may endure a stain or stigma despite a victory on the merits of an excessive force case. Third, the department, as the officer's employer, may impose discipline, whether formal or informal, on any officer's involvement in litigation, whether successful or unsuccessful. Suspensions or unpaid leave may accompany lawsuits faced even by officers who are ultimately victorious in court. Thus, litigation indeed affects officers' conduct, in the heat of the moment, whether reasonably or not. This effect dovetails with a growing tendency toward "depolicing" that has become prevalent in several of America's urban cores. According to many officers, recent years have seen an increase in lawsuits and informal complaints brought against law enforcement, a correlate tendency in departments to steer officers away from necessarily risky conduct in do-or-die situations, and a concomitant decline in officer morale.[148]


Thus Rosen shows a cascade of harms arising from litigation which, as we have shown previously, could result in danger to society in the heat of the moment; but even more importantly, harms society as police choose to move away from those areas where their presence is needed the most. Therefore we should not limit qualified immunity.



The Neg Framework

We begin with the most obvious framework to counter the Aff; justice.  We define justice as giving each his due and we can select as the most obvious criteria, "upholding the social contract". The rationale for choosing justice is the fact that this particular resolution, while it invokes a clash of government against individual values focuses on police who are also individuals who value justice. I believe the criterion is relevant since there is a direct correlation between the duty of government to uphold the social contract and individual values. As I did in the Aff framework, we can also apply the value of human dignity or even better, perhaps, is the value of autonomy in that immunity permits a degree of objective discretion as to how to act that the Affirmative side may restrict.

For the most part, though, it is clear that immunity is a mechanism for protecting majority interests as opposed to individual interests. Therefore the value of democracy upheld by the "acceptance of compromise" or "supporting the common good" is another interesting framework. Democracy is the idea that every individual has an equal voice but the conflict of ideas is managed by compromise. The conflict of interests between government and its citizens and the conflict between the interests of those sworn to uphold the law and those who suffer from the inadvertent misapplication of power is mitigated by compromise or a commitment to the "common good".

Gutmann & Thompson (2013):
Democratic politics should serve the common good, which we understand as the goal of “maintaining conditions and achieving objectives” that benefit all members of society. The individual components of the common good–such as a robust economy or universal health care–are not necessarily shared by everyone. But the goal is to secure these goods for all, and to maintain a democratic process that is valued by all. 

Finally I want to touch upon the direct duty of the government to uphold the social contract. Much of this obligation is rooted in the need for "security" (a universal value) and is maintained by a system of laws designed to protect rights. Immunity places a human quality on the blind indifference of the "rule of law".

Spader (1985):
Although advocates of immunity no longer give credence to the maxim that the king can do no wrong, they have not been willing to replace rule of man totally by rule of law in the area of immunity. Some immunity is necessary to protect discretion ("rule of man"). No government can exist without some discretion, and the extravagant version of the rule of law (epitomized by the phrase, "We are a government of laws and not of men") has been rejected. The ideal of the supremacy of the rule of law has not, can not, nor should be realized. "Every government has always been a government of laws and of men . . . [n]o government has ever come close to being a government of laws and not of men. Every system of administration has always had a large measure of discretionary power."[71]




For additional links to this topic and other LD topics, click the Lincoln Douglas tab at the top of this page.



Sources:


Beyer WC (2005), Police shootings under the  Fourth Amendment, Richmond Journal of Law and public Interest, Winter/Spring 2005; accessed 10/6/2016 at: http://scholarship.richmond.edu/cgi/viewcontent.cgi?article=1085&context=jolpi

Gutmann, A, and Thompson DF. "Valuing Compromise for the Common Good." Daedalus 142.2 (Spring 2013): 185-198, accessed 10/6/2016 at: https://dash.harvard.edu/bitstream/handle/1/10591657/Thompson-ValuingCompromise.pdf


Noll, DL (2008), Qualified Immunity in Limbo: Rights, procedure, and the social costs of damages litigation against public officials, New York University Law Review, vol 83, June 2008, accessed 10/5/2016 at: http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-83-3-Noll.pdf


Putnam CT, Ferris CT, (1992), Defending a maligned defense: The policy basis of the qualified immunity defense in actions under 42 U.S.C. § 1983, Bridgeport Law Review, Quinnipiac College, Vol 12, No 3, Spring 1992 accessed 10/4/2016 at: https://www.qu.edu/prebuilt/pdf/SchoolLaw/LawReviewLibrary/26_12UBridgeportLRev665(1991-1992).pdf


Reinert AA, (2010), Measuring the success of Bivens litigation and its consequences for the individual liability model, Stanford Law Review, Volume 62, Issue 3. Accessed 10/3/2016 at: http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/03/Reinert.pdf


Reinert AA, (2011), Does Qualified Immunity Matter?, 8 U. St. Thomas L.J. 477 (2011). accessed 10/3/2016 at: http://ir.stthomas.edu/cgi/viewcontent.cgi?article=1261&context=ustlj


Rosen MM (20015, A Qualified Defense: In Support of the Doctrine of Qualified Immunity in Excessive Force Cases, With Some Suggestions for its Improvement, 35 Golden Gate U. L. Rev. (2005), accessed 10/5/2016 at:
http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1899&context=ggulrev


Spader DJ, (1985), Immunity v. Liability and the Clash of Fundamental Values: Ancient Mysteries Crying out for Understanding, 61 Chi.-Kent.L. Rev. 61 (1985). accessed 10/6/2016 at: http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=2560&context=cklawreview



Sunday, October 9, 2016

LD Nov/Dec 2016 - Limited Qualified Immunity - Aff Position - part 2

Resolved: The United States ought to limit qualified immunity for police officers.



Aff Values

Having spent a lot of time looking at the concept of qualified immunity, we can begin to isolate some useful framework ideas. We need to defend or promote a value through the application of a value criterion. Three years ago I published a series of articles on Values in Lincoln-Douglas in which I grouped suggested values according to contexts such values for governments, societies or individuals and that can provide a starting place for you as you develop the Aff position value framework.

In part one of this topic I was sure to point out the obvious clash of values between the government and its citizens. Governments have duties to fulfill and so they operate under various political philosophies in order to fulfill them.  People on the other hand are trying to realize the best possible lives for themselves and their families as well as protect their rights. We can see the duties of the social contract on one side and a sort of hierarchy of needs on the other side.  Novices, should take time to read up on the social contract.  Look at the views of Thomas Hobbes toward the so-called "state of nature" and contrast that with the views of John Locke. Read about Locke's and Jean-Jacques Rousseau's concept of the social contract. Read up on human needs and Maslow's hierarchy of needs. Not that I am necessarily suggesting we need to be debating these things.  They will be useful throughout your Lincoln Douglas Debate careers.

The Value of Justice

For me, this seems to be the most intuitive value for the Affirmative debater on this topic. Justice can be defined in many ways. The common LD definition, "giving each their due", is based upon Aristotelian philosophy and works quite well.  It serves to convey the idea of recompense for a wrong, of getting what is earned. The argument for justice in this resolution is simple.  The harms induced by police misconduct deserve redress but the current system of qualified immunity erects barriers (namely the two-prong test) to compensation, therefore claimants are not able to receive what they are due. There are several criteria which can promote justice.  For example the quotation taken from Kirby's note in the Cornell Law Review advocates a more equitable trade-off between the needs of the state and the citizens.


Kirby (2000):
This trade-off rationale implies that the protection that the qualified immunity doctrine supplies should be closely tailored to the needs of different levels of public officials. It should give no more protection than is necessary for the official to effectively fulfill his duties because each additional measure of protection divests victims of a greater range of remedies for violations of their constitutional rights. Providing more protection than is necessary to prevent officials from being unduly inhibited in the performance of their duties results in an unjustifiable sacrifice of individual constitutional rights.

So how doe we derive a value criterion from this?  As I said, by "establishing an equitable trade-off between the needs of the individual and the state", or as Kirby says, "limiting the protection of officials according to their level of responsibility" or "reducing standards which sacrifice constitutional rights". I think it is important to note these positions do not advocate eliminating qualified immunity. The Affirmative does not want to prevent the state from effectively carrying out its duty but we do want to send a message that immunity is not license to violate rights and recompense is a justified deterrence to abuse.


Human Dignity

Another important and easily defensible value is human dignity. The Duhaime Law Dictionary defines human dignity as "An individual or group's sense of self-respect and self-worth, physical and psychological integrity and empowerment." 

The Constitution of the U.S. in the view of the Court was at one time, a key instrument in the protection of human dignity.

Smith (2003):
Justice William J. Brennan, Jr. was fond of describing the Constitution as “a charter of human rights and human dignity.” It was, in his view, “a bold commitment by a people to the ideal of dignity protected through law.”

But according to some scholars, that purpose has shifted away from protection of human dignity.  The Courts are now using qualified immunity to confer the value of dignity to states.

Smith (2003):
Dignity is once again in vogue at the Court, but it is probably fair to say that Justice Brennan would not approve. The Court’s recent focus has been not on human dignity, but on the dignity of the states. In a series of recent decisions expanding the states’ immunity from suits by individuals seeking monetary relief, the Court has explained that the “preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities.”

The affirmative in light of the above source can assert the value criterion of "restoring the protection of human rights" or "properly recognizing dignity as a quality to be attached to human agency".


The Values in the Clash

What I have presented above are just a few ideas to get you started. But I encourage you to think much more deeply about the criterion which uphold values.  Think about the hierarchy of needs, and requirement for safety.  Think about the social contract.  One of the key premises if the social contract is that humans give up some of their rights in exchange for the protection of their remaining rights by the state. This takes on a profound meaning in this quotation from Kirby.

Kirby (2000):
In creating the doctrine of qualified immunity, the Court consciously decided to sacrifice some measure of constitutional protection to facilitate the effective operation of government. Some sacrifice of individual rights for the sake of effective government is the inevitable price of living in a society organized and run by fallible human beings.

Protection of rights is a key objective of the social contract but what is our recourse when our rights are threatened by the very state which is supposed to protect them?  This is the conflict of the duties of the state and the needs of the individual.

I hope I given you enough to get started.




For additional links to this topic and other LD topics, click the Lincoln Douglas tab at the top of this page.


Sources:

Kirby JD (2000), y, Qualified Immunity for Civil Rights Violations: Refining the Standard , 85 Cornell L. Rev. 461 (2000), accessed 10/4/2016 at: http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3450&context=clr


Smith PJ (20013), States as Nations: Dignity in Cross-Doctrinal Perspective, 89 Va. L. Rev. 1 (2003), accessed 10/5/2016 at: http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1151&context=faculty_publications

Saturday, October 8, 2016

LD Nov/Dec 2016 - Limited Qualified Immunity - Aff Position - part 1

Resolved: The United States ought to limit qualified immunity for police officers.


Aff Position

This topic will be challenging for both sides of the debate due to the rather complex nature of the legal standards to be debated. Certainly it would be possible to describe the issues in simple enough terms that debaters and Lincoln Douglas debate judges could understand it, but I think it is difficult to provide sufficient background on top of having enough time to present a reasonable case which includes establishing a value framework and presenting supporting contentions to support the framework. In order to understand the framework we need to go deeper into understanding the purposes of immunity in general and qualified immunity in particular. There is an interest by the court to prevent frivolous and harassing legal actions taken against government officials. The government has a duty to fulfill its functions and not only do lawsuits and court actions cost time and money, they have a chilling effect on officials who would be reluctant to execute their duties if they believed they would be taken to court each time. The core concept of immunity is drawn from legal interpretations and precedence dating back hundreds of years and its necessity is not questioned. In the U.S. the president has absolute immunity while every other government official is afforded qualified immunity.

Capobianco & Gutman (2016):
Drawn from analogous common-law defenses available to public officials, qualified immunity protects public officials from personal liability unless their conduct violates then clearly established constitutional law. The defense rests upon two mutually dependent rationales: (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.

Some of the needed Aff case background can be conveyed in the definitions. At its most basic we can state that qualified immunity prevents police from being sued for carrying out their official duties so long as they did not break any clearly established laws when they did their duty. However, because that description is a little vague, the courts have established what is known as a two-prong test.

Wagner (2014):
The traditional qualified immunity analysis involves a two-part objective query: (1) whether the facts alleged establish the violation of a federal statute or constitutional right; and (2) whether the right violated was a “clearly established statutory or constitutional right[] of which a reasonable person would have known.” [872]

Therefore, a plaintiff (the side bringing the lawsuit) must prove the first point before the court will even look at the second point. Did the officer violate a law or constitutional right?  Only when that is established will the second prong be examined. Was that violation one that a reasonable officer of the law would have known? Now of course one would expect an officer should know the law so that one would be a given. However, in practice, both questions can be extremely difficult for plaintiffs to answer and this is the core of the issue for the Affirmative side of this debate.

Hassel (1999):
There is then a body of literature examining the discrepancy between what the qualified immunity defense was meant to accomplish and how it actually works. The defense does not protect defendants in a meaningful way. At the same time, it makes a judgment for the plaintiff almost impossible to obtain. Therefore, the defense seems to be serving no one's interests. These well documented weaknesses suggest that qualified immunity's role is not to allow for just outcomes, but to provide some other service. What is missing from these critiques is an analysis of what function the current doctrine serves.[152]

Though we almost never see, class-action suits (suits brought on behalf of an entire class of people) Affirmative can show there are profound legal issues with qualified immunity which result in harms to individuals. Thus we see the emergence of conflict between the values of the state and values of the individual. This is the stuff of Lincoln Douglas debate which we will address soon enough.


Judicial Solvency

The case of Bivens v Six Unknown Named Agents, 403 U.S. 388 (1971) was one of the earliest cases which implied that citizens may sue for violation of their rights.  However, the court was careful to uphold the shield of immunity for the government by ensuring that the claims of wrongdoing would be directed to the individual officials or officers involved. But the court has long recognized that officials need to be allowed a certain margin of error when executing their duties.  It makes some sense when one considers police are often forced to make rapid decisions under duress. So the concept of qualified immunity was transferred from governments to individual government agents and the doctrine was firmly established in the case of Harlow v Fitzgerald, 457 U.S. 800, 817-18 (1982) and later tweaked in Anderson v Creighton, 483 U.S. 635, 638 (1987).

Kirby (2000):
Viewed in the light of its development, the Court's application of the Harlow qualified immunity standard in Creighton was not a departure from past precedent. Rather, it represented the straightforward application of a one-standard doctrine that had simply grown too unwieldy to be applied to the case before it. By refusing to subdivide the qualified immunity standard, while at the same time applying the doctrine to increasingly diverse categories of officials, the Court created a standard that causes needless and unfair dismissal of many civil rights actions. From a societal point of view, lower-level officials do not require protection from suit because of the limited number of individuals who would be likely to bring suit against them, and the limited scope of these officials' responsibilities. In addition, in the case of law enforcement officials, testifying at trial is often a normal part of their job. In short, it is unlikely that lower-level officials would be unable to perform their duties because of a deluge of civil rights suits or that their involvement in a suit would  impede the effective operation of government.[482-484]

Some legal scholars believe that applying the broad stroke of immunity to the diverse actions of individual agents of the government was inherently problematic.

De Stefan (2017):
Although many of the weaknesses of qualified immunity can, for the most part, be considered unintended consequences, one significant flaw was the Court’s deliberate decision to utilize a one-size-fits-all standard. In early qualified immunity decisions, the Court acknowledged the possibility that the doctrine might apply differently depending on the type of official involved in a particular situation. But, as it so commonly does, the Court apparently altered its approach. For nearly four decades, the Court has applied the qualified immunity doctrine as a standard applicable to all officials who do not enjoy absolute immunity. Indeed, the Court has been explicit about its unwillingness “to complicate qualified immunity analysis by making the scope or extent of immunity turn on the precise nature of various officials’ duties.” In so doing, the Court has overextended the doctrine. It is essentially providing too much protection for lowerlevel officers because all officials not entitled to absolute immunity now enjoy immunity that the Court “ha[d] developed for a quite different group of high public office holders.” [19]

Thus, because the legislative and judicial systems have not addressed the problem of individual immunity for lower-level officials, such as police officers, the Court extended the previous doctrine. As a result of this attempt to solve the problem of possible unwarranted harassment of individual public officials the claim is made, the Court inadvertently closed the door for claimants to successfully receive compensation for harms against them by government officials like the police.


Constitutional Ambiguity

The first test for claimants to overcome in their quest for redress from misconduct by police is the requirement there must have been a violation of federal law or a constitutional right. But sometimes the clarity of law and constitutional rights is not always a certainty when the court is unable to frame the complaint within the context of established law and prior precedence. 

Wagner (2014):
Several key challenges arise in evaluating the constitutional guarantees associated with sexual orientation. Courts have traditionally been reluctant to address sexual orientation as a status akin to race, religion, or gender. Instead courts sometimes framed constitutional issues raised by sexual minorities in terms of homosexual acts and conduct. As Pamela Karlan explained:
The situation of gay people provokes an “analogical crisis” because in some ways it involves regulation of particular acts in which gay people engage, and so seems most amenable to analysis under the liberty prong of the Due Process Clause, while in other ways it involves regulation of a group of people who are defined not so much by what they do in the privacy of their bedrooms, but by who they are in the public sphere.
Furthermore, it is challenging to evaluate what rights exist in the rapidly changing landscape of legislation relating to sexual minorities, state and federal court decisions on specific issues like marriage and adoption, and social discourse on gay rights.[881-882]

Wagner describes in great detail, three similar cases in which government officials were accused of denying homosexual employees due process rights in cases of claimed discrimination. Even after several prior cases which presumably established clear precedence granting violations of due process rights for gay employees, each court arrived at different conclusions as the legitimacy of the plaintiff's claims. 

Wagner (2014):
Therefore, when three cases on facts that easily sufficed for allegations of equal protection violations came before three courts in three different circuits in the same year and resulted in three different outcomes, it is clear that there is a problem with the qualified immunity doctrine. Under the Roberts Court, the qualified immunity doctrine has become more generous to defendants with an increasing requirement for circuit unanimity and an emerging approach to rational-basis review that protects decisionmakers’ discretion. The problems arising in qualified immunity doctrine are particularly apparent when evaluating constitutional rights related to sexual orientation, because the key Supreme Court cases did not rely wholly on the established methodologies for equal protection and due process analysis.[902-903]

While the laws regarding due process rights for alternative sexual orientations may be evolving even more troubling is the continuously evolving standards of the courts which tend to favor qualified immunity.


The Standard of Reason

Directly relative to police actions, and particularly actions directed toward minorities we can look at an example which illustrates the degree to which the standards required by the second prong fail to provide redress for claimants. Professor Michael Avery describes the case of Latonya Davis, a disabled African-American women, pulled over by police, surrounded by cruisers and too frightened to get out of her car.

Avery (2016):
She slid her window open slightly and told Lakewood, Colo., Officer Todd Clifford and Sgt. Todd Fahlsing she would step out if they promised not to hurt her. They made no such promise. Instead, Mr. Fahlsing smashed the driver's window with his baton, sending glass into her eye. The officers reached in, grabbed her by her hair and arms and pulled her through the shattered window, tearing the soft tissue in her shoulder. They threw her to the glass-covered pavement and pinned her to the ground. Her crime? The misdemeanor offense of driving under suspension for failure to provide proof of insurance. When she sued, District Judge William J. Martinez dismissed her case, concluding the officers were entitled to "qualified immunity."

Historically, the court has been reluctant to evaluate the actions of police, claiming there is a lot of uncertainty in these kinds of cases and police need some benefit of the doubt.  This is continued support for what was mentioned previously as the idea a "certain margin of error" is required.

Avery (2016):
The legal doctrine of qualified immunity, invented by judges and unknown to the general public, provides that to win a civil rights case it is not enough to prove that a police officer violated someone's rights. One has to prove that every reasonable officer would have known the specific misconduct in question was a constitutional violation. Some earlier court has to have said so in similar circumstances. Because no cop had been depraved enough to pull a disabled woman through the shattered glass of her driver's window before, Judge Martinez ruled that Officers Clifford and Fahlsing were off the hook.

This illustrates a very arbitrary standard.  If officers were never trained it is improper to pull a disabled women through a car window or unless all the officers agree an action is improper, then a decision can be drawn that if some officers do not know or believe an action is wrong, qualified immunity may be applied.  So, it seems, not even the most egregious violations of established rights can pass scrutiny.

De Stefan (2017):
Of course, the most outwardly evident and alarming problem with qualified immunity jurisprudence has been its cumulative erosion of law enforcement accountability. Perhaps Erwin Chemerinsky summarized it best when he noted that “[i]n recent years, the court has made it very difficult, and often impossible, to hold police officers and the governments that employ them accountable for civil rights violations.” Many of the aforementioned procedural and substantive problems with the qualified immunity doctrine have contributed to what might be considered a deleterious byproduct. But recent Court decisions have also demonstrated a willingness to extend immunity in even the most egregious circumstances.[20]

Amazingly, even when a jury initially rules that an officer's action are unreasonable, there is no guarantee of redress under the reasonability standard applied by qualified immunity. Sheng discusses the case of Anderson v Russell, 247 F3d 125 (4th Cir. 2001), in which an officer mistook a Walkman radio for a gun. When the man attempted to turn off the radio, the officer began firing, severely wounding the suspect. The suspect sued claiming the officer used excessive force.

Sheng (2012):
On the excessive force claim, the jury unanimously found that the officer's use of force was unreasonable under the Fourth Amendment and rendered a verdict in favor of the suspect. On the officer's claim for qualified immunity however, the judge held that the officer's use of force complied with his training, and there was no clearly established law prohibiting the officer's conduct. Therefore, the officer was granted qualified immunity and judgment as a matter of law, notwithstanding the jury's verdict.

Sheng (2012):
Allowing a judge's presumption of reasonableness-based solely on the presence or absence of clearly established law-to trump a jury's finding of unreasonableness runs counter to the "bedrock principle" that "questions of fact are best determined by a jury." As one commentator/judge explains, "[J]uries are in the best position to discern the truth, having heard testimony first-hand along with all the eyetwitches, sweaty brows, pregnant pauses and other non-verbal cues that accompany it.


The Illusion of Justice

The law allowing claimants to seek redress for violation of civil or constitutional rights is based upon section 1983 of the Klu Klux Klan Act adopted in 1871. However, it was not until the 1961 case of Monroe v Pape that the full intent of section 1983 was clarified by the Supreme Court to be applied to local governments and their agents. Unfortunately, the full intent of section 1983 may still be buried behind burdens of proof which favor the government. 

Hassel (1999)
The open-ended language of the Section 1983 statute seems to promise a powerful remedy against governmental abuse. As we have seen, qualified immunity severely limits that remedy, but on a case-by-case basis. There is no general prohibition against certain types of civil rights claims, only the seemingly individualized application of the qualified immunity defense. The fact that some types of claims are destined to fail because of the type of claim they are, not because of the particularized behavior of the defendant, is hidden. Adding to the illusion of a generally available remedy is the spectacular success of a few high profile cases. A few large recoveries in cases that present particularly compelling facts obscure the reality of the fruitlessness of most claims.[155]

In other words, while there appears to be a favorable method for individuals to seek compensation of the violations of their rights due to misconduct by police officers, the two prong test ensures there are enormous obstacles in place which almost guarantee the compensation claim will fail.


The Harms

The failure of qualified immunity generates a compendium of harms. For example, De Stefan believes a good step to truly fixing the problem begins with recognizing the one-size-fits-all doctrine of immunity is flawed.

De Stefan (2017):
The Court could also accept that its attempts at a general standard for all classes of officials that are not otherwise entitled to absolute immunity has been problematic and hugely unsuccessful. [27]

It is important to realize failure to satisfy the two-prong test results in no further action by the courts. There are no further investigations to determine the legitimacy of the claims of rights violations.

Hassel (1999)
Qualified immunity's harm is that it makes it difficult to see the policy choices made by courts in civil rights actions. Cloaking these policy choices in the qualified immunity doctrine avoids the possibility of an open debate concerning which civil rights should be protected and how.[156]

Despite the obvious difficulties in applying qualified immunity, there was never any intent by the Court to nullify the claims of those seeking compensation. The Court was faced with balancing competing values.

Kirby (2000):
Thus, the Court viewed the qualified immunity doctrine from its inception as a pragmatic compromise, necessary to accommodate the conflicting goals of protecting individual rights and facilitating the "effective operation of government." In creating the doctrine of qualified immunity, the Court consciously decided to sacrifice some measure of constitutional protection to facilitate the effective operation of government. Some sacrifice of individual rights for the sake of effective government is the inevitable price of living in a society organized and run by fallible human beings.[470]

In Heien v North Carolina, the Court allowed evidence seized during a traffic stop based on a burned-out tail light (which was not illegal at the time). The court decided the officer had made a mistake about the legality of the law, but that was not grounds for excluding the seized evidence.  Justice Sotomeyer, in her lone dissent acknowledges the impacts.

Little (2014):
With only slightly veiled references to current controversies involving police confrontations on the street, Justice Sotomayor contended that the Court’s less definite ruling would lead to “further eroding [of] the Fourth Amendment’s protection of civil liberties … where that protection has already been worn down.” Police stops based on reasonable suspicion are “invasive, frightening, and humiliating,” and Justice Sotomayor submitted that today’s ruling “significantly expands this authority.” There are “human consequences … including those for communities and for their relationships with the police.” 


Solvency

And so, for some measure of solvency we defer to De Stefan.

De Stefan (2017):
Altering the qualified immunity doctrine is an excellent way to begin the path to restoring trust by establishing a much-needed sense of accountability. Civil remedies are a good jumping off point because, as repeated failures to indict officers—even in the face of video footage—have demonstrated, accountability via the criminal law is a far-off possibility, if it is possible at all. Prosecutors are generally disinclined to bring charges against law enforcement officers, and grand juries are equally as hesitant to indict them. Independent investigations, as suggested by the Task Force, are an excellent idea, but establishing a feasible system nationwide would take time. On the other hand, Supreme Court amendment of the stringent immunity afforded to police officers could take effect relatively quickly [25-26]



De Stefan (2017):
By beginning to mend the qualified immunity doctrine in these ways, the Court will allow more civil suits for the vindication of constitutional rights to succeed. This will help to reduce the public mentality—strengthened by recent events—that cops get away with everything, in every regard. Civil suits avoid subjecting law enforcement to any criminal liability that, because of recent events, many laypersons believe is warranted. While this may be true in select circumstances, reality demonstrates that criminal charges are highly unlikely to stick against a police officer. But allowing more civil suits to go forward will serve as an important reminder to both civilians and law enforcement that the police are not above the law, and that they are held accountable for their wrongdoings. In turn, this accountability will begin to heal the relationship between law enforcement and communities by serving as the first step on what will surely be a long path to rebuilding the trust that is so crucial.[28]



After all of this, experienced debaters should already be seeing framework ideas.  However, because of the length of this article, I have decided to present possible frameworks in part 2.

For additional links to this topic and other LD topics, click the Lincoln Douglas tab at the top of this page.


Sources:

Avery M (2016), Federal judges often let bad cops slide, The Baltimore Sun, July 22, 2016. Accessed 10/4/2016 at: http://www.baltimoresun.com/news/opinion/oped/bs-ed-judging-police-20160723-story.html

Capobianco C, Gutman, JS (2016), 8.2 Suits Against Public Officials in Their Individual Capacity, Federal Practice Manual for Legal Aid Attorneys, Shriver center, accessed 10/4/2016 at: http://federalpracticemanual.org/chapter8/section2

CATO (2016), National Police Misconduct Reporting Project, CATO Institute, accessed at:
http://www.policemisconduct.net/

De Stefan L, (2017), "“No Man Is Above the Law and No Man Is Below It:” How Qualified Immunity Reform Could Create
Accountability and Curb Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper 850, accessed 10/4/2016 at: http://scholarship.shu.edu/cgi/viewcontent.cgi?article=1861&context=student_scholarship
[Note: I cannot explain the citation date. De Stefan is a JD candidate and it may be the year her application will be accepted.]

Hassel D, (1999), Living a Lie: The Cost of Qualified Immunity, 64 Mo. L. Rev. (1999), accessed 10/4/2016 at: http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3402&context=mlr


Kirby JD (2000), y, Qualified Immunity for Civil Rights Violations: Refining the Standard , 85 Cornell L. Rev. 461 (2000), accessed 10/4/2016 at: http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3450&context=clr


Little R (2014), Opinion analysis: Reasonable mistakes of law by police do not violate the Fourth Amendment, SCOTUSblog (Dec. 15, 2014, 7:17 PM), accessed 1-/4/2016 at: http://www.scotusblog.com/2014/12/opinion-analysis-reasonable-mistakes-of-law-by-police-do-not-violate-the-fourth-amendment/


Sheng P (2012), An "Objectively Reasonable" Criticism of the Doctrine of Qualified Immunity in Excessive Force Cases Brought Under 42 U.S.C. § 1983, 26 BYU J. Pub. L. 99 (2012), accessed 10/4/2016 at: http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=1459&context=jpl


Wagner, RB (2014),Are Gay Rights Clearly Established?: The Problems with the Qualified Immunity Doctrine, 63 DePaul L. Rev. 869 (2014), accessed 10/4/2016 at: http://via.library.depaul.edu/cgi/viewcontent.cgi?article=1029&context=law-review

Friday, October 7, 2016

PF Nov 2016 - The Internet of Things vs. Personal Privacy - Con Position

Resolved: On balance, the benefits of the Internet of Things outweigh the harms of decreased personal privacy.


Con Position

My approach to the Con position will be to focus on the status quo. This is the world in which we live today. For us, a benefit is not a benefit until it is realized.  Future benefits are mere claims and one never knows when some event or vulnerability will sink a trend. Older people (like some PF judges) have all seen many examples of "dot com" failures. Let us recognize that in the now world of cyber security, important transactions are fairly secure. For example, banks and many similar services uses elaborate and complex encryption schemes which guard against random hackers decoding messages and stealing personal information.  When we see that little padlock symbol in our browser search bars, we can be sure our connection to some server on the Internet is using one of those secure methods.  For the most part, only the most advanced hackers, usually those who are state-sponsored (i.e. working for a government agency) have the tools and computers needed to hack these communication streams and rarely would they concentrate on breaking the encrypted stream of Jane Doe who lives down the street. So what is the problem? I can isolate several major threats to personal security which are relevant to this topic. Usually, the weakest links on the Internet for hackers are the users themselves. Hackers and phishers can use rather simple exploits to "trick" individuals into giving up certain information or opening their computers in such a way, malicious entities can gain access to personal information. Just click a link in an enticing email from a friend's hacked email account and kiss your privacy goodbye. Usually these types of breaches are limited although they may ultimately be quite serious for the victim. A second, more insidious form of security breach are those perpetrated by the government itself. In the U.S. we are aware of certain government agencies which routinely collect massive amounts of data for the stated purpose of ensuring national security and often this data is disseminated to other government entities such as local police departments, and really, who knows who is looking at it? (search for "fusion center privacy abuse") Another, increasingly risky violation of personal information is being undertaken by corporate America. It can be subtle such as an email service provider scanning personal email messages in order to provide targeted advertising or it can be as overt as a company requiring employees to give up Facebook account information so they can read your Facebook, or requiring employees to use devices so their activities, or driving habits or health conditions can be monitored.  Think it isn't happening? Welcome to the status quo.

Following my exploration of the "now" world, I will venture into the speculative world of the near future where we can claim disadvantages if the status quo is allowed to persist.

Terms of Service

Much of the subtle invasion of personal privacy is occurring in the fine-print. IoT service providers are happy to collect massive amounts of data in order to provide you with the social benefits you signed up for.  For example, a user links their fitness tracker to an IoT service provider who provides useful life-style tracking information such as calories burned or the path and mileage taken on a long walk. Yet everyone of these service providers requires the acceptance of their terms of service and privacy policy and often by registering you are told that pushing this button is an implicit acceptance of those terms.  But what is often buried in the fine-print of that agreement? Trust me, those agreements are not necessarily there to protect you. Its a question of what they are doing with your data.

Loewenthal (2014);
discussions about the data created are far more likely to focus on how to use the data rather than how to protect it. While devices and applications are generally designed and implemented with data protection in mind, that is unlikely to be enough. Developers and users must consider the broader implications for individual privacy as vast amounts of information -- about health, browsing history, purchasing habits, social and religious preferences, and finances, among other things -- accumulates. Internet of Things data, for now, is collected indiscriminately, and users have little inkling about how the data collected can be used for marketing, identification, and tracking. They typically ignore the privacy notices or terms of use, and the mechanisms for delivering the notices are often awkward, inconvenient, and unclear. The crucial question for the owner of the app or the device is whether data collection is limited to an identified purpose. The crucial question for users is whether they can determine when, how, and to what extent their information is communicated to others.
It should be clear, personal data collected is often not properly secured.  More than 40 million Target accounts were stolen; over 500 million Yahoo accounts had passwords exposed. Sadly, there is no legal remedy for the end-user. Worse yet, even the most harmless of apps are legally acquiring access to many details of your so-called private lives and you may not be aware.

Doctorow (2016):
Of course, there were privacy implications to all this. As early breaches and tentative litigation spread around the world, lawyers for Google and for the major publishers (and for publishing tools, the blogging tools that eventually became the ubiquitous ‘‘Content Management Systems’’ that have become the default way to publish material online) adopted boiler­plate legalese, those ‘‘privacy policies’’ and ‘‘terms of service’’ and ‘‘end user license agreements’’ that are referenced at the bottom of so many of the pages you see every day, as in, ‘‘By using this website, you agree to abide by its terms of service.’’
As more and more companies twigged to the power of ‘‘surveillance capitalism,’’ these agreements proliferated, as did the need for them, because before long, everything was gathering data. As the Internet everted into the physical world and colonized our phones, we started to get a taste of what this would look like in the coming years. Apps that did innocuous things like turning your phone into a flashlight, or recording voice memos, or letting your kids join the dots on public domain clip-art, would come with ‘‘permissions’’ screens that required you to let them raid your phone for all the salient facts of your life: your phone number, e-mail address, SMSes and other messages, e-mail, location – everything that could be sensed or inferred about you by a device that you carried at all times and made privy to all your most sensitive moments.
Think about the privacy and security of children as they download the next generation Pokemon game and click the "Accept" button  But smartphone apps are the tip of the iceberg. The Internet of Things is a potential treasure trove of personal information and the current privacy agreements fail to properly meet consumer needs.

Loewenthal (2014):
The traditional privacy notice did not conceive of an Internet of Things. As the number of connected devices expands, the data collected will undoubtedly yield social benefits. However, the challenge will be finding a privacy paradigm that respects individual rights and accommodates choice and makes sure that the social benefits don't come at the cost of individual privacy. Progress won't wait for us to develop new ways to deal with this challenge, which is why we must give serious consideration to new approaches now.
And when the data is stolen or used against us, the companies which held it are seldom held responsible, often thanks to iron-clad service agreements.

Doctorow (2016):
Right now, companies that breach their users’ data face virtually no liability. When Home Depot lost 53 million credit-card numbers and 56 million associated e-mail addresses, a court awarded its customers $0.34 each, along with gift certificates for credit monitoring services, whose efficacy is not borne out in the literature.


Company Spies

The problem of corporate espionage has cost companies billions of dollars as intellectual property is stolen and often marketed to the highest bidder.  But few consider the other side of company espionage where the company is keeping a watchful eye on the employees. Or the implications of routinely using devices which on-face provide a benefit but which may also be used to justify harms against individuals.

Bradbury (2015):
“People can pull that information together in ways that are very difficult to predict,” said NetIQ’s Webb.
Some rental car firms now include sensors in the vehicles that warn drivers if they are driving too recklessly, based on how quickly and volatile its movements are. Some services are using phone services to do the same. He worries that people might be denied car insurance, for example, based on sensors like these delivering data to interested parties. “The capacity to correlate information is going to change all of those interactions,” worries Webb. “I lose power over a great deal of my life when there’s a massive amount of information over me that I don’t have control over.”

In some situations the devices are marketed as tools aimed at improving employee working conditions.  But the kinds of personal information that can be collected and analyzed is frightening.

Giang (2013):
Sociometric Solutions has created tracking devices for Bank of America, Steelcase, and Cubist Pharmaceuticals Inc., and is in talks with General Motors. It was started by a team of Ph.D students from MIT who decided to study the chemistry behind what makes certain workspaces like Google great at building teams. They came up with sensors placed in employee identification badges that gather real-time information to help companies measure productivity. The sensors identify a person's tone of voice, movement and even their posture when communicating with others. 
While it is known these kinds of data can be and are being collected, often we have no real idea how the information is being used.  Corporations claim a wide latitude of freedom when it comes to what kinds of power they can exercise over employees and courts will often agree since in the U.S. workers have freedom to choose where they will work if they disagree with company policies. But sometimes, corporations go too far, and it is the Internet of Things which make such abuses possible.

Claburn (2016):
Companies have a right and an obligation to operate efficiently. Some oversight of employees is undoubtedly necessary. But as legal scholars Ifeoma Ajunwa, Kate Crawford, and Jason Schultz argue in "Limitless Worker Surveillance," unrestrained surveillance raises privacy and discrimination concerns.
Sometimes it's easy to see when workplace surveillance goes too far. The paper cites the outrage that followed at The Daily Telegraph in the UK when workers discovered "OccupEye" sensors that had been placed under desks to track worker attendance under the pretense of gathering energy efficiency data. The outcry ultimately ended the project.


Government Intrusion

The bright promises of the social benefits of the Internet of Things fades when we begin to realize the many ways the information can be exploited, not only by mischievous hackers, but also the Criminal Justice System?

Hill (Jun 2015):
[a woman] told police she’d been sleeping and that she was woken up around midnight and sexually assaulted by a “man in his 30s, wearing boots.” However, [the woman] was wearing her Fitbit band at the time. She initially said that the Fitbit had been lost in the struggle, but police found it in a hallway and when they downloaded its activity, the device became a witness against her. According to ABC 27, [the woman] handed the username and password for her Fitbit account over to police. What they found contradicted her account of what happened that night. Via Lancaster Online:
[A] Fitbit device Risley was wearing told a different story, the affidavit shows.
The device, which monitors a person’s activity and sleep, showed Risley was awake and walking around at the time she claimed she was sleeping. [note: I have removed the woman's name to protect her privacy. It is retained in the source]
It this case, hackers were not required and in fact, the police did not need warrants since the woman handed over the password.  Moreover, this case in fact, exposed her deceit.  However, consider the implications of this case.  Data collected by an IoT device was acquired and used in a criminal investigation.  In this case, it was movement, activity and location data.  In some cases it is information which is much more intrusive.

Hill (Feb 2015):
Dropcam, which makes popular $199 cameras that capture audio and video for live streams to smartphones or for storage in the cloud, tells Fusion that it has received a “limited number of law enforcement requests”—search warrants—for video from its customers’ cameras. The six-year-old company, which was purchased by Google-owned Nest Labs last year for more than $500 million, says it has only received these requests “in individual cases” and has not received “any broad-based government requests.” In other words, when law enforcement has come to Dropcam, it has been for eyes into a single home at a time, not a whole neighborhood.
If you think your data is secure and personal life is hidden, that may only be true until the government knocks on your door, or worse yet, knocks on the door of your IoT data service providers. In 2012, then CIA Director, David Petraeus let it be known, how the IoT data will we swept up by government agencies

Ackerman (2012):
All those new online devices are a treasure trove of data if you’re a “person of interest” to the spy community. Once upon a time, spies had to place a bug in your chandelier to hear your conversation. With the rise of the “smart home,” you’d be sending tagged, geolocated data that a spy agency can intercept in real time when you use the lighting app on your phone to adjust your living room’s ambiance.
“Items of interest will be located, identified, monitored, and remotely controlled through technologies such as radio-frequency identification, sensor networks, tiny embedded servers, and energy harvesters — all connected to the next-generation internet using abundant, low-cost, and high-power computing,” Petraeus said
Four years later, James Clapper confirmed Petraeus' casual proclamation, that IoT data can and will be used as the government feels necessary to protect its interests.

Ackerman & Thielman (2016):
James Clapper, the US director of national intelligence, was more direct in testimony submitted to the Senate on Tuesday as part of an assessment of threats facing the United States.
“In the future, intelligence services might use the [internet of things] for identification, surveillance, monitoring, location tracking, and targeting for recruitment, or to gain access to networks or user credentials,” Clapper said.
Clapper did not specifically name any intelligence agency as involved in household-device surveillance. But security experts examining the internet of things take as a given that the US and other surveillance services will intercept the signals the newly networked devices emit, much as they do with those from cellphones. Amateurs are already interested in easily compromised hardware; computer programmer John Matherly’s search engine Shodan indexes thousands of completely unsecured web-connected devices.


Future Watch

Right now, no one cannot predict with accuracy where the IoT is leading and what will be the actual implications for massive amounts of personal information gathering in in the Internet cloud.  What is clear is current privacy policies are inadequate, and the legal nuances of whose data is it have yet to be adequately addressed.  This points to a risky future, indeed.

Zanolli (2015):
One of the biggest gray areas in the still murky world of the IoT is the issue of data ownership. On the question of who owns all the data generated by all your smart appliances and devices, Rapid7's Weiner says: "It’s not clear today. While it’s your data, it is sitting in a variety of places that could be accessed by others for perfectly good use or for malicious use."
Overall, IoT data, like most other applications, is bound for the cloud. Research firm IDC predicts that 90% of IoT data will be stored in the cloud by 2020. Once it’s there, says Weiner, it’s up to the app or device provider to secure it as they see fit.
What are the future impacts of decreasing personal privacy on the Internet of Things? Professor Richards, warns, the greatest blow may be dealt to the Fourth Amendment.

Richards (2016):
Any tech company’s attempt to protect their customers’ data from government scrutiny will at some point run into the third-party doctrine. According to this controversial legal thinking, the Constitution’s Fourth Amendment doesn’t protect a person’s data when someone else possesses it. Thus any personal data held by companies becomes fair game for government seizure without the warrant that would be required if law enforcement wanted to search papers in a private home. The doctrine emerged in the 1970s and ’80s when the Supreme Court heard criminal cases involving bank records and telephone company records of the phone numbers their customers dialed. The Court’s intuition in those cases was that when we put information “out there,” we no longer can treat it as though it were private. There is a certain amount of sense in this logic: if you tell someone your secrets, you don’t get to complain when they blab. The doctrine had obvious application in an analog world in which our documents usually remained in our homes, we read exclusively on paper, and the phone company recorded just the phone numbers we dialed and not the contents of conversations themselves. In the phone numbers case, Smith v. Maryland (1979), the Supreme Court seems to have been persuaded by Maryland’s argument to the effect that, in the old days, a caller had to tell a human operator the recipient’s number. In that case, too, the stakes for civil liberties seemed small, and the defendant, a purse-snatcher turned stalker, clearly guilty.
But in a digital world, the Court’s intuition not only makes much less sense but also threatens the end of the Fourth Amendment as we know it.
So what is the greatest harm of decreased personal privacy? It is the fact we are unknowingly giving it away to Corporate and Government interests behind the promise of social benefits which are not guaranteed. And neither it seems, is our personal privacy guaranteed. Thus we urge a Con ballot.



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Sources:

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[Note: don't be fooled by this source. Cory Doctorow's credentials are impressive enough. He served as European Affairs Coordinator for the Electronic Frontier Foundation; was named the 2006–2007 Canadian Fulbright Chair for Public Diplomacy at the USC Center on Public Diplomacy; served as a teaching resident at the University of Southern California in Los Angeles.]


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