Tag: privacy

Secret UK Police Database of Peaceful Protesters Violates Article 8 of ECHR (ECtHR)

On 24 January 2019, the European Court of Human Rights ruled unanimously, in the case of Catt v UK (App. no.: 43514/15), that the retention by police of information on the Domestic Extremism Database about a 91 year-old applicant’s involvement in political protests breached his right to private life under Article 8 of the European Convention on Human Rights.

The applicant had participated in political protests for decades and he had never been convicted of any criminal offence. However, the police had collected his personal data and retained it in a searchable database under ‘Domestic Extremism’, without his knowledge or consent. There was also nothing stopping the police from retaining the data indefinitely, even in the absence of any evidence of criminal behaviour on the part of the applicant. In 2015, the UK Supreme Court ruled 4-1, in the case of R (Catt) and R (T) v Commissioner of Police of the Metropolis [2015] UKSC 9, that the applicant’s rights under the European Convention on Human Rights were not violated by the retention of his data by the police. The European Court of Human Rights disagreed.

The Court first held that there had been indeed “a pressing need to collect the personal data about the applicant” as “it is in the nature of intelligence gathering that the police will first need to collect the data, before evaluating its value” (para [117]). Secondly, the Court also recognised that the police had indeed had appropriate reasons to gather intelligence about members of Smash EDO (the protest group to which the applicant belonged) as the group had members that were known to be violent and potentially criminal (although not the applicant himself) and the applicant “had after all decided to repeatedly and publicly align himself with the activities of a violent protest group” (para [118]).

However, in the end, the majority of the Court, under the heading of ‘proportionality analysis’ of Article 8(2), decided that there was no “pressing need to retain the applicant’s data“. Although the Court recognised that personal data (such as applicant’s) might be retained over some time after having been legitimately collected, the whole scheme lacked appropriate safeguards preventing potential abuse (para [119]). The Court was most concerned with the fact that “whilst the applicant could and did request the disclosure and destruction of his data, this safeguard appears to have been of limited impact given the refusal to delete his data or to provide any explanation for its continued retention – including the later disclosure without explanation of the retention of additional data… So far as the Court is aware, at least some of the applicant’s personal data concerning his involvement in non-violent protest was collected over six years ago and remains in the domestic extremism database… despite the fact that the police concluded, and the domestic courts affirmed, that the applicant was not considered a danger to anyone” (para [120]).

Finally, the Court pointed to the possibility of undermining the democratic process by the government collecting, retaining and potentially abusing data about one’s legitimate political activities:

“123. Moreover, the absence of effective safeguards was of particular concern in the present case, as personal data revealing political opinions attracts a heightened level of protection (see paragraph 112 above). Engaging in peaceful protest has specific protection under Article 11 of the Convention, which also contains special protection for trade unions, whose events the applicant attended (see paragraph 10, above). In this connection it notes that in the National Coordinator’s statement, the definition of “domestic extremism” refers to collection of data on groups and individuals who act “outside the democratic process”. Therefore, the police do not appear to have respected their own definition (fluid as it may have been (see paragraph 105)) in retaining data on the applicant’s association with peaceful, political events: such events are a vital part of the democratic process (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 92, ECHR 2004-�I). The Court has already highlighted the danger of an ambiguous approach to the scope of data collection in the present case (see paragraph 97 above). Accordingly, it considers that the decisions to retain the applicant’s personal data did not take into account the heightened level of protection it attracted as data revealing a political opinion, and that in the circumstances its retention must have had a “chilling effect”.”

Interestingly, although the judgment was unanimous as to its outcome, it contained a Concurring Opinion of Judge Koskelo and Judge Felici. The opinion focused on the fact that the issue of the lack of safeguards and the possibility of abuse of data retained in the database should have been dealt with under the heading of ‘in accordance with the law’ of Article 8(2), as “…the phrase “in accordance with the law” […] requires not only that the impugned measure must have a basis in domestic law, but that it must also be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and is inherent in the object and purpose of Article 8. Thus, the requirement of lawfulness also refers to the quality of the law in question. This entails that the law should be adequately accessible and foreseeable as to its effects...” (para [2]).

The Judges held that, given the lack of sufficient safeguards concerning the database and the fact that it the applicant was unable to get his data deleted even in the absence of any evidence of criminality on his part, “…it would have been appropriate for the Chamber to focus its analysis more thoroughly and consistently on the assessment of the “quality of the law” aspect of the case, because that is where the crux of the case lies, instead of leaving that issue open and resolving the case on the basis of the assessment of “necessity”. …[T]he quality of the relevant legal framework was not adequate in a context such as the present one, and therefore the interference was not “in accordance with the law” within the meaning of Article 8 § 2. This finding is sufficient to conclude that there has been a violation of Article 8″ (para [15]).

It is worth remembering that the European Court of Human Rights has not said in this case that a database containing information about political activists violates the European Convention on Human Rights, even where there is no evidence of any criminal activities. The case in fact has confirmed that states are entitled to gather intelligence about political protesters if the group they associate themselves with could be reasonably believed to produce criminal activities. However, any database containing such intelligence must have adequate safeguards concerning the retention policy, access by 3rd parties as well as persons concerned and the possibility of deletion, either automatic or on a person’s request.

Interesting Cases to Look For during the Next SCOTUS Term

While the US Supreme Court is in recess now, there are several potentially monumental cases which are either being processed in lower Courts at the moment or are likely to end up before the federal courts soon, which are due to eventually bubble up during the high court’s next term. As the Court reconvenes in October 2018, it will also most likely have a new member, Judge Kavanaugh, whom the Senate Republicans plan to confirm in September 2018 thereby consolidating a solid conservative majority on the bench. The Supreme Court so constituted, will face requests to adjudicate on a whole series of tough issues, some of which are now long overdue.

Here is a list of 6 big questions the US Supreme Court might be asked to answer during its next term:

1. Whether the 2nd Amendment Protects the Right to Bear Arms outside One’s Home

In its landmark 2008 opinion, the US Supreme Court ruled in District of Columbia v. Heller (554 U.S. 570 2008) that the 2nd Amendment protected the individual right to possess firearms within the confines of one’s home for the purposes of self-defence. In 2010 the rule was extended in McDonald v. Chicago (561 U.S. 742 2010) to apply to States as well. However, since then, the Court has taken very few cases concerning the scope of the 2nd Amendment (but see e.g. Caetano v. Massachusetts, 577 U.S. ___ (2016)). This leaves two big issues largely unresolved. First, what types of firearms are covered by the 2nd Amendment? Secondly, does the 2nd Amendment cover public arena outside of one’s home? Both issues are hotly litigated over, especially in the so called Blue States. On 24 July 2018 a three-judge panel of the Court of Appeals for the 9th Circuit ruled in the case of Young v State of Hawaii No. 12-17808 that the 2nd Amendment did in fact protect the right to bear arms in public. This is in spite of the 2016 decision of the same Court in Peruta v. County of San Diego, 824 F.3d 919, 939 (2016), which, sitting en banc, upheld a complete ban on carrying any firearms outside one’s home. However, the latter case was distinguished on the grounds that it was concerned with a concealed-carry while the former was concerned with an open-carry. Nevertheless, the State of Hawaii is entitled to apply for a reconsideration of this decision by an en banc Court which, given a strong liberal nature of the 9th Circuit, is likely to result in a reversal of the original decision. Regardless, the 2nd Amendment jurisprudence of the 9th Circuit stands in open opposition to other Circuits, such as the 7th Circuit which held in 2013 in the case of Moore v Madigan (USDC 11-CV-405-WDS, 11-CV-03134; 7th Cir. 12-1269, 12-1788) that a complete ban on concealed carry was unconstitutional. This situation constitutes a clear example of the so called ‘circuit split’ which creates a pressure on the Supreme Court to resolve the issue rather sooner than later. Here the appointment of Judge Kavanaugh as a new Supreme Court Justice might be of considerable impact as he has a strong record on the 2nd Amendment (e.g. Heller v. District of Columbia No. 10–7036. 2011).

2. Whether the ObamaCare’s Individual Mandate Has Been Rendered Unconstitutional by The Tax Cuts and Jobs Act 2017

So far the ObamaCare has withstood, albeit not in its entirety, several challenges before the federal courts and a new one is gaining momentum now. In 2012 the US Supreme Court ruled in the case of National Federation of Independent Business v. Sebelius (567 U.S. 519 2012) that, inter alia, although the Individual Mandate was not a valid exercise of the Congress’s power to regulate inter-state commerce, it could be read as a tax and thereby be a valid exercise of the taxation power instead. This is because the so called ‘penalty’ for breaching the Mandate was limited to a financial fee processed by the IRS together with individuals’ income taxes. This saving construction persuaded Chief Justice Roberts who joined the 4 liberal Justices on the Court and voted to uphold the Individual Mandate. However, The Tax and Jobs Act 2017 recently passed by Congress eliminates this so called tax while leaving the Individual Mandate as such intact. In those circumstances, several Red States sued again claiming that the elimination of the tax had rendered the Individual Mandate unconstitutional as now, in the absence of any tax attached to it, it could only be construed as an exercise of the Congress’s power to regulate inter-state commerce which was already declared invalid by the US Supreme Court in 2012 (Texas Tribune). However, the lawsuit goes even further as it claims that the Individual Mandate is inseverable from the rest of the law or at least from its certain parts, such as the community rating, and if it is in fact struck down by the Court, it might drag other parts of the ObamaCare with it. Given that the Trump Administration decided not to defend the lawsuit, the case is now bound to proceed further up the ladder towards the Supreme Court (The Atlantic). Interestingly, the replacement of Justice Kennedy with Judge Kavanugh might actually push the Court to reject any challenges to the ObamaCare as Judge Kavanaugh appears to have been more accommodating in this respect than his predecessor, siding with the approach of the Chief Justice rather than Justice Scalia (Seven-Sky v. Holder (No. 11–5047 2011)).

3. Whether the DACA Program (and its Rescission via Executive Action) is Constitutional

Deferred Action for Childhood Arrivals (DACA) was announced by President Obama via an Executive Memorandum in 2012 to allow for a temporary lawful stay of illegal immigrants brought to the United States as children. The policy was introduced in response to Congress not being able to pass the DREAM Act which would put it on a statutory footing. Since then, DACA has been often cited as an example of executive overreach given that it was introduced via executive action thereby circumventing the legislature. The policy has been challenged in the federal courts several times. A lawsuit against the original policy was dismissed on procedural grounds in 2013 (Fox News) but as President Obama attempted to extend the programme, the expansion was blocked by the US Supreme Court in the case of United States v. Texas, 579 U.S. ___ (2016), although in a per curiam decision concerning an interim injunction with the crux of the matter soon becoming moot. The Trump Administration announced in 2017 that it would rescind the DACA program altogether as incompatible with federal immigration laws on the books. However, on 3 August 2018, a DC District Court ruled in the case of Trustees of Princeton University v United States (1:17-cv-02325-JDB) that the rescission of DACA was unlawful because the Administration did not supply the Court with any valid reason for its decision. This is yet another signature policy of the Trump Administration after the so called Travel Ban blocked by lower federal courts and therefore the decision is bound to be appealed by the Administration in hope that the US Supreme Court will vindicate its lawfulness, as it happened in the Travel Ban case (Trump v. Hawaii, No. 17-965, 585 U.S. ___ (2018)). In this area the impact of the appointment of Judge Kavanaugh to the Supreme Court is rather difficult to predict.

4. Whether the Policy of Sanctuary Cities is Constitutional

The question of the constitutionality of sanctuary polices has been looming for decades but so far it has never been properly decided. This, however, might change now that the Trump Administration vowed to crack down on Blue States shielding illegal immigrants from federal agencies. On the one hand, the Department of Justice decided to withdraw funding from cities refusing to cooperate with the federal government in respect of immigration enforcement and in March 2018 it sued the State of California for its sanctuary policies. On the other hand, in return, two of California counties (San Francisco and Santa Clara) sued the Department of Justice claiming that such a withdrawal of funds was unconstitutional and managed even to persuade a local District Court as well as the Court of Appeals for the 9th Circuit to grant an injunction (The Washington Post). Accordingly, given how high this issue is on the Presidential agenda and how much litigation it has generated so far, one of those cases is bound to end up before the US Supreme Court sooner or later and this time the Court will have no choice but to rule on a wider issue of sanctuary policies in general. As with the DACA programme, the impact of the appointment of Judge Kavanaugh to the Supreme Court on sanctuary policies is not easy to predict.

5. Whether Affirmative Action is Constitutional

Technically, the constitutionality of affirmative action has already been confirmed on several occasions, for the first time in 1978 in the case of Regents of the University of California v. Bakke (438 U.S. 265 1978), then in 2003 in Grutter v. Bollinger (539 U.S. 306 2003) and most recently in 2016 in the case of Fisher v. University of Texas (579 U.S. (2016), commonly referred to as Fisher II. However, the recent decisions have been extremely closely decided and Justice Kennedy has been the one casting the deciding vote. Now that Justice Kennedy is being replaced by Judge Kavanaugh, the Court might easily swing the other way. So far there is no case pending before any federal court concerning affirmative action, however, there have been some moves by the Trump Administration to limits its impact, such as reversing President Obama’s policy on affirmative action in schools (NY Times) or investigating the impact of affirmative action programmes at the Harvard University on the Asian-American minority admissions (CNN). Although no case has been brought on this issue so far, there are signs that affirmative action might once again end up before the federal courts and this time Justice Kennedy will not be around to save it.

6. Whether Fetal Heartbeat Legislation is Constitutional

The opposition of Red States to the constitutional right to abortion recognised in Roe v Wade (1973) is widely known. From time, to time, this opposition materliases in a form of some State legislation hindering access to abortion in hope that it would pass the Undue Burden test imposed on this type of legislation by the Supreme Court in the case of Planned Parenthood v Casey (1992). One of such measures was passed and signed into law in the State of Iowa on 4 May 2018. The so called ‘heartbeat’ Act bans abortions as soon as fetal heartbeat could be detected, which usually happens around the sixth week into pregnancy, and as such constitutes the most restrictive abortion law in the country. Immediately, the American Civil Liberties Union sued in the Polk County District Court for a declaration of unconstitutionality as well as an interim injunction against the law which was granted on 1 June 2018 (Des Moines Register). The case is now being considered on its merits but regardless of the Court’s decision, it is bound to be appealed and eventually end up before the US Supreme Court. This is especially interesting given that Judge Kavanaugh’s jurisprudence on abortion is very scarce and no one is able to predict how he might vote on this issue. If the newest Justice decides to side with the reliable conservatives on the Court, the fate of the right to abortion in the United States will depend solely on Chief Justice Roberts and he remains a huge unknown as well.

It seems that in its 2019 term, the US Supreme Court might be asked to decide at least 6 issues of historical importance and its decisions will be felt across the whole country in decades to come.