Today the Supreme Court handed down a decision in United States v. Jones which held that attaching a GPS device to a vehicle and then using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment. In November, after the Court heard arguments, we interviewed several faculty members about the case. Care to see how their predictions turned out? See the video embedded below.
The Fair Isaac Corporation recently announced the launch of FICO Medication Adherence Scores. FICO scores, which are famous for predicting whether an individual will become delinquent on a home or car loan, for the first time will be used to assess which patients are likely to take the drugs their doctors prescribe.
The FICO Adherence Score is an algorithm that FICO developed based on the close study of almost 600,000 patients suffering from asthma, diabetes, and heart disease. FICO identified which patients were likely to have their prescriptions filled and re-filled. FICO then used data mining techniques to identify correlations between prescription filling and consumer information already in its credit history databases. This information, combined with data gleaned from a patient’s own history of getting prescriptions filled, could predict patient behavior. As it turns out, individuals who rent their homes, live alone, don’t own cars, or have started a new job recently are less likely to follow their doctors’ advice. The risk factors that predict a loan default and a failure to take Advair are not identical, but there is evidently some overlap.
Research cited by Fair Isaac suggests that noncompliance with drug treatment regimens cost the American health care system some $250 to $300 billion per year, approximately thirteen percent of total health care spending. Despite the significant health benefits from a system that might help doctors and insurers identify noncompliant patients who would benefit from reminders to take their medicine and follow-up nurse visits, the Medical Adherence Scores sound frighteningly Orwellian and Kafkaesque. Critics raise concerns about patient privacy and the unreliability of FICO scoring in general. They rightly note that patients are people, not automatons, which means even the best algorithms will make mistakes. Patients without cars or roommates have wondered whether they might face discriminatory treatment and whether the Medical Adherence Scores would be used to set insurance premiums. (Patients who do not get their prescriptions filled regularly may actually see their health insurance premiums decline, at least in the short run, but they could see their life insurance premiums rise.)
Alas, it isn't appropriate for FICO's critics to dismiss Medical Adherence Scores by comparing our new reality to a perfectly virtuous world. A ban on the use of FICO scoring in medicine wouldn’t eliminate a common dilemma: The best treatment plan for, say, congestive heart failure, may require vigilant follow-through by the patient. But if such compliance is unlikely, the optimal treatment may be another therapy altogether. Organ transplants represent a particularly stark choice. Transplants have great potential to improve the lives of recipients, but a lack of follow-through by a patient and her caregivers may expose the recipient to life-threatening risks and result in the waste of a very precious resource that could have saved another person’s life.
A physician must have some criteria for deciding which type of patient she is treating. The patients themselves are not always reliable sources for this screening. Few patients will admit to their doctors (or to themselves) that they are unlikely to follow through.
When physicians do not know a patient well, they sometimes rely on proxies that are more distasteful than car ownership in assessing the odds of follow-through. Some physicians rely on the equivalent of old wives’ tales. But as I detail in chapter eight of my brand new book, Information and Exclusion, recent research on health disparities suggests that junk science decisionmaking may be the least of our worries. One study in the American Journal of Transplantation identified a greater propensity among nephrologists to refer children from affluent families to transplant surgeons. The physicians assumed that wealthier parents would be more likely to comply with rigorous postoperative recovery protocols. A separate study in Social Science & Medicine found that the physicians surveyed viewed African Americans as less likely to comply with treatment regimens. Such racial profiling by physicians may contribute to disturbing phenomena like doctors’ tendency to prescribe narcotic pain medication far more readily to Caucasians than African Americans.
Physicians are not going to treat all patients equally, and maybe that is for the best. We want compliant and noncompliant patients alike to get the respective treatments that will be most therapeutic. But deciding who fits into which group can be a daunting challenge, particularly for specialists with large practices and a population of patients who have bounced from doctor to doctor. To be sure, FICO’s Medical Adherence Scores are imperfect. We know that many errors in consumer credit databases go undiscovered, and getting even acknowledged errors fixed can require substantial perseverance. But at least FICO’s predictions will be based on hard data that patients can access, and the law can ensure that factors like race and national origin are not used as inputs into the algorithm.
Fair Isaac Corporation is the first entrant into this market, but they should face competitive pressures to improve the accuracy of their scoring as time passes and patient behavior patterns change. The biases that some physicians rely on are stubborn, unscientific, difficult to detect, and far more disturbing alternatives for predicting patients’ behavior.
Earlier today I posted an analysis of yesterday's oral argument in NASA v. Nelson, which focused on the approach that Justice Scalia is likely to take: holding that the Constitution does not protect a right to informational privacy. As I explained in that post, it does not appear that Justice Scalia has more than two or three votes for his view. This post will focus on some of the issues likely to arise as the other Justices try to write up an opinion.
The justices who seem open to the idea of a constitutional right to information privacy struggled with the question of what the contours of such a right would look like. (Indeed, it is conceivable that they found the answers of Nelson's counsel to these questions so exasperating that they will come around to Justice Scalia's view of the case.) The circuit courts that have recognized a constitutional right under Whalen and Nixon have done a generally poor job of developing sensible tests to determine when the right is violated. I would argue that if the Court wants to develop such a test, it should simply track the test arising under privacy tort law. Namely, for the reasons explained here, the courts should apply a three-prong test: (1) How private is the information being sought or disseminated by the government? (using tort, Privacy Act, and FOIA privacy caselaw as guideposts); (2) Is the government's conduct a clear violation of existing social norms?; and (3) Does the gravity of the harm to privacy interests outweigh the government's interest in obtaining or disclosing the information at issue? Cases arising under the constitutional right to information privacy need not reinvent the wheel - the issues arising when the government invades privacy are quite similar to those arising when a private actor does so. The tort test has worked reasonably well for decades, so if the Court wants to recognize such a right, tort cases present a sensible model for developing the contours of the constitutional inquiry.
There was some indication in oral argument that the Court was thinking along these lines.
The Supreme Court heard oral argument in NASA v. Nelson yesterday, its first constitutional right to information privacy case in a generation. The oral argument transcript is here, and SCOTUSBlog has a write-up here. I analyzed the case earlier here. Having read the transcript, it seems likely that the Court will reverse the Ninth Circuit and hold that the government may ask open-ended questions as part of a security clearance process for government employees. Beyond that, though, very little is clear. In this post and a follow-up, I want to highlight some of the interesting issues that emerged in oral argument and suggest ways that some of the justices ought to go, given their apparent inclinations.
Justice Scalia's approach to the case seems fairly straightforward. Justice Scalia believes on originalist grounds that the Constitution does not protect a constitutional right to information privacy. He - and the other justices - recognized that the two 1970s Supreme Court decisions invoked by the plaintiffs - Whalen and Nixon - do not squarely hold that the Constitution protects such a right. Scalia would therefore answer the open constitutional question and hold that limitations on the government's ability to ask its employees and job applicants questions do not arise under the Constitution. In oral argument, Justice Scalia asked counsel why not simply let Congress decide what sorts of limits ought to constrain the government. Counsel for Nelson never offered a good answer to this question. Indeed, as I argued in an earlier post, there are sound reasons to believe that the Federal Tort Claims Act already constrains the sorts of questions that the government can ask as part of the security clearance process. Constitutional protections seem to represent a belt and suspenders approach for reasons analyzed For some of the reasons explained in this paper, I think the approach to Nelson suggested by Justice Scalia's questioning is persuasive.
Justice Scalia was active in questioning, but he did fail to go for the jugular after hearing an answer offered by Neal Katyal, who argued the case for the government. Justice Scalia noted the bizarre nature of Whalen and Nixon, in which the Court assumed, arguendo, that a constitutional right exists before holding that the right was not violated by the government's conduct. Justice Scalia observed that this is rarely the approach the Court takes and wondered why the constitutional right to information privacy should be any different. To take a recent example of this question, consider the recent Supreme Court case of Stop the Beach Renourishment, where Justice Scalia's plurality opinion held that there is such a thing as a judicial taking, but also held that the actions of the Florida courts did not amount to a judicial taking. (Justice Breyer's approach in Stop the Beach Renourishment was to follow the Whalen/Nixon tack - reserving judgment on the question of whether the Constitution proscribes judicial takings). Katyal stated that the "arguendo" approach made particular sense in the privacy context, where rapid technological developments mean the rules governing privacy should change frequently. This was Katyal's weakest answer in an otherwise efffective oral argument. How come?
Continue reading "NASA v. Nelson Oral Argument Aftermath - What Will Justice Scalia Do?" »
Approximately thirty years ago, Sogen Kato became involved in an argument with his relatives, and then retreated into his bedroom to sleep. He never came out. Evidently none of the family members who shared his apartment went in to disturb him. This past July, after Kato ostensibly became Tokyo’s oldest living man, Japanese government officials sought to contact him to congratulate him on his longevity. After being given the run-around by his nervous relatives as to his availability, government officials eventually showed up at Kato’s apartment and discovered his mummified remains in the bedroom. His reprehensible relatives, who collected more than $100,000 in pension benefits in Kato’s name during his “lifetime,” are in very hot water.
The constitutional right to information privacy is the law’s equivalent of Sogen Kato. It has been thirty-three years since the Supreme Court hinted that such a right exists under the Constitution, and the Court has been as silent as Kato in the interim about this subject. The lower courts have had much more to say, with most circuit courts holding definitively that the Constitution protects a right to informational privacy and developing multi-part tests to determine when it has been infringed. The D.C. Circuit has expressed skepticism about whether the constitutional right lives on, and the Sixth Circuit has held that until the Supreme Court says otherwise, the constitutional right to information privacy is dead. On October 5, the U.S. Supreme Court is going to be opening the bedroom door, and considering oral argument in its first constitutional right to information privacy case in a generation, NASA v. Nelson.
In Nelson the Court will take up the issue of whether the constitutional right to information privacy prohibits the Jet Propulsion Laboratories (JPL) from asking open-ended questions about whether longtime JPL employees have done anything that might reflect negatively on their ability to continue performing their jobs. My view of Nelson, which I develop at much greater length in Reunifying Privacy Law (forthcoming in the California Law Review), is that the Court ought to hold in Nelson that there is no such thing as a constitutional right to information privacy. My primary basis for concluding that the constitutional right ought to simply go away is that the constitutional right to information privacy is largely redundant with privacy tort law. Because the Solicitor General decided not to argue that the Supreme Court should follow the Sixth Circuit’s approach, the briefs in Nelson have largely ignored the question of what happens if the Court holds that this constitutional right should disappear. But it would be very fruitful for the Justices to ask counsel hard questions along these lines next month. The answer in Nelson itself appears to be that abolition of the constitutional claim would leave the plaintiffs with robust remedies under tort law.
The Supreme Court today handed down its decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, addressing the possibility that a judicial ruling might violate the terms of the Takings Caluse. Justice Scalia wrote for four justices, concluding that there is such a thing as a judicial taking, that such a taking arises when a plaintiff can show that she was deprived of a property right that she previously possessed, and that the plaintiffs in the Florida case failed to satisfy this burden. Justices Kennedy and Breyer each wrote separate partial concurrences, joined by Justices Sotomayor and Ginsburg, respectively, in which they expressed significant reservations about recognizing a new cause of action for a judicial taking as a general matter. Justice Kennedy suggested that problems arising where judges took previously existing property rights away from litigants were perhaps better addressed under the Due Process Clause, and Justice Breyer said there was no need to decide now what the rule should be for figuing out what should constitute a judicial taking. Justice Stevens recused, but the remaining eight justices agreed that the facts of the Florida dispute did not amount to a judicial taking. Ben Barros has already posted valuable analysis of the case here, and Tony Mauro has additional thoughts about the recusal here.
I want to address one crucial legal question raised by Jerry Anderson: Namely, what happens if a common law court changes its state's property laws somewhat? To take Jerry's example, what if a state moves from holding that only bad faith trespassers could adversely possess property to holding that the trespassers' state of mind was irrelevant? (Many states made this shift during the 20th century.) A landowner who loses his property under the new rule to a good-faith adverse possessor then sues, alleging a judicial taking. Can he prevail? More broadly, can a judicial decision holding that property presumptively owned by private party A is actually owned by private party B ever be a judicial taking? As Jerry points out, there is language on page 10 of the slip opinion suggesting that such a decision might be a judicial taking. ("If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property.").
I believe the answer to the question of whether an adjustment of property rights as between two private parties can be a judicial taking has to be no. My argument proceeds in two steps. First, Justice Scalia's opinion in Stop the Beach is quite clear (see pages 18-19 of the slip opinion) that the remedy for a judicial taking is not "just compensation" but rather an invalidation of the judicial decision depriving an owner of property.
The second step has to do with another important Supreme Court takings opinion, Kelo v. City of New London. In the Justice O'Connor dissent in Kelo, which Justice Scalia signed, the dissenters argued that absent blight the Takings Clause does not permit the government to transfer private property from private party A to private party B. Rather, the Takings Clause permits the use of eminent domain in which the government winds up as the owner of the property or the public has substantial access rights to the property. Thus, under the dissenting view in Kelo, the governments' takings power does not permit purely private transfers from A to B. If the government has the power to change its adverse possession law in a manner that disadvantages A, such power must come from elsewhere.
If you put steps one and two together you reach the following result: The state courts cannot change the rules of property as they affect private parties claiming a contested resource. But that cannot possibly be right. To return to Jerry's example, if it's the case that a rule making adverse possession by a private trespasser easier might amount to a judicial taking of the landowner's property, then the state courts can make no changes to its law of adverse possession. But as Justice Scalia recognizes, the courts have been making these sorts of tweaks to property law for centuries, and the risk of such changes is a "background principle of state property law" to which all land ownership claims are subject. (See pg. 27 of the slip opinion, citing Justice Scalia's earlier opinion in Lucas.) It is hard to see why Justice Scalia or anyone else would want the common law of property to be frozen in place with respect to doctrines like adverse possession law, landlord-tenant law, easement law, or any of the other private party-versus-private party disputes that are the bread and butter of all Property casebooks.
Cases in which the state government is depriving a private owner of property, and then claiming that the landowner never had those property rights to begin with are much more troublesome, precisely because the risk of self-dealing by the government is grave. That isn't to say that such risks aren't present in cases where a transfer of rights from a landowner to a trespasser occurs as a result of a judicial decision - we know from Kelo, Poletown, and other cases that private parties may exert substantial control over local government decisionmaking. But where, as in Stop the Beach, the government winds up with the property, there is no question in the minds of any of the justices that the "public use" test is satisfied and the state may therefore take the property upon paying compensation (if there's a judicial taking). Judicial takings claims where the government, rather than a private party, is the beneficiary of the judicial decision thus present a sound structural fit with the rest of takings doctrine. Stop the Beach, on the facts alleged by the plaintiffs, was one such case, because the government stood to benefit. But the Court just didn't buy the plaintiffs' arguments that the Florida state courts had deviated from their earlier precedents. If there are any bright lines to be drawn in the law of judicial takings, a divide between private-to-private transfers and private-to-public transfers is the sensible location for that line.
To summarize: The best way to make sense of Justice Scalia's plurality opinion in Stop the Beach is that judicial takings arise only in those instances in which the government now owns property that was previously held by a private party. Precisely because there is an ancient tradition of courts readjusting the property rights of private parties involved in ownership disputes, those sorts of judicial actions are not proper vehicles for asserting that a judicial taking has occurred.
This past Sunday's New York Times Magazine included its annual look at the "Year in Ideas," and this year's edition featured Chicago's own Lior Strahilevitz. The article by Chris Shea is reproduced below, or you can check out the original.
Walking down a city street at night, you can already use your smartphone to check out reviews of the restaurant you’re considering. Should you also be able to check whether any of those teenagers a block away and closing have criminal records?
Yes, suggests Lior Strahilevitz, a professor at the University of Chicago. In fact, your phone might even automatically download that information from the teenagers’ phones.
An invasion of privacy? By many standards, yes, but consider current practice, Strahilevitz argued in a pair of articles this year in the law reviews of Northwestern University and the University of Chicago. Most people encountering teenagers size them up by judging their clothing, demeanor and ethnicity — they “profile.” Give people more information, and they can make better, more individualized judgments.
In some circumstances, Strahilevitz admitted — like blind auditions for orchestras — stripping away personal information can reduce discrimination. But in many others, privacy advocates get the link between discrimination and the availability of personal information precisely backward. Take laws that prevent employers from learning about applicants’ criminal records. Because African-Americans are disproportionately imprisoned, such laws are often viewed as blows against discrimination. But Strahilevitz cited research that found that, in the absence of such laws, companies that did background checks on applicants hired 8 percent more African-Americans than those that didn’t do the checks. The latter employers seemed to be discriminating “statistically” — lacking hard data about penal histories, they made more decisions based on skin color. As an alternative, Strahilevitz would subsidize the hiring of actual ex-cons, rather than trying to hide their status.
Less contentiously, Strahilevitz would also expand the “How’s My Driving?” programs used by trucking firms to cover everyone with a driver’s license. Insurance companies currently use broad demographic categories to set rates — the cautious teenage boy is out of luck. If you could phone in reports of bad driving, he’d get a break and the reckless middle-aged would pay their fair share. At last.
Abandonment of property is arguably bigger than ever. To give a few examples, craigslist and freecycle.org have become popular venues for giving away property for nothing other than the hassle of picking it up. Many jurisdictions have established laws and procedures allowing abandonment of children without prosecution, most controversially in Nebraska, where recent abandonment of teenage children has caused controversy. In some segments of pop culture, the practice of "making it rain," or throwing cash to a waiting crowd with predictably chaotic results, has become popular - either as a means of signaling wealth or simply providing entertainment.
What, if anything, does law have to say about these and similar practices? How could it do a better job in dealing with them? Professor Lior Strahilevitz sets out to answer these questions in his recent paper "The Right to Abandon," presented at this week's Works in Progress (WIP) talk.
Continue reading "Student Blogger - Towards a General Theory of Making it Rain" »
The New York Times has an interesting story on the fate of some of Franz Kafka’s papers. The broad outline of the story is well-known: Kafka directed his friend, editor, and executor, Max Brod to destroy Kafka’s unpublished works, which included the manuscripts of Kafka’s two great unfinished novels, his diaries, and a number of his short stories. Brod could not bring himself to destroy the work because he regarded it as too precious, so Brod edited and published the work instead, earning the deceased Kafka a place among the great writers of the twentieth century. The Times reports that there evidently remains a collection of never-seen work by Kafka that Brod took with him when he fled Prague for Israel as the Nazis invaded the Czech Republic. Brod willed the papers to his secretary, Esther Hoffe, who refused to let anyone outside her family see them. Upon her death, the papers went to Hava Hoffe, a destitute Israeli senior citizen who the Times describes – to put it politely – as highly eccentric and erratic. For several decades, no Kafka scholars have had access to the papers. The Times notes that Hava Hoffe has announced that she will make a decision about what to do with the papers in the next few months, leaving literary scholars hanging on her word and whim.
What can be done about the papers? What if Hoffe decides to suppress them for another generation? There is an obvious legal solution.
Earlier this month, Lior Strahilevitz posted a paper on SSRN entitled "Reputation Nation: Law in an Era of Ubiquitous Personal Information." The abstract is below and the full paper is available here.
Reputation Nation: Law in an Era of Ubiquitous Personal Information
LIOR STRAHILEVITZ
University of Chicago Law School
Northwestern University Law Review, Vol. 102, October 2008
U of Chicago Law & Economics, Olin Working Paper No. 371
U of Chicago, Public Law Working Paper No. 190
Abstract:
Modern technology has made two sorts of previously private information widely available in the past decade: Information about individual's past actions and activities, often contained in government files, consumer credit histories, and advertising profiles; and Feedback information about individual's reputations and preferences, often contained in social networking sites' pages, eBay feedback scores or Slashdot karma scores. In the coming decade, wearable computing devices and advances in network technologies have the potential to transform completely the way that strangers interact with each other and consumers interact with service providers. This paper is the first to ask systematically how the law should respond to the newly widespread availability of this information.
The paper develops a hopeful hypothesis, which is that the widespread availability of personal history and reputation information will reduce individuals' reliance on easily observable proxies like race, gender, and age, in deciding with whom to socialize or do business. The government thus has an unrecognized anti-discrimination tool at its disposal. For example, in addition to imposing liability on landlords who discriminate on the basis of race, the state can provide landlords with personalized information about a prospective tenant's attributes that allows the landlord to assign more weight to those attributes and less weight to the tenant's race. The paper then explores the application of this insight to varied antidiscrimination challenges in employment law, jury selection, health law, and insurance regulation. It then extends the discussion to examine how the widespread availability of personal information might improve immigration policy and consumer protection law.
The paper's next part examines the variables that will determine whether the optimistic story plays out, and whether greater information availability might undermine welfarist and distributive goals. It develops a typology of curtains and search lights, respective strategies designed to obscure individual attributes that are otherwise visible or render observable attributes that would otherwise be obscure, and explains why search light strategies might be particularly well suited to certain contexts. The paper concludes with a discussion of the normative case for the government to supplement traditional antidiscrimination laws with information-based antidiscrimination strategies, focusing on the pathologies that result when privacy protections or other obscurity-inducing measures are used for distributive purposes and the social meaning of strategies that try to reduce discrimination by providing decisionmakers with more information about job seekers, apartment renters, jurors, or patients.
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