Category: Uncategorized
It’s not fun to have your credit card or identity stolen. It takes time, money, and mental energy to right yourself. Now, instead of just using cards as the gatekeepers, many companies are using customers’ biometric information, such as fingerprints and facial geometry scans, to control access to private information. But unlike credit cards, you can’t just order a new one to secure your data. All victims of such thefts would need reconstructive surgery to protect themselves from future risk.
Recognizing this concern, Illinois passed the Biometric Information Privacy Act (BIPA), 740 Ill. Comp. Stat. 14/1 et seq., to incentivize companies to handle biometric data more securely. Specifically, the Act requires companies to publish and disclose a policy about how it collects, uses, and destroys the information. Other states have passed similar laws allowing regulatory control over companies possessing biometric data, but Illinois is the first to create a private right of action for consumers against companies storing such information. As you might expect when you combine gigantic companies storing data on huge numbers of people with $1,000 fines per violation, BIPA has led to massive class-action lawsuits.
Illinois courts have, unsurprisingly, taken a somewhat lenient view towards these claims. For example, Sekura v. L.A. Enterprises, Inc., No. 15-CH-16694, ultimately settled for $1.5 million. But corporate defendants who are able to transfer their cases into federal courts based on diversity jurisdiction have launched successful attacks against the claim.
One such defendant was Facebook, who has faced multiple lawsuits alleging that the facial geometry data used by its photo tagging suggestion feature violates the Act. The first defense that Facebook raised, in Gullen v. Facebook.com, Inc. (N.D. Ill. 2016), was personal jurisdiction, as Seventh Circuit precedent creates a high bar against websites, forcing plaintiffs to likely have to go to out of state to sue tech companies. One such class made the trip, as In re Facebook Biometric Information Privacy Litigation(N.D. Cal. 2016) shows. But the plaintiffs still face a daunting hurdle in the form of Article III standing, draped over the case last year on the basis of the Supreme Court’s opinion in Spokeo, Inc. v. Robins (2016) (holding that a “bare procedural violation” of a statute is insufficient to establish Article III standing; rather, the plaintiff must have suffered harm to a concrete interest). Facebook argued that simply not disclosing how it is collecting and storing the information is a bare procedural violation without any further concrete harm. Facebook is currently pending in district court, but defendants in other jurisdictions have already challenged BIPA claims under the new Spokeo standard.
First, in McCollough v. Smarte Carte, Inc. (N.D. Ill. 2016), plaintiffs sued a locker and luggage cart rental service that utilizes fingerprints to control access to the equipment. The court dismissed the claim, stating that the plaintiff must have known that the defendant was storing the information (since she used her thumbprint to get into her locker), and that there was no risk the information would be disclosed.
Following that decision, a court also declined to recognize standing in Vigil v. Take-Two Interactive Software, Inc. (S.D.N.Y. 2017). Here, plaintiffs sued over the storage of facial scans used to create digital avatars for the video game NBA 2K15. Utilizing a two-step, Second Circuit framework, the court held that the privacy concerns implicated by the statute were not at issue, as there was no risk that the information would be disclosed. Mere storage was consistent with how the plaintiffs expected the data to be used and could not confer standing.
But in Monroy v. Shutterfly, Inc. (N.D. Ill. 2017), a court held that where the plaintiff had never used Shutterfly, he did not consent to the storage of his facial geometry for tagging purposes. This distinguished the prior cases, holding that ignorance as to the fact that personal data is even being collected can create a concrete privacy injury.
Apart from standing, plaintiffs also must show that the activity is geographically covered by Illinois law. In Rivera v. Google Inc. (N.D. Ill. 2017), Google challenged whether the Act covered face templates used to find and group together photographs of people taken on Droid smartphones. Because these issues occur on the “cloud”—and don’t necessarily involve a specific location within Illinois—there is some dispute as to where the harm occurred, and imposing liability for photographs with tenuous connections to Illinois will make Google comply with the Act nationwide, potentially violating the Commerce Clause by interfering with other states’ rights to regulate the internet. Because Illinois uses a circumstantial, factor-based test to address the extraterritoriality, the court declined to decide these issues without factual discovery about the creation of the data and the location of consent, leaving these questions open for future resolution.
The list of defendants in Illinois courts illustrates the breadth of the Act: hotels, tanning salons, steel and manufacturing companies, Snapchat, food service providers, and bars have all been sued. Complicating matters, more states are considering similar laws, which companies are fighting vigorously. And while a congressional solution could address the Commerce Clause and consumer protection issues, Congress has not really looked into this issue since 2014. In light of the Equifax breach, however, there is some thought that Congress should do away with Social Security numbers altogether and replace them with biometric information, which would lead to an even greater need for regulation to protect consumers’ privacy interests. Recognizing this importance, states probably are not going to do away with their statutes. And given that companies gain significant value from this information, the collection, use, regulation, and subsequent litigation in this field probably are not going to go away either. Federal courts are thus going to have to resolve these issues or face kicking the can to state courts to play the major role in regulating some of the U.S. economy’s largest actors.
On Monday, October 2, 2017, the U.S. Supreme Court heard consolidated oral argument in Epic Systems Corp. v. Lewis, No. 16-285, Morris v. Ernst & Young, LLP, No. 16-300, and Murphy Oil USA, Inc. v. NLRB, No. 16-307, considering the validity of class action waivers in employment arbitration agreements.
This issue concerns the interaction of two federal statutes—the Federal Arbitration Act (FAA) and the National Labor Relations Act (NLRA). The FAA provides that an agreement to submit any dispute to arbitration “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Section 8(a)(1) of the NLRA states, “[i]t shall be an unfair labor practice to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” 29 U.S.C. § 158(a)(1). The rights guaranteed by Section 7 include the right to engage in concerted activities for mutual aid or protection. 29 U.S.C. § 157.
The Fifth, the Second, and the Eighth Circuits have held that class action waivers are enforceable. For example, in Murphy Oil USA, Inc. v. NLRB (5th Cir. 2015), the Fifth Circuit held that such waivers do not violate the NLRA because the use of class action procedures “is not a substantive right under Section 7 of the NLRA.”
On the other hand, the Seventh and Ninth Circuits have held that class action waivers in employment arbitration agreements violate the NLRA because forming a class or collective to contest employment issues is a substantive right protected by Section 7. For example, in Morris v. Ernst & Young, LLP, (9th Cir. 2016), the Ninth Circuit stated, “Section 7’s ‘mutual aid or protection clause’ includes the substantive right to collectively seek to improve working conditions through resort to administrative and judicial forums.”
At the oral argument, the Department of Justice and the NLRB joined the argument, with the DOJ arguing in support of the employers and the NLRB in support of the employees. Chief Justice Roberts and Justices Kennedy and Alito appeared to side with the employers’ position that class waivers in employment arbitration agreements do not violate the NLRA, with Chief Justice Roberts expressing concern that a Supreme Court ruling finding such waivers unlawful would render approximately 25 million employment agreements invalid.
Justices Ginsburg, Breyer, Sotomayor, and Kagan appeared to support the employees’ position saying otherwise. Justice Ginsburg stated, “To proceed alone in the arbitral forum will cost much more than any potential recovery for one. That’s why this is truly a situation where there is strength in numbers, and that was the core idea of the NLRA. There is strength in numbers. We have to protect the individual worker from being in a situation where he can’t protect his rights.” Justice Kagan stated that, under the NLRA, “employers can’t demand as conditions of employment the waivers of concerted rights.”
Interestingly, Justices Thomas and Gorsuch, the two most conservative Justices on the bench, did not ask any questions. The Supreme Court is expected to issue a decision by June 2018. The transcript of the oral argument can be found here.
McCleskey v. Kemp was decided on April 22, 1987, and yet the 30 years that have elapsed since Justice Powell circulated his majority opinion have done little to soften McCleskey’s sharp edges. The case concerned a challenge from a death-row inmate to the administration of capital punishment in Georgia, where he had been sentenced for the killing of a white police officer. McCleskey argued that his capital sentence was driven in large part by his race, in combination with the race of his victim, and that these considerations violated his constitutional rights under the Eighth and Fourteenth Amendments. As evidence, McCleskey proffered a study demonstrating that a black man who killed a white man in Georgia received a death sentence 22% of the time, as compared to the 1% of death sentences in cases where the victim was also black. Writing for the majority of the Court, Justice Powell held that social science studies could not prove that there was an individual intent to discriminate against McCleskey during his prosecution or trial, and that his challenge was therefore deficient. McCleskey, having lost his case, was put to death on September 26, 1991.
Powell’s dismissive views of social science are still alive and well at the Supreme Court, as Chief Justice Roberts recently demonstrated with his snide reference to “sociological gobbledygook” during oral argument on October 3. Professors Mario Barnes (UC-Irvine) and Osagie Obasogie (Berkeley) visited Northwestern’s campus last week to discuss their recent research on the Court’s handling of social science at the Northwestern University Law Review 2017 Symposium, A Fear of Too Much Justice.
Prof. Barnes began the discussion by comparing McCleskey’s handling of social science with the Warren Court’s use of research data in Brown v. Board of Education (1954). In Brown’s (in)famous footnote 11, the Court cited the so-called “doll studies,” which purported to prove that children of color had lower self-esteem than white children. Since Brown, the study’s findings have been challenged on a number of fronts, and the Court’s treatment is considered overly credulous by some scholars.
By contrast, McCleskey saw the Court attempting to bury the findings of a methodologically sound study so that the majority could reach their desired result, namely, upholding the death penalty in Georgia without regard to its racially disparate application. For Barnes and his coauthor, Dean Erwin Chemerinsky (U.C. Berkeley), these cases demonstrate that the judiciary needs to adopt better norms about the use of social science in the courts. Data should not be a cudgel used to promote a judge’s own presuppositions, nor should it be an obstacle that a judge need only argue around to reach their desired result. Social science should instead inform a judge’s thinking while they consider legal and factual issues, serving much the same function that economics now does in the courtroom. Barnes advocated for the adoption of standards at the Supreme Court concerning when a judge should allow social science to enter the record, and for how that science could be objectively considered, taking the expert testimony standards from Daubert v. Merrell Dow Pharmaceuticals (1993) as a model.
Professor Obasogie, joined on the panel by his coauthor Zachary Newman (U.C. Berkeley), took a different approach to critiquing the majority opinion in McCleskey. In their view, McCleskey’s result did not come because of (or in spite of) the Court’s handling of social science, it was instead driven by a desire to narrow the judicial consideration of ‘intent’ in the context of discrimination. The authors argued that state-sanctioned killing—either a capital sentence imposed in court, or a police shooting in the street—is always the result of a societal structure. In McCleskey’s case, the public of the state of Georgia had an intent to erect the racially discriminatory structures around capital punishment, and it had an intent to maintain them, despite their demonstrably worse effects for black men. And yet in a series of decisions, the Court atomized the meaning of ‘intent’ within the judicial system such that any consideration of larger social forces—the very forces that are captured and measured in social science—was useless in finding intent. Thus McCleskey, alongside Washington v. Davis (1976) and Graham v. Connor (1989), removed racially discriminatory social structures from the judiciary’s purview, effectively gutting the possibility of any future interventions on the scale of Brown.
To sum up his discussion, Prof. Obasogie asked the audience, “After McCleskey, what’s left to protect people of color in America?”
“Jesus. That’s all we have left.”
In July 2017, Russia’s Investigative Committee charged Russian Dr. Grigory Rodchenkov with “abuse of official powers,” alleging that he had destroyed Russian athletes’ doping tests in the 2014 Winter Olympics in Sochi. On September 28, 2017, the Russian Ministry issued a warrant for Rodchenkov’s arrest.
However, one year prior to the Russian Investigative Committee’s allegations, Rodchenkov fled from Russia to the United States with the help of American filmmaker Bryan Fogel. Rodchenkov entered the United States Witness Protection program in January 2016.
So, why would an American filmmaker help a doctor accused of cheating in the 2014 Winter Olympics flee Russia?
The Documentary and Bryan Fogel’s Discovery
Bryan Fogel’s Netflix documentary, Icarus, answers this question. This unlikely partnership started when Fogel began investigating doping trends in professional cycling. After learning about Lance Armstrong’s longtime use of performance-enhancing drugs, Fogel, an amateur cyclist, enlisted a team of doctors to help him “dope up” in order to win a prestigious amateur race called the “Haute Route.” Fogel hoped to prove that he could win the race with help from chemical enhancements. As he states in his documentary, “Originally, the idea I had was to prove the system in place to test athletes was bullshit.”
After discussing his plans with many doctors, he was introduced to Dr. Grigory Rodchenkov, who was then the Director of Moscow’s World Anti-Doping Agency (“WADA”) Laboratory. Rodchenkov offered to help Fogel navigate his way through a complex regime of steroids and anti-aging hormones. Over the next few months, Fogel injected himself with the drugs on a daily basis, which put him on track to compete with the top cyclists.
The documentary took an unexpected turn in November 2015 when WADA released a report tying Rodchenkov to state-sponsored doping efforts in Russia. Realizing there were much bigger issues at play, Fogel did what any good investigative filmmaker would do—he followed the story.
The Russian Doping Scheme
“Bryan, it’s a disaster, they’re killing people, cutting heads,” Rodchenkov told Fogel via Skype, describing the fallout after the Russian government received news of the WADA report. In the documentary, Rodchenkov admits to helping Russian Olympic athletes conceal positive urine samples at the 2014 Winter Olympics, but claims that Russian officials forced him to do it. He describes at length how members of the Russian intelligence service helped break into supposedly tamper-proof sample bottles each night. Rodchenkov would pass the samples through a small hole in the wall, quickly replacing them before testing the next morning. After the report was released, Russian officials forced Rodchenkov to resign as Laboratory Director, and he fled the country.
According to Rodchenkov, dozens of Russian athletes were doping at the 2014 Winter Olympics, including at least fifteen medal winners. On December 9, 2016, an independent report published by Canadian lawyer Richard McLaren confirmed Rodchenkov’s account. The report outlined the history of Russian doping at the 2012 Summer Olympics in London, the 2013 Moscow Track and Field World Championship, and the 2014 Winter Olympics. McLaren described the 2014 Winter Olympics as the “apex” of Russia’s cheating, because Russia hosted the event and could control drug testing.
The Charges Against Rodchenkov
The film depicts Rodchenkov as a whistleblower. Since its release, others have named him “Russia’s Edward Snowden.” The Russian sports ministry has continually denied any state-sponsored doping. Rodchenkov remains in witness protection in the United States, fearing that he might be killed because of his public statements incriminating the Russian government and Vladimir Putin. Rodchenkov’s concerns about his safety may not be misguided—two of his close colleagues and former anti-doping officials unexpectedly died in February 2016, soon after the WADA report was released.
Former Russian Sports Minister Vitaly Mutko, now Russia’s Deputy Prime Minister, called the allegations “a continuation of the information attack on Russian sport.” Instead of addressing the reporters directly, Mutko responded via conference with Russia’s state-run media outlet, “TASS.” According to Mutko, the claims are baseless, and were part of an attempt to discredit Russian sports ahead of the 2016 Summer Olympics in Rio de Janeiro.
Despite the evidence from McLaren’s report, which consisted of “1,166 pieces of proof, including emails, documents and scientific and forensic analysis of doping samples,” the International Olympic Committee (IOC) did not ban any Russian athletes from any competitions, instead allowing the individual federations to decide whether Russian athletes may compete. In total, about a quarter of Russia’s athletes were not permitted to compete in the 2016 Summer Olympics. Additionally, the International Paralympic Committee (“IPC”) banned the entire Russian Paralympic team from the 2016 Summer Paralympics.
As of September 2017, WADA has closed its investigation, having concluded that the McLaren report “simply may not be sufficient evidence required to sanction” the Russian athletes implicated. However, the United States and sixteen National Anti-Doping Organizations persist in demanding Russia’s ban from the 2018 Winter Olympics in PyeongChang, South Korea.
As for Rodchenkov’s legal situation, the recent issuance of an arrest warrant may indicate that Russia will soon demand his extradition. However, Russia does not have an extradition treaty with the United States, so that move is unlikely to have any real effect. More news about Rodchenkov will inevitably be released as his case proceeds, but until then, grab some popcorn, power up Netflix and sit back for Icarus’ two-hour shocking exposé.
My name is Thomas Rousse, and I serve as the Vol. 112 Senior Online Editor at Northwestern University Law Review. It’s my pleasure to welcome you to our new blog. This year, we’re starting a new initiative to give our membership more opportunities to write for a public audience. Members of our staff will write about recent cases, legal issues in the news, and ongoing debates about theory and policy. Second-year law students will work closely with the Online editorial board to provide the same level of professionalism and accuracy as the rest of our publication.
We also accept submissions from outside authors. Please send me an email if you are interested in publishing pieces under 2,000 words, typically with a one- to two-week turnaround.