SCOTUS Limits Privacy Act Just as NCTC Expands Access to US Person Data

Well, this is rather inauspicious timing.

The conservatives on SCOTUS have sharply limited the teeth of the Privacy Act–limiting damages to out-of-pocket damages.

The Supreme Court has dealt privacy advocates a huge setback. By a 5-3 majority, the court ruled that people who sue the government for invading their privacy can only recover out-of-pocket damages. And whistle-blower lawyers say that leaves victims who suffer emotional trouble and smeared reputations with few if any options.

Justice Samuel Alito and all four of his conservative colleagues turned back a challenge from a pilot named Stan Cooper. (Justice Elena Kagan did not participate in the case.)

Cooper said the Social Security Administration, which was sending him disability benefits, had improperly shared his HIV status with transportation officials.

In 1974, while the abuses of Watergate were fresh in people’s minds, Congress made that kind of unauthorized information-sharing illegal under the Privacy Act. The law said the U.S. had to pay actual damages to victims.

But in Wednesday’s ruling, Alito said actual damages represent monetary harm, not mental or emotional distress.

That’s absurd, according to the dissent by Justice Sonia Sotomayor. Sotomayor said that means people who suffer severe emotional distress can’t get any money — but people with minor out-of-pocket expenses can.

The whole point of the Privacy Act was to impose some kind of real penalty on the government for using the damage it collects on you in a way that ends up hurting you. Without pain or suffering damages, it will make it very difficult for aggrieved people to find legal representation to sue the government for violations. And without pain and suffering damages, the penalties would generally be so small, in any case, as to make violating your privacy the cost of doing business.

And of course, this happens just as the government decided to make its agency databases accessible to the National Counterterrorism Center for data mining to find terrorists. The Privacy Act would have been one of the few limits on what the government can do with this data. For example, the Guidelines on this new access warns that “All disseminations under these Guidelines must be … permissible under the Privacy Act,” which would normally limit dissemination (in this context) to law enforcement purposes. But now that Alito has gutted the protections of the Privacy Act, there is less to prevent some gung ho counterterrorism professional to leak information about who looks like a terrorist when you data mine their personal data. Or to use the now-collated information (the Privacy Act protections allowing you to see your own data reside with the originator here, which I suspect will mean you don’t get to see what your data gets collated with) for more personal, nefarious purpose.

These two events are unrelated. SCOTUS didn’t do this because of the government’s new power grab at NCTC. But SCOTUS’ decision does make that power grab still more dangerous.

Note: For those of you interested in these issues, I urge you to stop by FDL’s Book Salon on Saturday at 5. Tim Weiner will speak about his generally very good book, Enemies. The salon will be particularly interesting, though, because the ACLU’s Mike German will host. Not only does German’s FBI background make him an ideal reviewer of this history of the FBI’s abuses, but he’s probably the best person to address the book’s most glaring fault: inaccurate and wildly over-optimistic treatment of the FBI’s Domestic Investigations and Operations Guide.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

6 replies
  1. PeasantParty says:

    I’m having my first cup of coffee and haven’t read the entire ruling yet. I have some questions.

    How will this affect FOIA requests past, present, and future?

    Also, are there limits such as persons in Government positions, Corporate CEO’s, or wealthy individuals where this ruling may exclude those from having their information in the same system?

  2. MadDog says:

    EW again highlights an important and unsettling point about the conservative ideologues who rule the highest court in our land.

    A simpler explanation can be had from far too many in the MSM. Namely that these conservative ideologues are opposed to government.

    But that misses the central point that EW cogently identifies. The point is not about an opposition to government.

    Rather, these conservative ideologues support a government that is immune from any consequences of its actions and can operate with impunity against those they govern.

    Simply put, a government above the law.

  3. Ray N says:

    MadDog, do u realize u r talking abt Fascism? That is, of course, what these CONS want. A famous dead Fascist puts it like this: “Fascism should more appropriately be called corporatism, as it is the merger of the corporation and the state”-Benito Mussolini.
    And Rethugglicants are concerned with the evils of Socialism, or Communism?? Why? Fasicm seems far more harmful, as no Democracy is needed. Neoliberalism, the move to privatize everything, even having marriages becomes a competition, cooperation has no place, it is a free market transaction world Rethuggs are trying to shove down our collective throats, where ‘he who has the gold, makes the rules.’
    My therapist even said yesterday, that I am to be the “consumer’ of the new system of mental health care where, the “Consumer” tells the psychotherapists and psychiatrists who, BTW, have many years dealing with mental illnesses, are treating them no longer going to work out a treatment plan, for example, instead, me, as the “Consumer” are going to tell them what I want and they are to do as I say, and their years of experience seeing others in the mental health system is for naught, as it is just a profit generating system like all other neoliberalists garbage these ninnyhammers and nincompoops are advocating.
    Yep, we’re in trouble, we have a president who can issue hitlists, while another lying AG, who is a lawyer, can say ‘due process’ is not the same as ‘judicial process,’ then we have a dysfunctional political party who is a majority in the House that hates one/half of the population so much they want to make them 2nd class citizens and take the entire country back to the 18th century; and last, but not the least, a #5CONJOBSCOTUS group of judges who now make laws, instead of interterpreting the constitutionality of Congressional laws.
    Damn, I just want to die.

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