Focusing public attention on emerging privacy and civil liberties issues

Elena Kagan and Privacy

Top News

  • EPIC Urges Senate to Explore Kagan's Views on Privacy: In a letter to the Senate Judiciary Committee, EPIC has asked Senators to examine the views of the Supreme Court nominee on privacy and related issues. Noting that the Court increasingly confronts cases concerning the Fourth Amendment and privacy, EPIC said it is "important and necessary" to explore the nominee's views on these topics. The hearings are expected to continue through this week. See EPIC - Elena Kagan and Privacy and EPIC - Doe v. Reed and EPIC - City of Ontario v. Quon. (Jun. 28, 2010)
  • President Obama Nominates Elena Kagan for Supreme Court: President Obama has nominated Solicitor General Elena Kagan for the seat on the United States Supreme Court that will be vacated by Associate Justice John Paul Stevens when the term ends this June. Justice Stevens served as a justice for 35 years, and participated in many important privacy cases. Kagan, the former dean of Harvard Law School, wrote about the Supreme Court confirmation process in 1995 that Senators should insist on "evoking a nominee's comments on particular issues—involving privacy rights, free speech, race and gender discrimination, and so forth—that the Court regularly faces."  EPIC has submitted amicus briefs in two cases currently before the Court. For more information, see EPIC - Doe v. Reed and EPIC - City of Ontario v. Quon. (May. 11, 2010)

Background

On May 10, 2010, President Obama nominated Elena Kagan to replace Justice John Paul Stevens on the Supreme Court. Elena Kagan graduated summa cum laude from Princeton University where she served as editorial chair of the Daily Princetonian. She received Princeton's Daniel M. Sachs Graduating Scholarship, which enabled her to study at Worcester College, Oxford University where she earned a master of philosophy. She attended Harvard Law School where she received a juris doctor, magna cum laude, and was supervisory editor of the Harvard Law Review.

Upon graduating from Harvard Law School, Kagan clerked for Judge Abner Mikva of the D.C. Circuit, then for Justice Thurgood Marshall in the Court's 1987 Term. Upon completing her clerkship, Kagan went to work as an associate at Williams & Connolly in Washington, D.C. In 1991, Kagan joined the law faculty of the University of Chicago, where she taught administrative and constitutional law. In 1993, Kagan temporarily served as special counsel to Senator Joe Biden (then-Chairman of the Judiciary Committee) during the confirmation process of Justice Ruth Bader Ginsburg. She then returned to teaching at Chicago.

In 1995, Kagan joined the Clinton Administration, initially serving as Associate White House Counsel. In 1997, she was named Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council. In 1999, President Clinton nominated Kagan for a judgeship on the D.C. Circuit, however she never received a hearing. In 1999, Kagan returned to academia, accepting a position on the law faculty at Harvard where she principally taught administrative law, civil procedure, constitutional law, and a seminar on the presidency. In 2003, she was named the dean of the law school, as well as the Charles Hamilton Houston Professor of Law.

In 2009 President Obama nominated Kagan to serve as his first Solicitor General, and she was confirmed. That same year, the President considered and interviewed Kagan for a potential nomination for the Supreme Court seat vacated by David Souter to which Sonia Sotomayor was ultimately named.

The Nominee and Privacy

Kagan invited questions on privacy when she wrote in a Chicago Law Review article titled Confirmation Messes, Old and New, that the nomination process for judicial nominees should "evok[e] a nominee's comments on particular issues--involving privacy rights, free speech, race and gender discrimination, and so forth--that the Court regularly faces."

Elena Kagan's previous opinions on First Amendment, freedom of speech, consumer privacy and open government issues provide some indication of how she might rule when similar issues reach the Supreme Court in the future. This webpage addresses Kagan's privacy policies in relation to these issues.

Nomination Process

Reports of Interest Groups

General Commentary

News

Legal Commentary

The Nominee as Solicitor General

State Secrets Privilege

During her confirmation hearings for Solicitor General in February 2009, Kagan responded to Chairman Patrick Leahy's question regarding the scope of the "state secrets" privilege by stating, if conformed as Solicitor General, she would "ensure that the United States invokes the state secrets privilege only in legally appropriate situations."

Open Government

As Solicitor General, Kagan submitted briefs in five cases concerning freedom of information and government transparency. In four of the five cases, the nominee argued against disclosure of government records.

In Department of Defense v. American Civil Liberties Union, Kagan argued in favor of overturning a Second Circuit decision requiring the Department of Defense to produce photographic records of alleged detainee abuse. Kagan asserted that photographs were exempt from disclosure because the President and his military advisors determined that the most direct consequence of releasing [the photographs] would be to further inflame anti-American opinion and to put our troops in greater danger." She further argued that, contrary to the Second Circuit's decision, the government need not show danger to a specific individual in order to invoke the exclusion to a Freedom of Information Act (FOIA) request. These arguments raise questions of what boundaries the nominee would impose on executive authority to deny Freedom as a Supreme Court Justice.

In Federal Communications Commission v. AT&T Inc., Solicitor General Kagan argued that the corporations should not be considered "persons" with privacy interests for the purposes of fulfilling FOIA requests. Government agencies are exempt from FOIA requirements where the records requested would constitute an invasion of personal privacy. The nominee argued that corporate data is not exempt from FOIA requests because corporations have no "personal privacy." This argument does not address the potential consequences to corporations if their data, aggregated through a government investigation, could then be disclosed to the public.

Finally, in Consumers' Checkbook, Center for the Study of Services v. Department of Health and Human Services, Solicitor General Kagan argued that a disclosure of Medicare claim information for specified locations sufficiently implicated the privacy interests of doctors who received Medicare disbursements to exclude the requested information from disclosure. However, Kagan also asserted that the privacy interest should be weighed against the contribution of the information to public understanding of the operations or activities of the government. The nominee should clarify if such a balancing is always appropriate when a government agency evokes an exemption to a FOIA request.

In the remaining two cases, Solicitor General Kagan argued against disclosure of the records sought. Loving v. Department of Defense concerned a request for documents relating to the President's review of a military death sentence, and Berger v. Internal Revenue Service involved a request for an IRS officer's time sheets.

Free Speech

As Solicitor General, Kagan argued both Citizens United v. Federal Election Commission and United States v. Stevens before the Supreme Court. In Citizens United she argued that the government could prohibit corporate political speech. The argument was rejected 5-4 in January. There are indications that her personal views may vary from her argument in the case. "Senator Arlen Specter, Democrat of Pennsylvania, said Ms. Kagan discussed [Citizens United,] with him in a meeting . . . . 'She said there wasn't sufficient deference to Congress' in the majority opinion, Mr. Specter told reporters." She has not spoken directly on the issue of her views of the case.

In Stevens, Kagan defended the constitutionality of a balance test for speech, balancing the value of speech against the social harm. She argued that animal cruelty shares "critical characteristics" with child pornography and obscenity. The Court again rejected the government's argument, holding the statute at issue unconstitutional broad. Although both cases argued by Kagan are do not indicate her personal views on each case, an inquire into her views on each case and First Amendment is imperative.

Searches of Electronic Data

During her term as Solicitor General, Elena Kagan submitted briefs to reverse lower court opinions that established standards to protect individual privacy. Rather than embrace standards of data minimization that would focus the government search and seizure on only that information it properly seeks, in Comprehensive Drug Testing Solicitor General Kagan has instead asserted the government''s prerogative to search and seize any and all information intermingled with data that is the subject of proper government search.

Solicitor General Kagan first argued against limitations on government searches of digital data shortly after taking office. On November 23, 2009, an en banc panel of the Ninth Circuit decided Comprehensive Drug Testing, Inc. v. United States. Comprehensive Drug Testing concerned the federal investigation into steroid use in Major League Baseball. During the investigation, players submitted to anonymous drug testing through their player's association in order to determine what percentage were using steroids. However, when ten players tested positive, the federal government subpoenaed both the samples and information from the private entities that performed the test. In doing so, the government collected the information of many more players besides those who tested positive for steroids.

This prompted the Ninth Circuit to issue five guidelines for electronic searches by law enforcement:

  1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.

  2. Segregation and redaction must be either done by specialized personnel or an independent third party. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.
  3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora.
  4. The government's search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents.
  5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept.

After the ruling, Kagan asked for the full Ninth Circuit to rehear the case. In her brief, Kagan characterize the rules as being overly restrictive on law enforcement. She argued that the required use of independent personnel to segregate data was unfeasible and that such rules undermine the ability of law enforcement to effectively catch criminals. Finally, Kagan asserted that the court had stepped outside the bounds of its function and the case to construct new rules where none had existed before.

After Comprehensive Drug Testing, Solicitor General Kagan again took the opportunity to argue for expansive government searches of digital data. In City of Ontario v. Quon, the Supreme Court was confronted with the question of whether a SWAT team member who was issued a city-owned pager maintained any expectation of privacy in the content of messages received by the pager when the city's explicit policy was that all communications on city owned equipment were subject to review and might be made public. In Quon, the city decided to undertake a review of all messages sent to the pager to determine if the character limit for messages was adequate for work purposes. In doing its review, the city requested the full transcript of all messages sent to Quon's pager, and subsequently uncovered many private messages between Quon and several women, including his wife.

EPIC filed an amicus brief with the Court in City of Ontario v. Quon arguing that the city's review of the full transcript of the messages sent to Quon's pager was unnecessary, and that the same review could have been conducted through less invasive means. Solicitor General Kagan also filed an amicus brief; but she arguing the opposite of EPIC's position: "The proper analysis asks not what methods the City could have chosen, but whether the methods the City in fact chose were appropriate to effectuate its purpose. The City met that standard." Again, Solicitor General Kagan's Office argued that the government has no obligation to limit its searches in order to protect individual privacy interests.

The amount of information stored on digital devices is ever increasing. Therefore, it is vital that the nominee clarify her views on what measure are necessary to protect privacy during government searches of digital data and the judiciary's role in implementing those measures.

The Nominee as White House Aide

Kagan worked as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council (DPC) for the Clinton Administration from 1996-1998. She also served as Associate White House Counsel from 1995-1996.

Body Scanners and Fourth Amendment

During her time with DPC, Solicitor General Kagan individually authored and also co-authored with Bruce Reed two memoranda that raise significant privacy issues, especially in light of contemporary debate over full body scanners in airports and Fourth Amendment concerns surrounding digital surveillance technologies.

In an April 4, 1997, "Ideas in Progress and Status" note, Kagan voiced support for "hand held gun detector devices" that would enable "police . . . [to] potentially scan people in public places without their knowledge." These notes suggest "Federal guidelines" that would "allow officers to scan liberally, particularly in airports, train stations and traffic stops." While these notes assessed both the pros and cons of this proposal, "Pro: we should use every tool to discourage those with guns. Con: This is overkill and carrying concealed weapons is legal in many places", the notes failed to address the privacy issues involved in such covert scanning of citizens in public places with neither notice nor suspicion. The notes' proposal in favor of increased scanning in public places to detect hand held weapons, when evaluated in light of the privacy implications inherent in public scanning without notice, creates reasonable concerns as to Kagan's commitment to protect privacy in the face of national and international security interests.

Criminal Background Checks

In a March 12, 1997 memorandum co-written with Bruce Reed, Kagan and Reed suggested introducing "legislation prepared by the Justice Department that would facilitate criminal checks for non-criminal purposes - for example, a check on a potential nanny or schoolbus driver." In February 27, 1997 memorandum, Kagan and Reed suggested review of a "legislative proposal . . . [that] would require criminal background checks for home health providers participating in Medicare."

Kagan received a legislative referral memorandum from Andrew Cuomo regarding the revised HUD report on S462, HR 2 Public Housing Reform and Responsibility Act of 1997 and was asked, along with a dozen or so other White House officials, to advise on the provided comments. One suggesting in the memorandum was that "[t]he Administration oppose[] the apparent requirement in the House bill that private owners of federally assisted housing be provided with information regarding criminal conviction records of adult applicants or tenants of that housing." Cuomo continues, writing that "[t]he Administration opposes allowing any private citizen or entities . . . to obtain criminal record information about other individuals. The provision of such sensitive information to private individuals and entities raises significant privacy concerns."

While it is impossible to decipher Kagan's reactions to this particular provision in the memorandum, there is evidence, in the above cited memoranda co-written with Bruce Reed as well as the introduction by the President of the National Crime Prevention and Privacy Compact, below, which suggests that Kagan may not share as strongly held convictions about privacy protections regarding criminal background checks as the Administration as a whole.

A January 27, 1998 memorandum preparing for the 1998 State of the Union Address includes comments on the National Crime Prevention and Privacy Compact. The Compact would "facilitate effective background checks on child care providers by eliminating state law barriers to sharing criminal history information for non-criminal purposes." This legislation follows a memorandum Kagan co-wrote with Bruce Reed in February and March 1997 proposing criminal background checks for non-criminal purposes, like nannies or schoolbus drivers. It is unclear whether Kagan weighed individuals' privacy concerns against the state interest of preventing a "tragedy in child care."

Support for criminal background checks for non-criminal purposes suggests that Kagan may privilege societal security and safety over individual privacy of information.

Medical Privacy

While the Deputy Director for the Domestic Policy Council under the Clinton Administration, the nominee received numerous memoranda regarding medical records and related privacy initiatives. On May 14, 1998, President Clinton issued a memorandum to the heads of executive departments and agencies directing them to "limit[] the government's collection, use and disclosure of personal information" pursuant to protections afford in the Privacy Act of 1974 and the Principles for Providing and Using Personal Information of 1995. The memorandum recognized that "[i]ncreased computerization of Federal records" could "diminish individual privacy" and laid out policy "ensur[ing] that new information technologies enhance, and do not erode, the protections" afforded by privacy statutes. Kagan received a draft of this memo on May 12, 1998. Also on May 14, 1998, the Clinton Administration issued a "privacy action plan" that would restrict "how medical records are disclosed and how people can find out about their use," create an " ‘opt-out' Web site which would allow individuals to prevent information from being passed to others," and hold a " ‘privacy summit' which will include members of the Administration and industry officials, who will discuss privacy issues on the Internet."

In September 1997, Secretary of Heath and Human Service Donna Shalala recommended Congress enact federal legislation to impose duties on those who hold health information and provide right to the subjects of the information. Disclosures would be limited to those authorized by the patient or permitted by legislation. The memorandum sent in preparation for the July privacy meeting states that Congress was currently considering the recommendations.

The Clinton Administration submitted Guidelines for the Collection and Tracking of Information from Children on the GII and in Interactive Media to the Federal Trade Commission in 1997. These Guidelines laid out four requirements with which all information collectors and trackers had to comply. Kagan's notes observed that the Privacy Principles apply to the collection and tracking of information from children, as laid out in the first guideline stating that "[d]isclosure must be full and effective."

Also during the Clinton Administration, Kagan worked with the Department of Health and Human Services on developing legislation to "ensure appropriate privacy protections for medical records."

Consumer Privacy

The Clinton Library released documents on consumer right privacy created or received by Kagan in 1998. Contained within are memoranda, correspondence, and reports briefing Kagan on a July 1998 policy meeting on consumer right privacy. Kagan was During this time Kagan was serving as Domestic Policy Council for the Clinton Administration. Topics in the working file include discussions on the creation of a privacy entity, dialogue with state and local governments, educating the public on privacy, information about children, financial records, identity theft, medical records, online privacy, and profiling.

In 1998, during Kagan's tenure as Domestic Policy Council for the Clinton Administration, Kagan received numerous faxes and e-mails with regards to the Administration's comprehensive meeting on consumer right to privacy. Though emails indicate Kagan was not present at the July 1998 meeting herself, her working file indicates that Kagan was briefed and noted on the topics covered in the meeting through email and facsimile. Topics covered in the July meeting included: discussions on the creation of a privacy entity, dialogue with state and local governments, educating the public on privacy, information about children, financial records, identity theft, medical records, online privacy, and profiling.

Kagan expressed the Administration's support for privacy protections as part of the Administration's health care agenda, including "consumer protection reforms (to ensure quality, prevent discrimination, and protect privacy)." She also expressed the Administration's support for "privacy protection legislation, which would establish strong federal standards to ensure the confidentiality of medical records."

Subsequent to these meetings, Congress passed legislation addressing privacy-related concerns. The Children's Online Privacy Protection Act (COPPA) was passed in 1998. COPPA limits the ability of websites to collect, use and disclose personal information about children under the age of 13. Comprehensive amendments to the Fair Credit Reporting Act (FCRA) were made in the Consumer Credit Reporting Reform Act of 1996 (P.L. 104-208). The Administration also pushed through a bill that became the Identity Theft and Assumption Deterrence Act of 1998. Prior to this existing identity theft law did not reach theft of certain means of identifications like Social Security number and mother's maiden name.

The Nominee in Academia

Elena Kagan's has not published academically on privacy. Instead, her publications have focused on the First Amendment and Administrative Law. Her articles focus primarily making First Amendment doctrine internally consistent and on the purpose and methods of free speech restriction, such as a motive based model for speech regulation. In Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, Kagan "contends that the primary purpose of courts reviewing speech restrictions should be to ferret out impermissible governmental motives-not necessarily to protect individual expression or the marketplace of ideas." Notably, in this article she agrees with the Court in invalidating a law prohibiting the mutilation of a flag, calling it a "correct decision." In the same article she also warns against the dangers of hostile audience laws despite the "risk of disorder caused by disfavored speech." Kagan stated that "the government may not limit speech because other citizens deem the ideas offered to be wrong or offensive." Overall her writing academic writings are indicative of an acceptance of government regulation balanced with skepticism of government involvement in First Amendment issues.

Academic Writings

On Administrative Law:

2009 Office of the White House Counsel in Mark Green and Michele Jolin, eds., Change for America: A Progressive Blueprint for the 44th President (Basic Books).

2001 Presidential Administration," Harvard Law Review.

2001 Chevron Nondelegation Doctrine," Supreme Court Review.

On the First Amendment:

2000 Libel and the First Amendment (Update), Encyclopedia of the American Constitution, Supplement II.

2000 Masson v. New Yorker Magazine, Inc., Encyclopedia of the American Constitution (entry).

1996 When A Speech Code Is A Speech Code: The Stanford Policy and the Theory of Incidental Restraints, University of California at Davis Law Review.

1996 Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, University of Chicago Law Review.

1993 Regulation of Hate Speech and Pornography After R.A.V., University of Chicago Law Review. [An abbreviated version of this article appears in Laura Lederer and Richard Delgado, eds., The Price We Pay (Hill & Wang 1995).]

1993 A Libel Story: Sullivan Then and Now," Law & Social Inquiry (book review).

1992 The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion," The Supreme Court Review.

On the Supreme Court Confirmation Process:

1995 Confirmation Messes, Old and New, University of Chicago Law Review (book review).

Miscellaneous:

2009 Foreword in Daniel Hamilton and Alfred Brophy, eds., Transformations in American Legal History: Essays in Honor of Professor Morton J. Horwitz (Harvard).

2008 Harvard Law Revisited, The Green Bag.

2007 Richard Posner, the Judge, Harvard Law Review.

2007 In Memoriam: Clark Byse, Harvard Law Review.

2006 Women and the Legal Profession - A Status Report (Leslie H. Arps Memorial Lecture), The Record.

2006 In Memoriam: David Westfall, Harvard Law Review.

1993 For Justice Marshall, Texas Law Review.

1986 Note, Certifying Classes and Subclasses in Title VII Suits, Harvard Law Review (student note).