Standing for Privacy Impact Assessments

Today the D.C. Circuit Court issued a decision in Elec. Privacy Info. Ctr. v. Presidential Advisory Comm'n on Election Integrity, No. 17-5171, 2017 U.S. App. LEXIS 26535 (D.C. Cir. Dec. 26, 2017), affirming the denial of preliminary injunction to the Electronic Privacy Information Center (EPIC) to prohibit the Presidential Advisory Commission on Election Integrity from collecting voter data without completing a privacy impact assessment under the E-Government Act of 2002. The court determined that EPIC did not have standing.

Section 208 of the Act requires that an assessment be completed if, "information in an identifiable form permitting the physical or online contacting of a specific individual, if identical questions have been posed to, or identical reporting requirements imposed on, 10 or more persons." The Commission has promised to 'de-identify' any voter data before it is made publicly available.

The D.C. Circuit ruling found that EPIC could not show a particularized and concrete injury traceable to the Commission's conduct that was capable of redress. While the denial of information can be an injury in fact, EPIC was not the kind of plaintiff the Act seeks to prevent from being harmed - it is an organization - not an individual that can vote.

In her decision, Judge Henderson concluded that, "Nor is EPIC's asserted harm—an inability to 'ensure public oversight of record systems,' Appellant's Reply Br. 9—the kind the Congress had in mind. Instead, section 208 is directed at individual privacy, which is not at stake for EPIC." [Id. at 10].

S.D. Cal. - Search term hits don't determine responsiveness

On December 21, 2017, the United States District Court for the Southern District of California issued a decision in Youngevity Int'l Corp. v. Smith, 2017 U.S. Dist. LEXIS 210386 (S.D. Cal.). Judge Jill Burkhardt ruled on the defendants' (and counter claim plaintiffs') motion to compel a proper production, and also produce a hit list of documents which are responsive to the parties' search terms.

The defendant in the case argued that the plaintiff did not correctly certify its responses under Federal Rule of Civil Procedure 26(g) because the plaintiffs' production consisted of a document dump. The court found that because the record did not show the content of the plaintiffs' responses it could not impose sanctions under this rule.

The court rejected the argument by the defendants that a production of 4.2 million pages by the plaintiffs, without the plaintiffs having conducted a document by document review, violated their discover obligations. The court determined that the defendants' own search terms were very board and accounted for the large number of responsive documents. The court rejected the position by the plaintiffs that hits in search results necessarily determine the status of documents as responsive. Judge Burkhardt's opinion states that:

". . . Search terms are an important tool parties may use to identify potentially responsive documents in cases involving substantial amounts of ESI. Search terms do not,however, replace a party's requests for production." (Id. at 33).

It concluded that the plaintiff may not, "designate all the documents as AEO without regard to whether they meet the standard for such a designation,and thus bury responsive documents among millions of produced pages." (Id. at 34). The court seized on the fact that the plaintiff not only designated only documents as 'attorneys eyes only', but also notified the defendants that their production might include privileged documents. (Ibid.)

The court also found that the designation of millions of pages as 'attorneys eyes only' without review violated the protective order. The opinion states that the plaintiffs, "cannot have a good faith belief that every document in its 4.2 million page productions should be designated as AEO if it has not reviewed any of the documents." (Id. at 36). The court ordered the plaintiffs to do either one of the following:

1. Provide its hit list to the defendants by 12/26/17; complete the meet and confer on search terms by 1/5/18; run the search terms by 1/12/18; screen the documents for responsiveness and privilege by 2/15/18, and make a production by 2/16/18.

2. Provide the previously unproduced documents without further review by 12/26/17, and pay the cost for the defendant to review the documents (700,000 in total) with technology assisted review software.

In re: Jackie Robinson - when is electronic media contraband in prison?

Today the Court of Appeal of California issued a decision In re Jackie Robinson, 2017 Cal. App. Unpub. LEXIS 8647 (Cal. App.), that affirmed a lower court ruling on a prisoner's petition for a writ of habeas corpus. Robinson's petition alleged that this property was improperly withheld from him. It included, "one Seagate portable hard drive, one SanDisk 16 GB micro SD card,one silver Dell Inspiron laptop computer, one Kingston16 GB micro card, one silver PlayStation Portable (PSP) gaming device, and one black PSP." (Id. at *3). Robinson was detained at a state hospital. The items were determined to be contraband. The lower court ordered that he was allowed to send them to someone of his own choosing.

The Court of Appeal rejected the argument that the laptop would not be contraband under the hospital’s rules if its internet accessibility were disabled. The fact that it could be used for online communications was sufficient.

The portable hard drive and the memory card were also ruled to be contraband because they included tethering software that can be used with a cell phone to get online. So whether or not a device can connect to the internet is not the sole issue - if it can enable internet access it will also be considered contraband.

The court relied on testimony by a sergeant for the hospital police who testified that it would be necessary to open each file on Robinson’s devices in order to confirm that they did not constitute contraband. The court rejected what appears to have been a practical solution proposed by the hospital inmate:

“Robinson suggests software could be purchased to automate this process. We decline to impose such an unreasonable institutional burden on the DSH-C. Even if this were feasible, it would be unreasonable to require the DSH-C to modify all confiscated property so as to remove any contraband components or materials.” Id. at 16-17.