The Lawletter Vol 36 No 6

John Stone, Senior Attorney, National Legal Research Group

The California Invasion of Privacy Act ("Act"), Cal. Penal Code § 632, prohibits unconsented-to recording or monitoring, regardless of the content of the conversation or the purpose of the monitoring.  The law is intended to protect rights that are separate and distinct from the right to prevent the disclosure of improperly obtained private information, and it requires the assent of all parties to a communication before another person may listen.  An actionable violation of the Act occurs the moment a surreptitious recording or eavesdropping takes place, regardless of whether it is later disclosed.

In Kight v. CashCall, Inc., 200 Cal. App. 4th 1377, 2011 WL 5829678 (Nov. 21, 2011), the court reversed a summary judgment for the defendant company, finding that a lending corporation was potentially liable for violating the Act's prohibition against eavesdropping on telephone calls, without the consent of all parties, if it had directed one or more of its employees to secretly listen to a telephone conversation between a borrower and another employee.  The legislature enacted the Act prohibiting the recording of confidential communications to ensure an individual's right to control the firsthand dissemination of a "confidential communication," and the legislature further expressed its intent to strongly protect an individual's privacy rights in electronic communications.

During the relevant period for the class action, CashCall randomly monitored 547 calls to and from the servicing department:  225 inbound calls and 322 outbound calls.  The calls were monitored for quality control purposes to ensure that CashCall employees were following CashCall's policies and procedures and applicable laws governing debt collections. Supervisors monitored calls either electronically by using software or by physically sitting next to the representative and "plugging" in to the call.  For purposes of the summary adjudication motion, it was assumed that the calls were not recorded; the supervisor would listen to the call while the conversation was occurring.

While in many cases of incoming calls the customer heard the familiar recording that "[t]his call may be monitored or recorded for quality control purposes," it was not always the case, and it was never the case on outgoing calls.  At the beginning of the borrower relationship, CashCall generally provided written notice to all borrowers that information disclosed to CashCall would be disseminated to "those employees who need to know that information to provide products or services to you."

A "person" is defined in the Act broadly to include business entities like the defendant in Kight.  Based on the facts before it, the appellate court ruled that the lender corporation had potentially violated the Act's prohibition against eavesdropping on telephone calls if the borrowers had had a reasonable expectation that their telephone conversations with its employees were not being secretly overheard by other employees, even if the borrowers knew that the information in their calls would eventually be disseminated to other employees.

January 3, 2012

John Stone, Senior Attorney, National Legal Research Group

It should not come as a surprise to most people that when an individual gets a driver's license from a State, he or she necessarily gives the State some personal information that is then stored in a database for use by the Division of Motor Vehicles ("DMV"). Typically this information includes name, address, telephone number, vehicle description, Social Security number, some medical information, and a photograph. What may not be so commonly known is that the States legally can and do turn around and sell that information to individuals, businesses, and other governmental entities.

There are some federal statutory limits on the States' ability to sell DMV driver record information.  In a recent case, Howard v. Criminal Information Services, 654 F.3d 887 (9th Cir. 2011), the Ninth Circuit heard appeals from two essentially identical class actions that had been filed in two different states, by different groups of plaintiffs, seeking damages on the ground that their personal information had been obtained by defendant companies in violation of the Driver's Privacy Protection Act ("DPPA"), 18 U.S.C. §§ 2721–2725. That statute provides that personal information from state driver's license databases can be obtained, disclosed, or used only for certain specified purposes. The 14 enumerated permissible purposes include, in addition to those directly related to motor vehicles, such purposes as court or law enforcement functions; verification of information by businesses, including employers; research activities; and insurance purposes.  All in all, the list and scope of permissible purposes for obtaining DMV information on drivers is rather broad, and it is little wonder that companies decide to mine these databases.

In the case before the Ninth Circuit, a newspaper company had used the information in reporting stories involving the operation or safety of motor vehicles. Another company had found the information helpful in performing background checks; it used the information to verify personal information submitted by the person about whom the background check was being performed.  Another of the defendants had used the information to perform research about motor vehicles. A parking lot management business had used the information to check information provided by its customers and to provide notice to owners of towed or impounded vehicles. These businesses had determined that it is neither efficient nor cost‑effective to request records piecemeal—that is, individually, each time they had a need for the information—or to be limited to getting the information during business hours when the state agency is open. Instead, they purchased the entire database from the State "in bulk" so as to be able to access specific information as and when the need arose.

Thus, in the consolidated cases, each of the defendants had purchased driver record information in advance and in bulk so that it would have the information available for its possible future use. The plaintiffs did not complain that the ultimate use of the information by any of the defendants had been for a purpose not permitted under the DPPA. They argued, however, that the DPPA forbids bulk purchasing of drivers' personal information for future use, because obtaining the information for future use is not itself a permitted purpose under the DPPA.  Joining other courts that had dealt with similar claims, the Ninth Circuit concluded that the defendants' actions, sometimes referred to as "stockpiling" information, were not unlawful under the DPPA, and it affirmed the dismissal of the actions by the federal district courts.

The Lawletter Vol 36 No 5

Steve Friedman, Senior Attorney, National Legal Research Group

In pertinent part, the First Amendment to the U.S. Constitution provides that "Congress shall make no law respecting an establishment of religion."  The Establishment Clause, applicable to the states and their political subdivisions through the Fourteenth Amendment, thus prohibits the Government from promoting or affiliating itself with any religious doctrine or organization, discriminating among persons on the basis of their religious beliefs and practices, or otherwise involving itself too deeply in the affairs of religious institutions.  See County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 590-91 (1989).

However, the Supreme Court has carved out an exception to its traditional Establishment Clause jurisprudence for so-called "legislative prayer."  In Marsh v. Chambers, 463 U.S. 783 (1983), the Court held "that the practice of opening legislative sessions with prayer has become part of the fabric of our society" in that its roots can be traced back to the beginnings of this nation.  See id. at 792.  Accordingly, legislative prayer has more of a civic than a religious overtone in this context, see id. at 792-93, provided that such prayer is not used "to proselytize or advance any one, or to disparage any other, faith or belief," see id. at 794-95.

In subsequent years, Marsh's "legislative prayer" exception to the Establishment Clause has been applied to analogous legislative or deliberative bodies at the local level as well.  See, e.g., Pelphrey v. Cobb County, 547 F.3d 1263, 1276 (11th Cir. 2008) (county commission).  However, juxtaposed to Marsh and its progeny is another line of "school prayer" cases.

In Lee v. Weisman, 505 U.S. 577 (1992), the Supreme Court declared unconstitutional a school policy of having clergymen give nonsectarian prayers at school graduations.  A major focus in Lee was the "heightened concerns" of "indirect coercion," given the impressionable youth in the public schools.  Indeed, the Court emphasized that "[i]nherent differences between the public school system and a session of a state legislature distinguish this case from [Marsh]."  Id. at 596.  The mere fact that students had the option of remaining silent during the prayer or of skipping the graduation ceremony altogether did not cure the constitutional defect.  See id. at 593-94.

So the question is, which case provides the applicable law in the school board context—Marsh or Lee?  Recently, the U.S. Court of Appeals for the Third Circuit took up this issue head-on.  See Doe v. Indian River Sch. Dist., 653 F.3d 256 (3d Cir. 2011).

In Doe, the plaintiffs challenged the school board's practice of beginning each public meeting with a prayer as being unconstitutional under the Establishment Clause.  The school board contended, and the district court agreed, that the school board was akin to a legislative or deliberative body and, thus, that its practice was akin to the legislative prayer approved of in Marsh.  See id. at 259.  Rejecting that argument, the Third Circuit reasoned that "[t]o conclude that, merely because the Board has duties and powers similar to a legislative body[,] Marsh applies, is to ignore the Board's role in [the] system of public school education."  Id. at 279.

September 27, 2011

John Stone, Senior Attorney

According to a federal district court that was recently considering a case of alleged bullying of a disabled adolescent girl at school, if bullying were a medical issue, it would be characterized as a disease affecting America's youth, and a team from the Centers for Disease Control charged with investigating epidemics would be called in to study it.  The problem is pervasive and serious, particularly in the middle school years.  It is the most common type of violence in our schools.  T.K. v. N.Y.C. Dep't of Educ., No. 10-CV-00752, 2011 WL 1549243, at *5 (E.D.N.Y. Apr. 25, 2011).  (T.K. is one of the parents of the student, who is referred to in the case only as "L.K.")

As the court considered in T.K., when the student victim of bullying is also disabled within the meaning of the federal Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482, a school district's response, or its lack thereof, can raise the prospect that the student has been deprived of the "free appropriate public education" to which he or she is entitled under the IDEA.  In a lengthy memorandum and order, the court in T.K. set out to answer this "largely unresolved issue."  Id. at *1.  Not only did the court find in principle that the IDEA can be violated in such circumstances, but it also found that the particular school district in the case before it was not entitled to summary judgment on the IDEA claim brought by the disabled student's parents.

In T.K., the bullying took the form of repeated instances of the student's being ostracized, isolated, and teased by fellow students.  In addition, she was sometimes pushed or intentionally tripped by other students.  Other specific incidents of bullying included a classmate's drawing depicting L.K. in a disparaging light; a student's chasing L.K. with what he claimed was blood but was in fact ketchup; other students' refusing to touch things once L.K. had; and a prank phone call made to L.K.'s home, which the school was informed about.

To be sure, "bullying" is a somewhat subjective term, and it must be distinguished from less serious or harmful conduct, such as horseplay.  Every disagreement or conflict among children does not amount to bullying.  What distinguishes bullying from other forms of childhood aggression is unequal and coercive power.  Referring to authorities on the subject, the court observed that the bully/victim connection can be viewed as the opposite of a healthy peer relationship.  Peers are equals on the same social standing, while a bullying nexus lacks equality of standing. It is the inequality, abuse, and unfairness associated with bullying that makes it unacceptable in law as well as in education.  Id. at *9.

In determining whether school bullying has deprived a disabled child of a free appropriate public education under the IDEA, the question to be asked is whether school personnel were deliberately indifferent to, or failed to take reasonable steps to prevent, bullying that substantially restricted a child in his or her educational opportunities.  The applicable standard takes into account administrative advice that has long been given to schools in how to apply the IDEA and other child-protective legislation.  Referencing a document from the U.S. Department of Education, Office of Civil Rights, the court stated that for at least 10 years, schools have been on notice of their obligations in this area:

June 21, 2011

John Stone, Senior Attorney, National Legal Research Group

As a rule, the State's failure to protect an individual from private violence does not amount to a violation of the Due Process Clause of the Fourteenth Amendment as a deprivation of life or of a liberty interest.  See DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197 (1989) (State owed no duty to child whose abuse it was investigating to protect him from beating by his father, despite claim that special relationship existed between the child and the State).  The rationale for this principle is that the duty owed by the Government, especially in the realm of law enforcement, is to the public at large rather than to any particular individual.

An exception to this general rule exists where public officials have in some way assisted in creating or increasing the danger to the victim.  For example, repeated and sustained inaction by Government officials in the face of potential acts of violence might constitute prior assurances to an offender that rise to the level of an affirmative condoning of private violence such as would amount to a violation of the Due Process Clause of the Fourteenth Amendment, even if there is no explicit approval or encouragement.  In other words, under the right set of facts, Government officials can commit a substantive due process violation by implicit encouragement of the offender's actions.