Volume 50, Issue 2

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When Anti-Discrimination Law Discriminates: A Right to Transgender Dignity in Disability Law

Issues Volume 50, Issue 2

By Katie Aber

The Americans with Disabilities Act of 1990 (ADA) and its subsequent amendments in 2008 provided comprehensive protection against discrimination based on actual or perceived disabilities. In a compromise necessary to pass the bill, however, the drafters excluded certain disorders deemed to be morally reprehensible, including gender identity disorders. Gender identity disorder, which has since been reclassified in the Diagnostic and Statistical Manual of Mental Disorders as gender dysphoria, describes the distress experienced by transgender individuals as a result of the incongruence between their gender identity and their biological sex. While not all transgender individuals have gender dysphoria, gender dysphoria is exclusively associated with transgender people. Unlike many of the other disorders excluded from protection under the ADA, gender dysphoria neither involves criminal conduct nor causes harm to oneself or others. This Note argues that the exclusion of gender dysphoria from the ADA violates the dignitary rights of transgender individuals because it stigmatizes and demeans them by refusing to apply the broad, almost universal, definition of disability established by the Act to gender dysphoria. The result is that transgender individuals are ineligible to seek access to anti-discrimination protection that they might otherwise qualify for under the ADA. This Note considers the Supreme Court’s analysis of dignity in recent gay-rights jurisprudence, asserts that the Supreme Court recognizes dignitary rights, and argues that the ADA’s exclusion imposes a dignitary harm on all transgender people. This Note concludes that, because the exclusion of gender identity disorder is based on animus, which the Supreme Court has held to lack a rational relationship to a legitimate state interest, the provision is unconstitutional.

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The Internet of Things and Potential Remedies in Privacy Tort Law

Issues Volume 50, Issue 2

By Alexander H. Tran

The Internet of Things (IoT) is an intriguing digital phenomenon in technology that creates many legal challenges as the world becomes more interconnected through the Internet. By creating a connected system, the IoT links a network of physical objects, like consumer devices, and enables these devices to communicate and exchange data. In the very near future, almost every consumer device, from cars to a coffee mug, may connect through the Internet. The IoT has incredible potential to better society by providing immense amounts of rich sensory data for analytics and other uses. Nevertheless, there are also many latent dangers that could manifest as the IoT proliferates, including privacy violations and security risks.

The legal scholarship surrounding privacy issues with respect to the IoT is currently underdeveloped. This Note adds to the discussion of privacy law by analyzing the legal repercussions of the IoT and its relationship to privacy tort law. It summarizes the foundations of privacy law and current regulations that apply to the IoT and concludes that current laws and regulations provide limited remedies for consumers harmed by the IoT. It then provides a potential solution by suggesting that two privacy torts, the public disclosure of private facts tort and the intrusion upon seclusion tort, can provide partial civil remedies for those consumers. Each of the two privacy torts has evolved in different ways since its creation, and this Note explores the advantages and disadvantages of both. Finally, this Note advocates for the expanded use and revitalization of these privacy torts through judicial application in IoT cases as a potential strategy for regulating the IoT.

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An Uncertain Privilege: Reexamining the Scope and Protections of the Speech or Debate Clause

Issues Volume 50, Issue 2

By Philip Mayer

The Speech or Debate Clause of the United States Constitution was put in place to protect and preserve the independence of the legislative branch. The United States Supreme Court has consistently read the Clause broadly to effectuate this purpose, and it has applied the Clause’s protections absolutely to ensure that legislators are not questioned by a hostile executive or judiciary in regard to their legislative activities. In recent years, a circuit split has developed regarding whether the Clause provides for a documentary non-disclosure privilege, which would shield legislators from subpoenas or search warrants issued by the executive branch and enforced by the judiciary. The Ninth and Third Circuits have rejected such a documentary non-disclosure privilege, while the D.C. Circuit has consistently reaffirmed its commitment to a broad documentary non-disclosure privilege. Adding further uncertainty to the Clause’s protections, the Ninth Circuit has also denied the Clause’s protections to legislators involved in negotiations about future legislation. In order to provide clarity to the Clause’s privileges, the Supreme Court should adopt a limited documentary non-disclosure privilege and should apply the Clause’s protections to non-criminal negotiations in anticipation of future legislation.

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The Privacy Case for Body Cameras: The Need for a Privacy-Centric Approach to Body Camera Policymaking

Issues Volume 50, Issue 2

By Ethan Thomas

Body-mounted cameras are being used by law enforcement with increasing frequency throughout the United States, with calls from government leaders and advocacy groups to further increase their integration with routine police practices. As the technology becomes more common in availability and use, however, concerns grow as to how more-frequent and more-personal video recording affects privacy interests, as well as how policies can both protect privacy and fulfill the promise of increased official oversight.

This Note advocates for a privacy-centric approach to body camera policymaking, positing that such a framework will best serve the public’s multifaceted privacy interests without compromising the ability of body cameras to monitor law-enforcement misconduct. Part I surveys the existing technology and commonplace views of privacy and accountability. Part II examines the unique privacy risks imposed by the technology as well as the countervailing potential for privacy enhancement, demonstrating the value of an approach oriented around privacy interests. Part III assesses how the failure to adopt this approach has resulted in storage policies for body camera footage that inhibit the technology’s ability to best serve the public and suggests that a privacy-centric perspective can lead to better policymaking. Finally, Part IV examines the flaws of prevailing views with respect to policies for accessing footage and discusses how a revised privacycentric perspective could lead to better policies.

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