Privacy Day 2019

Privacy Day 2019

In 2006 the Council of Europe officially recognised 28 January as a data privacy holiday, to celebrate the date The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data was signed in 1981. Also known as Convention 108, this document remains the only international treaty in the field of personal data protection.

In honour of this year’s Privacy Day – also called Data Protection Day – here are a few excerpts from some of my favourite English and American legal cases about privacy.

Image result for entick v carrington

In 1762, the King George IV’s Chief Messenger Nathan Carrington and others broke into the home of the writer John Entick. Over the course of four hours, the messengers broke open locks and doors and searched all of the rooms, before taking away charts and pamphlets, and causing £2,000 of damage. The King’s messengers were acting on the orders of Lord Halifax, the newly appointed Secretary of State: Entick later sued Carrington for trespassing on his land. In his judgment in favour of Entick, Chief Justice of the Common Pleas Lord Camden wrote:

Has a Secretary of State a right to see all a man’s private letters of correspondence, family concerns, trade and business? This would be monstrous indeed; and if it were lawful, no man could endure to live in this country.

Today, Entick v Carrington is considered to have deeply influenced the establishment of individual civil liberties, and limiting the scope of executive power. It also served as an important motivation for the Fourth Amendment to the United States Constitution, which guarantees protections to Americans against certain searches and seizures. 

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Prince Albert v Strange was an 1849 court decision which began the development of confidence law, the common law tort that protects private information. By way of background, both Queen Victoria and Prince Albert sketched as a hobby. John Strange obtained some of these sketches after they had been stolen from Windsor Palace, and published a catalog showing them. Prince Albert filed suit for the return of the sketches, and a surrender of the catalog for destruction. The Lord Chancellor Lord Cottenham granted Prince Albert’s plea, and explained in his judgment that:

The Court of Chancery will protect everyone in the free and innocent use of his own property, and will prevent other parties from interfering with the use of that property, so as to injure the owner. It is certain every man has a right to keep his own sentiments if he pleases. He has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends. Privacy is a part, and an essential part, of this species of property.

 

Image result for Eisenstadt v Baird

In 1967, William Baird was charged with a felony for handing a condom to an unmarried woman who had attended one of his lectures on birth control at Boston University. Under Massachusetts law on “Crimes against chastity”, contraceptives could only be distributed by registered doctors or pharmacists, and only to married persons. The Supreme Court of the United States overturned the law in the 1972 case Eisenstadt v. Baird, and the majority opinion was written by Justice Brennan, who famously wrote:

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

In 1982, the state of Pennsylvania enacted legislation that placed a number of restrictions on abortion. In the resulting 1986 case Thornburgh v. American College of Obstetricians and Gynecologists, the Supreme Court overturned the Pennsylvania law, holding (amongst other things) that the “informed consent” and printed materials provisions of the law unduly intruded upon the privacy of patients and physicians. Justice Brennan penned the opinion, noting:

Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government. Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision whether to end her pregnancy. A woman’s right to make that choice freely is fundamental. Any other result, in our view, would protect inadequately a central part of the sphere of liberty that our law guarantees equally to all. 

Image result for naomi campbell magazine 1994

In 2001, British supermodel Naomi Campbell was photographed leaving a drug rehabilitation clinic, despite having previously denied that she was a recovering drug addict. After the photographs were published in the tabloid The Mirror, Campbell sued for damages in Naomi Campbell v Mirror Group Newspapers. The House of Lords held the paper liable, and Law Lord Nicholls stated:

The importance of freedom of expression has been stressed often and eloquently, the importance of privacy less so. But it, too, lies at the heart of liberty in a modern state. A proper degree of privacy is essential for the well-being and development of an individual. And restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.

In the 2011 case of Federal Aviation Administration v. Cooper, the Supreme Court considered if the United States Privacy Act of 1974 covers mental and emotional distress caused by privacy invasion. The Court held that the Privacy Act’s “actual damages” provision only allowed Cooper to recover for proven pecuniary or economic harm. Justice Sonia Sotomayor wrote the dissent, joined by Justices Ruth Bader Ginsburg and Stephen Breyer. Perhaps unsurprisingly, I personally agree with Justice Sotomayor’s dissent, which noted:

Nowhere in the Privacy Act does Congress so much as hint that it views a $5 hit to the pocketbook as more worthy of remedy than debilitating mental distress, and the contrary assumption [in this case] discounts the gravity of emotional harm caused by an invasion of the personal integrity that privacy protects.

Of course, the cases above provide only a small glimmer of insight into the weird and wonderful world of privacy law. On international Privacy Day in particular, it’s important to remember that the legislation and court cases which shape our understanding of privacy and protection from intrusion go far beyond the modern notion of cyber security.

The right to privacy is a human right!

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California Bar Exam; introduction

California Bar Exam; introduction

I’ve decided to sit the California bar next year! I thought it might be a good idea to keep a written record of my experiences, thoughts, predictions, and study strategy: these posts will be marked by the “California Bar Exam” category tag.

Why become dual-qualified? And why California? Although I’ve lived in London for nearly seven years and am licensed to practice law in England, I’m still an American citizen. I earned my Bachelors’ degree in the USA, and after studying law and politics fully intended to go to law school in the States. My original plans to spend one year in London to do a Masters degree changed when I met my now-husband!

It consider it something special to be qualified to practice law in your “home” jurisdiction. The American Constitution is very much a part of my professional and personal DNA: as I’ve become more and more involved in English and European law (especially in matters concerning media, expression, and privacy) the more interested I am in American jurisprudence.

Maybe it’s the academic in me, but I’m genuinely passionate and curious about legal theory and the practice of law. I also think being dual-qualified will make me a better lawyer, not least because the majority of my clients have some sort of international aspects which routinely touch on US law.

Currently, only a few states allow foreign-qualified lawyers to bypass American law school and sit the bar as “attorney applicants” – New York and California are two of the most popular. For boring administrative reasons* I’m not eligible to sit the bar in New York without doing an LL.M. in the States. California on the other hand only cares about the fact that I’m currently a lawyer in good standing in my home jurisdiction. So California it is!

Even if I was eligible to sit the NY bar, I do honestly think that I’d prefer to do it in California. My practice is focused on media, internet companies, telecoms, creative content, defamation, publicity, and privacy: so many interesting cases on those matters come out of California. Furthermore, I come across contracts subject to Californian law on a weekly basis. It would be great to be able to advise on those contracts, and not need to defer to US counsel! Plus, as a girl originally from the West Coast of the US, I’ve always believed known West Coast, Best Coast. 

There are three key components of the exam process:

1.  The Multi-state Professional Responsibility Exam, or “ethics exam” (MRPE). This exam can be taken in any one of 300 test centers around the USA, and is offered three times each year. I’m taking the exam in November, in New York City. My test results will be “uploaded” to California.

In July 2019, I’ll be off to Los Angeles to sit the California Bar Exam, which occurs over a two-day period:

2.  The California Bar Exam. Day 1 consists of five separate one-hour essays on a variety of legal topics, and one 90-minute practice test in which candidates are expected to work through a series of documents and produce some sort of memorandum or client letter. I’m still trying to figure out which points of California law specifically will be testable.

3.  The Multi-State Bar Exam. Day 2 is the MBE, which consists of 200 multiple-choice questions on seven subjects, based upon principles of common law and Article 2 of the Uniform Commercial Code (covering sales of goods). The questions are not broken down into sections and the seven topics are distributed more or less evenly throughout the exam. Candidates receive three hours during the morning session to complete the first 100 questions, and another three hours during the afternoon session to complete the second 100 questions.

The topics covered are:
• Business Associations
• Civil Procedure – topic on both Day 1 and Day 2
• Community Property
• Constitutional Law – topic on both Day 1 and Day 2
• Contracts – topic on both Day 1 and Day 2
• Criminal Law and Procedure – topic on both Day 1 and Day 2
• Evidence – topic on both Day 1 and Day 2
• Professional Responsibility
• Real Property – topic on both Day 1 and Day 2
• Remedies
• Torts – topic on both Day 1 and Day 2
• Trusts
• Wills and Succession

 

*Why not New York? According to Section 520.6 of the Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law, foreign lawyers must satisfy certain requirements to be admitted to the New York bar. In addition to passing the bar exam itself, applicants must have a “qualifying degree” that satisfies the educational requirements to practice law in a foreign country.

The normal route in England for aspiring lawyers is to do an undergraduate degree in law: the LL.B. They then do a year of law school (LPC) and two years of clerking (the training contract).

For students who don’t do the LL.B (for example. if they do history or chemistry and later decide to go into law) they can do a one-year “conversion” course known as the Graduate Diploma in Law (GDL) before doing the LPC. This was the route I chose, as – like many others – I did not do an undergraduate degree in law.

Unfortunately, despite being a qualified solicitor in England, the New York State Bar does not recognise the GDL as being a full “qualifying degree.” I can “cure” this by completing a 2-year LL.M. (a Masters’ degree in law) in the USA, but… nah. That’s not happening.