As usual our government masters are hypocrites and don't follow there own laws.
Justices weigh whether Privacy Act violations allow for distress damages
By Robert Barnes, Published: November 30
Stanmore Cooper and the federal government each did something wrong. Cooper pleaded guilty for his actions and paid a $1,000 fine. Now he wants the government to pay.
An attorney for Cooper, a pilot who is HIV-positive, conceded to the Supreme Court on Wednesday that Cooper lied on official forms from 1994 until 2005 about his medical condition and the medication he was taking.
But San Francisco lawyer Raymond A. Cardozo said the way federal officials discovered Cooper’s omission — two federal agencies shared records — violated the provisions of the 1974 Privacy Act, a post-Watergate reform meant to “restore the citizens’ faith in their government .”
He said Cooper should be allowed to sue for the emotional distress he experienced from learning of the government’s actions. If not, he said, the government would be free to “silence” whistle-blowers and others by threatening to reveal private information about them.
Despite the dramatic subject matter, Wednesday’s hearing before the court was a subdued affair that more resembled a law school seminar.
The Privacy Act allows those who think their rights were violated to sue the government for “actual damages.” The justices must decide whether that means only proven out-of-pocket financial losses, or compensation for mental and emotional distress.
Assistant Solicitor General Eric J. Feigin said “actual damages” refers to financial loss. If Congress had intended to waive the sovereign immunity of the United States and allow unlimited emotional-distress claims, he said, “it would have and was required to state that waiver clearly and unambiguously.”
He was challenged by Justices Ruth Bader Ginsburg and Sonia Sotomayor.
Ginsburg said an invasion of privacy is not normally associated with financial costs, but emotional ones.
“The person who is subject to this, to this embarrassment, this humiliation, doesn’t have out-of-pocket costs, but is terribly distressed, nervous, anxious and all the rest,” she said.
Even if the government argued that Cooper did not have a strong case, she said, its rule that emotional distress is not covered would also apply “in the worst case.”
That would be “where a government official spreads all kinds of false information, or even true but terribly embarrassing information about a person, does it deliberately,” Ginsburg said. “Let’s take that case, because your rule covers all of them.”
Feigin said that person might have a claim under other laws, but not the Privacy Act, which he said was passed to “impose a set of detailed substantive requirements about federal record-keeping.”
Cooper, a pilot since 1964, needed a license from the Federal Aviation Administration and an airman medical certificate to fly. His HIV was diagnosed in 1985, but he did not acknowledge the disease or the antiretroviral medications he was taking, which at the time would have disqualified him.
His condition was dire enough in 1995 that he applied for and received disability benefits from the Social Security Administration.
Around 2002, because of a case involving another pilot, the Department of Transportation started an investigation called Operation Safe Pilot and used disability payments to find pilots who had not acknowledged medical conditions.
Cooper was one of them, and he pleaded guilty to one count of making a false official statement. Then he sued the government, saying Operation Safe Pilot violated the Privacy Act’s prohibition against agencies sharing records without the person’s consent.
A judge in San Francisco said that the collaboration might have violated the act, but that Cooper had suffered no financial loss. The U.S. Court of Appeals for the 9th Circuit reversed, saying that “actual damages” included emotional distress, and creating a conflict with other circuits.
When it was Cardozo’s turn, it was Justices Samuel A. Alito Jr. and Antonin Scalia who were most skeptical.
Alito said he was unclear exactly what emotional distress Cooper suffered. Under Alito’s questioning, Cardozo acknowledged that the distress would have to be a direct result of the Privacy Act violation, and not the embarrassment he may have felt because of the criminal charges.
Alito seemed unsure how humiliating it would be for Cooper “simply knowing that somebody in the FAA had access to his Social Security records.”
Scalia agreed that disclosing the information to the public would be different from sharing it with another agency, which he called “picky, picky prescriptions contained in the Privacy Act.”
The case is FAA v. Cooper . Justice Elena Kagan recused herself, apparently because she had worked on the case as President Obama’s solicitor general.
Hmmm ... Does this mean the FBI's reading of all the emails on this list server are illegal and in violation of the 1974 Privacy Act??? I am sure the FBI agents on this listserver don't give a rats ass if they are criminals violating Federal law along with violation our rights!
"actions depicted in the documents violate the Privacy Act, a law that bars federal agencies from maintaining information about activities protected by the First Amendment, such as freedom of speech and association"
Perhaps some of you cops on this listserver who are members of the FBI can respond to this?
FBI illegally using community outreach to gather intelligence, ACLU alleges
By Jerry Markon, Thursday, December 1, 9:06 AM
The FBI is using its extensive community outreach to Muslims and other groups to secretly gather intelligence in violation of federal law, the American Civil Liberties Union alleged Thursday.
Citing internal bureau documents, the ACLU said agents in California are attending meetings at mosques and other events and illegally recording information about the attendees’ political and religious affiliations. FBI officials denied the allegations and said records kept from outreach sessions are not used for investigations.
The documents reveal new details of the FBI’s efforts to build a more trusting relationship with Muslims and other community groups — a major priority since the Sept. 11, 2001, attacks. Federal officials have said the effort is aimed at protecting Muslim civil rights and smoothing lingering resentment over the law enforcement crackdown after Sept. 11, along with helping the government fight terrorism.
Some of the papers show agents speaking at career days, briefing community members on FBI programs and helping them work with police to fight drug abuse. But the files also depict agents as recording Social Security numbers and other identifying information of people after they meet, and, in at least one instance, noting their political views. It appears that the agents are conducting follow-up investigations in some instances, but heavy redactions in the documents make it impossible to determine how far any examination might have gone.
In one case, an agent wrote that he checked California motor vehicle records on someone the agent encountered at a Ramadan dinner at a San Francisco Islamic center. One attendee is described as “very progressive.” Another is called “very Western in appearance and outlook.”
At another Ramadan dinner in San Francisco, an agent recorded the names of Muslim groups listed on pamphlets distributed at the event — and appeared to note that several people associated with one of the groups were under investigation.
The FBI turned the heavily redacted documents over to the ACLU as part of a lawsuit by the civil rights group and two other organizations to uncover what it considers inappropriate or illegal FBI tactics in the fight against terrorism. The ACLU has sued the bureau in four states and is seeking FBI files nationwide under the Freedom of Information Act.
Hina Shamsi, director of the ACLU’s national security project, said some of the actions depicted in the documents violate the Privacy Act, a law that bars federal agencies from maintaining information about activities protected by the First Amendment, such as freedom of speech and association. FBI officials said the law allows agencies to keep information that is considered relevant and necessary to their mission, in certain circumstances.
“It’s one thing for the FBI to say to a community group, ‘We’re going to come and meet you to establish ties,’ ” Shamsi said. “But it’s a very dangerous way to proceed to collect intelligence under the guise of community outreach. ... The FBI has a job to do, everyone understand that, but they are hurting their own efforts.”
FBI spokesman Michael P. Kortan said the bureau’s meetings with community leaders are not designed to gather intelligence but rather “to enhance public trust in the FBI in order to enlist the cooperation of the public to fight criminal activity.” He said the practice provides “information to the public in support of crime prevention efforts, and opens lines of communication to help make the FBI more responsive to community concerns.”
Kortan said FBI policy requires that an “appropriate separation be maintained between outreach and operational activities” and that although “facts surrounding an outreach meeting or event may be documented,” that is only for internal purposes to ensure “that personnel time and resources are being used effectively and in compliance with applicable laws, regulations, policies and program requirements.”
The FBI , under intense pressure to prevent another terrorist attack on U.S. soil, has sought to strike a balance between civil liberties and law enforcement in the decade since Sept. 11. The bureau’s tactics have long been controversial, and civil liberties groups have accused agents of overreacting to the attacks.
FBI and Justice Department officials say they have helped safeguard the nation from another attack.
The documents released Thursday, posted on the Internet, show agents in a variety of settings as they venture out into Muslim and other communities. In one 2009 memo, an agent in Sacramento appears to be monitoring the Saudi Student Association at California State University through the outreach effort.
The agent writes of meeting with someone at the student union building and records that person’s birthdate, Social Security number, telephone number and address — all in the same sentence. The person is described as giving the agent detailed information about the association, including its participation at a university festival and that a “traditional Saudi dance” had been performed at the event.
Yet some of the documents are mundane, including a 2009 memo detailing FBI contacts with Assyrian organizations in San Jose, which notes how the Assyrian language is “very similar to ancient Aramaic.”
Another memo describes a 2007 meeting hosted by the FBI in San Jose for 27 Muslim organizations that featured FBI presentations, a question and answer session and lunch catered by a local kabob restaurant. The writer provides a detailed “demographic” breakdown of participants, including what percentage are Sunni Muslim versus Shiite, and lists all of the organizations in attendance.
One group listed was the Oakland-based Islamic Cultural Center of Northern California. Sara Mostafavi, a board member, said she found that troubling.
“Did the participants know that their names would be collected and their affiliations recorded?” she said. “I’m sure there are well-intentioned people within the FBI who really believe in dialogue and building partnerships. But I think there are folks there who inherently distrust Muslims and want to keep tabs on them.”
Isa Shaw, a board member of the Muslim Community Association of the San Francisco Bay Area — which was also mentioned in the memo — said the FBI’s actions were “a violation of our trust.”
“Outreach is very important to us as well,” he said. “But it’s disturbing that the FBI would use outreach events to collect lists and record our First Amendment-protected activities.