Monthly Archives: May 2022

Dozens of Democrat lawmakers are demanding that Google stop unnecessarily collecting and retaining users' location data out of concern that "far-right extremists" could use the data to go after those who've had abortions.

"Google's current practice of collecting and retaining extensive records of cell phone location data will allow it to become a tool for far-right extremists looking to crack down on people seeking reproductive health care," the lawmakers said in a letter addressed to Google's CEO Sundar Pichai.

The letter, dated May 24, was signed by 42 Democrat members of the House and Senate. They were led by Senator Ron Wyden and included lawmakers such as Bernie Sanders, Alexandria Ocasio-Cortez, and Elizabeth Warren.

"We urge you to promptly reform your data collection and retention practices, so that Google no longer collects unnecessary customer location data nor retains any non-aggregate location data about individual customers, whether in identifiable or anonymized form," they added.

A Supreme Court draft opinion leaked earlier this month suggests Roe v. Wade, the 1973 decision that guarantees federal rights to abortion, could be overturned in the coming weeks. If that happens, abortion could become illegal in 23 states.

The news raised concerns about how location data could be used to track down people who have visited abortion clinics. Last week, 16 Democrat senators urged the Federal Trade Commission to ensure data privacy for those seeking abortions in states where the procedure could become illegal.

In Tuesday's letter to Pichai, the Democrat lawmakers said Google collects the most detailed information through its Android smartphones. They said the collection happens "regardless of whether the phone is being used or which app a user has open."

The lawmakers used Apple as an example to prove that smartphone companies don't have to retain users' location data. "Americans who can afford an iPhone have greater privacy from government surveillance of their movements than the tens of millions Americans using Android devices," they wrote.

The lawmakers contended that law enforcement officials often force Google to hand over data through "geofence" orders, or requests that Google release data about every single user who was near a particular location at a specific time.

Their request adds to longstanding concerns about Google's response to geofence requests from law enforcement officials. In 2020, civil rights groups also urged Pichai to reject such requests.

Google said it received 11,554 such requests from across the US in 2020, data released by Google last year shows. That's a 37.6% increase from the number of requests in 2019, per the data. Google did not state in the release how many requests it complied with.

In March, a federal district judge ruled that Virginia police, in serving Google with a geofence warrant to get location data, violated the Fourth Amendment's protections against unreasonable searches. The police had sought Google's assistance in finding out which users were near the scene of a robbery in 2019, NBC reported.

Google did not immediately respond to Insider's request for comments.

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42 Democrats call on Google to stop collecting data location to protect abortion rights - Business Insider

The sun had just begun to rise over Manhattan on an August morning in 2013. Angeline Montauban was whispering into the phone as she crouched in the bathroom of her apartment. As her partner and their 3year-old son slept, Montauban had tiptoed to the bathroom to call Safe Horizon, adomestic abuse hotline she had seen advertised in subway stations. She had decided it was time to stop the violence she was experiencing at the hands of her partner, and she hoped Safe Horizon could provide counseling or help her relocate with herson.

At first, the social worker who answered her call listened sympathetically to Montaubans story. But once Montauban mentioned the couple had alittle boy, the voice on the other end turned harsh and began collecting information about the familyswhereabouts.

That very afternoon, acaseworker with the citys Administration for Childrens Services (ACS) arrived at Montaubans apartment, explaining she was there to investigate areport of child maltreatment. At first Montauban was confused; she and her partner took excellent care of their son and had never abused him. Then she realized the social worker at Safe Horizon had contacted child protection authorities based on Montaubans call forhelp.

The minute she knocked on my door, she was building acase against me, Montauban would recall about the ACS worker. The caseworker inspected her sons body, as well as the entire apartment, finding no evidence of harm to the boy, yet she told Montauban that her family was under ACS supervision for the next 60days. Twice amonth, acaseworker would make an unannounced visit to inspect their home, looking for evidence that might warrant removing her son and putting him in foster care. Within afew weeks, Montauban obtained an order of protection for herself against her partner, and he moved out of their apartment. But the visits and order didnt satisfyACS.

In afamily court hearing, ACS insisted Montauban file for an order of protection for her son against his father as well. Montauban disagreed, explaining to the judge that she wanted her son to maintain arelationship with his father, who had never hurthim.

A few days later, Montaubans partner took their son to family court for an appointment. ACS instructed him to leave the boy at adaycare center on the first floor of the court building. It was asetup: ACS had filed apetition to apprehend Montaubans son on the grounds that he was neglected because Montauban allegedly had allowed him to witness domestic violence and declined to file an order of protection against his father. That evening, the caseworker called Montauban to inform her that ACS had snatched her son from the family court daycare center. Her toddler was in foster carein the custody of strangers in theBronx.

Instead of working toward reunifying Montauban with her son, ACS moved him to several foster homes, promised the foster caretakers he would be free for adoption, and retaliated against Montauban when she expressed concerns by suspending her visits with him. When Montauban faced termination of her parental rights, it was her sons insistence on being reunited with her that preserved their legal bond. It took Montauban five years to retrieve her son from what she calls the labyrinth of familypolicing.

A longstanding narrative has convinced the public that the child welfare system is aflawed but benevolent social service program that strengthens families and rescues children from abusive homes. Most people think of the child welfare system and the criminal punishment system as distinct parts of government. Child welfare is supposed to be based on civil law and therefore not entail the surveillance and condemnation that characterize criminal justice. Whereas police investigate crimes to arrest lawbreakers, child protection workers investigate allegations of maltreatment to keep children safe. Whereas accused defendants stand trial to determine criminal culpability and are punished if convicted, family courts determine whats in the best interests of the child and order services for theirparents.

Or so goes the officialstory.

In reality, the child welfare system operates surprisingly like its criminal counterpart. It is a $30 billion apparatus that monitors, controls and punishes families in the same Black communities systematically subjugated by police and prisons. It is more accurate to call it afamily policing system. State-level child protective services agencies investigate the families of 3.5 million children every year, with one in three children nationwide subject to investigation by the time they reach age 18. Most Black children (53%) experience an investigation from child protective services (CPS) at some point while growing up. A2021 study of large U.S. counties revealed that Black children had consistently high rates of investigation, reaching 63.3% of Black children in Maricopa County,Ariz.

Identifying children as at risk of maltreatment gives caseworkers the authority to probe into and regulate every aspect of afamilys life. All it takes is aphone call from an anonymous tipster to ahotline operator about avague suspicion to launch alife-altering government investigation. Based on vague child neglect laws, investigators can interpret being poorlack of food, insecure housing, inadequate medical careas evidence of parental unfitness. Caseworkers search homes, subject family members to humiliating interrogation and inspect childrens bodies for evidence, sometimes strip-searching them. Caseworkers can make multiple unannounced home visits at any time of day or night and request personal information from teachers, hospitals, therapists and other service providers. In some cities, caseworkers force parents to sign blanket release forms to obtain confidential records about them and theirchildren

These investigations not only traumatize families, but can lead to intense family regulation and years of separation between parents and children, and ultimately can result in permanent dissolution of families. Every year, CPS removes about 500,000 children from their homeshalf through judicial proceedings and half through informal safety plans. The racial disparities seen in CPS investigations are mirrored in the national foster care population, with Black children grossly overrepresented. Although Black children were only 14% of children in the United States in 2019, for example, they made up 23% of children in foster care. More than one in 10 Black and Native children in America will be forcibly separated from their parents and placed in foster care by their 18thbirthday

Recent foster care rates for U.S. children, at 576 per 100,000, are about the same as incarceration rates for U.S. adults, at 582 per 100,000. Black and Native children are also more than twice as likely as white children to experience the termination of both parentsrights

Child welfare investigations are essentially stop-and-frisk family surveillance, without the safeguards of law and public scrutiny that are present in the criminal context. Because child welfare is classified as part of the civil legal system, CPS workers are not classified as law enforcement officers. The Fourth Amendment protection against unreasonable government searches still theoretically applies, but agencies and courts have created achild welfare exceptionarguing that if the rights of family members pose arisk to children, then those Fourth Amendment protections can bewaived.

The tentacles of CPS surveillance have reached across U.S. society, far beyond the walls of child welfare agencies. Family policing relies on an expansive network of information sharing that spans the school, healthcare, public assistance and law enforcement systems. By federal edict, every state must identify people who work in professions that put them in contact with childrensuch as teachers, healthcare providers, social services staff and daycare workersand require them to report suspected child abuse and neglect to government authorities. These deputized agents are known as mandated reporters. Since states began enacting these reporting laws in the 1960s, the categories of enlisted professionals have expanded, and some states have passed universal reporting legislation that requires all residents, with few exceptions, to convey suspicions to thestate.

As mandated reporters, providers of social services direct state surveillance against poor and low-income familiesespecially Black families. And using social services, receiving welfare benefits and living in public housing subject families to an extra layer of contact with these mandated reporters. Public workers are far more likely to report suspicions about their clients (essentially, because they are poor) than their counterparts in the private sector (who work with amore affluent, paying clientele). Regardless of income, healthcare professionals, for example, are more suspicious of Black families than other groups who bring their injured children to thehospital.

Whats more, mandated reporting drives parents away from the very service providers most likely to support them. Many parents are deterred from fully engaging with healthcare, educational and social service systems because mere suspicion from aservice provider could lead to familyseparation.

Mandated reporting, then, thwarts the potential for schools, healthcare clinics and social programs to be caring hubs of community engagement that non-coercively help families meet their material needs. It also wastes millions and millions of dollars investigating baseless allegationsmoney that could have provided concrete assistance to children and their family caregivers. These funds would bear far better fruit for children if given directly to their parents as cash allowances or used to provide material resources that meet childrensneeds.

Instead, these professionals divert struggling families into asystem with the potential to destroythem.

The extensive, multisystem network of CPS informants, combined with their power to pry into afamilys personal life and space, gives CPS access to massive amounts of information ordinarily beyond the governments reach. In recent years, CPS agencies have begun adopting novel technological tools that are expanding the scope of family surveillance even further. Governments are increasingly considering hiring technology and consulting firmsincluding IBM, SAS and Deloitteto employ big databases and artificial intelligence to monitor families and automate decisions about interventions. Some of the nations largest child welfare departmentsin California, Florida, Illinois, Pennsylvania and Texasare using computerized risk assessment technologies to police families. The contracts (lucrative for private enterprises) not only magnify government surveillance but eat up budgets that could be used to provide material resources that familiesneed.

For families that are screened into the family policing system, the next phase of surveillance entails their forced compliance with mandated services requested by CPS agencies and rubber-stamped by judges. These service plans usually have nothing to do with providing the tangible things families need, but instead consist of alist of requirements family caregivers must fulfillor else they lose their children to foster care. Rarely are parents asked what services they would find helpful; instead, parents are asked to focus on fixing their perceived parenting deficits with skills classes and psychologicalcounseling.

Service plans are akin to the probation orders and restrictions imposed on people convicted of crimes. In the criminal context, the violation of asingle provision lands the offender in prison. In the child welfare system, parents who fail to fulfill some provision on their list in time risk having their parental rights terminated and their ties to their children irreparablydisrupted.

The public accepts this extraordinary infringement on freedoms and family relationships because it masquerades as benevolenceand because it disrupts the most marginalized communities. Precisely because it seems to operate outside criminal law enforcement, the family policing system has become an extremely useful arm of the carceral state. CPS has the power to intensively monitor entire communities, all the while escaping public scrutiny and bypassing legal protections by claiming to protectchildren.

Its time to tear off this veneer. The child welfare system oppresses poor communities and especially Black communities by policing families. Revealing the truth about the CPS system should force the public to question its purpose, design and impactand to see the need to replace it with aradically reimagined approach that can actually serve families and keep childrensafe.

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How the Child Welfare System Is Silently Destroying Black Families - In These Times

At 2:07 a.m. June 19, 2018, an Aiken County Sheriff's Office deputy pulled over a commercial bus traveling east on Interstate 20 for allegedly crossing over the center line. Within three minutes, two more deputies had arrived and a police dog was searching two dozen passengers' bags.

Deputy Daniel Puckett, who stopped the bus, would later admit he didn't know whether the bus driver or any passengers were engaged in any criminal activity. Yet deputies used a knife to slice open and search a Maryland man's suitcase - conducting what a judge would later rule as an unconstitutional search.

Puckett and his colleagues, Deputy Robert Rodriguez and Lt. Michael Goodwin, told the man he was not free to leave and questioned him without reading him his rights, a violation of sheriff's office regulations.

Deputies then threatened to arrest another passenger for public disorderly conduct simply for questioning the legality of the officers' actions, court records show.

The traffic stop yielded 27 pounds of marijuana, 12,000 ecstasy pills and one arrest - as well as a court case revealing a troubling pattern of nonconsensual, warrantless drug investigations, an Uncovered investigation by the Aiken Standard found.

Reports of a dozen similar incidents emerged during legal proceedings in South Carolina's 2nd Circuit. Puckett, a long-serving K-9 officer, also testified to previously stopping and searching around 30 commercial buses for minor traffic violations.

On Dec. 16, 2021, 2nd Circuit Judge Clifton Newman tossed out the case after finding that deputies lacked probable cause to stop the bus and search its passengers. Though drugs were found, he ruled deputies had violated the passengers' civil rights in the process.

Furthermore, video from the incident appeared to contradict the deputy's stated reason for pulling over the bus in the first place.

The ruling ended the case, but hard questions linger about tactics employed by Aiken County deputies in combating drug-running along the interstate. Deputies appear to have used minor traffic violations as a pretense for conducting wholesale searches with little or no probable cause.

Allen Chaney, director of legal advocacy at ACLU of South Carolina, said seizing a multi-passenger vehicle in this manner is problematic from a civil rights standpoint.

"Pulling over a bus for a traffic violation doesn't give you license to then detain that bus for an hour and then start searching through bags," Chaney said.

On April 20, a similar search was conducted on a university bus carrying mainly Black athletes through Liberty County in Georgia, making national news and drawing complaints about racial profiling. Six white deputies pulled over the bus on Interstate 95 for an alleged traffic violation and searched through the Delaware State University women's lacrosse team's bags in an effort to find drugs. Nothing illegal was discovered in the bags, and deputies did not issue a ticket for the alleged traffic violation.

It remains unclear when and why Aiken County deputies began targeting commercial buses along the interstate, whether improper searches played a role in other stops and what factor race may have played in these incidents. Reports indicate all passengers charged in the bus stops were Black; the deputies, predominantly white.

These questions prompted an Aiken Standard investigation into the Aiken County Sheriff's Office's handling and oversight of the traffic stops.

The newspaper filed several Freedom of Information Act requests to access dashcam footage, examined hundreds of legal documents and conducted multiple interviews to determine the extent and reasons behind the questionable searches.

Aiken County Sheriff Michael Hunt, a publicly elected official, declined multiple interview requests from the newspaper regarding the case and pattern of warrantless searches.

The Aiken Standard's investigation into the department's overreach is part of a collaboration with The Post and Courier's Uncovered project, which aims to expose misconduct and questionable government actions across South Carolina. The Aiken Standard is among 18 news outlets partnering on Uncovered, including The Sumter Item.

A pattern of crossing lines

Interstate 20 winds through northern Aiken County on its heavily traveled path between Atlanta and Columbia. Thousands of vehicles travel along the route, but one spot in particular has caught the eye of Aiken County sheriff's deputies.

Mile marker 35 is probably not a familiar guidepost to most people, but that's where the state operates a weigh station for large commercial vehicles - and it's become a popular fishing hole for deputies looking to make drug busts.

During an evidentiary hearing in the 2018 bus stop case, the defense asked Deputy Daniel Puckett how many times he had pulled over a commercial bus traveling through the state in the early morning hours.

"I've probably stopped about 20 or 30 buses," Puckett responded, according to a court transcript obtained by the Aiken Standard.

The newspaper obtained copies of 11 more incident reports from the sheriff's office involving drug seizures on commercial buses that were generated from 2014 to 2021. It is unclear how many more buses were pulled over and how many people's belongings were searched without result during that period. That's because incident reports are only generated when there is a drug seizure or arrest, according to Capt. Eric Abdullah, public information officer for the Aiken County Sheriff's Office.

The reports do not identify the bus companies involved in the stops because the sheriff's office does not document company names, according to Abdullah.

Officials refused to provide additional details about the bus operators or the routes they were on. It remains unclear where the buses departed from or where they were going.

Of the 11 additional incident reports, which were generated by four deputies, including Puckett, eight cited the reason for the traffic stop being lane violations - similar to the 2018 bus stop.

The amount of drugs seized in the additional reports ranged from several pounds of marijuana and piles of pills to just a few grams of marijuana.

The six reports involving Puckett and his K-9, Roxy, detail traffic stops and patrol checks on commercial buses in the early morning hours from approximately 1 a.m. to 2:30 a.m., with many occurring at the same mile marker.

"I believe that's where the officers have been pulling over larger vehicles so they can get those vehicles off the roadway for safety," Abdullah said.

It is unclear if Puckett followed the vehicles until they reached the landmark, or if he was parked at the weigh station waiting for commercial buses to pass by.

The Aiken County Sheriff's Office does not have an oversight policy related to traffic stop patterns, according to Abdullah.

"There's no red flags because the officer out there is working off of information that's being shared," he said.

It is unclear what kind of information is being shared, or by whom.

Puckett and the two other deputies that responded as back-up during the 2018 bus stop, Rodriguez and Goodwin, were not reprimanded for their actions during the traffic stop despite the judge's findings, according to Abdullah. No internal affairs investigations have been conducted.

Chaney, of the ACLU, said that when a sheriff's office fails to handle these types of matters in a transparent manner and hold deputies accountable for their actions, misconduct can fester in the department.

"It's in everybody's self-interest to make sure that nobody goes down," he said. "Without meaningful policy changes in the legislature or local government, that lack of transparency will allow misconduct to go unnoticed and unpunished."

Puckett began his law enforcement career with the Richmond County (Georgia) Sheriff's Office in July 2001, according to an officer profile obtained from the Georgia Peace Officer Standards and Training Council. He bounced between that agency and another sheriff's office before landing a job with the Aiken County Sheriff's Office on Aug. 15, 2014. There was no indication of any misconduct or issues with his employment, according to a report obtained from the S.C. Criminal Justice Academy. He is still currently employed by the Aiken County Sheriff's Office.

Rodriguez is no longer employed by the Aiken County Sheriff's Office; he resigned on Sept. 5, 2019, according to the S.C. Criminal Justice Academy.

Goodwin, who responded as back-up during the 2018 bus stop and was the approving officer on five of Puckett's incident reports, was still employed by the Aiken County Sheriff's Office, as of April 26, 2022.

Similar stops

The other five incident reports involving drug seizures on commercial buses were generated by other Aiken County deputies.

The stops occurred at different mile markers along I-20 in the early morning hours.

Deputies conducted one stop because "the bus shook the patrol car very hard," three more because the drivers allegedly crossed over the center line and another because the bus allegedly had a headlight out. Puckett and Roxy responded as backup in one of the cases.

While the reports generally read similarly to Puckett's, one report generated on July 7, 2018, states the bus driver "was agitated" and told police "he was told by (the Department of Transportation) and his boss not to stop the bus," according to the report.

All of the bus drivers pulled over and suspects charged in the 12 stops were Black. It is unclear if race played a role in the stops.

These sorts of encounters are known in police circles as "pretext" or "investigatory" stops. Officers use a minor violation to stop and question someone they think might be involved in a more serious crime. Law enforcement officials say these stops are an important crime fighting tool, but critics contend they are an overly aggressive use of police powers that tend to disproportionately impact people of color.

Data provided to the state by the Aiken County Sheriff's Office shows that deputies conducted 3,407 traffic stops between January 2018 and January 2019 that did not result in an arrest or a citation. Though Black people make up 25 percent of the county's population, according to the U.S. Census, they accounted for 44 percent of the people stopped by deputies in those encounters.

Eugene White, president of the Aiken County Branch of the NAACP, said the balance between public safety and public trust is delicate.

"Whenever one of those parts of the equation becomes unbalanced, that makes the whole community unstable," White said. "Law enforcement professionals have the ability to take one's freedom. If we see that certain deputies continue to be the ones that are making these stops, then it's incumbent upon this leadership to put a stop to that."

White said there needs to be standardized bias and profiling training, as well as independent oversight.

"I think citizens review boards are an excellent way to do that," White said.

The city of Aiken established a Citizens Review Board in 2016 in response to a lawsuit alleging that an Aiken County man and woman were subjected to an illegal roadside cavity search during a traffic stop in October 2014.

The board reviews cases within the Aiken Department of Public Safety. The Aiken County Sheriff's Office and the North Augusta Department of Public safety do not have citizen review boards.

Hunt, who was elected sheriff of Aiken County in 2003, declined to speak with the Aiken Standard about the incidents despite receiving multiple requests.

Motion to suppress

On Jan. 3, 2019, Puckett testified at a preliminary hearing for the Maryland man who was charged following the 2018 bus stop.

Puckett explained that he pulled over the bus because "the driver hit the line a couple times driving down the interstate," according to a court transcript.

Rodriguez and Goodwin arrived as back-up and removed the driver from the bus while Puckett's dog, Roxy, sniffed the outside of the luggage compartment, according to an incident report.

Puckett said he decided to issue a warning for the lane violation because the driver didn't seem impaired, according to the court transcript.

Goodwin testified that the purpose of the stop had effectively ended once Puckett had him write a warning. But officers stuck around to see what Roxy might find in the luggage area, according to the transcript.

This statement served as proof that the stop was prolonged, and, therefore, unconstitutional, according to Judge Clifton Newman.

Chaney said the scope and duration of a traffic stop has to be related to the justification for the stop itself.

"If you pulled someone over for not using a turn signal, you can't detain them for 30 minutes looking for other things," he said. "The scope of the stop has to be related to the reasonable suspicion you had to justify the seizure in the first place."

Deputies did not tell the bus driver he was free to leave before conducting the sniff search.

Puckett's K-9 alerted to drugs and the deputies began searching all of the bags in the luggage compartment, including bags that were located outside of the area the dog indicated, according to the transcript. During the hearing, Puckett testified that the dog did not sniff each individual bag because it would have taken longer.

Two suitcases containing drugs were located in the bus during the search. One contained 27 pounds of marijuana. The other, a locked suitcase, contained approximately 12,000 ecstasy pills and a prescription bottle with the Maryland man's name on it, according to the transcript.

Neither of the suitcases were claimed by passengers. When questioned by deputies, the Maryland man said the suitcase containing ecstasy was his, but he indicated that he did not put a lock on it and the bag was loaded onto the bus by someone in Atlanta, according to the transcript. A key was not found in the defendant's possession or on the bus.

The Maryland man was arrested and charged with trafficking ecstasy.

Following the preliminary hearing, the defendant's attorney filed a motion to prevent the drugs from being used as evidence against his client, alleging they were the product of an unreasonable search. He also accused deputies of extracting incriminating statements from the man without a lawyer present.

At a Dec. 16 hearing, prosecutor Jacqueline Charbonneau disputed the defense's arguments. She maintained there was probable cause to search the defendant's suitcase without a warrant because he did not claim the drugs inside the bag.

The state conceded that the defendant's statements after being handcuffed were involuntary and that deputies did not inform him he had the right to remain silent or the right to an attorney. However, the prosecution argued the defendant's statements prior to being handcuffed were voluntary.

After reviewing sheriff's office videos of the incident, Newman found the deputies did not have probable cause to stop the bus and were conducting a warrantless drug investigation that constituted an unreasonable invasion of privacy.

He noted that the search occurred after Puckett had already decided to issue a warning and that there were "no indicators of suspicious activity present" to support the search.

The judge cited these factors in granting the defendant's motion and tossing out the case.

"Deputy Puckett's testimony is inconsistent with the video recording because it fails to show the bus strike any line on the road," according to the judge's order.

The Aiken Standard obtained a copy of the deputies' dashcam footage through a FOIA request, and the footage did not show the bus traveling over the center line.

The suppression order also mentions audio from passengers heard on the deputies' bodycam footage, which FOIA does not require the sheriff's office to release to the media.

"One police officer threatened to arrest a passenger on the bus for public disorderly conduct simply because the passenger stated that the officer's actions were unlawful (after the officer had requested identification from all passengers prior to confirmation of any illegal activity) ..." according to the order.

The passenger is quoted saying, "Illegal search and seizure," to which an officer responded, "Call it what you want," "You want to go with me," "You're in Aiken County now," and "We ain't out to get nobody that don't need to be got."

It is unclear which deputy made the statements to the passenger.

The court said it is clear by the deputies' actions and questioning that they deviated from the traffic mission and were conducting a drug investigation, according to the order.

The Aiken Standard reached out to the defendant's attorney multiple times in hopes of interviewing the man at the center of the case. The attorney said his client was hesitant and did not wish to be identified or interviewed.

Reaction to ruling

Capt. Eric Abdullah, the sheriff's office PIO, said drug smuggling is a known problem on the interstate. He said commercial buses are attractive to smugglers because they are less regulated than other methods of transportation.

"You don't go through TSA to get on the bus," Abdullah said. "Your luggage is not searched, you're not searched and your property is not being X-rayed. There have been times we've found passengers with firearms on a bus ... so you can easily get on a bus carrying a large quantity of illegal narcotics."

Second Circuit Solicitor Bill Weeks had a similar take. He said he doesn't agree with the judge's ruling and maintains "there was sufficient legal basis for the search."

The prosecution relied on a previous case, United States v. Hernandez, to support the stop and search, the court found. In that case, an officer who conducted stops as part of a Drug Enforcement Administration trafficking task force stopped a bus operated by a company that transported Hispanic passengers traveling throughout the United States and Mexico.

The two cases, however, had significant differences, the judge found. The Hernandez ruling doesn't say whether the officer was routinely pulling over buses on the same route for minor traffic violations, as Puckett had done. Puckett didn't indicate the bus was coming from a known drug hub, nor did he have any indications of suspicious activity beyond the traffic infraction, the judge stated.

Knowing drugs are transported on the interstate, and that buses could be carrying drugs, is not probable cause to stop a vehicle, according to Seth W. Stoughton, a criminal justice professor at the University of South Carolina and former police officer.

"That's useful, that's certainly part of the analysis - but it's entirely speculative," Stoughton said, adding that the courts require officers to have specific information about the precise people or vehicles involved.

Allen Chaney, of the ACLU, agreed. He said a hunch doesn't meet the threshold for justifying a stop under the Fourth Amendment.

"The fact that people traveling by bus don't have to go through TSA is not proof that a crime is, has or is about to be committed," he said. "That's not a reasonable search or seizure, and that's exactly what the Fourth Amendment prohibits."

Abdullah said the sheriff's office will learn from the incident and incorporate those lessons into future training, but he challenged the notion that the case was a disappointment because it didn't yield a conviction. The search still kept dangerous drugs off the streets, he said.

"A little bit over (12,000) units of ecstasy and 27 pounds of marijuana were seized - the defendant is not getting that stuff back," he said. "So that's (12,000) pills that were going to go into a community somewhere along that line where that bus was going to stop, and we just took that poison off the street."

Chaney said that stance overlooks all of the unwarranted searches that fail to yield drugs or evidence of a crime. Those searches most often go unchallenged and remain outside the public's view because they don't enter the criminal justice system, he said.

"In cases where drugs aren't found, there's no incentive for citizens to bring claims that their constitutional rights were violated," he said. "They might file a complaint with the local police department, but it gets filed in the trash can."

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Uncovered: 'You're in Aiken County now': Pattern of warrantless bus searches on I-20 emerges - The Sumter Item

A Rock Island man who spent 22 years in solitary confinement was convicted Thursday of felony gun crimes by a federal jury.

Anthony Gay was found guilty of possession of a firearm and ammunition by a felon following three days of testimony, according to a news release from the U.S. Attorney's Office for the Central District of Illinois.

Sentencing is scheduled for Sept. 16 at the federal courthouse in Peoria. Gay faces up to 10 years in prison, a $250,000 fine and up to three years of supervised release, according to the news release.

Gay was a passenger in a vehicle stopped by Rock Island police officers for a traffic violation on May 31, 2020. Gay fled from the traffic stop but fell as he was being chased by police and was arrested. Officers recovered a loaded handgun that had been reported stolen where Gay fell, according to the U.S. Attorney's Office.

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About two weeks later, Rock Island police were called to a motel where Gay had been renting a room. Prosecutors said motel staff discovered a bag of .45 ammunition while cleaning Gay's room and removing his belongings.

"The government also established that Gay had a number of prior felony convictions, including robbery, aggravated battery and possession of a weapon in prison," according to the U.S. Attorney's Office.

Gay was released from prison in 2018 after serving 24 years in prison, 22 ofwhich were spent in solitary confinement in Illinois.

Gay was sent to prison in 1994 when he was 20 years old for violating probation on a robbery charge. He was driving a car without a license and was on parole for a robbery in which he stole a hat and a $1 bill. His original seven-year prison term was subsequently extended with additional sentences totaling 90 years for assaulting correctional officers, including throwing bodily fluids. A mistake in sentencing led to consecutive sentences for each of those 17 offenses committed between 1998 and 2001.

Gay filed a federal lawsuit against current and former Illinois Department of Corrections officials; Wexford Health Sources, which provides medical and mental health care to IDOC inmates; and several wardens and assistant wardens at specific prisons where Gay was held for psychological damage suffered during solitary confinement and abuse from prison guards.

While serving his original seven-year sentence, Gay alleges in court filings that he began to manifest a mental illness that caused him to act erratically. He was placed in solitary confinement following a fight with another inmate.

During his time in prison, he was diagnosed with borderline personality disorder. He was prescribed psychotropic drugs, but that did not stop him from self-harming, Gay told The (BloomingtonNormal) Pantagraph.

Gay said that rather than being treated for his mental illness, he was continuously punished for his actions by being placed in solitary confinement with little human interaction. He was typically not allowed outside his cell, even for meals, and was only sometimes let out for short periods to exercise, The Pantagraph reported.

Settlement offer reached with Rock Island

Also on Thursday, the city of Rock Island reached a tentative settlement offer with Gay in a lawsuit filed against the city and two Rock Island police officers for alleged misconduct over a May 2020 traffic stop.

According to court filings, Gay on Thursday accepted an "offer of judgment from the city and two officers for $22,500, plus attorneys fees and costs, according to court filings. An offer of judgment, pursuant to Federal Rule of Civil Procedure 68, is used to encourage settlements and protect parties willing to settle early in the litigation process.

Gay's attorney and an attorney for the Rock Island police officers named in the lawsuit did not immediately return messages seeking comment Friday morning.

In his complaint, Gay claims he was in a vehicle with family members stopped at an intersection on May 23, 2020, when they were shot at 13 times. Gay, in his handwritten complaint, said a cousin had been shot and killed earlier that day and two other cousins were injured in the shooting, and that he and three other cousins had left the hospital when the shooting occurred.

Gay said he was ordered at gunpoint by responding Rock Island police officer J.T. Key to put his hands in the air and get on his knees. He claims another officer, Scott Gable, "aggressive cuffed and forced" him to his knees after telling officers he could not kneel. While cuffed, Gay alleges Key "ran up and kneed" him in the face.

He also alleges police illegally searched him, threw his phone and illegally seized $1,500 in cash and a hotel key.

His suit claims Rock Island police violated his Fourth Amendment right, which prohibits unreasonable searches and seizures. Other counts alleged in the complaint include battery, intentional infliction of emotional distress, unlawful detainment, unlawful imprisonment and denial of equal protection.

Rock Island Mayor Mike Thoms, who Gay alleges ignored and failed to report his claims of police misconduct, on Friday said he was unaware of the offer of judgment and could not comment.

Phone messages left with city administration and police officials were not immediately returned early Friday afternoon.

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Rock Island man who spent 22 years in solitary confinement convicted of federal gun crime - Quad-City Times

After reading an earlier IP/Decode post about hashing, my friend Jenny Rossman reached out to explain how law enforcement was using hash values to fight the spread of child pornography. For over a decade, Jenny had been a sex crimes prosecutor in Florida. She, alongside law enforcement, had been using the technique to identify suspects and secure convictions. It is a brilliant use of hashing that is also worth considering in civil cases, particularly trade secret litigations.

As I wrote in the earlier post, hashing can convert files to shorter strings of numbers and letters (the "hash value"). To demonstrate this, below is a set of five files that contain different content. I computed their unique hash values using the MD5 algorithm:

Law enforcement, along with private entities, have been using these unique hash values like fingerprints to identify illicit digital materials. In practice, if law enforcement knows that File5 is child pornography from a previous investigation, then File5s hash value can be used to identify other files with that same hash value. If there is a match, then there may be a crime. (U.S. v. Miller, 982 F.3d 412 (6th Cir. 2020), is a good read for those interested in how this practice implicates the Fourth Amendment.)

As I wrote in the previous post, the solution to speeding up nearly any search problem is hashing, and it provides the solution in this context as well. To find File5 in a suspect's computer, one would only need to run all files on the computer through an MD5 hash. After those hash values are generated, you search for File5's unique string: 748f65d8e5d27d17dd2f142a7b712392. Below are hash values for another set of randomized files that include the illicit File5:

File7's MD5 hash value is the same as File5's, so we have a match. Due to the math behind the MD5 hash algorithm, the odds of File7's content differing from File5's, but still resulting in the same hash value, are almost impossibly small: "In the real world the number of files required for there to be a 50% probability for an MD5 collision to exist is still 264 or 1.8x1019 [that is 18,000,000,000,000,000,000 computer files]. The chance of an MD5 hash collision to exist in a computer case with 10 million files is still astronomically low."

Using hash values to find illicit material struck me as smart for a number of reasons. First, it is computationally fast, and with the number of digital files rapidly expanding, fast matters. Second, it is a minimally invasive search. The example above did not probe the contents of the searched laptop's files. The reviewer only converted each file to a content-free hash value they never opened the files to view what was inside. And because hashing is a one-way street, the reviewer cannot work backwards from the hash value to the original files' content. This is an elegant solution: the privacy of the user is maintained to a large degree and, when one is searching for disturbing content, avoiding having to look at it is beneficial to them as well.

The solution is, however, not perfect. This is because hashing is sensitive: Flip one bit among millions and the result will be an image that is nearly identical to the original, but has a dramatically different hash value. Such a file would avoid law enforcement's detection.

To address this issue, Microsoft has built more sophisticated solution: PhotoDNA. PhotoDNA is performing a type of hashing, but does so at the image not file level. This means that while flipping a bit may result in an image having a new hash value, it will not alter the PhotoDNA value. Technologies such as PhotoDNA are thus keeping one step ahead of criminals.

In the criminal context, hashing solved two problems at once: how to find a file while not viewing its contents. These are problems that arise in civil litigation as well, and hashing would provide a valuable solution.

For example, consider a common trade secret misappropriation fact pattern: former employee Rebecca left Company with a valuable Excel customer list ("List.xlsx"), then brought it to Competitor. List.xlsx will have a hash value (e.g., 7b98d3485b4f17206bc09aa2fe8d2c31) that will be useful during the investigation and litigation stages. During investigation, Company can use the hash value to probe its systems to see where it was stored and when it was accessed. This would also confirm that the file was kept in spaces that used reasonable security measures (a requirement of trade secret protection). If litigation follows, then Company's discovery requests can be more targeted and less invasive, because List.xlsx can be identified by both its name and its hash value.

To shortcut discovery and determine quickly if Rebecca did indeed steal the file, Company could propose early targeted discovery that requests hash values only for all files to which Rebecca has had access (i.e., her laptop or shared spaces to which she had access). That targeted discovery would return only a list of hash values to which 7b98d3485b4f17206bc09aa2fe8d2c31 could be compared for a match it would not disclose the content of Rebecca's or Competitor's files. If there is a match, then Company has a case; if there is not a match, then either Rebecca did not take the file or she has since modified it. To catch modified copies of the List.xlsx file, more sophisticated hashing algorithms could be used.

Civil litigators looking to "strike gold" by finding a misappropriated file should consider hashing as a valuable forensics tool that provides powerful searching without disclosing files' content.

Read the original here:
Forensic Hashing in Criminal and Civil Discovery | Holland & Knight LLP - JDSupra - JD Supra

From Harrington v. UPMC, decided Friday by Judge W. Scott Hardy (W.D. Pa.):

Plaintiffs Cherell Harrington and Deserae Cook filed a Complaint in Civil Action in the Court of Common Pleas of Allegheny County, Pennsylvania, on behalf of themselves and two putative classes, alleging various claims against the University of Pittsburgh Medical Center ("UPMC") and Allegheny County via its Office of Children, Youth and Families ("AC-CYF") arising out of UPMC's purported disclosure of their confidential medical information to AC-CYF for the purpose of targeting them with highly intrusive, humiliating and coercive child abuse investigations starting before taking their newborn babies home from UPMC's hospitals shortly after childbirth.

At this stage of the case, the factual allegations set forth in the Amended Complaint must be taken as true and viewed in the light most favorable to Plaintiffs. These allegations are recounted as follows.

Harrington is the mother of three children and until the birth of her third child had never been accused of abusing or mistreating her children in any way. She was admitted to UPMC's Magee Women's Hospital on November 29, 2017, and gave birth to her third child, a son, who was born healthy via caesarean section the same day.

Upon her admission to the hospital, Magee employees collected Harrington's urine and tested it for drugs without her knowledge, consent, or any medical reason. The urine sample taken from Harrington came back "unconfirmed positive" for marijuana, further stating, in part, that "[t]he results are to be used only for medical purposes. Unconfirmed screening results must not be used for non-medical purposes (e.g., employment testing, legal testing)," and "the testsare not definitive. Until definitive testing confirms any result, the result should be regarded as provisional and uncertain." Magee personnel likewise administered a drug test to Harrington's newborn son without Harrington's knowledge or consent. The newborn's test results were negative for all illicit drugs.

The next day, as Harrington was recovering from surgery and caring for her newborn son, a UPMC social worker entered her room and informed her that she had tested positive for marijuana and that her son had tested negative, but that her positive test result would be reported to AC-CYF. Harrington told the social worker there was no reason to report the result because it was false and her newborn's test result was negative, yet the social worker told her she was required to report the result to AC-CYF. The social worker had no reason to suspect or believe Harrington's newborn had been affected by illegal substance abuse or was having withdrawal symptoms resulting from prenatal drug exposure. That same day, without Harrington's consent, and without medical necessity, reason, or justification, UPMC reported her confidential unconfirmed positive drug test result to AC-CYF while also reporting that her newborn had tested negative and was "in good health." Then, later that evening, a nurse attending to Harrington told her that because she tested positive, she should not breastfeed her son and that UPMC would not support or assist her in doing so.

On December 1, 2017, less than three days after giving birth to her son, an AC-CYF case worker entered Harrington's private hospital room to inform her that AC-CYF was investigating her for child abuse based upon a report received from UPMC. Despite Harrington's objection to the investigation because her positive test result was "unconfirmed," the case worker told her that AC-CYF opens an investigation whenever it receives a report from UPMC that a new mother tested positive for drugs. Then, while still in Harrington's private hospital room, the AC-CYF case worker photographed Harrington's healthy newborn baby and required Harrington to sign various AC-CYF forms and documents; the case worker also told her that AC-CYF would be subjecting her private residence to a home inspection upon discharge from the hospital.

On December 4, 2017, merely two days after Harrington was discharged from the hospital, the same AC-CYF case worker arrived at her home, toured her house, inspected her refrigerator and cupboards, and took photographs of her children. The case worker required Harrington and her husband to answer detailed personal questions about their education, employment, family and medical histories, and he asked their then-eleven-year-old daughter about Harrington's "use of addictive substances."

The case worker also told Harrington that because of UPMC's report to AC-CYF, AC-CYF would be requiring her to participate in a drug counseling session with a representative of Pennsylvania Organization for Women in Early Recovery ("POWER") and submit to another drug test administered by it. When Harrington objected to participating in this process, the case worker told her that if she did not complete POWER's assessment, he would report her "failure to cooperate" to a judge and require her to travel to downtown Pittsburgh for monthly drug tests. Fearful of losing custody of her children, Harrington submitted to the POWER assessment under duress. The case worker noted on an AC-CYF form that Harrington "cannot or will not control [her] behavior" and that her "protective capacity" for her children was "diminished" due, exclusively, to the unconfirmed positive drug test result reported by UPMC.

During this home inspection, the case worker also required Harrington to sign numerous papers, including releases permitting AC-CYF to contact and obtain confidential information from her 11-year-old daughter's pediatrician, dentist, and school. The case worker would not give Harrington copies of these documents. Again, fearful of losing custody of her children, Harrington signed these documents.

On December 27, 2017, a POWER representative arrived at Harrington's home two hours earlier than scheduled. Upon arrival, the representative asked Harrington a series of questions about her personal life, including whether she had a history of illegal drug use. The representative also administered another urine drug test with a negative result. Harrington believes this POWER representative submitted a report to AC-CYF which included Harrington's answers to the representative's questions. Then, on December 29, 2017, a representative from POWER informed the AC-CYF case worker that Harrington was "not recommended for treatment."

Notwithstanding POWER's recommendation, in early January 2018, the AC-CYF case worker persisted with his investigation by contacting Harrington's daughter's school and interviewing the school's social worker, by contacting Harrington's pediatrician and obtaining medical information about all three of her children, and by contacting Harrington's dentist and obtaining her daughter's dental information. Then, on January 8, 2018, the case worker returned to tour Harrington's home a second time and inspected her bedrooms and the contents of her refrigerator and kitchen cabinets. The case worker also interviewed Harrington's daughter. Before leaving Harrington's home, the case worker informed Harrington that he would speak with his supervisor regarding the status of the investigation. Harrington received no further communications from the case worker or anyone else at AC-CYF.

Cook is the mother of two children, a 5-year-old boy and a 1-year-old girl. She was admitted to UPMC's Mercy Hospital ("Mercy") on July 7, 2018 and gave birth to her healthy daughter that same day. As part of the hospital admission intake process, a Mercy employee asked Cook whether she had ever used illegal drugs, to which Cook responded that she had smoked marijuana in the past but "quit everything" when she found out she was pregnant. Thereafter, Mercy employees collected Cook's urine and tested it for drugs without her knowledge, consent, or medical reason. Mercy personnel likewise administered a drug test to Cook's newborn daughter without Cook's knowledge or consent. Both Cook's and her newborn daughter's drug test results were negative.

The next day, a UPMC employee entered Cook's hospital room and informed Cook and the newborn's father that although she tested negative for drugs, UPMC was "required" to report her to AC-CYF because of her answers to the intake questions. Before that date, UPMC never informed Cook that her answers to the patient intake questions would be used as the basis to report confidential information to AC-CYF. Then, the following day, July 9, 2018, without Cook's consent, a Mercy employee contacted AC-CYF and reported, in part, that Cook's and her newborn daughter's drug test results were negative, but that Cook "admitted to using marijuana in the beginning of her pregnancy but stopped when she found out she was pregnant. No current concerns[.]" Cook was discharged from the hospital that same day.

After being discharged, an AC-CYF caseworker left a note on Cook's door stating that she needed to contact the caseworker to schedule a home inspection. Fearing the loss of custody of her children, Cook contacted the caseworker and scheduled a home inspection as instructed. Then, on July 24, 2018, an AC-CYF case worker arrived at Cook's home and completed a "walk through", during which she inspected her children's bedrooms, the amount of food in the kitchen and the amount of children's clothing and toys. The caseworker also interrogated Cook and the children's father about their education, employment, family and medical histories, and provided unsolicited parenting advice and provided them with a "parent handbook." The AC-CYF case worker also required Cook to sign a release for both of her children's medical records.

The next day, on July 25, 2018, the AC-CYF case worker completed a "Pennsylvania Model Risk Assessment Form" in which she concluded that there was "no risk" to Cook's children. Despite this "finding," Cook received numerous phone calls from social service agencies offering unnecessary services for her and her children. Then, on August 23, 2018, the AC-CYF case worker signed a letter informing Cook that her family was not accepted for services by AC-CYF, and that neither further intervention nor ongoing services were needed. The next day, and despite having concluded that no further intervention or services were needed, the AC-CYF case worker returned to Cook's home and conducted another home inspection and interrogated Cook about her children's medical histories, medical insurance, and recent doctor's visits. Then, a few days later, on August 27, 2018, the AC-CYF case worker sought and obtained confidential medical information regarding both of her children from their pediatrician despite having previously concluded that no further intervention or services were needed.

The court allowed the plaintiffs' lawsuit to go forward. It concluded that plaintiffs adequate alleged that UPMC was a state actor because of its connection with AC-CYF:

Plaintiffs' allegations go beyond merely averring that UPMC reported crimes it observed or that it made statutorily mandated reports of child abuse. Plaintiffs assert factual allegations that UPMC routinely took affirmative steps in accord with its own policies, customs, and practices, and in violation of its own legal and ethical duties, to obtain confidential medical information from its patients and to convey that private information to AC-CYF without its patients' consent as part of a practice, policy or agreement with AC-CYF and knowing that AC-CYF routinely accepted and acted upon UPMC's disclosures to conduct unwarranted, intrusive, coercive, and unconstitutional child abuse investigations, including the possible removal of the mother's newborn child from her custody. And, while UPMC contends that Plaintiffs' averments of an agreement between UPMC and AC-CYF were merely bald assertions that lack any factual backing, in this Court's estimation those allegations do allege a plausible agreement, conspiracy, or coordinated plan between UPMC and AC-CYF, particularly because those allegations permit reasonably drawn inferences that AC-CYF routinely defers to and relies upon UPMC's judgment as to whether, and to what extent, it will conduct child abuse investigations of UPMC's maternity patients even when the CPSL may not mandate UPMC to make such child abuse reports. Likewise, Plaintiffs' factual allegations also permit a reasonably drawn inference that UPMC intentionally facilitated AC-CYF's intrusions, not only into the patients' private medical information, but also into their private hospital rooms which UPMC undoubtedly governs and in which Plaintiffs allege the patients and their newborn children are captively and coercively interrogated and photographed.

The court concluded that the plaintiffs adequately alleged a violation of their familial integrity rights:

The United States Supreme Court has explained that it is "a cardinal principal 'that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.'" While familial integrity is a liberty interest entitled to constitutional protection, such protection is not absolute. Rather, it is "limited by the compelling governmental interest in the protection of childrenparticularly where the children need to be protected from their own parents" and does not include a right to remain free from child abuse investigations. [But t]he State "has no interest in protecting children from their parents unless it has some reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse."

Plaintiffs' allegations plausibly cast doubt on whether AC-CYF and UPMC, as a joint actor with AC-CYF, possessed the requisite objectively reasonable suspicion of abuse to justify both the initiation and degree of governmental interference with Plaintiffs' familial relationships. As pled by Plaintiffs, Defendants merely possessed information that Cook ceased using marijuana several months beforehand when she found out she was pregnant, that she tested negative for drugs with "no current concerns" upon admission to the hospital for childbirth, and that her newborn also tested negative for drugs immediately after birth. Similarly, as pled in the Amended Complaint, Defendants merely possessed Harrington's "unconfirmed positive" drug test result that included the express qualifiers that such result is 'to be used only for medical purposes" (and not for non-medical purposes such as employment testing and legal testing) and that the test administered "may react with compounds other than the drugs indicated, and therefore are not definitive." Yet, with nothing more, Defendants seemingly disregarded the presumption articulated by the Supreme Court in Troxel v. Granville (2000), that a "fit parent will act in the best interest of his or her child" and instead intruded into and interfered with Plaintiffs' constitutionally protected liberty interests in their familial integrity.

Defendants contend that Plaintiffs' rights to the custody, care, and management of their children were not infringed upon merely by being subjected to child abuse investigations. However, while the fundamental right to familial integrity does not include a right to remain free from child abuse investigations in and of themselves, such investigations do not escape constitutional scrutiny when initiated, expanded, or continued in the absence of reasonable grounds and thus become arbitrary abuses of power. Here, Plaintiffs allege that the putatively unwarranted and unjustified child abuse investigations began when UPMC personnel administered drug tests on Plaintiffs and their newborns without their knowledge or consent, and were subsequently exacerbated by governmental intrusions into their hospital rooms and homes under coercive circumstances that created a belief that they would lose child custody, all without any objectively reasonable suspicion of abuse or despite any errant suspicion being dispelled.

Plaintiffs also allege intrusions beyond being subject to child abuse investigations. They allege that they were coerced into signing various AC-CYF forms and documents, including releases permitting AC-CYF to obtain confidential information from their young children's pediatricians, dentists, and schools. Plaintiffs also allege that AC-CYF insisted upon additional drug testing and/or drug counseling and imposed unneeded and unwanted parental advice and instruction. Plaintiffs also allege that at least one such investigation involving Cook triggered numerous phone calls from social services agencies offering unnecessary services. Indeed, these averments plausibly contend that the investigations were unjustified ab initio, expanded and persisted without any legitimate predicate and despite objective evidence of non-abuse, and transgressed beyond investigative fact gathering.

The court held that plaintiffs plausibly alleged violations of their constitutional right to privacy in medical information:

There exists a constitutionally protected privacy interest in "'avoiding disclosure of personal matters'" such as medical records "which may contain intimate facts of a personal nature."

Here, Plaintiffs essentially allege that UPMC secretly obtained their and their newborns' personal, intimate medical information and then divulged that information to AC-CYF for the purpose of pursuing unwarranted child abuse investigations and other impositions on their familial relationships. Plaintiffs also allege that the medical information at issue is very specific and personally identifiable. Plaintiffs further allege that this highly personal information was obtained in contravention of their reasonable privacy expectations inherent in their trusted physician-patient relationships, and, even then, it was taken and then divulged to the government and other third parties without their knowledge or consent.

Under these circumstances, it is reasonable to infer that such purported breaches of trust caused by Defendants' alleged invasions of privacy erode these vitally important relationships between maternity patients such as Plaintiffs and their medical providers. These alleged circumstances must then be weighed against the legitimate and important governmental interest in disclosing and using such private medical information to protect children from abuse. Here, there are express statutory mandates, notably the CPSL and the Health Insurance Portability and Accountability Act ("HIPAA"), that provide the contours for when and to what degree such information may be reported by UPMC and used by AC-CYF. At this preliminary juncture, however, Plaintiffs have pled enough to plausibly tip the balance of these factors towards establishing viable constitutional privacy claims.

The court held that plaintiffs plausibly alleged violations of their Fourth Amendment rights:

At Count Six, Harrington asserts a claim against AC-CYF alleging that it violated the Fourth Amendment by requiring her to submit to drug tests based solely on a hospital report of an unconfirmed positive test for marijuana while pregnant and without any basis to believe that she abused or neglected her children.

AC-CYF argues that Harrington voluntarily consented to drug testing. Accordingly, AC-CYF has the burden to establish that Harrington's consent to be tested was freely and voluntarily given. Harrington avers that her consent was not voluntary because of the purportedly coercive timing, setting, and nature of the AC-CYF case worker's directives that she must submit to subsequent drug tests. Harrington was subjected to this child abuse investigation immediately upon giving birth, while still in the hospital, and while under the belief that her infant newborn would be taken away from her if she refused or otherwise failed to cooperate. Under the totality of the circumstances, these averments plausibly allege that Harrington did not voluntarily consent to such drug tests, and AC-CYF will need to proffer evidence during discovery to satisfy its burden to the contrary.

And the court held that plaintiffs adequately alleged breaches of UPMC's "common law duty to keep all patient communications, diagnoses, and treatment information confidential":

UPMC seeks dismissal of these claims contending that its alleged disclosures to AC-CYF were made in good faith, and it therefore is immune from liability pursuant to the CPSL, citing 23 Pa. C.S. 6318(a)(1). Because good faith is presumed, 23 Pa. C.S. 6318(c), Plaintiffs must allege sufficient facts to plausibly establish that UPMC acted in bad faith.

In this regard, Plaintiffs aver that UPMC administered drug tests without consent and then disclosed the "unconfirmed" results of those tests along with other confidential medical information to AC-CYF, despite knowing these tests were unreliable and likely to lead to false positive results. Plaintiffs also aver that UPMC's testing of Plaintiffs' newborns without their consent nonetheless resulted in negative results, and that UPMC possessed no countervailing information that would lead those involved in the delivery or care of these healthy infants to believe that they were affected by illegal substance abuse of their mothers or that they exhibited withdrawal symptoms resulting from prenatal drug exposure. {In this instance, Cook admitted to hospital personnel that she previously used illegal drugs, but "'quit everything'" when she found out she was pregnant. However, the Pennsylvania Supreme Court has held as a matter of law that a mother's act of ingesting illegal drugs while pregnant does not constitute child abuse.}

In one such alleged instance, UPMC personnel allegedly disclosed Harrington's confidential medical information to AC-CYF despite her newborn's negative drug test result and indications that the infant was "in good health." In another instance, UPMC personnel allegedly disclosed Cook's confidential medical information to AC-CYF even though both her and her newborn's drug tests were negative, and even though UPMC had "no current concerns." Based upon these averments, the Court finds that Plaintiffs sufficiently pled facts to raise a reasonable expectation that discovery will reveal evidence of bad faith to overcome the good faith presumption warranting immunity.

But the court rejected Harrington's compelled speech claim:

Harrington contends that AC-CYF threatened to report her to a judge and require her to submit to monthly drug tests, without justification, unless she answered a series of questions about her personal life through mandated participation in the POWER program. Harrington does not appear to be contending that AC-CYF sought to compel involuntary affirmation of objected-to beliefs or to embrace a particular government-favored message. In fact, Harrington's threadbare averments supporting her free speech claim offer no specifics as to what speech, if any, she contends had been coerced. Rather, as pled, Harrington narrowly alleges that AC-CYF threatened to report her to a judge and require her to submit to monthly drug tests unless she answered a series of questions about her "personal life." While the Court finds that the Amended Complaint does contain adequate factual averments to plausibly establish the requisite compulsion, the Court also concludes that the Amended Complaint is devoid of allegations as to what POWER's questions entailed, and thus the Court cannot assess whether to apply strict or intermediate scrutiny, much less discern whether those questions pass constitutional muster.

The court also rejected plaintiffs' sex discrimination claims:

In their Amended Complaint, Plaintiffs allege that Harrington's husband was present at the hospital prior to and during childbirth and intended to return home with Harrington and their newborn, but UPMC did not collect or attempt to collect his urine to test it for drugs. Likewise, Plaintiffs allege that the father of Cook's newborn was also present at the hospital during childbirth and similarly intended to return home with Cook and their newborn, yet UPMC never attempted to collect his urine to test it for drugs nor did UPMC asked whether he had ever used illegal drugs.

[But] Plaintiffs were UPMC's labor and delivery patients, while the fathers were not. UPMC obtained Plaintiffs' private medical information, including prior purported drug use, in the context of their physician-patient relationship during labor, delivery, and recovery from childbirth. Plaintiffs have not and presumably cannot allege any corresponding physician-patient relationship between the fathers and UPMC's obstetricians and their labor and delivery service.

Moreover, there is a fundamental biological distinction between a mother and father regarding the substances they consume (both legal and illicit) and the potentially deleterious impact those substances may have on their child's health and wellbeing both in utero and upon birth. The CPSL recognized this reality by imposing specified reporting obligations on hospitals based on mothers' drug use but not fathers' drug use. These inherent differences between mothers and fathers are substantial in the context of prenatal care, labor, delivery, and recovery, and principles of equal protection do not require ignoring this reality.

Furthermore, AC-CYF undertook investigations based upon reports that Plaintiffs, but not the fathers, illegally used drugs. Therefore, based upon the averments contained in the Amended Complaint and reasonable inferences drawn therefrom in Plaintiffs' favor, the Court finds that Plaintiffs have not alleged a cognizable equal protection claim and that they cannot plausibly allege additional facts by amendment to allege Plaintiffs and the fathers were similarly situated to establish such a claim.

Congratulations to Margaret Schuetz Coleman of O'Brien, Coleman & Wright, LLC and to Sara Roset of the ACLU-Pennsylvania on their victory on this motion.

See the article here:
Mothers' Lawsuits Claiming Univ. of Pittsburgh Medical Center Interfered with Parental Rights Can Go Forward - Reason