Security, Privacy and The Law : Security & Privacy Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

The following item was posted recently on Foley Hoag’s Corporate Social Responsibility and the Law blog, and we thought it would be of interest to our readers. Companies seeking to develop privacy policies that both comply with national laws and respect internationally recognized human rights often face difficult challenges, especially when confronted with specific host government requests. All companies concerned with the human rights implications of their activities are advised to assess the sufficiency of existing policies as well as the company’s capacity to identify and manage potentially challenging scenarios.

Iranian Journalist Files Alien Tort Statute Lawsuit against Nokia Siemens Networks Sarah A. Altschuller

Isa Saharkhiz, an Iranian journalist who has been in detention in Iran since June 2009, and his son, a resident of New Jersey, recently filed suit against Nokia Siemens Networks ("NSN"), a joint venture of Nokia Corporation and Siemens Corporation.  The lawsuit, filed on August 16 in the District Court for the Eastern District of Virginia, includes claims under the Alien Tort Statute ("ATS") and the Torture Victim Protection Act and alleges that NSN aided and abetted the Iranian Government in detaining and torturing Mr. Saharkhiz.

Posted on August 29, 2010 by

Note

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a recent decision by the United States Court of Appeals for the First Circuit, Martin Boroiang v. Robert S. Mueller, III, et al., No. 09-1630, the First Circuit rejected a challenge to the requirement that a blood sample be given by a federal offender for purposes of creating a DNA profile and entering it into a centralized government database.

The DNA Analysis Backlog Elimination Act of 2000 (“DNA Act”) applies to individuals who have been convicted of a “qualifying federal offense” and who are incarcerated or on parole, probation, or supervised release.  It requires such individuals to provide a DNA sample.  These samples are loaded on CODIS, a powerful identification and investigation tool, permitting state and local forensic laboratories "to exchange and compare DNA profiles electronically in an attempt to link evidence from crime scenes for which there are no suspects to DNA samples of convicted offenders on file in the system." H.R. Rep. 106-900(I), at 8 (2000), 2000 WL 1420163.

Mr. Boroiang was convicted of making a false statement in violation of 18 U.S.C. § 1001, and sentenced to one year of probation.  Just before his term of probation was to expire, the United States Probation Office ordered him to submit to the drawing of a blood sample pursuant to the DNA Act.  Presumably troubled by the imposition of this requirement even though he had served no time in jail and had not committed any violent offense, Boroiang filed a pro se complaint, asking to have the request withdrawn, but at the same time he submitted to the request so that he could complete his probation.

The First Circuit’s opinion addressed the question of whether it is constitutional for the government to retain and access a qualified federal offender’s DNA profile after his term of supervised release or probation has ended. The First Circuit held that the DNA sample was not a separate “search” and that the taking of the sample was consistent with historical practices and precedents on the retention or matching of offenders identification records (such as fingerprints or mugshots).

The Court made it clear that it was not suggesting that "once a DNA sample is lawfully extracted from an individual and a DNA profile lawfully created, the individual necessarily loses a reasonable expectation of privacy with respect to any subsequent use of that profile."  Rather, the ruling was a narrow one, standing only for the proposition "that once a qualified federal offender's profile has been lawfully created and entered into CODIS under the DNA Act, the FBI's retention and periodic matching of the profile against other profiles in CODIS for the purpose of identification is not an intrusion on the offender's legitimate expectation of privacy and thus does not constitute a separate Fourth Amendment search."

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a recent article in the New York Times discussed the "growing tension between communications companies and governments over how to balance privacy with national security."  This tension is not limited to that context, however.  Nearly every workplace that uses email faces a similar tension between open access and secure communications.  And this debate splits people.  An ongoing informal survey by The Economist suggests that the number of people who want more control and restrictions over communication are nearly equally balanced by those who chafe at such restrictions.  

So, what's the right answer?  It would seem that continual balancing and re-balancing between too much/too little privacy and too much/too little security is the necessary (if not quick or easy) solution.  In the workplace, that means not always siding with one faction or the other on these issues, but addressing issues pragmatically as they arise.

• Email This
• Print
• Comments
• Trackbacks
• Share Link