What Your “Queue” is Saying About You

Matthew Robinson-Loffler, Government Law Review member

      Our secrets, great or small, can now without our knowledge hurtle around the globe at the speed of light, preserved indefinitely for future recall in the electronic limbo of computer memories.  These technological and economic changes in turn have made legal barriers more essential to the preservation of our privacy.[1]

 Introduction:

          Did Netflix “out” an Ohio mother?[2]  According to a recent complaint filed in Federal Court for the Northern District of California, the rental company provided data containing the subscriber’s viewing habits and preferences, alleging the company did not sufficiently anonymize the information.  While many people expect to take abuse from friends and family regarding their taste in entertainment—“You’ve watched On Deadly Ground how many times?”—very few expect that information to be shared with the community at large.

          Doe v. Netflix, alleges the DVD rental company, regulated as ‘video tape service provider’ under the Video Protection Privacy Act[3] (VPPA) disclosed the private information of its subscribers, in violation of the VPPA, allowing contestants, and anyone else who may have had access to the data, to de-anonymize the information and identify specific members.  Doe, an Ohio resident is suing individually, alongside three other plaintiffs; each seeking to represent a U.S. Resident class; a U.S. Resident and California Resident class; and a U.S. Injunctive Class.[4]

I. The Law

          In 1988, Congress passed the VPPA in response to the leaking of Supreme Court Nominee Robert Bork’s video rental history to a Washington newspaper.[5]  The VPPA prohibits “video tape service provider[s]” from “disclos[ing] to any person, personally identifiable information concerning any consumer . . . .”[6]  Personally identifiable information “includes information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.”[7]  Any individual whose personally identifiable information has been disclosed in a way not permitted by the act may recover “actual damages but not less than liquidated damages in an amount of $2500; punitive damages; reasonable attorney’s fees and other litigation costs reasonably incurred; and such other preliminary and equitable relief as the court determines to be appropriate.”[8]

Continue reading “What Your “Queue” is Saying About You”

Subscribe to the Government Law Review’s publications today!

Like the quality of the work you see here?  Enjoy reading about relevant issues with a legal twist?  Check out our subscription page of the Albany Government Law Review website to subscribe to our bi-annual publication.  In a few, short weeks, the Government Law Review will have published its book on immigration reform in the United States.  Be the first to order a book hot off the press at http://www.albanygovernmentlawreview.org/sub.php?id=6.

HEAT Summit Seeks to Help Cure a Dying System: The Obama Administration and the Battle Against Health Care Fraud

 Lynn Nolan, Government Law Review member

             Approximately $125–175 billion are lost to fraud each year in both the private and public health care sectors.[1]  The FBI estimates that in fiscal year 2009, $75–250 billion were stolen from public and private healthcare programs through fraudulent billings alone.[2]  With the prevalence of health care fraud becoming more apparent the government is taking action to prevent and prosecute fraudulent activity.  President Obama has made combating health care fraud a priority of his administration by encouraging the development of innovative methods of preventing fraud and pursuing policy changes to facilitate reform.[3] 

            One of the Administration’s signature initiatives is the Health Care Fraud Prevention and Enforcement Action Team (HEAT), which is a collaborative task force derived from the Department of Health and Human Services (HHS) and the Department of Justice (DOJ).[4]  The HEAT task force was established on May 20, 2009 to aid in the identification of perpetrators of fraud in order to recover funds which have been stolen and prohibit perpetrators from abusing federally funded health care programs, such as Medicare and Medicaid.[5]  The latest initiative of HEAT was the National Summit on Health Care Fraud which was held on January 28, 2010.[6]  The National Summit was held to address the issue of health care fraud and promote the participation of the private health care sector in collaboratively fighting fraud to aid government efforts.[7]  Secretary Sebelius addressed the private sector in saying,

[h]ealth care fraud isn’t just a government problem.  Criminals don’t discriminate and they are stealing from Medicare, Medicaid and private companies at an unacceptable rate . . . [w]e have a shared interest in stopping these crimes and today’s summit brought us together to discuss how we can all work together to fight fraud.[8] 

Continue reading “HEAT Summit Seeks to Help Cure a Dying System: The Obama Administration and the Battle Against Health Care Fraud”

How Necessary Is the Necessity Defense? A Look at the Scott Roeder Trial and the Misuse of Mitigating Justifications

Valerie Lubanko, Government Law Review member          

            On Friday, January 29, 2010, it took jurors only thirty-seven minutes to convict Scott Roeder of first-degree murder for the death of George Tiller, a doctor who performed late term abortions.[1]  Roeder, a vehement pro-life abortion opponent, admitted during trial to planning the murder of Dr. Tiller for several years, and that he had brought a gun to the church Dr. Tiller attended on Sundays until he finally succeeded in shooting the Doctor in the head on May 31, 2009.[2]  Roeder was his only witness in his defense,[3] so it would seem that this was an open-in-shut case for the jurors to decide whether Roeder’s premeditated shooting met the elements of the crime.  However, this case has not only fueled the debate in the political and religious worlds between pro-life and pro-choice supporters, but it has also raised eyebrows in the legal world as well.  This is because Roeder tried to invoke the necessity defense to have the charges mitigated from first-degree murder down to voluntary manslaughter.[4]

            Under the Model Penal Code, the necessity defense is categorized as a “Choice of Evils” justification, in which the defendant commits a crime in order to avoid a “harm or evil” that is greater than the one being committed.[5]  Many states follow the Model Penal Code in its treatment of the necessity defense, while other states, such as New York, do not recognize the offense if the defendant is “in any way at fault for ‘occasion[ing]’ or ‘develop[ing]’ the necessity.”[6]  (The Model Penal Code presents a lower bar for the defendant, as it only denies the defense if the defendant was “reckless” or “negligent” in creating the situation that requires the defense.)[7]  Kansas[8], like many other states, has not adopted the necessity defense in any respect.[9]   

Regardless of this, Roeder still invoked the defense, stating that the he shot Dr. Tiller “[b]ecause of the fact preborn children’s lives were in imminent danger.”[10]  Sedgwick County Judge Warren Wilbert, who was the presiding judge in this case, ruled that Roeder’s necessity defense could not be used because “the harm the defendant claims to be avoiding through his . . . actions is a constitutional and legal activity, and the defendant broke the law.”[11]  However, Judge Wilbert did “leave the door open” regarding Roeder’s self-defense argument, in which claimed he was justified in his actions because he shot Dr. Tiller in defense of another (the “preborn children”).[12]  Judge Wilbert stated that he needed more evidence to rule on the matter.[13]  As it played out, the only evidence that was presented was Roeder’s own testimony that he planned and shot Dr. Tiller.  Because of this, Judge Wilber shut the evidentiary door he opened by denying Roeder’s request to give the jury an instruction to take into account Roeder’s motives in shooting Dr. Tiller, and only instructed them on the elements of first-degree murder.[14]   

            Even though Judge Wilbert eventually ruled against Roeder’s justification defense, the door he allowed open may have invited a host of arguments that will distort and pervert the law of justification as a mitigating doctrine. In fact, Harvard Law Professor Alan Dershowitz states that Roeder’s defense is “an absurd approach to the law that would open the door to the most dangerous extension of the defense of imperfect necessity.”[15]  More generally, it has been written that “[n]ecessity inherently privileges any legal violation that provides an individual or social benefit without imposing corresponding harm on another person.”[16]  If this is the case, it would seem that our legal system should not offer such an option as a defense, as the Scott Roeder’s of the world may continue to try and abuse it.    

Continue reading “How Necessary Is the Necessity Defense? A Look at the Scott Roeder Trial and the Misuse of Mitigating Justifications”