by Corporation Counsel Bill Sinnott
A reflection on the legal legacy of Boston’s retiring chief executive
As the City of Boston witnesses the final weeks of the Menino Administration, much has been and will be written about Mayor Menino’s legacy. Many of these homages and critiques focus on the city’s economic revitalization. Others describe the Mayor’s ability to bring together diverse residents and neighborhoods in a city once defined by its fissures. Still others reference his commitment to public education or his outspoken support of LGBT rights. Perhaps even more noteworthy in a city that once prided itself on the rogue character of its leaders, many praise the Menino administration for steering free of scandals and corruption.
Having served as a member of Mayor Menino’s administration for almost eight years as Corporation Counsel, I have observed a number of occasions in which Mayor Menino’s seldom-recognized appreciation for the law and its ability to improve the lives of ordinary Bostonians has guided the formulation of City policies.
This article will highlight some of the ways in which the Menino administration employed law and legal process in its pursuit of a better Boston.
Legislation. The thousands of orders, ordinances and statutes the Mayor filed or championed during his twenty-year tenure reflect his awareness of the power of the law to elevate the condition of city residents, workers and visitors. The Mayor:
• Sponsored environmental statutes that require large construction projects to comply with LEED standards and to monitor the consumption of energy.
• Enacted, by Executive Order in April, 2000, a Diversity Values Statement committing the City and its employees to diversity and inclusion and prohibiting discrimination on the basis of age, employment status, income, disability, educational background, gender, race, color, national origin, religion, sexual orientation, or veteran status.
• Led the movement for CORI reform at both the municipal and state level, thereby addressing issues faced by ex-offenders as they transition into the community upon release. For Mayor Menino, CORI reform was not about allowing those who commit serious crimes to escape the consequences of their actions, it was about ensuring that the law was not a permanent barrier to employment, housing, and other opportunities for people deserving of a second chance.
• Championed state education reform. In 2010, Mayor Menino filed legislation to create a new form of charter school. These in-district charters operate within the school district, reflect the diversity of students in the community, and have flexibility in staffing, budgeting, the ways teachers collaborate and the hours kids are in school.
Nor has Mayor Menino’s legislative focus been limited to Boston and state laws, as his early and enthusiastic participation in the Amicus briefs in the Massachusetts and Windsor challenges to the Defense of Marriage Act (DOMA) attests. Among the first mayors to embrace gay marriage post-Goodridge, Mayor Menino maintained that DOMA prevented Boston from treating its employees equally and that federal law should be changed.
Similarly, in 2006, the Mayor co-founded a national organization called Mayors Against Illegal Guns (MAIG) to address the destructive impact of interstate gun trafficking on Boston. The group’s goal is “making the public safer by getting the guns off the streets.” MAIG has played a significant role in addressing the problem of illegal gun violence in American cities and has become a bi-partisan rallying point for cities seeking common-sense solutions to the firearms-fueled tragedies on their streets.
Legal Crisis Management. On many other occasions, the Mayor’s reliance on the law moved from legislation to crisis management. The Mayor values the First Amendment because he empathizes with the disenfranchised. Consequently, he allowed Occupy Boston adherents to maintain an encampment long after most cities had shut down similar protests, often accompanied by great violence. He allowed Occupiers a forum for their beliefs so long as it did not threaten the public safety and welfare of themselves or other Bostonians. The Mayor was patient, respectful of the legal process and ultimately, when that process concluded, decisive. As a result, many Occupiers commended Boston’s approach, especially in comparison to that employed by other municipal governments across the country.
Mayor Menino’s deference to the First Amendment probably stems from his personal willingness to avail himself of its protections. Time and again, when confronted by what he views as disagreeable—but legal—behavior, he has chosen to state his feelings in an unvarnished and no-nonsense fashion. Notwithstanding his unhappiness with its founder’s anti-gay bias, the Mayor recognized that he could not legally block Chick Fil A from opening a store in Boston. Similarly, he acknowledged that Rolling Stone magazine had the right to place a rock star-style photograph of an accused terrorist on its cover. That awareness, however, did not prevent the Mayor from contacting Chick Fil A and Rolling Stone and bluntly expressing the dissatisfaction and anger he and many in his city shared.
Effecting Change. Mayor Menino loves to say that government is about helping people. This outlook permeates every department in his administration. His legal offices are no exception. Typically, when advised that a specific initiative or program faced legal obstacles, the Mayor would redirect the conversation: “Then how are we going to do the right thing? Let’s find a legal way to do the right thing.”
Cognizant that Boston’s troubled desegregation history and resultant federal court orders lingered in the background of any effort to alter the student assignment system, Mayor Menino sought to bring the city together on this issue by appointing a diverse External Advisory Committee (EAC) that included parents, students, advocates and academic professionals. A transparent and collaborative process resulted in a pioneering school assignment system that will commence in 2014.
Similarly, undeterred by daunting procurement and cost limitations, in 2011, the City of Boston launched New Balance Hubway, the innovative bicycle sharing system that has helped transform Boston into a world-class bicycling city. At the Mayor’s insistence, Hubway uses no appropriated funds; instead, it is fully sustained by user fees, grants, donations, and sponsorships.
One of the ways that the Mayor helped people was by partnering his administration with the Boston Bar Association and the many community service programs that its staff and member attorneys make possible. He was especially appreciative of the Summer Jobs Program, which he launched each summer by meeting the students, telling them that they are Boston’s future and charging them with taking advantage of the opportunity they’ve been given.
An enduring image of Mayor Menino will be that of April 18, 2013, when he rose from his wheelchair at the Cathedral of the Holy Cross to address his city and the world in the wake of the Marathon bombings: “We are One Boston. No adversity, no challenge, nothing can tear down the resilience and heart of its people.” Mayor Menino leaves a unified and resilient city and he can rightly claim much of the credit. He also leaves a legal legacy combining both respect for the rule of law and an appreciation for the great good effective use of the law can bring to a city and its residents.
Bill Sinnott serves as the Corporation Counsel for the City of Boston. In representing the City, Bill’s clients include the Mayor, all City Departments, including the Police and Fire Departments, and the Boston City Council. He oversees the Law Department and a staff of approximately sixty attorneys, paralegals, and administrators.
by Naoka Carey
Every year, Massachusetts sends thousands of high-school-aged kids into our adult criminal justice system. In contrast to most other laws about children in the Commonwealth, Massachusetts automatically treats all 17 year-olds accused of a crime as “adults.” Our outdated law – a relic of the Victorian era – is the subject of multiple bills before the Massachusetts legislature this session, each of which raises the upper age limit of juvenile court jurisdiction from 17 to 18 to allow the vast majority of cases involving 17 year-olds to be addressed in our juvenile system. In May, the House unanimously voted in favor of H.1432 (now joined with H.3229); the Senate is expected to vote on the bill soon. The proposal has broad support, including the Juvenile Courts, the Massachusetts Sheriffs’ Association, the Massachusetts Bar Association, and many other organizations and individuals; indeed, there has been no formal opposition to the reform to date.
For practitioners, the proposed changes are straightforward. The bills amend sections of Chapter 119 pertaining to delinquency and youthful offender cases to give the juvenile court jurisdiction over youth who commit their offenses before their 18th birthdays. Other than raising the upper age limit, the bills do not alter existing provisions for more serious “youthful offender” cases, meaning that judges will still have discretion in those cases to impose an adult sentence. The bills also leave intact provisions requiring murder cases involving persons 14 and over to be heard in adult court (other bills this session address this issue in response to the U.S. Supreme Court’s decision in Miller v. Alabama (567 U.S. (2012), which held that statutes that mandate life without parole sentences for youth under 18, such as the current law in Massachusetts, violate the 8th Amendment). The bills make minor changes to other provisions of the General Laws consistent with the changes to Chapter 119 by, for example, amending adult criminal history reporting provisions to reflect the fact that 17 year-olds will no longer be treated as adults in most cases.
The reasons to change the law now are plentiful:
Keep Kids Safe and Save Money: Although the vast majority of 17 year-olds are charged with minor, non-violent offenses, they are held with older criminal offenders in adult jails and prisons. According to the Department of Justice, inmates under 18 were eight times more likely to be victims of sexual assault than adult inmates. Research has also found that teens held in adult facilities are 36 times more likely to commit suicide than those held in juvenile facilities.
As a result of these disturbing statistics, the Department of Justice recently issued new regulations under the Prison Rape Elimination Act (PREA) for youth under 18 held in adult facilities. Under these requirements, “youthful inmates” in prisons, jails and Houses of Corrections must be housed separately from adults, and separated by sight and sound or directly supervised by staff when they are mixed with adults in other settings. Facilities are generally prohibited from using isolation, or “protective custody,” to achieve compliance. “Youthful detainees” in court and police lock-ups also need to be separated from adults. Because a separate federal law, the Juvenile Justice and Delinquency Prevention Act (JJDPA), prohibits intermingling individuals who are defined under state law as “adults” with “juveniles,” Massachusetts cannot simply place 17 year-olds in the juvenile system in order to comply with PREA. The only way to comply with both PREA and JJDPA without incurring substantial costs to reconfigure facilities and hire new staff is to raise the age of juvenile court jurisdiction. The PREA regulations become fully operational in August, adding extra urgency to the need to address this issue.
Lower Recidivism and Increase Public Safety: Studies conducted at Northeastern University and elsewhere have shown that when youth are sent to the adult system they are more likely to reoffend, to reoffend more quickly and to escalate into committing serious and violent crimes. This is true even when comparing youth who are the same age, and who have the same offense and offense history.
Ensure that Youth Receive Educational and other Age-Appropriate Services: The juvenile system is designed to rehabilitate and, unlike the adult system, requires children to attend school and ensures that they receive special educational or other needed services, including age-appropriate substance abuse and behavioral health treatment.
Preserve and Support Family Involvement in Kids’ Lives: Because current law treats 17 year-olds as adults, parents need not be notified of their arrest, may not be present at interrogations and have no role in court proceedings, including plea bargains. By contrast, the juvenile system requires that parents be notified when their child is arrested and involved in the investigation and court process and sentencing.
Bring Our Criminal Law into Alignment with Our Other Laws About Children: The age of adult jurisdiction is inconsistent with other Massachusetts laws, laws in other states, international law and recent Supreme Court rulings. The federal government and 39 states use 18 as the age of adult criminal jurisdiction; nearly every other state with a lower age is considering a change to their statute as well (Illinois changed its law in May of this year). The current age of adult criminal jurisdiction is also inconsistent with most of our other laws about children, which set 18 as the minimum age for such matters as voting, entering into a contract and serving on a jury.
For Juvenile Court practitioners, particularly those who handle both delinquency and care and protection cases, these reforms should allow for a more coordinated, rational approach to cases. For example, child welfare clients who are under 18 but commit an offense will no longer be pulled into adult court proceedings and adult jails or prisons which effectively terminate the ability of the child welfare system to serve them.
Given the dramatic reductions in juvenile court caseloads over the last decade (50% in the last five years), the system has the capacity to handle these cases. At the same time, the short- and long-term savings that will be realized by reducing future crime and improving the educational and employment prospects for youth are significant.
Massachusetts established the age of adult criminal jurisdiction at 17 in 1846, back when children could legally toil in mills all day. It is time to bring our law into the 21st century and align it with what most state, federal and other laws and our common sense tell us is true: 17-year-olds are not adults.
Naoka Carey is the Executive Director of Citizens for Juvenile Justice, a statewide non-profit working to improve the juvenile justice system in Massachusetts.
By Sara E. Silva
Everyone knows that our daily actions are sometimes recorded. Our Fast Lane accounts create a record of every toll we pay. When we bank or shop, surveillance cameras or credit card payment records may reflect where we were. But when we exit the Pike, or leave the bank or the store, we do not expect the government to continuously track our movements to more private and personal places: doctors’ offices, houses of worship, daycares, homes.
Cell phone location data allows the government to do exactly that, and has become an incredibly powerful tool for law enforcement. In the past year, cell phone carriers responded to 1.3 million demands from law enforcement for subscriber information and location data, often without a warrant, probable cause, or any judicial oversight whatsoever. See Eric Lichtblau, More Demands on Cell Carriers on Surveillance, New York Times (July 8, 2012), available at http://www.nytimes.com/2012/07/09/us/cell-carriers-see-uptick-in-requests-to-aid-surveillance.html?pagewanted=all. After United States v. Jones, 132 S. Ct. 945 (2012), however, criminal defense lawyers have greater room to argue that the Fourth Amendment protects location information. Jones held that the warrantless installation of a GPS unit to track the movements of a vehicle violates the Fourth Amendment. Although the majority opinion was based on the physical trespass involved, five Justices agreed that probable cause and a warrant are required when law enforcement uses vehicle tracking technology to aggregate a person’s movements over time. Id. at 955-56 (Sotomayor, J., concurring); 964 (Alito, J., concurring in the judgment).
A cell phone can be the equivalent of a tracking device installed on our bodies. Eight in ten American adults own a cell phone. See Pew Research Center, Americans and Their Cell Phones (Aug. 15, 2011), available at http://www.pewinternet.org/Reports/2011/Cell-Phones.aspx. Most cell phones come equipped with GPS chips, which allow cell phone providers to obtain real-time GPS data from the phones carried by their subscribers. Even phones without GPS can provide highly accurate location information, however. When turned on, cell phones automatically and regularly communicate with the towers that serve their provider networks to ensure that they are connected with the tower with the best reception. Through these communications, the phones transmit certain pieces of data such as the strength, angle and timing of the signal. This data, when analyzed, discloses the location of the phone at the time of the communication; when triangulated between two or more towers, the location data can be highly accurate. How frequently a phone reveals its location varies by provider, but it occurs automatically multiple times a minute, providing a comprehensive record of one’s movements. What may be most disturbing is that to transmit this information, the phone need not be in use. It just needs to be on. There is no way for the phone’s owner to know when these communications occur, and no way, short of shutting the phone off, to stop them from happening.
Providers use this data for business purposes – to determine where to build new towers, or how and where their subscribers use their devices. This means both that location data remains accessible for a long time and that its accuracy is constantly improving to enhance its usefulness. Increased numbers of cell towers also enhance the precision of location data. Whereas earlier triangulated data may have been able to narrow a phone’s location to a particular block, some commentators believe that it can now surpass GPS for accuracy in certain areas. See, e.g., Statement of Prof. Matt Blaze before House Subcommittee on Crime, Terrorism and Homeland Security at 15 (May 17, 2012), available at http://www.crypto.com/papers/blaze-gps-20120517.pdf.
Courts in Massachusetts have long permitted law enforcement to obtain historical cell phone location data simply upon a showing that the information is “relevant and material to an ongoing criminal investigation,” assuming that “there is nothing [about tracking data] that is any more incriminating or revealing than what could be gleaned from the activation of a pen register or from physical surveillance,” and that “outside of the home it is doubtful that the tracking of a cell phone has any Fourth Amendment implication whatsoever.” See In re Applications of the United States of America for Orders Pursuant to Title 18, United States Code, Section 2703(d), 509 F. Supp. 2d 76, 77-79, 81 (D. Mass. 2007) (Stearns, J.).
These assumptions are ripe for challenge after Jones. Warrantless access to GPS cell phone information is likely unconstitutional. Jones, 132 S. Ct. at 955-56 (Sotomayor, J., concurring); see also id. at 964 (Alito, J., concurring in the judgment). Like GPS information, triangulated cell phone location data “generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Jones, 132 S. Ct. at 955-56 (Sotomayor, J., concurring) (citations omitted). Such intimate detail is practically impossible to aggregate through visual surveillance. See id. at 956. And the ease with which law enforcement can access it renders it highly “amenable to abuse.” Id.
Since Jones, at least one Superior Court Justice has required a warrant for cell phone location information. Commonwealth v. Pitt, 29 Mass. L. Rptr. 445, *3 n.5, *8, *10 (Mass. Super. Ct. Feb. 23, 2012) (Cosgrove, J.) (location data reveals “trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, the synagogue or church, the gay bar, and on and on . . . . [T]he extent of this potential incursion . . . unquestionably implicates Fourth Amendment privacy rights”) (quoting Jones, 132 S. Ct. at 955) (Sotomayor, J. concurring). The federal court is also poised to revisit the issue. See In the Matter of the Application of the United States of America for an Order Pursuant to Title 18, United States Code, Section 2703(d) to Disclose Subscriber Information and Cell Site Information, __ F. Supp. 2d. __, 2012 WL 989638, *1-2 (D. Mass. March 23, 2012) (Collings, M.J.).
Cell phone location data can tell the government precisely where we have been every minute of the day. Defense counsel should use Jones to press the argument that law enforcement cannot constitutionally mine this potent source of information without probable cause and a warrant.
Sara Silva, a partner with Collora LLP, represents individuals and corporations in the areas of white collar criminal defense and complex civil litigation.
By Richard J. Yurko
Each of us lives in a digital soup where, every day, we leave an online record of our activities. For the convenience of an ATM card, we leave traces of our banking transactions. For the social benefit of “connecting” with acquaintances, our Facebook, Twitter, Linked-In, email, and other accounts record what we look at and digitally touch. For the sake of a few cents off at the store, our loyalty cards compile a rich history of our shopping habits. For the sake of our iPhone, we let Apple know our location virtually every moment of the day. This digital soup not only has practical implications for everyday life, but also potentially changes the landscape of two core legal doctrines, the constitutional right to be secure in our private affairs from government intrusion and the common law right to be let alone from private actors. These issues recently surfaced within a divided United States Supreme Court.
Thousands of digital data points can be and are being aggregated, cross-referenced, and enriched with still other data, like public records, our credit scores, and political donations. See, e.g., Sullivan, “Data Snatchers! The Booming Market for Your Online Identity”, PCWorld.com (June 26, 2012); Sengupta, “Should Personal Data Be Personal?”, New York Times (February 24, 2012). This enriched data is, in many respects, more thorough, more accurate, and more detailed than any file ever compiled by J. Edgar Hoover. It is possible that we can be known better by these data aggregators than by our own friends and kin.
I am annoyed when data aggregations are used to try to sell me a particular product that just happens to be on sale at a store on my walk to work. Individually, I am not much troubled by the use of this data by the company that first collected it, which may track what brand of over-the-counter headache medicine I buy so that it can offer me an appealing coupon. I am much more troubled if the first party that collected the information then sells it to third parties with unknown motivations – – commercial, political or nefarious.
Annoyance and displeasure give away to apprehension when purchased data can be enriched and cross-indexed with other information and then used by powerful corporate interests without my knowledge or anticipation. Moreover, what is to prevent the government from routinely accessing or purchasing such detailed, enriched data aggregations for any purpose? And if the government could buy such data aggregations, what is to stop the government from simply requesting and obtaining the same material from private aggregators, without any subpoena, warrant or judicial oversight?
Indeed, the availability of this detailed information can be used to undermine the underpinnings of essential constitutional safeguards or the common law right to privacy. Although, certainly, the constitutional right to privacy is substantially different from the common law right to be let alone, they share one common foundation. Often, both common law and constitutional principles are grounded on the “reasonable expectations” of the parties and, with respect to privacy, those expectations may be less reasonable if intensely personal data is freely available to anyone who wants to buy it.
That issue was recently raised in United States v. Jones, 132 S. Ct. 945 (2012). In Jones, the majority opinion, authored by Justice Scalia and joined by Justices Roberts, Kennedy, Thomas, and Sotomayor, avoided complex issues arising from the warrantless attachment of a GPS tracking device to a suspect’s automobile by resorting to the 18th Century common law of trespass. The majority concluded that, because the installation necessarily involved a trespass to the suspect’s property right in his vehicle, the resultant search and seizure required a warrant. A four-justice concurrence would have found the search and seizure impermissible without a warrant, on a different ground, because it violated the suspect’s “reasonable expectation of privacy,” relying on Katz v.United States, 389 U.S. 347 (1967). The concurrence, authored by Justice Alito and joined by Justices Ginsberg, Breyer, and Kagan, rejected the majority’s resort to trespass law as too narrow a basis for principled application going forward.
By far, however, the most provocative question in Jones was raised by Justice Sotomayer in her lone separate concurrence. Justice Sotomayer joined with the majority but she wrote separately, I believe, to raise a question. She was apparently unwilling to join the four-justice concurrence, applying the “reasonable expectation of privacy” test, because she suggested that our notion of privacy may have to undergo reevaluation in a world in which, with varying degrees of inattention and consciousness, we tolerate third parties collecting a wealth of personal data about us.
Questions about the collection, retention, supplementation, use, misuse, sale, dissemination, and extensive re-use of detailed personal data could be thrashed out in Washington, in fifty state legislatures across the country, or through regulations promulgated elsewhere in the world. Indeed, there are conversations on these subjects at the Federal Trade Commission, in some state legislatures, and in the European Union. There is an outside chance that, just the way child labor laws, worker’s rights, consumer rights, and economic justice notions were debated and decided in the state legislatures and then again in Congress, this would happen on questions of privacy in the digital age. The FTC has issued papers in this area and may well act. See Federal Trade Commission, Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers (FTC Report, March 2012); see also Consumer Data Privacy in a Networked World, The White House, (February 2012) (recommending legislative and regulatory action).
But I am not optimistic that these issues will be decided quickly or at all by legislative or regulatory means. The corporations that collect, dissect, enrich, and/or package your personal data for resale are some of the most powerful companies in the world. Rashid, “Google, Microsoft Survival Conflicts With Internet Data Privacy,” eWeek.com, February 7, 2012. Quite possibly, in their own enlightened self-interest, they may block legislative or regulatory action. Moreover, one can question, in this rapidly evolving digital world, whether any law or regulation can sufficiently address the myriad ways in which data can be collected, aggregated and re-used. Any regulation on, say, the use of “cookies,” could be outmoded even before being promulgated or implemented. Courts, by contrast, exist to decide questions that arise in disputes between contending parties and decisions on principles in those cases can extend across technological platforms. That is how the common law developed and, to some extent, how constitutional law has progressed as well.
Well over a century ago, Louis Brandeis and Samuel Warren wrote their seminal piece articulating a right to privacy in the Harvard Law Review. At that time, the danger seemed to come from yellow journalists writing about and photographing private persons to satisfy what was characterized as a public lust for gossip. Brandeis and Warren wove together hitherto unconnected strands of cases to fashion an argument for a common law right to privacy. By giving such a name to the “right to be let alone,” they gave lawyers and judges a means to articulate the right to control the intimate details of one’s own life. The premise of Warren and Brandeis, however, was that privacy was like the water from a spigot with the individual controlling the spigot. Samuel Warren & Louis Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 198 (1890). They said, “The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.”
In the last two decades, rapid technological change and remarkable inattention by the public at large have seemed to cede control of that spigot to Facebook, Apple, and hundreds of other less-well-known companies. If these corporations now control the spigots of our personal details shared online, can the government hand be far away? If the government is buying and using the data, will we ever know? If the government is buying the data, should there be some control on that? Conversely, if we see the greater danger as coming from misuse by private parties of digital data aggregations, is government actually the solution, not the problem, by regulating how and when such information can be collected and shared?
Whether in the role of common law jurists or constitutional arbiters, it may rest with judges to take the first stab at re-examining the right to privacy, or the “reasonable expectation of privacy,” in a digital world. The right to be let alone from government interference has, obviously, a constitutional dimension. The right to be let alone from private interference, as a common law principle, applies to private as well as governmental actors.
In conversations in judges’ chambers across the country, the judicial branch may be asked by litigants to return some measure of control of the spigot of private data to the individual. It should be a lively discussion between judge and law clerk. Judges, generally a generation older than their clerks, will remember a time when the public reacted with shock to governmental dossiers and enemies’ lists. Law clerks, some of whom may have grown up in the digital soup and the stunning trade-off between privacy and convenience, may have an entirely different view. Together, they may be able to fashion a new understanding of privacy where incidental disclosure to a third-party providers of services simply through the use of everyday electronic gadgets does not eliminate the broader right to be “let alone.” That, at least, is my hope, so that we can move towards the new understanding of privacy rights in a digital era of pervasive commercial tracking.