Host: [00:00:00] Welcome to discourse where we cut through the noise and make sense of the chaos. I'm your host Wayne Unger. I'm a law professor and former Silicon Valley nerd. And I've spent years breaking down complex topics into digestible takeaways. And on this podcast, we'll take a deep dive into the pressing issues shaping our world in law, politics, technology, business, and more no echo chambers, no corporate influence, just thoughtful analysis and respectful civic dialogue, because understanding different perspectives isn't just important.

It's necessary. Let's get started. All right. On today's episode. First, we are recording this episode at 9 35 PM on Monday, February 24th. Things may have changed since on today's docket. We have privacy in general. All right. So let's hit on privacy from different perspectives. First, we're on privacy from the federal court in joining the immigration and customs enforcement or ice from conducting immigration enforcement at or near [00:01:00] houses of worship.

Because the plaintiff's religious organizations bring a cause of action that could prevail on the merits. We'll talk about that here in a second. We also have Doge accessing the sensitive personal information that might lead the Supreme Court to formally recognizing an inherent right. to informational privacy under the 14th Amendment.

And last, we'll talk through the Washington Post investigation into law enforcement's use of facial recognition software and artificial intelligence tools in general in ways that they were never designed for as a way to shortcut the finding and arresting of suspects without other evidence. All right, first we begin with the free exercise clause claim.

So just as a recap, we know that the Trump administration rescinded a rule that was implemented by the [00:02:00] Biden administration and had also been the standard practice of prior administrations. And that rule was generally referred to as the sensitive locations rule. The sensitive locations rule prohibited ICE from arresting individuals not lawfully present in the United States when those individuals were in schools or churches or other sensitive places.

Now, for the churches specifically, religious groups sued to block this rescission of the sensitive locations rule, claiming that if immigration law were to be enforced at churches specifically, it would unconstitutionally infringe on religious observers free exercise of their religion. I should note that these religious groups were of multiple faiths.

So, in a way, this was a multi faith challenge to the Trump administration's resc rescission of sensitive locations rule. [00:03:00] Okay. The breaking news, though, is today, a federal court in Maryland granted, in part so partially granted A temporary restraining order and preliminary injunction a TRO and a preliminary injunction, but I should qualify this it's not a nationwide injunction we've seen some courts implement or order nationwide injunction so it applies from coast to coast from Maine to Alaska to Hawaii to Florida all parts of the United States nationwide injunctions are commonly Issued in these days.

We've seen several of them. This is not one of them because the court said that these plaintiffs have proven a likelihood to succeed on the merits. as applied to them, but not a hundred percent of the time. Rather [00:04:00] here, the ruling returns us to what the court referred to as the 2021 policy. Now the 2021 policy refers to guidance that the Biden administration.

promulgated that governs immigration enforcement actions here or near certain locations, a. k. a. the sensitive locations, including schools, churches, healthcare facilities, etc. Generally, the places where we don't want to deter individuals from going to for some higher Reason, right? We generally want people to be safe in a healthcare facility.

We generally want them to feel safe in schools. We generally want them to feel safe in churches for kind of going to those institutions and, uh, essentially exercising their rights at those institutions. Now, essentially the 2021 policy. Well, the guidance issued said that [00:05:00] immigration enforcement agencies were to quote attempt to avoid apprehension of persons and to tightly control investigative operations in or around the sensitive locations.

Well, now fast forward. To January of 2025, and the Trump administration rescinds the 2021 policy. Again, that sensitive locations rule, and it said the Trump administration said that going forward, law enforcement officers should continue to use their discretion along with a healthy dose of common sense.

However, the guidance still suggests. That ICE and other immigration law enforcement agencies can invade a church to enforce immigration laws. Now, this is significant, not because of a nationwide injunction, that, as I mentioned, has not occurred. The injunction is [00:06:00] as applied to these religious groups who brought the case in the first instance.

But there are other cases that are working their way through the courts as we speak that are probably going to result in A nationwide injunction to talk about preliminary injunctions, preliminary injunctions are issued when the court agrees with the plaintiff and the plaintiff argues that if the plaintiff does not get this injunction, this temporary stoppage.

Then it will lead to irreparable harm. We often see this in the individual rights and liberties context. So a plaintiff has to prove two things in order to obtain a preliminary injunction from a court. The first thing that they need to prove is an irreparable harm. or injury would occur [00:07:00] if the injunction is not issued.

The second thing that they need to show is a likelihood that the plaintiffs will succeed on the merits of the case, on the core part, the core argument of the case. And the court here in Maryland agreed with the plaintiffs that number one, they have Shown an irreparable harm, the free exercise of their religious observers would be infringed upon or frustrated if these immigration laws were enforced in those churches.

And The injury is being described as one of a chilling effect. And we often see this with the first amendment, the chilling effect injury. We often see it though in the free speech context, not necessarily the free exercise context, but nonetheless, it's still a fundamental principle of the entire first amendment and the chilling effect argument basically goes, well, [00:08:00] government can not do.

X, because if it does X, it would chill speech, or in this case, it would chill the free exercise of religion. So in this case, the plaintiffs have argued, these religious groups have argued that the infringement is. Chilling, because religious observers who would normally go to church for their religion, whatever institution of faith that they, they seek or go to, that they would not go to them if there's a threat of immigration enforcement.

So in that way, this immigration, uh, the rescission of the 2021 policy and the implementation of the 2025 policy by the Trump administration. In effect, discourages religious observers from exercising their religion, thus it [00:09:00] has a chilling effect. And at least when it comes to the first amendment that has time and time and time again been recognized as a sufficient.

Injury that could prevent or preclude government action. And the court said here in Maryland, that's what we have. The chilling injury on the free exercise of religion is sufficient. Now, the second part, as I mentioned, is a likelihood that plaintiffs will prevail on the merits of their claim. So a preliminary injunction again is granted if the court believes.

Or agrees with the plaintiffs that they have a solid legal case. And here again, if we look at first amendment jurisprudence, it's pretty clear that number one, the chilling effect is a sufficient injury recognized by courts time and time and time again, and two, that the threat of enforcement of an immigration [00:10:00] law.

Again, these plaintiffs can prove that that is a violation of the free exercise clause. Now, we may disagree as a, as a person from a policy perspective on this, but nonetheless, if we respect the constitution, that's what the constitution says. The constitution provides free exercise of religion and that shall not be infringed absent a compelling government interest.

And whatever the government's trying to do is narrowly tailored to achieve that interest. Which is the standard that the government must meet to justify, generally speaking, any infringement into a First Amendment right or liberty, with a couple of exceptions, which I'm not going to get into tonight. Now, I mention this because I often hear some very passionate

I also hear a very passionate defense of like free speech rights [00:11:00] and free exercise rights. In fact, the free exercise clause has been used as a form of anti discrimination. Here's what I mean by that. If government funds a religious organization for say the build out of a playground or the rubberization of the playground surface, if government funds the rubberization of a playground and they give that money to secular organizations in the form of grants, but they do not give that money To a religious organization, then that is, at least according to this court today, discrimination on the basis of religion.

So free exercise and the religion clauses in general in the first amendment protected twofold. Number one, the government cannot. Essentially choose one religion over the other right in that way, it kind of has to remain neutral and number two, [00:12:00] at least according to the present day court, it is a violation of the free exercise clause if the government chooses secularism and gives that preferential treatment.

Over non secularism. So if the government acts in such a way that discriminates against religion in general, or any religious observers in general, because they are religious, that said this court, this summit United States Supreme court has generally moved in a direction that has. Found robust protections or I should say upheld robust interpretations of the free exercise clause.

So I would predict if this case works its way up to the Supreme Court, that the Supreme Court will probably agree because all trend lines kind of point in that direction. All trend lines kind of point in that direction. And the First Amendment, [00:13:00] let's kind of double click on this one more. One more time.

The First Amendment precludes even generally applicable laws if they burden free exercise of religion. Sort of. See, there's this case called Smith, and it's generally referred to as the Smith Doctrine, and it has received widespread criticism. Justice Scalia, writing for the majority in the Smith case, it's like Smith versus Employment Division of Oregon or something like that.

Now, don't quote me on the full name, but it's generally referred to as Smith. Smith held that if there's a free exercise infringement of some sort, if the law is neutral and generally applicable, then the law is evaluated on what's called a rational basis review versus Strict scrutiny. So this is the [00:14:00] level of judicial review.

That's something that the government does. That's challenged under the bill of rights must meet. So in a strict scrutiny review, the government must show that it's action that's being challenged is constitutional because number one, it aligns with a compelling government interest, and that's a high bar to meet.

And number two, whatever it's trying to do. The means in which it wants to accomplish the end, the means must be narrowly tailored to achieve those compelling government interests. So it could fail on either one. Either there's no compelling government interest and thus the law gets struck down, whatever government's trying to do, or the law itself, for example, is not narrowly tailored and thus it gets struck down.

Okay. That is the general standard again. Save one or two exceptions, which I'm not going to get into. That's the general standard in which the First Amendment [00:15:00] is So any claim of a violation of your free speech rights, for example, generally receive strict scrutiny. The government has a high burden to meet there.

It must say a compelling government interest. What could be a compelling government interest? Perhaps pedestrian safety, right? Public health, things along those lines. What is not a compelling government interest? Not a compelling government interest, aesthetics of public streets, for example, right? If government were to prohibit the posting of signs on public property because it looks bad, that would not be a compelling government interest.

Rather, government needs to justify it more. Perhaps it's the posting of signs that are really large as to block [00:16:00] driver's view when they're driving. And thus that compromises the safety of pedestrians. Okay, well now we have a different story that is compelling enough. So that's kind of the difference between the two of them.

Rational basis review is this other standard and it's the lowest level of judicial scrutiny that a court will apply. Rational basis just means there needs to be a legitimate government interest. Compare that to strict scrutiny, which is compelling government interest, so it's a lower standard legitimate is a lower standard, and it must be rationally under rational basis.

It must be rationally related to whatever the government is trying to do and achieve. So the means needs to be rationally related to a legitimate. Government interest. That's rational basis review. Furthermore, the government who would be the defendant here on a rational basis for you, the government doesn't have to prove that [00:17:00] rather the plaintiff, like any ordinary case, the plaintiff has to prove that it is not aligned with a legitimate government interest and or it is not rationally related to that legitimate government interest.

So here's the takeaway on this quick overview of judicial scrutiny under the First Amendment. Rational basis is kind of the standard level of judicial review that courts look. Is this rational? Is this reasonable? Or is it arbitrary? And that is a much easier burden to meet, whereas strict scrutiny is much harder for the government to justify its actions because it needs to be a compelling government interest and it must be narrowly tailored.

Its means must be narrowly tailored to achieve those compelling government interests. Okay, bringing this all together for a second, because immigration laws. Almost without question are neutral [00:18:00] laws of general applicability, meaning they apply across the board, right? It's not like we have an immigration law that specifically targets churches.

That would be a totally different scenario. Here we have general immigration laws which are being enforced in churches. So the court in that Smith case that I previously mentioned, the court said that general laws, excuse me, neutral laws of general applicability get rational basis review. Okay, so there, these immigration laws would likely, right, get rational basis review.

And, my guess, If the court applies Smith, the court is going to agree with the Trump administration here and how these immigration laws can be enforced in churches, despite the chilling effect. However, as I [00:19:00] mentioned, there has been tremendous criticism of the Smith doctrine. In fact, even Congress, after the Smith case came down from the United States Supreme Court, Congress responded to that by passing an act called RFRA.

Or the religious freedom restoration act, which I'm not going to get into for the purposes of this conversation. But nonetheless, Congress said we dislike Smith. Thus we are going to pass a law that essentially increases the burden to strict scrutiny. Again, not going to get into it. Just know that Congress was frustrated with the Smith decision.

So, Congress was frustrated with the Smith decision, other liberal justices have been somewhat frustrated, and certainly conservative justices have been frustrated with it. They argue that it's wrongly decided. And they argue that strict scrutiny should apply. Even if a law is neutral and generally applicable, the government must meet strict scrutiny in order For [00:20:00] that law to stand, in other words, if that were the situation, if Smith didn't exist, if Smith didn't exist, then government would need a compelling government interest.

And the immigration law would need to be narrowly tailored to achieve that interest, which I would say under most courts interpretation, I would guess that the Trump administration would fail to meet that burden if strict scrutiny were to be applied. So it'll be interesting to watch this case and see how it turns out.

And of course, generally Donald Trump's immigration policies as a whole. That said, earlier today, I was listening to The New York times, the daily, their podcast, great podcast, by the way, but of course it's the New York times. So take that, um, as you will. And the daily reported about an [00:21:00]Iranian female who sought asylum protection in the United States because she converted to Christianity, which is subject to religious persecution in Iran.

So she escaped Iran, came to the United States, crossed the border unlawfully because she converted to Christianity, and she felt that she was going to be persecuted for that conversion if she stayed in Iran. Now, she told the New York Times that she didn't think she would actually get deported because she had heard that the Trump administration is only deporting criminals.

I believe the language that Trump has used in the past. Rapists and criminals, rapists and murderers. What has actually transpired on the front lines, so to speak, is doesn't matter. You're in the country unlawfully. We're going to deport you. You don't have to be a criminal with respect to any other crimes.

Yes. Being in the country in itself. [00:22:00] If you're in the country unlawfully, that is an unlawful action. I recognize that. Now, she was arrested upon her unlawful entry into the United States. Now, get this. Because the United States has a fraught relationship with Iran, arguably. In part because the Trump administration in his first term withdrew from the Iranian nuclear agreement, granted totally different, had nothing to do with immigration, but nonetheless, that agreement, the Iran nuclear agreement that President Obama signed.

Thank you very much. Agreed to that showed some cooperation between the United States government or so I should say Western governments in general and Iran Trump pulls out of it. Iran is upset Understandably, so so Iran has made tremendous progress Since the Trump administration pulled out of the Iranian nuclear agreement, they've [00:23:00] made tremendous progress with respect to building a nuclear weapon.

But that's not what I'm getting into for this conversation. I just want to highlight how today the U. S. Iranian relationship is fraught. That said, because it is fraught, right, we can't exactly take a United States military plane. Full of unlawfully present Iranians and land that in Iran because Iran won't let us do that fraught relationship.

So instead, get this. According to the New York Times, this Iranian female who sought asylum because she converted to Christianity was deported to Panama, Panama, a country. She most likely granted the New York Times didn't say this. A country she has probably never been to [00:24:00] and doesn't speak the language, right?

Doesn't speak Spanish. Okay. That has so many moral and ethical implications that we can just like, the United States dropped her in a country in Latin America, and she's not even from Latin America. How could that be? And further, she sought asylum trying to execute her legal rights or exercise her legal rights.

To asylum because she felt that she would be religiously persecuted to me that it's just an incredibly sad story and to me as an American citizen, quite embarrassing if you ask me now, that is the immigration situation. Very quickly in a nutshell from the Trump administration. Now I want to switch gears and talk about our second issue of the night.

The [00:25:00] second issue is the potential of the Supreme Court formally recognizing a right to informational privacy under the 14th amendment. Okay. How? Why? Doge is our answer here. Now Doge or the Department of Government Efficiency led by Elon Musk, which with a bunch of other employees of the federal government, some of them as young as 19, uh, some reports are saying, well, Doge has gained access into multiple databases now of the federal government that contain sensitive personal information, the sensitive personal information.

Take for example, the IRS database, right? What does the IRS keep on taxpayers? Everything. If you think about it, financial records, income level, social security numbers, addresses, telephone numbers, bank account information, unquestionably, that is sensitive personal [00:26:00] information that many, if not, All taxpayers would like to be kept confidential.

Dosh has gained access into that database. Dosh has also gained access into the Treasury Department's payment system, which shows all the money being transferred from the U. S. Department of Treasury. Again, sensitive information. It has also gained access into the office of personnel management database, which generally has all the employees information, the employees of the federal government.

So again, employment data, generally sensitive personal information because it can contain everything from your social security number to your work performance, et cetera, et cetera. Now, with that factual understanding in mind, let's put a pin in that we'll come back to it. Let's talk about the law for a second.

We already talked about the facts. Let's talk about the law. [00:27:00] The 14th amendment has two key provisions. The first provision in the 14th amendment that I'm really going to highlight is the due process clause. The second one is the equal protection clause, which isn't tech. That's not really relevant for this conversation.

The equal protection clause in general, though. Says that government cannot treat you any differently or cannot discriminate against you on the basis of say your race It needs a compelling government interest again that strict scrutiny coming back it needs a compelling government interest and whatever it's trying to do must be narrowly tailored to achieve that interest if Government is going to discriminate on the basis of race Okay.

Now these due process clause on the other hand is a bit trickier here. So there are two types of due process as the court has generally interpreted due process. The first type is procedural due process. Pretty straightforward means that an individual is entitled to [00:28:00] procedural due process before his life, liberty, or property is taken away.

That's the key part of the due process clause. You are entitled to due process if government seeks to take away your life, your liberty, or your property. Now, the level or the extent of that due process is going to vary, right? If we think about it, if government is going to take something small from you.

For example, if it's just going to take a rock from your yard, that's a government taking. And at least under the takings clause, the government must pay you just compensation for that taking. Now, government can take personal property and the course can take real property. So real estate as an example, but I just wanted to highlight something really, really small.

If it takes a rock off your property. That is [00:29:00] a taking of personal property. Thus government must give you just compensation for it and it must give you due process. Okay. Compare that now to say the death penalty in some States. And of course at the federal level, it's constitutional as well. Before government takes away somebody's life via the death penalty, the government must give that person.

A lot of due process, right? And we do, we give those defendants who have been convicted of a crime and sentenced to death, tremendous amount of due process. They have all of their criminal appeals that they can exhaust. And even after they exhaust their criminal appeals, then they can have a civil remedy called habeas corpus, which I'm not going to get into either.

So that's one type of procedural due process. The amount of procedure that government gives you is going to depend on the [00:30:00] severity of what government is trying to take away. So if it's trying to take away your life, of course that's super severe, right? Like we all can agree. Then you are entitled to significant due process.

But if government is going to say, terminate your social security benefits, well, you're not entitled to the same level of procedural protections as somebody sentenced to death because taken away your property, excuse me, taken away your social security interest. Is not as severe. The second type of due process.

So that's the first type, procedural due process. The second type is called substantive or substantial or substantive. All said different ways. Substantive due process. I'm probably going to interchangeably say substantive versus substantive. With that said here, this is the tricky part of the due process clause.

So remember. That the due process clause says essentially government must provide due process before it [00:31:00] takes away life, liberty, or property. The liberty. We understand what life is. Again, death penalty. I just gave you that example. We also understand what property is. Personal property, real property.

Pretty simple. The question here, and this has confounded the courts, of course, is interpreting what does liberty mean in this context? So before government can take away your liberty, liberty to what? What's the liberty? So the court has over decades, over two centuries, in fact, generally struggled with, okay, what is a protected liberty and what is not a protected liberty?

And the general rule that the court has Kind of centered on with respect to is this an inherent liberty in the 14th Amendment's due process clause again life liberty Or property. The court has [00:32:00]generally said, okay, well, we have to look at history and tradition. Is this a liberty that's tied to civilized society?

Is this one that we have recognized for years, decades since the founding, et cetera. So it must be necessary to organize and civilized society, whatever that liberty is. Now, looking back at the cases that had to deal with substantive due process over the last several decades. We have recognized things like Griswold v Connecticut, which held you have a right to contraceptives.

Government cannot ban contraceptives because you have a constitutional right to it. That is substantive due process. It's protected under substantive due process. Basically what we ask under a substantive due process Is, is the government acting arbitrarily? The government cannot arbitrarily take away your life, liberty, or [00:33:00] property.

So is the government action arbitrary and some of the civil rights and liberties that we have come to recognize as essentially the norm here in the United States are rooted in this inherent right to something liberty, right? To contraceptive liberty, to family planning, as an example. Now, the cases. Span the gamut here.

It's not just contraceptives. So as another example, the court has held that you as a parent, assuming you have kids, of course, to my listeners who have kids, you as a parent have an inherent fundamental right or liberty. To raise your children as you see fit, of course, within certain reason, right? You can't abuse them as an example.

You can't imprison them as another example, but if you want to teach your child, the German language, go ahead. Government cannot [00:34:00] prohibit you as a parent from teaching your child German. Similarly, in another respect though, government can't prohibit kind of extended family members from not living in the same house.

So here's what I mean by that. This is Moore versus City of East Cleveland. And the Moore case said that this arbitrary rule that the City of East Cleveland was trying to implement, which is essentially extended family members cannot live in the same household, must be removed. And must only be your immediate family, the court struck that law down because you have an inherent right to privacy, privacy of the home, privacy with respect to your family relations, so on and so forth.

So generally speaking, under the 14th amendment substantive due process, the court has time and time again recognized a general right to [00:35:00] privacy. Roe v. Wade. Yes, it's been overturned by Dom's, but let's go back to it for a second. Roe v. Wade is a privacy case in its most fundamental sense. Yes, it has to deal with abortion, but it's abortion privacy.

In other words, bodily privacy. So Roe said that women Have an inherent right to bodily privacy that is protected by the constitution under the 14th amendment. And that is where we find a right of access to abortion. Now, Dobbs comes along, of course, in the last couple of years and Justice Alito writing for the majority says, well, hang on.

This is not a substantive due process. We have a different situation here. While the right to bodily privacy may, for example, justify the inherent liberty. To contraceptives. It doesn't necessarily apply here. The Constitution does not provide any right to [00:36:00] abortion is how the court articulated it in Dobbs.

So they didn't. The court in Dobbs did not articulate it in the sense of bodily privacy like row framed it. Rather, it said, if we say that this is a right to abortion, that's not protected by the Constitution. So time and time again, Here's my point. The court has generally recognized an inherent right to privacy.

Now, there have been a couple of cases that have dealt with a right to informational privacy, a right to data privacy specifically under the 14th amendment. So you have data privacy rights. Generally speaking, you can find it in the fifth amendment. You can find it in the first amendment. You can also find it in the fourth amendment, perhaps most roughly in the fourth amendment, but the 14th amendment that do process clause.

There are two cases that had to deal with a right to informational privacy under the 14th Amendment. [00:37:00] And the first one was called Whelan v. Roe. The second one was NASA v. Nelson. So, really at issue in Whelan v. Roe was a New York law that required a copy of the prescriptions to be kept on file by the state.

So patients and physicians filed suit and basically argued that this is a violation of privacy. They have a right to privacy with respect to the 14th Amendment. It's a right to informational privacy. There's a lot of history here. Which is actually fascinating to read because it can show you one of the contributing factors that led to the opioid epidemic.

But generally speaking, a bunch of states years ago moved towards implementing a triplicate program, meaning that there were three copies of each prescription. One goes to the patient, one the doctor keeps on file, and then the third copy is filed with the state. So the state keeps those records. [00:38:00] The court said in Whalen v.

Roe, we assume without deciding a right to informational privacy. It assumed that a right to informational privacy exists under the 14th Amendment, but it did not formally recognize a right to informational privacy. The reason why is because the court didn't need to. In Wayland Vero, the court said that this pharmaceutical records law that requires a form to be filed with the state, well, it's constitutional because it doesn't infringe on anybody's privacy rights.

The state has taken adequate measures to protect the privacy and confidentiality of that information. All that information, at the time, was stored on computers that were not connected to the internet, as an example. Computers that had other data security measures. So for all of these reasons, the court said, Mm mm, it's not even a case [00:39:00] here.

So it rejected the claim of a right to informational privacy. And so for years following that, lower courts, appellate courts, district courts, said, Okay, the United States Supreme Court has recognized a right to informational privacy. And they started to apply that understanding to subsequent cases. Then comes NASA V Nelson and the court says, well, hang on all of you appellate courts that have recognized this right to informational privacy saying that we did it in whaling V row.

You're wrong. We did it. Whaling V row was again. We assume that a right exists, but we do not. Expressly recognize said right, a right to informational privacy, NASA V Nelson very similarly, but NASA V Nelson had to deal with the post 9 11 commission put the 9 11 commission of all of its recommendations in its report [00:40:00] to Congress proposed, you know, many, many recommendations for how to reform government.

One of those being any federal contractor to the government must go through a background check. So, at issue in Nassau v. Nelson was the Jet Propulsion Lab at Caltech. These federal contractors were upset. They didn't want these background checks. So they filed suit and they claimed against the federal government that this law, the background check law violated their 14th amendment right to informational privacy.

It works its way up to the Supreme Court and the Supreme Court says no. The Supreme Court said we assume without deciding once again that a right to informational privacy exists. And if it does, there's no violation here. Because this is [00:41:00] essentially the government acting as an employer background checks are not a big deal, right?

Employers run them all the time. The government is acting as an employer here again. They're keeping it confidential. They're having adequate safeguards, blah, blah, blah, blah, blah. So for that, the court said, Nope, no right to informational privacy. Is expressly recognized in the Constitution. It said we assume without deciding.

So to be clear, the United States Supreme Court has not either said yes, a right to informational privacy exists under the 14th Amendment, and it has also not said it doesn't exist. So it has never decided the fundamental constitutional question, which is whether the 14th Amendment's substantive due process protects an inherent right to informational privacy.

How does this relate to DOJ? Remember I started this segment talking about DOJ and how they've [00:42:00] gained access to all these databases? Well, here's my argument. Doge is gaining access to a bunch of these databases that all have confidential information or sensitive information that I think unequivocally many of us recognize as information we would want to keep private.

In other words, to kind of put this in common legal language. We say we have a reasonable expectation of privacy with respect to that data. We have a reasonable expectation of privacy with respect to our tax returns. We have a reasonable expectation of privacy with respect to our account number at our banks, which are reflected on tax returns.

We have a reasonable expectation of privacy with respect to our social security number, so on and so forth. I have to it. Pause for a second and recognize that there's a statute that could be implicated here. And that's the Privacy Act of 1974. I may have gotten that year wrong. But the Privacy Act says, quote, [00:43:00] No agency, referring to government agencies, no agency shall disclose any record which is contained in a system of records by any means of communication to any person or to any other agency.

Except pursuant to a written request by or with the prior written consent of the individual to whom the record pertains. So here, the Privacy Act generally prohibits, for example, an administrative agency at the federal level, say, ICE, say, The U. S. Force Department or service U. S. Force service. You can't share the personal information regarding any person with any other agency unless the data subject.

In other words, the individual whom the record pertains consents to it.

So here we [00:44:00] have. Doge, which is an agency separate from right. If we want to even call it an agency and there's an issue with calling it a department from a legal perspective, but even if we call it a department or agency of the federal government, it is not an agency within the IRS. It is not an agency.

With in the Treasury Department. It's this kind of umbrella agency that Trump created out of thin air and has said, Okay, you can go get access to all this information. So there is almost certainly a statutory violation here because an agency like the IRS is disclosing the personal information. Of data subjects without their consent to another agency in the federal government.

Now, in a previous episode, I mentioned how DOJ, the title Department of Government Efficiency, is misleading from a legal perspective. [00:45:00] Because Congress did not create DOJ. Congress creates the administrative agencies through a legislative act. So for example, the FDA, as an administrative agency, was created under the Food, Drug, and Cosmetic Act.

The EPA, again, we have to look at a statute that creates the agency. Congress did not create DOJ. Trump made it up out of thin air. Thus, it's not within the traditional legal sense of the word, a department of the federal government. There's a whole other slew of issues there, legal and constitutional questions there.

Back to DOJ with respect to the 14th amendment for a second. So DOJ has gained access to all these databases has obtained your personal information. Now, privacy advocates such as EPIC, EPIC stands for the Electronic Privacy Information Center. It's basically a nonprofit organization that advocates for [00:46:00] privacy rights.

I'm simplifying what they do, but there you go. Privacy advocates like EPIC argue that Doge's access infringes upon privacy rights and privacy expectations and that Doge, its access presents an unprecedented security breach. Okay, so what has happened in the courts? Of course, Epic and others have filed suit to block the access.

They have somewhat succeeded. Courts have issued temporary restraining orders to block or limit DOJA's access to these databases. Epic filed one of these lawsuits arguing that it is an egregious violation of privacy and security. Now, I should note again, as a side thing, there are several lawsuits that challenge the constitutionality of Elon Musk.

Appointment to head doge and they argue that given the roles responsibility given the task that he has and the power that [00:47:00] he has in that role as he's manifested in the first four or five weeks of the Trump administration will because it is so massive because his authority is so broad widespread that he That role is now what's called a principal officer of the United States government, and thus he is subject to the advice and consent of the Senate as many of Trump's or any president's political appointees are subject to, right?

If you're essentially a big deal in the federal government. And you are appointed by the president with a couple of exceptions. You are subject to advice and consent of the Senate because that's essentially the check on the executive. So because Elon Musk never went through Senate confirmation and he has such this large role.

There are many who argue that he is unconstitutionally in that role, let alone how the [00:48:00]agency in which he leads, the Department of Government Efficiency, is also unconstitutional because Congress didn't create it. Okay, so, I've said a lot. Here's how all of this comes together.

These organizations, like Epic, have filed suit claiming that the individuals, the data subjects, the data to which this information pertains to, in these databases, have a 14th Amendment right to informational privacy. That's a fundamental liberty under substantive due process. Now, unlike Whelan and Nelson, right, Whelan v.

Rowe and NASA v. Nelson, those cases, again, said, we assume without deciding, because it didn't need to decide. The court did not need to affirmatively and expressly recognize a right to informational privacy to solve that dispute between the [00:49:00] parties. Here, however. I think that this privacy violation is so massive that the court will be forced to decide for the first time whether the 14th amendment, the substantive due process recognizes a fundamental right to informational privacy.

And if so, then. The government must show a compelling government interest and that access to that data or that infringement upon a right to informational privacy is narrowly tailored to achieve that interest again, very difficult for the government to do. So all of this is to say we could, in a year, two years, possibly three years, have the United States Supreme Court formally and expressly recognize a right to informational privacy under the 14th Amendment and the Due Process Clause.[00:50:00]

Oh, so much is going on. All right, let's switch gears. Our third segment for today is with respect to, is regarding the fourth amendment. So I've said that the overall theme of today's episode is privacy. We've talked about it from the 14th amendment perspective just now. And then we've also discussed it.

With respect to immigration and kind of the first amendment and kind of this privacy with respect to the free exercise of your religion and this chilling effect. Well, now we turn to another amendment of the constitution, the fourth. Fourth Amendment. Now, the Fourth Amendment generally prohibits unreasonable searches and seizures of persons, places, things, etc.

It, of all of the amendments, really enshrines Privacy protections, right? This is the amendment that says, if you do not consent, [00:51:00] government must go get a warrant to search your house. Now there are exceptions to that warrant requirement for that matter, but generally speaking, if law enforcement wants to search your house because they suspect you of committing a crime and they're trying to find evidence, they have to go get a warrant.

And in order to get a warrant, they have to have probable cause and they have to swear to a judge who signs off on that warrant that they have probable cause. Thus, if they lie, In a sworn affidavit to a court to obtain a warrant, well then you have a faulty warrant and the evidence that they collect as a product of that search can be suppressed, cannot be used against you, could be ruled inadmissible.

Okay, so. To circumvent some of the roadblocks or hurdles, they aren't really roadblocks, they're more like hurdles. To circumvent the hurdles that the 4th [00:52:00] Amendment presents law enforcement with respect to investigating crimes, like having to go get warrants, having to show probable cause to a judge to get that warrant, having to collect enough information to put into the affidavit to support the application for that warrant,

they have taken shortcuts over the years. That's nothing new in fourth amendment law. They have taken shortcuts over the years. Now here we have at least eight people, according to the Washington post, who have wrongfully been arrested in the United States after being identified through facial recognition.

And all of these cases were eventually dismissed. Now here's the kicker law enforcement could have prevented these erroneous arrests from occurring in the first If law enforcement had relied On other evidence, such as alibis, DNA evidence, fingerprint evidence. [00:53:00] But they failed to do so according to the Washington Post.

They use facial recognition, which at the backbone of facial recognition is artificial intelligence. They've also used other artificial intelligence tools to identify and then they've used that evidence to go get an arrest warrant and they've arrested people for it. That is so problematic because number one, Relying on one source for probable cause is generally problematic.

Number two, artificial intelligence is known for hallucinating is the term. In other words, making things up chat. GBT as an example, which is not necessarily facial recognition, but run with me here for a second chat. GBT has documented cases over and over and over again of making things up. When, for example, lawyers have asked.

ChatGBT to write a court brief [00:54:00] for them, those lawyers have been caught using ChatGBT because ChatGBT produced a fake cases to support the arguments that it wrote. You can't do that. Right? No lawyer can do that. That is big, big, big, big, no, no. The lawyer must cite two existing cases, not fake cases to support the arguments made on the behalf of their client.

ChatGBT. Is known for making up cases, just making them up because chat GPT is essentially programmed. To produce an answer no matter what. And so even if it can't find something, it will produce something. That's the generative part, right? It generates content. I'm simplifying AI again, run with me here.

That said lawyers who have used Chappy GBT to draft these core briefs [00:55:00] and these core briefs, having fake cases have been. So much yelled at by courts. Judges are like, absolutely not. And they've issued sanctions up the wazoo against these lawyers, as they should, by the way, because the lawyers know better, at least they shouldn't know look better.

And so yes, if they do it, they're subject to sanction. They're subject to punishment. So because AI has so many documented Shit. I mean you're going to get a lot of this stuff. You're going to get a lot of issues, such as making up things, hallucinations, And even, and this isn't new news. This is actually old news.

AI has shown to be biased. Take for example, Amazon. Years ago, Amazon deployed artificial intelligence to help sort through its job applications. People were applying to jobs. You And Amazon's like, we're going to be innovative. We're going to deploy this, and this will help us identify the great candidates who apply and kind of weed out the weak candidates [00:56:00] or the unqualified candidates.

Here's the thing. Any AI system is trained on data. It needs to be trained. An AI system needs to learn, aka called machine learning, needs to learn. Kind of what is this or that and how you teach it, what is this or that, how you teach it to distinguish you feed it tremendous amounts of data

that said the same garbage in garbage out, right? If you only put garbage into something, you're only going to get garbage out, right? You're not going to get the shining golden star. If you put garbage in unless maybe perhaps you're MacGyver or something. And some of my listeners will understand that reference.

It's a joke. That said here, what we have is [00:57:00] Amazon showed, ended up showing that their algorithms, their artificial intelligence used in the application kind of filtering process. Guess what was inherently biased because the data that they used to train that artificial intelligence was biased. It was biased against certain candidates.

It's potentially biased against race, essentially deprioritizing people of color over white applicants.

That said, AI has problems. Police should not use AI as its sole method of investigation because as we see here with the Washington Post, people can be wrongfully arrested. Because AI gets it wrong. [00:58:00] Of course, police officers in general can get it wrong. Of course they can. But here, don't we want law enforcement to collect various pieces of evidence?

To support an arrest warrant before they go get it, we generally don't want somebody wholly innocent who has a legitimate alibi from being wrongfully arrested. Why? Because even if the charges are dropped, as they have here with these eight people, according to the Washington Post, the person still incurs substantial costs.

For example, They could have to pay for an attorney. Now, yes, a public defender could be appointed to them and they don't have to pay for it. Okay, understandably. So, but if they hire a private attorney, well, then there's out of pocket costs, even though they were wrongfully arrested because that attorney has to prove why they were wrongfully arrested.

Other [00:59:00] costs, though. Let's say you work a full time job nine to five. Well, if you're wrongfully arrested, You physically cannot show up to work right and perhaps you were unable to make contact with your employer to tell him you were arrested. Or even if you tell him that you arrested, they may terminate you on the spot for being arrested.

Okay, that said, there is a cost. You could lose your job in some circumstances for simply being arrested. So if it's a wrongful arrest. You can argue it's a wrongful termination, but that's the cost of a wrongful arrest, right? That's a cost that no person should have to incur. Furthermore, you have the lost opportunity cost, so to speak.

It's the opportunity cost of lost time. When you're wrongfully arrested, government has wrongfully taken you away from society. And all the things you could be [01:00:00] doing, either being productive at work, raising your children, going to church, going to work, whatever, you have now made that sacrifice unwillingly because you were wrongfully arrested.

So there's all kinds of costs that come from a wrongful arrest, hence why law enforcement needs to get it right. And we generally want to encourage law enforcement to get it right. So solely relying on AI? In my eyes. Is problematic. I will close with a follow up on a previous episode for today. Now, in a few hours, in about an hour and a half from now, all federal employees have this deadline of 11 59 PM on Monday, February 24th.

To submit five bullet points that articulate what those employees did last week. And [01:01:00] this was an email that came from the Office of Personnel Management. And then Elon Musk followed up by tweeting, or posting on X, his platform, that if failure to respond to this email would be considered A resignation by the employee.

Okay. First, there's a legal issue there. You cannot say if you failed to reply to something you have resigned, a resignation requires some affirmative action from the employee. You can say they're terminated. That's different, but that's see under the law, those are fundamentally different. Because if you're terminated for cause, you are not eligible for a number of things like employment benefits.

If you resign, you are also not eligible for unemployment benefits because you voluntarily resigned, generally, in most states. But if you are terminated without cause, [01:02:00] then you are eligible for unemployment benefits. So, there is a fundamental legal difference between resignation and termination. That designation matters.

Because things come from that designation. So that's one issue with just saying, Okay, you all resign if you don't respond to the email. Here, we have reports of individuals on Musk's Doge team that have barely any professional work experience, let alone government knowledge. of the internal workings of government.

According to reports, some of them are as young as 19. Now, I haven't independently verified this information. As I mentioned in the disclaimer, which you'll hear later, this is not a journalistic podcast. This does not adhere to journalistic principles. This is a commentary. So let's assume that the reporting is correct.

These are individuals without any knowledge of the [01:03:00] federal government, or potentially little knowledge of the federal government, and they are determining whether a federal job is necessary or not. Whether, for example, that nuclear scientist who works for the Department of Energy, whether he should have a job.

It doesn't make sense to me that someone with no experience in federal government No knowledge of federal government or is so green to the professional workforce that they're making the determination whether that nuclear scientist. Who works for the Department of Energy should be terminated or not, whether his role is necessary or not.

This of course will lead to mistakes, silly. And I mentioned the nuclear scientists for a particular reason. So we had some nuclear. Related employees who were terminated because [01:04:00] Doge moved to terminate them said, here you are, you're terminated. And then they realized what they had done. So they had to call back those employees and say, just kidding, you weren't terminated because those roles were absolutely necessary.

Those are the mistakes that this Doge team is making. In a previous episode, I said, whenever you have a reduction in force in the private sector, as an example, whenever you have layoffs, there is always a strategy behind that the senior executives of a company sit down and say, what makes the most sense here?

Because sometimes oftentimes it's just a realignment of internal resources to grow in the areas where they see growth potential. So, for example, Right. A tech company could lay off a division that's working on autonomous vehicles and instead deploy them to general generative AI solutions because [01:05:00] that's the growing space right now.

Okay. That would make sense here. Doge has no strategy or if they have a strategy, they haven't articulated to the public and they must because this is the government. This is a federal public situation. Okay. Today. Here's the thing. Those five bullets. In an email that request from the Office of Personnel Management and Doge today announced that it will use artificial intelligence, artificial intelligence to evaluate those emails.

Lord help us here. Here's why this is crazy. Number one, artificial intelligence. I bet you. Whatever doge is going to deploy is not trained on distinguishing between a role like that nuclear scientist who is absolutely necessary, regardless of what he puts in an email [01:06:00] versus, say, with all due respect, of course, to a low level employee who's responsible for the facilities at the United States Capitol, totally different level of responsibility there.

So this is crazy to think about. How artificial intelligence will be used to evaluate these emails. Absolutely crazy. And I also mentioned during the fourth amendment section of this podcast episode that artificial intelligence is prone to errors. It is prone to hallucinations. It is prone to biases. So, to use artificial intelligence, which is known for hallucinations, and known to have biases, to evaluate whether federal employees, what they write in their five bullets, is sufficient or not, is just absolutely [01:07:00] crazy for me.

That's it for today's episode of Discourse. Thank you for tuning in and being part of the conversation. You can catch future episodes of Discourse wherever you get your podcasts. If you found this discussion insightful, be sure to subscribe, leave a review, and share it with others who value thoughtful analysis over the noise.

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Discourse is a commentary podcast for informational and educational purposes only and does not constitute professional advice or legal advice. The opinions rendered Expressed are solely those of the hosts and any guests, and do not reflect the views of any employer, institution, or organization. This podcast is not journalism and does not adhere to journalistic principles.

It offers analysis, opinion, and discussion on current events, but should not be relied upon as a news source. Listeners should consult qualified professionals for legal or otherwise expert advice [01:08:00]specific to their situation. Thanks for listening.