The Association for Women in Science recently published an article by upcoming RLSC author Mary Ann Mason, PhD, called Title IX and Pregnancy Discrimination: Who Knew?. Dr. Mason, along with Jaclyn Younger, has written a piece on the same topic for a forthcoming issue of Social Change.
Read the AWIS piece now (PDF), and check back soon for the full Social Change article, Title IX and Pregnancy Discrimination: The New Frontier!
Tony Varona is Professor and Associate Dean for Faculty and Academic Affairs at American University Washington College of Law. He teaches Contracts and Administrative, Media and Public Law, and writes principally in the areas of communications/media law and LGBT civil rights. He has served on the boards of directors of GLAAD, the Human Rights Campaign (HRC) and the Alliance for Justice. Before entering full-time teaching in 2002 at Pace Law School in New York, he was HRC’s General Counsel and Legal Director and Adjunct Professor of Law at Georgetown. In 2000, he served as a Wasserstein Public Interest Fellow at Harvard Law School. Earlier in his career, he was an associate at Skadden Arps and Mintz Levin and an honors program attorney at the Federal Communications Commission. Dean Varona has won a number of teaching awards, including most recently the 2014 American University Faculty Award for Outstanding Teaching in a Full-Time Appointment. In 2009, he was honored with the Hugh A. Johnson, Jr., Memorial Award by the Washington Hispanic Bar Association. He serves as an advisor to the AUWCL’s LaLSA and Lambda student organizations, and is on the Faculty Review Boards of the Administrative Law Review and the American University Journal of Gender, Social Policy and the Law. He holds A.B. and J.D. degrees from Boston College and an LL.M. from Georgetown.
Image Credit: Matt Spence / Flickr
by Katherine Erickson
Ballot initiatives are a way for citizens to directly affect their governments. In a representative democracy, where our representatives are often swayed by special interests, the ballot initiative procedure at its best acts as an important way of maintaining some voter control of legislative enactments.
The ballot initiative procedure, however, is also vulnerable to corruption. Many states haves accordingly adopted anti-logrolling[1] rules, called “single subject” rules, to make sure that voters won’t be pressured into accepting bad amendments in order to pass good ones. In modern America, however, getting even a popular initiative on the ballot requires raising funds for professional signature-gathering—all of which is wasted if the ballot is ruled to violate the single-subject rule.[2] The Florida judicial definition of a “single subject” remains impenetrable, and thus presents a significant burden to majoritarian movements to change the law.
When there’s no clear application of the single subject rule in judicial review, we risk arbitrary results at best, and letting judges’ political opinions affect the political process at worst. This is the current situation in Florida, where the single-subject rule has been applied extremely strictly, sometimes ludicrously so.[3]
The single-subject rule of the Florida Constitution requires ballot initiatives amending the state constitution to have only one subject.[4] Florida’s judicial review of its ballot initiatives arguably results in the strictest national application of a single subject rule.[5] For example in Evans v. Firestone, the Florida Supreme Court found litigation costs were not “naturally related” to liability for damages, and hence their inclusion in the same ballot initiative language was found to constitute multiple subjects.[6]
Florida courts have used a wide variety of confusing approaches to determine whether the single-subject requirement has been met. One test is “natural relation and connection as component parts or aspects of a single dominant plan or scheme.”[7] The Florida Supreme Court views with disfavor the existence of a “discrete, severable” portion of the ballot language that reasonable voters might reject if it were presented independently.[8] The Florida Supreme Court also looks at the extent to which multiple provisions of the constitution would be impacted.[9]
In theory, the more constitutional provisions impacted, the less likely the court is to find that the initiative proposal contains a single subject.[10] The Florida Supreme Court has said that the mere fact that a proposal affects three different branches of government will not, in and of itself, invalidate an initiative,[11] but also that looking at the number of government functions impacted is important.[12] Couching diverse subjects within a “cloak of broad generality” is also supposed to be ineffective.[13]
It is questionable, however, how much guidance these rules actually give to drafters of ballot initiatives. Commentators are skeptical about the consistency of Florida Supreme Court decisions on the single-subject rule.[14] In Advisory Opinion to the Attorney General re Protect People from the Health Hazards of Second-Hand Smoke by Prohibiting Workplace Smoking, for example, the court upheld an amendment banning workplace smoking with a mandate for the legislature to enact statutes, including civil penalties and provisions for administrative enforcement.[15] These aspects were considered details of implementation, not separate subjects. Similarly, in Advisory Opinion to the Attorney General re Florida Transportation Initiative for Statewide High Speed Monorail, Fixed Guideway or Magnetic Levitation System, the court upheld an amendment requiring the legislature, the cabinet, and the governor to create an extensive transportation system using “efficient and effective technologies.”[16] The court also upheld an amendment promoting a “comprehensive plan for the education of youth about the health hazards related to tobacco,” including “advertising, school curricula, and law enforcement,” saying that “all of these components are related to the single unifying purpose.”[17]
Meanwhile, the court struck down an amendment to create a trust fund to restore the Everglades, which would have financed the fund via a tax on the sugar industry. The court held that the amendment violated the single-subject provision, supposedly because it included the legislative function of imposing a levy, the executive function of authorizing trustees to administer a trust, and the judicial function of rendering judgment of wrongdoing and de facto liability on the sugar industry.[18] Then there was Advisory Opinion to the Attorney General re Amendment to Bar Government from Treating People Differently Based on Race in Public Education, which involved four proposed amendments limiting affirmative action. The court threw out these amendments because, it said, they applied to multiple sections of the state constitution, not just Art. I § 2, and because of the application to all three branches of government.[19] It has been argued that the analysis in this case was inconsistent and “even intellectually dishonest.”[20] Similarly, in Advisory Opinion to the Attorney General re Requirement for Adequate Public Education Funding, the court struck down an initiative because it required the legislature to appropriate 40% of its revenues for public education, supposedly because it affected multiple functions and branches of the government.[21]
As Rachael Downey puts it, “If one gets the sense that the Government Treating People Differently and Adequate Public Education Funding initiatives were significantly simpler than, for example, the amendments involved in Prohibiting Workplace Smoking and High Speed Monorail, then one may think that the Florida Supreme Court is making political decisions rather than simply applying the single subject rule of article XI, section 3 in a straightforward manner.”[22] She hastens to add that “many proposed amendments have been approved, some of them controversial or bizarre, so it is not impossible to get such an initiative approved as in compliance with the single subject rule in Florida.”[23]
The bottom line, however, is that Florida is currently an incredibly unpredictable place to draft a citizen’s ballot initiative. Everyday citizens should not need to hire a team of specialized lawyers in order to pass a basic ordinance with a plan to pay for it, and collect hundreds and thousands of signatures on a petition to get their initiative on the ballot, only to have their initiative struck from the ballot by a capricious judiciary. It almost does not matter what rule the Florida Supreme Court adopts next, as long as it is more consistent than the current situation. The long and short of it is that Florida should stop interpreting the single subject rule so tightly as to squeeze out democracy.
[1] Logrolling is “the practice of combining two or more dissimilar subjects into a single act to force simultaneous passage of the varied provisions.” Kurt G. Kastorf, Logrolling Gets Logrolled: Same-Sex Marriage, Direct Democracy, and the Single Subject Rule, 54 Emory L.J. 1633, 1637 (2005).
[2] Thomas Rutherford, The People Drunk or the People Sober? Direct Democracy Meets the Supreme Court of Florida, 15 St. Thomas L. Rev. 61, 70 (2002).
[3] Id. at 176 (“It is not contended that the foregoing criticisms of the Court’s opinion on the [anti-discrimination] omnibus petition [involving ten categories of protected groups] are so overwhelming as to make indefensible its finding of multiple subjects. It was uncertainty about this that caused [the initiative-supporting] FCRI to develop its fallback position, the three mini-petitions. As to them, there is no such uncertainty. The case for single-subject treatment of each mini-petition is overwhelming and the Court’s conclusion to the contrary is indefensible.”) (emphasis added).
[4] Fla. Const. art. XI, § 3 (“The power to propose the revision or amendment of any portion or portions of this constitution by initiative is reserved to the people, provided that, any such revision or amendment, except for those limiting the power of government to raise revenue, shall embrace but one subject and matter directly connected therewith.”).
[5] Kastorf, supra note 1, at 1669.
[6] Robert W. Lee, Pre-Election Initiative Review in Florida: A Framework for Analysis, Fla. B.J., March 1995, at 14, 16.
[7] Id.
[8] Id. See, e.g., Advisory Op. to Attorney Gen.—Ltd. Political Terms in Certain Elective Offices, 592 So. 2d 225, 231-32 (Fla. 1991).
[9] Lee, supra note 6, at 14, 18.
[10] Id.
[11] Advisory Op. to Attorney Gen.—Ltd. Political Terms in Certain Elective Offices, 592 So. 2d 225, 227 (Fla. 1991) (“Although the proposed amendment affects officeholders in three different branches of government, that fact alone is not sufficient to invalidate the proposed amendment. We have found proposed amendments to meet the single-subject requirement even though they affected multiple branches of government.”).
[12] Evans v. Firestone, 457 So. 2d 1351, 1354 (Fla. 1984) (“In Fine, we found multiplicity of subject matter because the proposed amendment would have affected several legislative functions.”).
[13] See, e.g., Evans v. Firestone, 457 So. at 1353-54 (finding more than a single subject in an initiative which would have modified the concept of joint and several liability, limited certain types of damages, and made the summary judgment rule a part of the state constitution, because it affected both legislative and judicial functions).
[14] Rachael Downey, Michelle Hargrove, & Vanessa Locklin, A Survey of the Single Subject Rule As Applied to Statewide Initiatives, 13 J. Contemp. Legal Issues 579, 593 (2004). See, e.g., Advisory Op. to Attorney Gen. re Florida Marriage Prot. Amendment, 926 So. 2d 1229, 1234 (Fla. 2006) (dismissing opponents’ claims that proposed amendment would ban both gay marriage and civil unions, and thus violated the single-subject rule). Many LGBT rights activists would be delighted to hear that gay marriage is equivalent to civil unions, and that thus all civil union states are also marriage states.
[15] Advisory Op. to Attorney Gen. re Protect People from the Health Hazards of Second-Hand Smoke, 814 So. 2d 415 (Fla. 2002) (“In the next regular legislative session occurring after voter approval of this amendment, the Florida Legislature shall adopt legislation to implement this amendment in a manner consistent with its broad purpose and stated terms, and having an effective date no later than July 1 of the year following voter approval. Such legislation shall include, without limitation, civil penalties for violations of this section; provisions for administrative enforcement; and the requirement and authorization of agency rules for implementation and enforcement.”).
[16] Advisory Op. to Attorney Gen. ex rel. Fla. Transp. Initiative for Statewide High Speed Monorail, Fixed Guideway or Magnetic Levitation Sys., 769 So. 2d 367 (Fla. 2000) (“The only subject embraced in the proposed amendment is whether the people of this State want to include a provision in their Constitution mandating that the government build a high speed ground transportation system.”).
[17] Advisory Op. to the Atty. Gen. re: Protect People, Especially Youth, from Addiction, Disease, & Other Health Hazards of Using Tobacco, 926 So. 2d 1186, 1191-92 (Fla. 2006).
[18] In re Advisory Opinion to the Attorney Gen.-Save Our Everglades, 636 So. 2d 1336, 1340 (Fla. 1994).
[19] Advisory Op. to Attorney Gen. ex rel. Amendment to Bar Gov’t from Treating People Differently Based on Race in Pub. Educ., 778 So. 2d 888 (Fla. 2000).
[20] Rutherford, supra note 2, at 66.
[21] Advisory Op. to the Attorney Gen. re Requirement for Adequate Pub. Educ. Funding, 703 So. 2d 446 (Fla. 1997).
[22] Downey, Hargrove & Locklin, supra note 14, at 596.
[23] Id.
By Michael Pernick, Staff Editor
Image Credit: ian-s / Flickr
When you check into a hotel, you always give that hotel your personal information—including your name, address, telephone number, credit card account numbers, expiration dates, and security codes. You do this, in part, because you trust that the hotel will keep your information secure. You trust that the hotel protects its computers with reasonable data security protocols and firewalls. Furthermore, most people, if they stopped to think about it, would assume that if a company failed to protect your private data, that company would get in trouble with the government. Typically, they would be right—the FTC brings dozens of data security complaints each year against companies that fail to protect consumer data.[1] These complaints are not usually litigated, as they are relatively straightforward; the business realizes that it made a mistake, agrees to a negotiated settlement, and changes its practices moving forward.
In June 2012, the FTC filed what appeared to be another typical data security complaint against Wyndham Hotels for a rather egregious breach.[2] Wyndham allegedly failed to maintain basic security for personal consumer information stored on its computers. Among other things, it allegedly (a) didn’t use firewalls; (b) failed to properly install encryption software; (c) used outdated operating systems without security updates; and (d) used easy-to-guess user IDs and passwords for access to Wyndham’s property management systems.[3] Not surprisingly, its servers were hacked and personal consumer information was stolen on three separate occasions over the course of two years.[4] Wyndham took no action to fix their data security after each incident.[5] As a result, over 619,000 customer accounts were compromised, and credit cards were hit with over $10.6 million in fraudulent charges.[6]
What happened next wasn’t typical. Rather than negotiate a settlement, Wyndham Hotels decided to go to court. Its argument—which it made before Judge Esther Salas in the District of New Jersey—is highly problematic, both from policy and legal perspectives. Specifically, Wyndham argues that the FTC lacks jurisdiction to regulate data security altogether; this is the first time such an argument has been put forward since the FTC began regulating data security.[7]
Wyndham bases its argument on FDA v. Brown & Williamson Tobacco Corp., where the Supreme Court held the Food and Drug Administration (FDA) lacked jurisdiction to regulate cigarettes.[8] In Brown & Williamson, the FDA lost because prior to its attempt to regulate the sale of cigarettes to children, the FDA had historically stated that they lacked the authority under the Food, Drug, and Cosmetic Act (FDCA) to regulate tobacco products—in other words, the FDA changed their position.[9] The Brown & Williamson court looked closely at Congressional regulation of the tobacco industry and specifically discussed Congress’s consideration (and rejection) of bills to grant the FDA jurisdiction, as well as other laws beyond the FDCA which directly regulated aspects of the tobacco industry.[10] The court ultimately concluded that Congress didn’t intend to permit the FDA to regulate cigarettes, and denied the FDA deference in its decision to interpret the phrases “drugs”, “devices”, or “combination products” within the FDCA to cover tobacco and cigarettes.[11]
Wyndham argues that in passing Section 5 of the Federal Trade Commission Act,[12] Congress did not intend to delegate to the FTC the power to regulate what constitutes an unfair data security practice.[13] They list other laws which authorize other federal agencies to establish minimum data security standards in certain contexts and point to quotes from the 1990’s where the FTC suggested they did not have the authority to regulate data security. Wyndham essentially argues that this case is an application of Brown and Williamson.[14]
Contorting Brown and Williamson to deny the FTC the authority to regulate data security, as Wyndham would have the court do, would set a dangerous precedent. Wyndham points to various other Acts passed by Congress which it claims indicate that Congress did not intend for the FTC to regulate data security.[15] For example, it points to HIPAA,[16] which requires health care providers to maintain security standards for electronic health information, as well as COPPA,[17] which protects children’s online activity.[18] These data security laws are not comparable to the tobacco laws passed by Congress which the court found persuasive in Brown and Williamson.[19] These tobacco laws directly suggested Congress never intended to delegate authority to the FDA because they regulated the entire industry. Here, Wyndham could not point to a single act of Congress intended to regulate data security generally; they could only find acts relating to specific instances, such as health care or children.
Wyndham also makes the dubious claim that the FTC previously stated that it lacked authority to regulate data security. Unlike in Brown and Williamson, where the FDA clearly stated that it did not have jurisdiction over tobacco products, in this case the FTC never stated that unfair or deceptive data security practices didn’t fall under the FTC Act.[20] Wyndham’s brief relies on several out-of-context quotes which suggest that the FTC stated that they lacked authority over certain information practice policies; in fact, the FTC reports which Wyndham cites to actually state the exact opposite—that these issues fall under the FTC’s “statutory mandate.”[21] Of course the full context of these reports is conveniently omitted from Wyndham’s brief.
Wyndham’s application of Brown and Williamson to this case is highly questionable, but the most troubling part of their argument is the policy implications if they somehow prevail.
There is no other regulator of data security practices besides the FTC. If the FTC is barred from regulating data security, there would be no watchdog agency forcing businesses to protect consumer data. That is why libertarian think tanks and business groups have filed amici in support of Wyndham, including the Chamber of Commerce,[22] the International Franchise Association,[23] and Techfreedom.[24] If the FTC cannot regulate this field, businesses will have free reign to implement whatever data security protocols they want, without fear of an agency to regulate their actions[25]. As a result, many businesses will choose not to invest in expensive software or technology to protect their customers’ private data from hackers.
Private lawsuits cannot fully protect consumers. Many consumers aren’t actually harmed, making class action commonality nearly impossible to satisfy. Additionally, individual lawsuits would be impractical because litigation costs would far outweigh any one individual’s harm. Only a watchdog agency with authority to investigate and file civil complaints can effectively protect consumer data, and the FTC is the only game in town. Without the FTC regulating the field, there will be nobody out there to fight for consumers.
[1] List of FTC Data Security Case Highlights, Fed. Trade Commission, http://www.business.ftc.gov/legal-resources/29/35 (last visited Nov. 13, 2013).
[2] Id. (referencing the Wyndham matter).
[3] See First Amended Complaint at ¶ 24, F.T.C. v. Wyndham Worldwide Corp., No. CV 12-1365-PHX-PGR (D. Ariz. Aug. 9, 2012), 2012 WL 3281910.
[4] Id. at ¶ 25.
[5] Id.
[6] Id. at ¶ 40.
[7] Motion to Dismiss by Defendant Wyndham Hotels & Resorts LLC, F.T.C. v. Wyndham Worldwide Corp., No. 2:13-cv-01887-ES-SCM (D.N.J. Apr. 26, 2013), 2013 WL 3475984.
[8] Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).
[9] Id. at 156.
[10] Id. at 159–60.
[11] Id. at 175.
[12] 15 U.S.C. § 45 (2006).
[13] Motion to Dismiss by Defendant Wyndham Hotels & Resorts LLC, supra note 7, at 4.
[14] Id. at 14.
[15] Id. at 9.
[16] Health Insurance Portability & Accountability Act of 1996, Pub. L. No. 104–91, 110 Stat. 1936.
[17] Omnibus Consolidated And Emergency Supplemental Appropriations Act of 1999, Pub. L. No. 105–277, 112 Stat. 2681.
[18] Id.
[19] Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 122 (2000) (listing six Acts of Congress intended to regulate tobacco products, including health warnings, advertising restrictions, and distribution regulations).
[20] 15 U.S.C. § 45 (2006).
[21] See, e.g., Consumer Privacy on the World Wide Web, Hearing before H. Comm. on Commerce, Subcomm. on Telecomm., 105th Cong., at n.23. (July 21, 1998), available at http://www.ftc.gov/os/1998/07/privac98.htm.
[22] Proposed Brief of Amici Curiae Chamber of Commerce of the U.S., Retail Litig. Ctr., Am. Hotel & Lodging Ass’n, and Nat’l Fed. of Indep. Bus. in Support of Defendants, F.T.C. v. Wyndham Worldwide Corp., No. 2:13-cv-01887-ES-SCM (D.N.J. May 3, 2013), 2013 WL 3739706.
[23] Brief Amicus Curiae of the Int’l Franchise Ass’n in Support of Defendant Wyndham Hotels & Resorts’ Motion to Dismiss, F.T.C v. Wyndham Worldwide Corp., No. 13-cv-1887 (ES) (SCM) (D.N.J. May 3, 2013), 2013 WL 3739748.
[24] Techfreedom, Int’l Ctr. for Law and Econ. & Consumer Prot. Scholars’ Brief in Support of Their Motion for Leave to File Brief Amici Curiae in Support of the Wyndham Defendants’ Motions to Dismiss, F.T.C. v. Wyndham Worldwide Corp., No. 2:13-cv-01887(ES)(SCM) (D.N.J. May 3, 2013), 2013 WL 4510055.
[25] Some may argue that consumers are free to abandon companies that do not protect their data; therefore, the free market would provide an adequate incentive to companies to take necessary steps to protect consumer information and FTC regulation is not necessary. However, this argument fails for several reasons. First, there no information available to consumers when they make their purchasing decisions, and consumers cannot make ex ante decisions as to which companies will adequately protect their personal information. Second, because of fraud insurance included with most credit and debit cards, consumers don’t actually lose money when their credit card information is stolen; therefore, they have little incentive to alter purchasing decisions based on data security—instead, all consumers are forced to pay higher credit card fees to cover the additional costs. Finally, if all companies in a given market or industry fail to implement reasonable data security, consumers would have no choice but to accept whatever insufficient security is provided.
N.Y.U. Review of Law and Social Change 