wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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Amendment’s warrant and probable-cause requirements were imprac
tical for school searches.38 Therefore, the Court proceeded to deter
mine whether the drug-testing policy was “reasonable” under the
Fourth Amendment, a determination that required balancing the pri
vacy interest against the school’s interest in testing.
In analyzing the privacy interest, the Court viewed it in terms of ex
posure and disclosure. For example, the Court focused on the fact that
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the drug testing occurred through obtaining urine samples. The Court
noted that “[u]rination is an excretory function traditionally shielded
by great privacy.” Thus the Court focused on the way that urination
was monitored: “[T]he degree of intrusion on one’s privacy caused by
collecting a urine sample depends upon the manner in which produc
tion of the urine sample is monitored.” The Court concluded that the
disruption was “negligible” because school officials waited outside
closed restroom stalls and merely listened to detect normal sounds of
urination. In addition to focusing on exposure, the Court also exam
ined the potential for disclosure. The Court concluded that this dis
ruption was also minor because the policy required that the test results
be kept in confidential files and “released to school personnel only on a
‘need to know’ basis.”39
The Court analyzed these problems from the standpoint of the indi
vidual, focusing on the specific harms to the students. In contrast, in
analyzing the competing interest, the Court described it in broader so
cial terms, defining it as addressing the “drug abuse problem among
our Nation’s youth.” The Court stated, “[T]he nationwide drug epi
demic makes the war against drugs a pressing concern in every
school.”40 W hen the privacy interests of a few individuals are balanced
against redressing “the nationwide drug epidemic,” the scales readily
tip toward the government’s interest.
The Court improperly characterized the privacy interests as indi
vidual ones and missed other problems caused by drug testing. Drug
testing certainly involves exposure and disclosure, but it also involves
distortion. One court has observed, “[U]rine testing—unaided by
blood or breath testing—is a blunt instrument. A single positive urine
test is silent as to when and how much of the drug was taken, the pat
tern of the . . . drug use, or whether the [person] was intoxicated when
the test was given.”41 Drug testing can also lead to erroneous results,
which, even if later corrected, can still cause fear and anxiety in the in
terim. Furthermore, drug testing is a form of interrogation by physical
means, forcing people to undergo an analysis of their urine to detect
drugs. Drug-testing programs, such as the one in Earls, alter the nature
of the communities in which they are implemented. They create a re
gime of suspicion and distrust, and they force students to justify them
selves to take advantage of beneficial educational opportunities. Drug
testing thus shapes the environment in which students learn. It does
Privacy: A New Understanding
not merely probe for drug use or cause embarrassment but also teaches
and instructs. Justice Sandra Day O ’Connor observed, dissenting in
Vemmia School District v. Acton, where the Court upheld a drug-testing
program for student athletes:
prjntrusive, blanket searches of schoolchildren, most of whom are
innocent, for evidence of serious wrongdoing are not part of any
traditional school function of which I am aware. Indeed, many
schools, like many parents, prefer to trust their children unless
given reason to do otherwise. As James Acton’s father said on the
witness stand, “[suspicionless testing] sends a message to children
that are trying to be responsible citizens. .. that they have to
prove that they’re innocent. . . , and I think that kind of sets a bad
tone for citizenship.”42
T he Court’s balancing in Earls thus overlooked the most important
privacy harms caused by the drug-testing policy—those that implicated
social structure.
Moreover, the Court neglected to address the problem of insecurity.
The students contended that the school was careless about keeping the
test results secure. Files were not carefully secured and were left where
they could be accessed by unauthorized people, such as other stu
dents.43 T he Court dismissed this contention because there were no al
legations of any improper disclosures.44 It failed to recogniz^ that dis
closure differs from insecurity because the harm caused by disclosure is
the actual leakage of information; insecurity is the injury of being
placed in a weakened state, of being made more vulnerable to a range
of future harms.
191
Government Data Mining
Increasingly, the U.S. government is engaging in data mining. Data
mining involves excavating repositories of personal data to glean
nuggets of new information. In many instances, combining different
pieces of information can yield new insights into an individual’s per
sonality and behavior. Data mining often consists of analyzing personal
information for patterns of suspicious behavior. In 2002, for example,
the media revealed that the Department of Defense was developing a
192
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Amendment’s warrant and probable-cause requirements were imprac

tical for school searches.38 Therefore, the Court proceeded to deter

mine whether the drug-testing policy was “reasonable” under the

Fourth Amendment, a determination that required balancing the pri

vacy interest against the school’s interest in testing.

In analyzing the privacy interest, the Court viewed it in terms of ex

posure and disclosure. For example, the Court focused on the fact that

190

P

r

i v a

c y : A N

e w U

n

d

e r

s t

a

n

d

i n

g

the drug testing occurred through obtaining urine samples. The Court

noted that “[u]rination is an excretory function traditionally shielded

by great privacy.” Thus the Court focused on the way that urination

was monitored: “[T]he degree of intrusion on one’s privacy caused by

collecting a urine sample depends upon the manner in which produc

tion of the urine sample is monitored.” The Court concluded that the

disruption was “negligible” because school officials waited outside

closed restroom stalls and merely listened to detect normal sounds of

urination. In addition to focusing on exposure, the Court also exam

ined the potential for disclosure. The Court concluded that this dis

ruption was also minor because the policy required that the test results

be kept in confidential files and “released to school personnel only on a

‘need to know’ basis.”39

The Court analyzed these problems from the standpoint of the indi

vidual, focusing on the specific harms to the students. In contrast, in

analyzing the competing interest, the Court described it in broader so

cial terms, defining it as addressing the “drug abuse problem among

our Nation’s youth.” The Court stated, “[T]he nationwide drug epi

demic makes the war against drugs a pressing concern in every

school.”40 W hen the privacy interests of a few individuals are balanced

against redressing “the nationwide drug epidemic,” the scales readily

tip toward the government’s interest.

The Court improperly characterized the privacy interests as indi

vidual ones and missed other problems caused by drug testing. Drug

testing certainly involves exposure and disclosure, but it also involves

distortion. One court has observed, “[U]rine testing—unaided by

blood or breath testing—is a blunt instrument. A single positive urine

test is silent as to when and how much of the drug was taken, the pat

tern of the . . . drug use, or whether the [person] was intoxicated when

the test was given.”41 Drug testing can also lead to erroneous results,

which, even if later corrected, can still cause fear and anxiety in the in

terim. Furthermore, drug testing is a form of interrogation by physical

means, forcing people to undergo an analysis of their urine to detect

drugs. Drug-testing programs, such as the one in Earls, alter the nature

of the communities in which they are implemented. They create a re

gime of suspicion and distrust, and they force students to justify them

selves to take advantage of beneficial educational opportunities. Drug

testing thus shapes the environment in which students learn. It does

Privacy: A New Understanding

not merely probe for drug use or cause embarrassment but also teaches

and instructs. Justice Sandra Day O ’Connor observed, dissenting in

Vemmia School District v. Acton, where the Court upheld a drug-testing

program for student athletes:

prjntrusive, blanket searches of schoolchildren, most of whom are

innocent, for evidence of serious wrongdoing are not part of any

traditional school function of which I am aware. Indeed, many

schools, like many parents, prefer to trust their children unless

given reason to do otherwise. As James Acton’s father said on the

witness stand, “[suspicionless testing] sends a message to children

that are trying to be responsible citizens. .. that they have to

prove that they’re innocent. . . , and I think that kind of sets a bad

tone for citizenship.”42

T he Court’s balancing in Earls thus overlooked the most important

privacy harms caused by the drug-testing policy—those that implicated

social structure.

Moreover, the Court neglected to address the problem of insecurity.

The students contended that the school was careless about keeping the

test results secure. Files were not carefully secured and were left where

they could be accessed by unauthorized people, such as other stu

dents.43 T he Court dismissed this contention because there were no al

legations of any improper disclosures.44 It failed to recogniz^ that dis

closure differs from insecurity because the harm caused by disclosure is

the actual leakage of information; insecurity is the injury of being

placed in a weakened state, of being made more vulnerable to a range

of future harms.

191

Government Data Mining

Increasingly, the U.S. government is engaging in data mining. Data

mining involves excavating repositories of personal data to glean

nuggets of new information. In many instances, combining different

pieces of information can yield new insights into an individual’s per

sonality and behavior. Data mining often consists of analyzing personal

information for patterns of suspicious behavior. In 2002, for example,

the media revealed that the Department of Defense was developing a

192

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r

i v a