On November 7, 2011, members of the ISP led by ISP Fellows in the Program for Reproductive Justice, Cilla Smith and Jennifer Keighley, filed an amicus brief with the Second Circuit in The Evergreen Association v. City of New York.  The group urged the court to find that a New York ordinance mandating disclosure of lack of medical expertise at Crisis Pregnancy Centers (CPCs, aka Pregnancy Service Centers (PSCs)) is constitutional.

The brief argues that

The First Amendment does not prevent New York City from imposing the Ordinance‘s narrow factual disclosure requirements to prevent fraud and protect the health of city residents, all without burdening any constitutionally-protected speech, merely because these facilities are able to bankroll the provision of services to unsuspecting consumers. The Ordinance, which seeks solely to inform women about the non-medical and limited nature of the services provided by PSCs, is a reasonable factual disclosure law designed to prevent consumer deception. Any ruling to the contrary would undermine the purpose of the commercial speech doctrine, which is to protect consumers from inaccurate speech in the marketplace.
Second, even if the commercial speech doctrine did not apply, this Court should nonetheless uphold the Ordinance under a lower level of scrutiny because these factual disclosure requirements target only fraudulent or illegal speech that is not protected by the First Amendment.

Amici scholars associated with the ISP are: Jack Balkin, Anjali Dalal, Margot Kaminski.

More here and here.

The court’s full order here.

MFIA and EFF’s amicus brief here.

On October 3, 2011, prominent privacy scholars and members of the ISP, led by ISP Senior Fellow Priscilla “Cilla” Smith, filed an amicus brief with the Supreme Court in United States v. Jones.  The group urged the Court to find that GPS tracking in that case requires a warrant under the Fourth Amendment.

The brief argues that:

The Fourth Amendment’s warrant requirement applies to a surveillance technology used in public if the technology: 1) extends beyond human capabilities for surveillance, increasing the potential for surveillance abuse; and 2) collects information the public expects to be private in a way that is not generally used and/or accepted by the general public.
In this case, first, surveillance with GPS is conducted not by people but by advanced tracking devices communicating with satellites in orbit and computers on the ground. As a technological substitute for traditional visual tracking, it substantially expands human capabilities far beyond “naked-eye” surveillance and vastly increases the potential for law enforcement abuse of GPS technology to conduct prolonged surveillance both against individuals as well as groups of individuals.
Second, prolonged surveillance using GPS technology intrudes on reasonable expectations of privacy under this Court’s precedents and according to tests suggested by scholarship. It provides the government with detailed information about an individual’s movements, associations, contacts and activities, allowing the storage, analysis, and comparison of that data with data gathered from others, all with minimal involvement of law enforcement officers. As the panel correctly held, the type and scope of information collected enables government to monitor people’s political associations, their medical treatment, and their amorous liaisons, in a way that invades their privacy and chills expression of other fundamental rights. It allows surveillance of citizens on a scale that this country has never seen and in a way that the general public has rejected.

Amici scholars associated with the ISP are: Jack Balkin, Margot Kaminski, Nabiha Syed (currently First Amendment Fellow at the New York Times), David Thaw, and Albert Wong.

Amici scholars on this brief include: Danielle Citron, Professor of Law at the University of Maryland School of Law; Susan Freiwald, Professor of Law at the University of San Francisco School of Law; Stephen Henderson, Professor of Law at the University of Oklahoma College of Law; Chris Hoofnagle, Director of the Berkeley Center for Law & Technology’s information privacy programs; Renee Hutchins, Associate Professor of Law at University of Maryland School of Law; Helen Nissenbaum, Professor of Media, Culture, Communication & Computer Science at New York University; Paul Ohm, Associate Professor of Law at the University of Colorado Law School; Christopher Slobogin, Chair in Law, Professor of Psychiatry and Director of the Criminal Justice Program at Vanderbilt Law School; Robert Ellis Smith, publisher of PRIVACY JOURNAL since 1974; Daniel Solove, Professor of Law at George Washington University Law School; and William Staples, Professor and Chair of Sociology at the University of Kansas.