News and information useful to Cleveland-Marshall College of Law students, faculty and staff.

Archive for the ‘National’

Will the Insular Cases Be the Next to Be Overturned by Supreme Court?

The Insular Cases were a series of Supreme Court decisions that decreed limits to the rights of U.S. citizens in territories based largely on their race.  The cases arose from the U.S. acquisition of new territories from Spain after the Spanish-American War and the subsequent demands of residents of those places for equal rights.  The Supreme Court held that full constitutional protection of rights does not automatically extend to all places under American control only those places fully incorporated (that is deemed on the path to statehood by the U.S. government).

Currently the Supreme Court will consider whether to hear a case on this issue in Fitisemanu v. United States. This case is brought by U.S. nationals from American Samoa who do not have full U.S. citizenship.  American Samoans are U.S. nationals but not citizens, preventing them from voting in state and federal elections even when they become residents of a state. Natives of other territories are U.S. citizens who can exercise all constitutional rights provided they first move to a state.

This comes on the heels of the case decided by the Court in May of this year: United States v. Vaello-Madero in which both Justices Gorsuch and Sotomayor opined against the main ruling of the Insular Cases.

Now the American Bar Association’s (ABA) House of Delegates has passed Resolution 404 calling for equal rights for the 3.6 million residents of U.S. territories and rejecting the Insular Cases.

So now legal watchers, researchers, attorneys etc. have to wait and see what will happen next regarding the Insular Cases and rights for people in the U.S. territories.

Recent HHS, Labor and Treasury Departments Guidance on ACA Birth Control Coverage

photo of package of birth control pillsRecently, the U.S. Department of Health and Human Services (HHS), Department of Labor (DoL), and Department of the Treasury jointly issued guidance clarifying “protections for birth control coverage under the Affordable Care Act (ACA, Pub. L. 111-148).”  Announcing the guidance, HHS Secretary Xavier Becerra stated “under the ACA, you have the right to free birth control – no matter what state you live in,” and Labor Secretary Martin Walsh remarked “today’s guidance makes clear that the law requires group health plans and health insurance issuers to provide contraceptive coverage – including emergency contraception – at no cost to participants.”  The guidance is written as a series of FAQs on coverage of preventive services “to help people understand the law and promote compliance.”  Coverage of preventive services is specifically referenced in ACA Section 2713 (codified at 42 U.S.C. 300gg-13) and implementing regulations (ie, 26 C.F.R. 54.9815-2713, 29 C.F.R. 2590.715-2713, and 45 C.F.R. 147.130).  Beyond the HHS website, the new joint guidance is also available as Health Part 54 on the DoL Resource Center FAQs page.

This Just in: Breached! Why Data Security Law Fails and How to Improve It

Our lives involve a lot of access to digital information and with that also data breaches. Despite the passage of many data security laws, data breaches are increasing at a record pace. In Breached! Daniel Solove and Woodrow Hartzog, argue that we focus too much on the breach itself. Using many stories about data breaches, Solove and Hartzog show how major breaches could have been prevented or mitigated through a different approach to data security rules. Current law is counterproductive they argue because it penalizes organizations that have suffered a breach but doesn’t address the many other actors that contribute to the problem: software companies that create vulnerable software, device companies that make insecure devices, government policymakers who write regulations that increase security risks, organizations that train people to engage in risky behaviors, and more.

Both Solove and Hartzog are experts in privacy and data security.  Solove has authored a number of books and textbooks on privacy and is the John Marshall Harlan Research Professor of Law at George Washington University School of Law.  He also is the founder of TeachPrivacy, a company that provides privacy and data security training. Hartzog is a Professor of Law and Computer Science at Northeastern University School of Law and the College of Computer and Information Science. His research on privacy, media, and robotics has been published in numerous law reviews and peer-reviewed publications.  He has also been published in many popular and news publications.

For additional information on cybersecurity, check out C|M|LAW’s CENTER FOR CYBERSECURITY AND PRIVACY PROTECTION.

Recent FTC Commitment on Protecting Consumers’ Health Privacy

FTC SealPart of the 7/8/2022 Executive Order 14076 – Protecting Access to Reproductive Healthcare Services – required the U.S. Federal Trade Commission (FTC) to consider actions “to protect consumers’ privacy when seeking information about the provision of reproductive healthcare services.”  On 7/11/2022, Kristin Cohen, Acting Associate Director of the FTC Division of Privacy & Identity Protection, posted “Location, Health, and other Sensitive Information: FTC Committed to Fully Enforcing the Law Against Illegal Use and Sharing of Highly Sensitive Data” on the FTC Business Blog.  Cohen discussed the capability of connected devices “directly observing or deriving sensitive information about users,” particularly “a person’s precise location and information about their health.”  She also highlighted “information related to personal reproductive matters” and noted several FTC actions against companies that misuse consumers’ data, such as the 1/13/2021 FTC settlement with Flo Health (which had shared with third parties sensitive health information about women).  Perhaps most revealing, Cohen stated “We will vigorously enforce the law if we uncover illegal conduct that exploits Americans’ location, health, or other sensitive data.  The FTC’s past enforcement actions provide a roadmap for firms seeking to comply with the law.”  Cohen’s post ends with a link to the FTC Business Guidance – Privacy and Security page, which includes information on Health Privacy.

Recent HHS Actions on Access to Reproductive Healthcare Services

DHHS logoFollowing the 6/24/2022 Dobbs v. Jackson Women’s Health Organization U.S. Supreme Court decision, the U.S. Department of Health and Human Services (HHS) initiated a 5-step action plan that prioritizes “increasing access to medication abortion; protecting patients and providers from discrimination and ensuring privacy for patients and providers; protecting emergency abortion care; ensuring providers have family planning training and resources; and strengthening family planning care including emergency contraception.”  HHS also launched the public awareness website, which includes information on rights to birth control, medication, abortion services, and other preventive health services.  Following the 7/8/2022 Executive Order 14076 – Protecting Access to Reproductive Healthcare Services, via the Centers for Medicare & Medicaid Services, HHS issued clarifying guidance on the Emergency Medical Treatment and Active Labor Act (EMTALA), reaffirming “that it protects providers when offering legally-mandated, life- or health-saving abortion services in emergency situations” and that EMTALA “preempts state law restricting access to abortion in emergency situations.”  HHS also issued guidance to U.S. retail pharmacies reminding them of their “obligations under federal civil rights laws to ensure access to comprehensive reproductive health care services.”