Legal Report July 2005

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U.S. JUDICIAL DECISIONS

Background screening. The Montana Supreme Court has ruled that an airport authority did not violate a prospective security officer’s privacy rights when it conducted two background checks on him and then terminated him for a 30-year-old arrest.

In 1998, Jack Barr applied for a part-time security officer position with the Great Falls International Airport Authority. During an interview for the job, Barr consented to a criminal background check. The check covered the previous ten years and was performed by a background screening company through the federal Criminal Justice Information Network (CJIN). The check did not reveal any arrests. Barr was hired for the position and began his six-month probationary period with the authority.

Two months later, John Vanni, another airport security officer, contacted the screening company without permission from anyone in management at the airport authority and requested another criminal background check on Barr, this time with no time restriction. The check turned up a 1968 arrest for failure to pay child support. Vanni reported these findings to Cynthia Schultz, the airport manager. Shultz told Vanni that the matter was not his concern.

The authority fired Barr before his six-month probationary period ended. The authority did not give a reason for the termination. Barr filed a lawsuit against the authority claiming that it had violated his privacy by conducting a second background check and that it was negligent in allowing Vanni to request the background check.

The authority requested summary judgment—a hearing based on the facts of a case without a trial—arguing that the data stored on the CJIN was public information, so it could not have violated Barr’s rights by accessing it. The District Court for the Eighth Judicial District granted the summary judgment. Barr appealed the decision.

The Montana Supreme Court upheld the district court’s decision. The court ruled that Barr knew that the record of his 1968 arrest was public information so that when he consented to a criminal background check he could no longer claim any rights to privacy even if the record was not discovered until the second check.

The Supreme Court also noted that the facts of the case, specifically that Barr was applying to be a security officer, were pertinent to the decision. In its opinion of the case, the court wrote that “Barr was a security officer entrusted with helping to ensure the safety of the traveling public, and the record in question is specifically designated as public information by statute.” Considering these facts, the court ruled that it was unwilling to recognize Barr’s claims. (Barr v. Great Falls International Airport Authority, Montana Supreme Court, No. 03-536, 2005)

Workers’ compensation. The Nebraska Supreme Court has ruled that an employee who was assaulted in a parking lot shared by her employer and other businesses can recover workers’ compensation benefits.

Stephanie Zoucha was employed by the Touch of Class Lounge as a bartender and waitress. On June 4, 2001, Zoucha was the only bartender on duty at the lounge. During the evening, she took back a drink from an intoxicated patron, William Nunez, and told him that she would not serve him any more alcohol that evening. Zoucha left the lounge, after cleaning it and locking the doors, at around 2:15 a.m. on June 5. She went to her car in the adjacent parking lot. While Zoucha unlocked the door to place her bags inside the car, she was struck from behind with a tire iron. She suffered an open skull fracture and other severe injuries resulting in cognitive impairment such as difficulty with speech and thought formation. However, Zoucha was able to tell police that her attacker resembled Nunez. Police later found Zoucha’s blood on a jacket belonging to Nunez. He was convicted of the assault on Zoucha and sentenced to prison.

Zoucha filed a workers’ compensation claim, seeking disability benefits and medical expenses. The judge in the workers’ compensation court denied Zoucha’s claim, ruling that she had not been on the premises when the attack occurred but had been in a parking lot controlled by the building owner, not the lounge owner. Because the parking lot was used by all businesses in the building, it was not part of her employer’s business, the court said. Thus, the attack occurred outside Zoucha’s workplace and did not occur in the course of her employment.

Zoucha appealed the decision to the Nebraska Appeals Court. The court upheld the ruling. Zoucha then appealed to the Nebraska Supreme Court.

The high court reversed the lower court’s decision. Though the parking lot was not directly owned by the employer, it was used by the employees of the lounge and was, therefore, considered an extension of lounge’s property. To rule otherwise would be “impractical and illogical,” according to the court.

Further, the court ruled that even if the parking lot had not been considered an extension of the workplace, the circumstances surrounding Zoucha’s injury would have triggered workers’ compensation rights. According to the court, an employee may recover for injuries sustained off of the employer’s premises when there is a distinct causal connection between an employer-created condition and the occurrence of the injury. In this case, the court ruled that the motive in the crime arose directly from Zoucha’s duties at the lounge. (Zoucha v. Touch of Class Lounge, Supreme Court of Nebraska, No. S-03-971, 2005)

U.S. CONGRESSIONAL LEGISLATION

Information security. A bill (S. 500) introduced by Sen. Bill Nelson (D-FL) would regulate information brokers and would allow individuals to bring civil lawsuits against companies that fail to protect consumer data. The introduction of the bill was prompted by information security incidents at data brokering firms, such as ChoicePoint, in which personal information was compromised.

Under the measure, the government would issue broker regulations setting standards on data accuracy, confidentiality, user authentication and tracking, the prevention and detection of unauthorized activity, and mitigation of harm to individuals.

S. 500 has no cosponsors and has been referred to the Senate Commerce, Science, and Transportation Committee. A companion bill (H.R. 1080) has been introduced in the House by Rep. Edward Markey (D-MA). The House version has 13 cosponsors and has been referred to the House Energy Committee’s Subcommittee on Commerce, Trade, and Consumer Protection.

First responders. A bill (H.R. 1544) that would change the way that first-responder funds are allocated to state and local governments has been approved by the House Homeland Security Committee and must now be taken up by the full House of Representatives. The bill would require that the government dole out first-responder funds based on risk.

The current funding scheme follows an equal-distribution approach, with all jurisdictions receiving funding even if those funds are not needed. The new bill is designed to provide more funding for metropolitan areas that face greater risks of terrorist attack and less for rural areas that do not have to address such challenges.

The bill passed the House by a 409-10 vote and has been referred to the Senate Homeland Security Committee.

Surveillance powers. The House Judiciary Committee has held several hearings on the expanded police powers included in the Patriot Act, which will be expiring at the end of this year. Issues such as the importance of reauthorizing the authority granting police access to voice mail, e-mail, ISP records, and public library records were discussed.

Government officials testified that the powers should be maintained to help law enforcement fight terrorists. For example, Robert Mueller, director of the FBI, testified that the expanded surveillance powers helped the government catch the head of an Islamic extremist group who was trying to defraud brokerage firms. In another case, according to Mueller, several Pakistani citizens were deported after the FBI used surveillance to uncover their drug operation.

Those opposing the renewal of the Patriot Act provisions testified that in no case did use of these police powers lead directly to the arrest or prosecution of a terrorist. Others argued that regardless of its successes, the existence of the program is dangerous to civil liberties.

According to Sen. Patrick Leahy (DVT), the extent of the program, and how much it is used or misused, is impossible to judge because all of the proceedings are secret, leaving lawmakers with only the Bush Administration’s version of events. Leahy also commented that the unchecked growth of secret surveillance powers could result in unprecedented abuse of power.

Two bills have emerged from the hearings. The first (S. 318), introduced by Sen. Russell Feingold (D-WI), would amend and make permanent the expiring computer trespass provision of the Patriot Act. Under the provision, a person who is a victim of computer trespass may invite police to monitor his or her computer system to catch the trespasser. In theory, this measure works in much the same way as a person inviting the police to tap their phone to catch a kidnapper. Under the expiring provision, police may help a person if there is a valid investigation to conduct, the monitoring is relevant to that investigation, and the monitoring will not involve the collection of communications from others not involved in the case. Under S. 318, the circumstances under which monitoring would be permitted would be more narrowly drawn. The police would only be able to monitor a computer system if the trespasser’s activities threatened the integrity or the operation of the system.

The bill’s future is unclear. It has no cosponsors but it has been referred to the Senate Judiciary Committee, where Feingold serves as ranking Democratic Senator.

Another bill (S. 737), introduced by Sen. Larry Craig (R-ID), would limit the use of the surveillance powers more so than is the case currently in the Patriot Act. For example, the Patriot Act allows the use of delayed warrants—where the target’s home, for example, can be searched but the target is not informed until later. Opponents have called this “sneak and peek” and have pointed out that this provision allows police to use this power in any case—not just those related to terrorism suspects.

To obtain a delayed warrant, law enforcement officials must currently provide evidence that formally executing the warrant will lead to an “adverse result” in the investigation. Under S. 737, police would have to prove that executing the warrant would endanger the life or physical safety of a witness, result in flight from prosecution, result in the destruction of or tampering with evidence, or result in the intimidation of potential witnesses.

S. 737 has some chance of moving forward. It has 11 cosponsors, and Craig sits on the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Property Rights.

Cargo security. A bill (H.R. 785) introduced by Rep. Cliff Stearns (R-FL) would require that the government coordinate cargo-theft-tracking efforts. The bill would require that the government issue regulations permitting carriers, facility managers, or cargo owners to report cargo theft directly to the Attorney General in addition to local authorities. Information such as the shipment’s origin and destination, the commodities stolen, and the time and location of the theft would be gathered to create a database that could be integrated with noncriminal justice and intelligence data.

S. 785 would require that federal agencies with regulatory or law enforcement responsibilities over cargo theft ensure that the data be collected and that it be easily retrievable. The bill would also require that the federal government establish an outreach program to work with state and local law enforcement officials in reporting cargo theft data and that it disseminate that information to appropriate law enforcement officials.

S. 785 has two cosponsors and has been referred to the Senate Judiciary Committee.

Seaport security. A bill (S. 378) introduced by Sen. Joseph Biden (D-DE) that would create several new seaport security crimes has been approved by the Senate Judiciary Committee and has been accepted for consideration in the Senate.

The bill would make it a crime to enter a secure area of a seaport under false pretenses, forcibly interfere with an authorized law enforcement action, provide false information during a boarding, or willfully disable a passenger vehicle.

The measure would also make it illegal to knowingly and intentionally place a device aboard a vessel that is likely to damage or destroy the vessel; discharge or release any substance that would endanger human welfare or the marine environment; or transport any explosive, biological, chemical, or nuclear material to be used to commit terrorism.

Under S. 378, it would be illegal to knowingly transport a terrorist or terror suspect aboard a vessel or willfully cause destruction of a vessel or maritime facility. The bill would also increase penalties for stowaways on vessels or aircraft.

U.S. STATE LEGISLATION

Arizona

Nuclear facilities. A measure (former S.B. 1214) recently signed into law by Arizona Governor Janet Napolitano makes it illegal for anyone to enter a commercial nuclear-generating station or its grounds without authorization.

Under the new law, the armed security guards assigned to the facility have the authority to use physical force against anyone illegally on the grounds who, the guard believes, is committing or attempting to commit a crime. The law justifies the use of physical force, up to and including deadly force, if the guard believes it is necessary to prevent any one of a number of crimes including murder, assault, kidnapping, arson, armed robbery, or terrorism.

Under the law, the guards are granted immunity from civil liability. Also, guards may detain suspects at the facility while waiting for law enforcement to arrive. Guards are granted immunity from false arrest, false or unlawful imprisonment, and wrongful-detention lawsuits.

Texas

School security. A bill (S.B. 152) that would require school districts in Texas to implement bullying-prevention programs has been approved by the state’s Senate and has been taken up by the

House of Representatives. The bill would require prevention programs to provide education about physical and verbal aggression, sexual harassment, and other forms of bullying. The programs would also be required to have a prevention program in place to combat bullying on school grounds and aboard school vehicles.

Washington

Training. A new state security officer training law takes effect July 1, 2005. The law increases to eight hours the amount of time in training that a security officer must have spent before beginning an assignment; that’s up from the four hours mandated by the previous law. Also required is an additional eight hours of follow-up training the first year. The law further requires that one hour of training be added each year until 2012 to help move toward the ultimate standard, effective that year. At that point, each new officer must have completed 23 hours of preassignment training and 15 hours of refresher training.

The Washington State Security Council, Inc., chaired by ASIS International member Jeff Kirby, was instrumental in getting this legislation approved. The council is the only nonprofit association of contract security companies in the state.