Excessive force as well as rationality is two common terms in the court system that is used to regard police power. Excessive force is referred to as the use of greater force than that which is sensible and practical police officers would use under a given situation. Rationality on the other hand is used to refer to a given standard that compares the suspect in question to that of a hypothetical one who exercises typical care, skills as well, as decision in behavior that the society requires of its members for the protection of their personal and others wellbeing. Although easily ignored they are greatly used as they have power in the court of law. This was used in the ruling for the Graham vs. Connor case since deadly force was used in this case. The police officer in this case failed to listen to the fact that Graham was diabetic and did not allow him to neither take the orange juice that was offered to him nor the diabetic decal that he had carried. Graham therefore got hurt with some bruises following the incidence with the police officer. The court therefore decided and encouraged other courts to determine the reasonableness measures of the case before making any judgment. This paper therefore will present and discuss some of these measures used to determine the reasonableness standards used in the Graham vs. Connor case and the relevance of this case.
This is one of the cases that are relevant as it clearly shows the unfairness of our justice system. The Supreme Court therefore in their decision of this case, argued out that the calculus of the rationality must exemplify the granting for the fact that the police officers are more than usual forced to make rush decision and judgments in situations that seem to be more uptight, indecisive as well as quickly evolving (Lippman 2007). Thus they make rush decision on the amount of force that they are supposed to use in that particular situation. This is only to mean that the seriousness of the crime can cost a police officer to make an irrational decision which may result to an improper calculation. Thus the final judgment is determined on the assumption that in cases when the judgment is not carefully rationalized, Graham vs. Connor conveys the broad structure for measuring the extent of force that is legal as per the fourth amendment.
A balancing test is thus put in place when the courts must pay notice to the facts and situations of the case integrating the seriousness of the crime committed. To agree on whether the suspect is of any threat to the safety of the people or that of the police officer, hence the officer’s actual intention does not determine the extent of the force used excessively. Another test should examine whether the suspect is resisting the arrest or whether he is attempting to avoid the arrest (Lippman 2007). Thus the police officer has to make the final judgment and decide on the action to take as per the current situation and not anyone not understanding the conditions should try to make that same judgment. However, though the decisions in this case were those of justice as they help to endorse the fourth amendment’s rights, it is clear that they do not address the issue of the police officer profiling.
References
Lippman, M. R. (2007). Contemporary criminal law: Concepts, cases, and controversies. Thousand Oaks, Calif: Sage Publications.
The SRA of 1984 represented the sentencing law and practice of the United States. The purpose of the Act describes the congressional purposes of sentencing. The Act establishes the practices by the Federal criminal justice and the sentencing policies. It also aimed at providing certainty and fairness for the purposes of sentencing, advancement of human behavior as well as avoiding disparities in sentencing amongst defendants with similar acts of crime (United States Sentencing Commission, 2006).
Q2
Before SRA judges had the discretion of tailoring sentences to the defendants in order to give the offender a chance to rehabilitate. With a lot of scrutiny in the rehabilitation programs, just desserts were brought up meaning that people should get what they deserve. With the SRA in 1984, the sentencing guidelines ensured that harmony was created to similar crimes rather than tailoring them for the purposes of the rehabilitation programs. This drove away from the notion that prison is a channel of criminal rehabilitation (United States Sentencing Commission, 2006).
Q3
The USSC is an independent commission formed to by the SRA. It was formed to create criminal sentencing policies and guidelines which can provide fairness and certainty in sentencing. The set guidelines define sentences that the judges use and enable them to sentence criminals fairly for similar crimes committed. It was a measure meant to eliminate unfairness and unwarranted disparities in sentencing for defendants who were found guilty (United States Sentencing Commission, 2006).
Q4
There are many numerous roles that a forensic psychologist can play in sentencing. There are psychological assessment and evaluation that assists the prosecution and the defense in criminal cases. A forensic psychologist can also act an expert witness, evaluate the competency to stand trial as well as risk and violence assessment. These roles can affect sentencing due to the evaluation carried out and the expertise exercised in the most reasonable sentence for the defendant (United States Sentencing Commission, 2006).
Reference
United States Sentencing Commission. (2006). United States Sentencing Commission guidelines manual: Supplement to Appendix C. Washington, D.C: The Commission.
The key aspect of the Fourth Amendment is based on protecting the citizens against unreasonable search and seizures. The main point is based on protecting the rights to privacy and allowing citizens to enjoy the freedom against the governmental intrusions (Galiano, 2011). In general, the Fourth Amendment focuses on the government activities, the probable cause for search and seizure and how to address the violation of the Fourth Amendment.
The Fourth Amendment specifically protects the physical apprehension and law enforcement officers should follow the standard of reasonableness in conducting searches in houses, business, homes and other private areas. The Fourth Amendment ensures that individuals are prevented from unlawful seizure (Galiano, 2011). The important requirement in searches and seizures is reasonableness and it is used as the ultimate measure of search. The court is responsible in balancing the intrusion on right and privacy and the justification in search and seizure.
A police officer may perform a pat down in situation where a person is bringing a domestic disturbance in public. In this case, the reason for pat down is valid in that the police should find out the root cause of disturbance and whether there is a weapon and in the process, he or she will prevent harm which the person may cause to the public (Galiano, 2011). In addition, a police office may pat down in situation where an individual is loitering towards a bank. In this suspicious circumstance, a police office may want to know the reason as to why the person is loitering around as this indicates that the person may commit a crime in the bank (Galiano, 2011). Both situations are valid since the purpose of scrutinizing is to maintain security.
Reference
Galiano, D. (2011). The Fourth Amendment: Unreasonable search and seizure. New York: Rosen Central.
When conducting a preliminary investigation into any criminal case there are certain guidelines that should be observed. First, the crime scene should be preserved by the patrol officer and hold all witnesses or suspects. They should also discourage phone usage at the crime scene and all personnel accounting should be made for all activities where identification of persons should be conducted (Hess, Orthmann & Cho, 2016). The preservation of the crime area is done to preserve the integrity of the evidence. Upon arrival to the crime scene, the investigators should not move blindly and they should confer before acting. Paths of entry and exit should be considered and an initial survey conducted. The officers should also ascertain whether there is fragile evidence and how it should be collected. In addition, an investigator should also observe the whole place wholly as well as record the time and place of the event (Hess, Orthmann & Cho, 2016).
Q2
One key approach that an investigator should use so that he/she can perform a competent investigation should involve an inclusive, effective and efficient interrogation with the witness as well as persuade a later interview communication with the relevant personnel. The strategy of a complete, effective and efficient is significant as it will create an opportunity for any witness to give information voluntarily without prompting (Hess, Orthmann & Cho, 2016). The voluntary information is in most cases is usually accurate compared to that of witnesses who have been questioned or those who have been forcefully questioned. I believe that it is an essential tool that can result in great success in the follow-up investigation because witness gives out relevant information without withholding any. It is also important to encourage communication with the witness so that they may feel free with open-ended questions that will yield unsolicited information to the investigator (Beers, 2011). The use of nonverbal communication skills as well as asking the witness to recreate the happening of the event may result in more information that may be helpful. It is also important to discourage the witness from discussing with anyone details about the information in order to avoid cases of evidence and information contamination.
Q3
Sudden death in a hospital and a rape case are crimes that are reported differently. Sudden death can be considered to be unnatural, unexpected or unexplained give the condition the person was at the time of death. In the case of unnatural death in hospital doctors and the nurses in charge are supposed to record a statement of when the death occurred and the conditions that led to the patient death. Security personnel also on duty are supposed to record the happening of the fateful day and also identify if there was any suspicious character of a new face that came along (Hess, Orthmann & Cho, 2016). CCTV footage can also be used in order to trace the movement of people in and out of the hospital. Deaths are reported under the Coroners Act to the Coroner in addition to other local rules which mandatorily requires all form of deaths to be reported. In this case, the cause of death should be certified by a forensic team as well as a pathologist. In a rape case, the victim or any other person should be able to contact the 911 as soon as possible. They should wait for the medical team to arrive and take them to the hospital without contaminating any evidence on them (Beers, 2011). The team should also fill up information about the victim which the doctor is supposed to fill after examining the victim by recording it. After the victim is conscious the investigator should ask the victim some questions that would help in the investigation.
Q4
An effective criminal investigator should have been the ability to obtain relevant information and be able to retain it well for a particular case. Despite the ability, the investigator should also have effective communication skills that will facilitate the process of obtaining information (Brandl, 2004). With communication skills, people will feel more comfortable which will make them be willing to share all the information. Being emotionally balanced is a critical characteristic that an investigator should have. This ensures that the investigator is not carried away by emotions as it will hinder the whole process of investigation and crucial leads may not be noticed. An open-minded investigator will be able to notice any prejudice tend which will help in avoiding personal judgment without facts (Brandl, 2004).
Q5
It is true to say that media outlets have been allowed too much information of crimes of potential suspects, police investigation, and surveillance. With such information at the disposal of the public many innocent people have been considered to be guilty of various crimes due to personal judgment of the public resulting in suicide by the innocent suspect (Beers, 2011). I believe that information regarding crimes should be well handled and a balance. This will ensure that privacy rights are withheld and the integrity of the investigation body is also upheld. Therefore there is also the need of limiting access of information to the media outlets.
Reference
Beers, D. A. (2011). Practical Methods for Legal Investigations: Concepts and Protocols in Civil and Criminal Cases. CRC Press.
Brandl, S. G. (2004). Criminal investigation: An analytical perspective. Boston: Pearson.
The cooperation between member’s state criminal agencies is not binding or formal is a factor that makes the adjudication of transnational crime so difficult. The leadership of investigations is not well outlined at the international levels further making transnational crimes difficult to adjudicate. Uncertainty and uncoordinated evidence gathering as well as supra-national practitioner perspectives are factors affecting transnational crimes (Reichel & Albanese, 2013). In order to improve the leadership at international levels, it is better to have a common ground for all. This is because there shall be cooperation as well as dovetailing of the member state agencies improving the whole situation. This strategy will able have a positive influence to the national practitioners who considers the importance of cultural and legal differences as it will result in a better understanding (Reichel & Albanese, 2013). Moreover with this strategy members will be willing to have joint investigating teams yielding more success to transnational crimes.
When traffic stops are initiated there are chances of police corruption. This may come up especially in cases where the police officer may dislike the driver or there is racial discrimination. There may be chances of bribing especially when the police officer is not satisfied with their work and the driver offers to pay the officers in order to let them go when finding with a traffic offense (Baker, 2011). As a police chief, the best policy will be to monitor the offices and ensure any traffic offense is recorded. Along with this rotation will play a significant role as motorists will not get used to police officer further creating room for corruption. Therefore it is true to say that with more policies working collectively police corruption will be combated.
Reference
Baker, T. E. (2011). Effective police leadership: Moving beyond management. Flushing, NY: Looseleaf Law Publications, Inc.
Reichel, P., & Albanese, J. (2013). Handbook of Transnational Crime and Justice. SAGE Publication
Implied is contract is a legal supernumerary for a contract. Implied contract is therefore an agreement which is created by different parties, but it is not spoken or otherwise written. In other words, the contract is assumed to have been signed. The contract does not therefore involve any form of record be it written or verbal. This is therefore an implied warranty which is consequently provided by the law (Reed, & Bogardus, 2015).
Discuss the difference between implied contract and one implied in fact
Implied contract and implied contract in fact are very different in the sense that when it comes to implied contract, the agreement is not recorded in either writing or verbally. On the other hand, when it comes to implied in fact, the contract is expressed by the facts surrounding the contract, and the circumstances which designate a mutual purpose to the contract (Reed, & Bogardus, 2015). Implied contract therefore depends on the mutual agreement which is intended as a promise, thus there is no need to record the agreement either by writing or through verbally.
Discuss the two legal theories for recovery posited by the plaintiff.
Negligence
The theory of negligence is based on the following basic elements which a plaintiff should focus on in order to recover.
These are:
The producer owed an obligation to the complainant.
The producer broke an obligation to the complainant.
The breach of obligation was the cause of the complainant’s injury.
The breach of obligation was also the immediate cause of the injury.
The complainant suffered possible damages due to a negligent act (Reed, & Bogardus, 2015).
In a case involving product liability, it is required by the law, that the manufacturer follows a standard of care, which is sensible for its competitors. Even though the plaintiff can be able to prove the manufacturer has failed, the plaintiff should have evidence to support his or her claims (Reed, & Bogardus, 2015).
Tortious Misrepresentation
A entitlement in a merchandises liability suit, may be established on false information which is mainly conveyed by the producer of the merchandise (Reed, & Bogardus, 2015). A consumer who relies on the information of the manufacturer and is harmed may recuperate for the falsification. This does not therefore depend on a flaw in the product, but it depends on the falsification of the information.
The plaintiff may therefore should therefore come up with the product, information of evidence before a court of law, thus challenging the manufacturer on the alteration of the information in order to cheat on the plaintiff (Reed, & Bogardus, 2015).
Reference
Reed, S. M., & Bogardus, A. M. (2015). PHR/SPHR Professional in Human Resources Certification deluxe study guide.
What elements make an attempted acceptance a counteroffer?
An attempted acceptance may be made a counteroffer if the supposed acceptance differs from the actual offer. This consequently makes it hard for the offeree to be able to accept the offer, due to the alteration of terms which makes it hard for it to be accept. No contract is therefore formed due to the misrepresentation of the terms by the offeror, hence leading to counteroffer (Helewitz, 2010).
Give two examples in which the actions of the offeree reject a written offer.
Lapse of Time
An offer may lapse, if the offerree does not accept the offer within a certain duration of time. This is basically so, particularly when the offer opens for a certain period of time. This consequently allows the offeree to be able to take his or her time, in order to decide if in deed, his or she will accept the offer (Helewitz, 2010). A good example is when A, offers to sale a Bus to B, then A gives B a period of ten days in order to either accept or decline the offer, after A provides B with the terms of the contract. If B does not communicate to A after ten days, then the contract becomes rejected by the offeree.
Revocation
Revocation of an offer can take place at any time before the offeree accepts the contract. A good example is when A, plans to sell a piece of land to B (Helewitz, 2010). Then A later sold the land to C, simply because C’s offer was better than that of B, this consequently leads to the revocation of B from the contract, simply because the offeror decided to sell the piece of land to another buyer whose bid was better than that of B.
Compose an offer that specifically limits the offeree’s ability to accept.
An offeror offers a car to the offeree, even though the terms of the contract are different from the resulting terms that the offeror gives the offerree. This consequently makes it hard for the offeree to be able to accept the offer simply because the offerer has changed the purported terms of agreement (Helewitz, 2010).
Reference
Helewitz, J. A. (2010). Basic contract law for paralegals. Austin [Tex.: Wolters Kluwer Law & Business.
Both common law and civil law have statutes and case law. The systems play a similar role in regulating the human activity. They focus on social and economic objectives and they function together in ‘mixed jurisdiction’. However, the systems differ in that common law is uncodified (Brand & Getzler, 2012). There are no legal rules and statutes since the system uses precedent to deal with constitutional court matters. Based on law interpretation, judges are allowed to create common law courts and rigid legal systems. Other point is that the courts law is represented with respect to the decisions made by the judicial and judicial precedent gets the power from state decision (Brand & Getzler, 2012).
On the other hand, civil law is codified. This means that there are legal codes which provide different categories of code law and applicable procedure of cases. In other words, courts codes provide codes and statutes which contain the rules. On law interpretation, court does not interpret the law as laws are made by legislative branches and so judges play the role of administering the law (Brand & Getzler, 2012). Other point is that civil law practices the Inquisitorial system where judges control the trials. On the same note, civil system has restricted debates and arguments and just results are achieved through cooperation between lawyers and judges.
The nation will enjoy some advantages after incorporating civil law. First, judges will have the opportunity to make the judicial model of civil law compatible with legal attitude. Other point is that the nation with civil courts will enjoy the advantage of legal aid (Carter & Pocar, 2013). Civil courts also have an appeal system based on the trial judge system. In civil law system, judges do not hold the state power but rather they have moral authority which helps the nation to adapt to the legal system (Carter & Pocar, 2013).
Before incorporating the social law, it is important for the nation to understand that civil law has a codification process, legal process, legal actors and it is a public law. In Yang Hui’s case, the Chinese government wants to put restriction on spreading the rumors through social media. The act is regarded as a crime since citizens are not allowed to show their opinion to public. It is not possible for U.S to adopt this type of law because people are closely connected to social media and they express their opinion through the sites. Such law cannot work since everyone is concerned with other issue affecting people or nation.
References
Brand, P., & Getzler, J. (2012). Judges and judging in the history of the common law and civil law: From
antiquity to modern times. Cambridge: Cambridge University Press.
In Carter, L. E., & In Pocar, F. (2013). International criminal procedure: The interface of civil law and
Fundamental positive characteristics of a criminal investigator include effective communication skills and technical skills and knowledge. Investigators must be strong communicators and have the necessary skills in asking questions and recognizing discrepancies in order to clarify the information (Hess, Orthmann & Cho 2016). In communication, investigators must be open-minded in order to avoid prejudice and get into better judgment. In addition, they should have technical skills which will help them in doing investigations. They should be knowledgeable in using technology or equipment such as surveillance equipment which will help in analyzing evidence. Example of real life stories which show the positive characteristics are stories from popular crime television. Character such as Richard Castle from Castle is knowledgeable and has unique set of skills in investigation. In the episode, Castle is consulted to do investigation of the murder. Castle is unsatisfied with the case resolutions and decides to go into deeper layers and do further investigation. Finally he notes the killer was the social worker’s brother (Hess, Orthmann & Cho 2016).
Negative characteristics of a criminal investigator include heuristic and cognitive biases. Investigators use shortcut in dealing with a particular case. In many cases, heuristic do not arrive to correct assessment and as a result they leads to cognitive bias (Rossmo, 2008). Investors arrive into incorrect conclusion due to cognitive factors. Cognitive bias produced by heuristics causes constraints in the reasoning system due to the interpretation of ambiguous evidence. For example in the movie ‘Devil’s Knot’ West Memphi Three were charged and convicted for murder. However, there was a cognitive bias through psychological research (Rossmo, 2008). The convictions were wrong as investigators failed to find credible testimony.
There will be advantages in training two general detectives for homicide investigation. First, the general detectives have critical thinking skills and so they have the ability to analyze the aspects of certain cases effectively (Hess, Orthmann & Cho 2016). With high level of skills, they will think critically and make wise decisions in solving the matter. Other point is that since they have job experience, they will be able to manage the crime scenes, perform investigation, prevent disturbances and enforce laws (Hess, Orthmann & Cho 2016). However, there will be disadvantages in that since there is rash homicides in the community and only two detectives are being trained, there will be work overload and detectives will be unable to solve all problems (Rossmo, 2008). In addition, work overload will cause work exhaustion which will lead to unfair judgment, innocent jail and murder. Much time will be need in handling all cases and this indicates that some cases will go unsolved and suspects will not be detained (Rossmo, 2008).
Reference
Hess M. Karen, Orthmann H. Christine & Cho L. Henry (2016). Criminal Investigation. Cengage Learning
Rossmo D. Kim (2008). Criminal Investigative Failures. CRC Press
In crime investigation, I would take both important and generalized information. Based on important information, I would record information based on who? What? Where? When? Why? How? (Orthmann & Hess, 2012). On the same note, I would also interview the witnesses and victims. This information will give specific, clear and accurate report. In addition, the information will help the investigators to catch the wrong doers and conduct further case analysis. Based on generalized information, I would take information based on bullet trajectories, position of objects, gunshot residues, glass and fibers, weapons pellets, human remains, position of the dead bodies and gun powder (Orthmann & Hess, 2012). This general information will help in scene recognition and through legal examination; detectives will have a plan of operation. In addition, general information gives physical evidence through investigation of objects and locations.
Citizen online crime reporting is valid. Allowing citizens to report cases is an effective method of discovering crimes, solving unmanageable cases and saving time which could be spent by detectives in investigating minor cases (Orthmann & Hess, 2012). Some victims find it hard to report cases due to embarrassment and humiliation. In such cases, self-reporting is effective since citizens play a great role in reporting cases hence protecting the community. In other words, online reporting is a positive tool where citizens give all the fact without public discrimination (Orthmann & Hess, 2012). On the same note, through online reporting, communication barriers will be eliminated and serve the communities which are highly victimized. Generally, the criminal justice system is able to operate effective by having a positive reflect on the investigator. The main reason why some people have distrust on the method is because, in some cases, citizen may record false reports so that they can be victims and claim for reimbursement (Orthmann & Hess, 2012). In addition, when wrong doers are asked to present their illegal cases, they often tell lies and tend to set themselves free from crime participation.
Reference
Orthmann H. Christine & Hess M. Karen (2012). Criminal Investigation. Cengage Learning,
We are social beings and we are therefore expected to uphold social contract taking note that individuality is essential and therefore we cannot submerge it. The core purpose of social union is to ensure that our individuality is enhanced hence resulting to a just society. This right goes beyond our hurt feelings and is centered on who we are as human beings. Privacy concept is a broad term that has been used for ages and is well recognized by most of the people due to the benefits that accrue from this kind of protection. Privacy issues are increasing each and every new day as the world is globalizing and thus technological advancement which cause violation of privacy. Generally, privacy refers to the right of a human being which protects against any compromises to a person’s privacy by any institution or other people. Each individual has privacy rights independently of what is decided in any social contract hence forming a just society. This rights acts as a limit to the society’s dominion over a person. This allows for people to keep themselves all matter s which they strongly believe that are not in the legitimate significance of the public. Intellectual matters are intangible and are as a result of the numerous efforts by an individual on a previous work of others hence an advanced quality of work (Warren & Brandeis 194-195). They are therefore a creative mental individual’s efforts which have value which involves facts, thoughts, course of action and modes of operations. This kind of properties can be regarded as private properties that also require legal protection against copyright and any violation. This ensures that the integrity of the intellectual property is upheld.
As a result of the way the world is changing, the contemporary right of privacy is essential due to the high rate of growth due to the mechanical reproduction of information. Legal protection on privacy is essential and the law is greatly working on ensuring that the already established laws on privacy are adhered to and implemented. Thus legal protection is needed so as to ensure that a free society is established hence promoting a human good thus encouraging the flourishing of individuals (Allen 1). This is a social need where the individuals are able to cope to the need of living among others within the society. The opportunity for this privacy models an individual into being fit thus allowing their active social contribution and participation. This encourages the establishment of bonds of affection between individuals within the society and hence a common interest.
Privacy protection through the law ensures that solitude is enhanced where an individual will be free from any form of disturbance within reason (Allen 23). The individual will also be able to act publicly without being identified thus encouraging anonymity (Allen 23). Intimacy will as well be enhanced where any form of private association will be protected. Personal Information will be reserved hence a restriction on access will be enhanced thus allowing secrecy and confidentiality (Allen 24). This right also protects against privacy in various environments, location privacy, body and communication. There are various forms of privacy from which an individual’s integrity is conserved and restricted. Internal self is a form of privacy which occurs where the individual’s emotions, habits and way of life are protected against accessibility. Restriction to access to an individual’s body and products of their bodies is essential as t plays a core role in making an individual’s life private (Allen 14).
Information privacy ensures that any data that is either contained inform of electronic or written is protected against accessibility. This form of privacy ensures the confidentiality and integrity of an individual’s information and this is enhanced through the restriction of accessibility. Protection against properties that are tangible, valuable and are transferable is a type of privacy activity. The law therefore protects such properties through restriction of publication activity of the property. Copyright laws are one of the protection activities against duplication and it ensures that the rightful intellectual owners are able to benefit entirely from their publications ((Warren & Brandeis 200). Protection against any form of gossip and press release is a privacy right. This ensures that the individual is allowed to live their lives and they are secured from any gossip and press release that may violate their private lives. It is believed that the press is overstepping in every direction hence resulting to the indecency and lack of property privacy hence leading to more mental pain, distress, body injury and loss of reputation (Warren & Brandeis 196). It is the therefore important for people to be protected against all these types of privacy issues that are building up each single day. This will help in building a just and happy social society with union and oneness. The law has an obligation towards privacy protection as it will ensure that legal protection is implemented while better legal protection procedures are established in cases where the existing laws are inadequate.
B
With the increased issues related to privacy, some of the privacy strategies have been put in place and are still being implemented. However, it has proven to be difficult for most of these strategies to work in the contemporary world due to the globalizing and technological issues. For instance, rights on privacy by communication print and media has yielded strains due to the introduction of even more complex and potentially invasive communications technology thus causing more difficulty in ensuring privacy. The nature of most of this advanced technology has raised some issues which has hindered the success of the rights of privacy. The fact that technology has the ability to copy, communicate and to transfer data at a high speed puts print as well as communication issues such as gossips into a greater risk. This therefore infringes the legal protection from the disclosure of any strictly individual information. Surveillance by the government has also made it difficult in maintaining privacy and has in one way or the other resulted into violation of rights of privacy (class lecture on week 3). For instance, most of the American police have camera’s that are used to surveillance every street in each and every neighborhood thus potentially losing on privacy. Information technology has also played a difficult role of establishing the right of privacy. This is because information technology has the ability to add an entirely varying range of cases of potential infringement of privacy right. This builds up the fear that privacy in the case of information technology have to deal with the concentration of huge amounts of private data about a person and then providing them with even more widespread allocation.
The government uses data mining process so as to acquire information that would help them combat terrorism. However, there are concerns with the use of radio frequencies identification and consolidating medical personal information which all are violations of an individual’s privacy. The use of these radio frequencies (RFID) is aimed at tracking individual’s products through the manufacturing procedure so as to track the location of persons. Thus the government uses this technology in identifying documents such as passports. Some of these terrorism governmental programs are aimed at catching terrorists slightly before they attack a nation by monitoring the emails, financial accounts, health records, databases and travel information. This is an essential program as it helps to curb terrorism but it is however not good as it violates the rights of privacy as it is carrying out its operations. It is therefore recommended that the government should adhere to privacy rights and hence any undertaking that they engage in should first consider the right on privacy (class lecture on week 3). However, the government has a role in ensuring that their citizens are protected against any form of attack and thus they should actively involve themselves in ensuring security and safety for the public. It is therefore recommended that a balance should be stricken between the government and the right for privacy as this will help in serving a multi-purpose. Thus it is commended that before any form of government surveillance, the government should attain approval from a special federal court. This will help in ensuring that the information to be collected will only be used to prevent to terrorism. This would therefore limit the searches that are based on suspicions about a particular person. Also a judicial review on data mining strategies is needed as it will help in preservation of the right of privacy. In maintaining the balance between ethical consideration through the right of privacy and the safety of the people through surveillance, there will be ethical development and future benefits from the peace within a nation and by everyone (class lecture on week 3).
Metadata is usually used for computing where it describes information of the stored data. A reasonable protection is expected as it is geared towards the restriction of access to the stored data to the public. The metadata should therefore be restricted as it should have a certain level of secrecy since most of these stored data contains personal information and secured information which is highly sensitive. Hence when privacy is violated on the data in the metadata, a group of people’s privacy may be infringed thus causing injuries and great losses. It is therefore essential to ensure that the metadata is kept far away from others and that a higher security measure on this kind of data is implemented so as to ensure that all the stored data receives the privacy that is required hence allowing for integrity, secrecy, isolation and confidentiality of the stored data. However the measure to whether the metadata requires privacy will be determined by the sensitivity of the data stored and on the level of secrecy needed. According to the fourth amendment, a person who is invoking it can claim a lawful expectation of privacy especially when the government has invaded on the individual’s privacy. This however embraces two things as to whether a person has exhibited a subjective expectation of privacy and whether the expectation is one that the society can regard as sensible. Smith, the petitioner in this case, failed to entertain any expectation of privacy in his dialed numbers and if there was any expectation it was not lawful (class lecture on week 7). The fact that the petitioner voluntary conveyed numerical information to the telephone organization indicates that he was afraid that the company would expose him and hence the company would reveal the information. He used his home phone rather than a private phone was not regarded as one that preserved the rights of the other person whom he dialed his number (class lecture on week 7). This reason was not one that the society would regard to be sensible.
C
Basing on the argument given by the government it is quite clear that they are very much determined in stopping the terrorist attack which they regard as an issue of national security. However, their numerous efforts are hindered by the Apple Corporation which refuses to unlock the phone of one of the suspect. Thus, the FBI’s thinks that the unlocking of this I-phone by Apple company would help in preventing any future attack as they would use they would use it to access and be able to see others who are involved. However, the Apple Company argues out that once they unlock one phone, the other agencies will as well ask for the unlocking of more and more phones. They continues to argue that once a software for the unlocking is created then this increases the vulnerabilities hence establishing a backdoor where it exposes the company to cyber security issues (class lecture on week 7). This therefore is the core reason as to why they think that unlocking the phone is not a god idea as they have a responsibility of ensuring their customers privacy.
Therefore it is essential that the government should deploy their resources into other various areas where they would acquire the information. This is because of the fact that unlocking of only one phone may result to exposures to other malicious terrorists who may take advantage of the vulnerability while undertaking the unlocking process. This may also be viewed as a plan by the terrorist who may have locked the phone intentionally with an aim of driving the FBI into unlocking the phone so as to be able to hack into the system and hence carrying out their malicious activity. The government n this case should focus more on other indicators and searches which has a lighter burden as they employ all the skills that they have in their enforcement. This will ensure that the integrity of the information held by the Apple Company maintains its integrity and all the sensitive and top secret information within the state are secured. Instead of the government using its power to manipulate the private companies, they should negotiate with the Apple Company so as to ensure that they come to a consensus where each party is able to benefit and secured from risks. This will therefore help in creating a healthy and secure place to live in.
SECTION 2
LEGAL MEMORANDUM
TO:
FROM:
DATE: 13TH DECEMBER 2016
RE: (GRISWOLD, ROE AND CASEY- WOMAN’S HEALTH IN TOTALITY) AND (LAWRENCE AND OBERGEFELL – SAME SEX CASES)
Questions Presented
According to Griswold and Roe is the right of privacy for women found in the constitution?
Does the right to same sex intimacy and marriage as discussed in Lawrence versus Texas and Obergefell be viewed as a right under the right of privacy?
Short Answers
The right of privacy started way before Roe where abortion was viewed as non-essential while marital rights were not regarded as important. With Griswold, the right to privacy was protected by the fourteenth amendment. These rights ensured that the women’s rights were adhered to.
The constitution through the fourteenth amendment in the due process clause restricts the government from intruding in ways that violate upon the right of citizens.the right to abortion shifted from being a fundamental right during Roe’s trial where the government should not apply strict rules during the first trimester and therefore they introduce their own tests. However in Casey’s case, a new test known as undue test was introduced where the government would regulate abortion if there lacks an undue burden hence safeguarding the woman’s health.
The fourth amendment in the United States constitution makes sure that the citizens are secured and that their rights as persons, homes and unreasonable searches and arrest are not violated by the government. Therefore in this case, Lawrence’s right on privacy was violated as the police broke in his home and arrested them unreasonably.
The court will find out that the homosexuals have liberty as adults to engage themselves in any private undertaking under the substantive law. Hence the state has no right to disgrace their existence and does not have power over their private life and especially their sexual life. The substantive law gives them total liberty to engage in their undertakings without government interference.
Facts
Estelle Griswold after starting a clinic, she was arrested for violating the same. However, her attorney defended her using the substantive due process concept. According to the fourteenth amendment, the attorney argued that the right of privacy in this case was violated. To support his case he used the first, third, forth, ninth and fourteenth amendments which would enhance them to make their privacy argument strong (Griswold v Connecticut n.p). Roe who was a twenty one years old, alleged that she was raped and later become pregnant due to the raping. After pleading the doctors to carry out an abortion, they refused arguing that according to the Texas Law, it was a crime to undertake an abortion unless the mother was in danger (Roe v. Wade pg.402).
It is after the police were tipped by the neighbors who alleged that there were probable weapons that were causing disturbance. The police on entering Lawrence home they found Lawrence engaging in sex with another man. They were arrested as they were claimed to violate the Texas law which was against homosexual activities (Lawrence v. Texas pg. 430). Obergefell and Arthur who was twenty years wanted to marry before Arthur’s death. As they travelled to Maryland as the state laws there permit same sex marriage. However, before Arthur died, they sued against Ohio officials claiming that ban on marriage by the state infringed on the due process and equal shield as per the fourteenth amendment (Obergefell V. Hodges pg. 438).
Discussion
Roe is suing the county DA of Dallas, Wade as she alleges that Law in Texas violates fundamental personal rights such as medical rights, privacy and marital rights. The issue in this case is whether the mother has a right to abort her pregnancy/ the court is likely to conclude that the woman’s right to abort is within the right f privacy as acknowledged by Griswold versus Connecticut. This decision will give power to the women during their three months while the state will provide different levels of concern on the second and third trimesters. According to the law, the fourteenth amendment is a substantive due process that protects against liberty and privacy is extracted from this clause.
According to the law, a state should not prohibit adults from engaging in intimacy of the same sex and marriage of the same as this would be violating the substantive due process of the fourteenth amendment clause. The court therefore would rule that there is no reason that can justify the state’s infringement into private and individual lives. Hence two people of the same sex have a right of privacy that is the right to legally engage in sex and to marry as well.
Conclusion
In accordance to the facts of the case, the court will find out that the right of personal privacy involves termination decisions. However, this right must be considered against the essential nation’s interest in ruling. Therefore abortion is a right to privacy in the first trimester and the law states that a strict investigation is not needed at this level since the state’s interest is on the second and third trimester.
In consideration of the facts, the court found out that the homosexuals had liberty as adults to engage themselves in any private undertaking under the substantive law. Hence the state has no right to disgrace their existence and does not have power over their private life and especially their sexual life. The substantive law gives them total liberty to engage in their undertakings without government interference.
References
Warren, S. D., and L. D. Brandeis. "The right of privacy. 4: 5 Harv." L. Rev 193 (1980).
Allen, Anita L. Uneasy access: Privacy for women in a free society. Rowman & Littlefield, 1988.
How the alternative dispute resolution movement is reshaping our legal system
Alternative dispute resolution is a term that is used to refer to a wide range of dispute resolution systems that are alternatives to complete court processes. This term can be used to pass on everything from one point of smoothing the progress of settlement face to face negotiations where the disputants are persuaded to negotiate directly with one another preceding to some additional legal processes to arbitration mechanism which is somehow similar to the courtroom practice. Within the alternative dispute resolution, there are developments that can be established so as to manage a community apprehension and facilitate the development of a community (Zekoll, Bälz, & Amelung 2014). These alternative measures are regarded as new hybrids methods hat make use of the courtroom process that is involving even the mini-trial. There has been an evidenced success from the use of the ADR systems in settling a dispute over the years in reshaping businesses as well as the legal systems. This paper therefore will provide an in-depth discussion on the background of ADR’s, the various types of alternative dispute resolutions and how these ADR’s has influenced change in the legal system.
Over time, ADR’s have development and their concept is widely growing from the confident voice of hope to the disputers and their determination to solve the disputes outside the courtroom. This has shifted the system into one that offers a series of alternatives that are applied in solving the disputes even in a flexible manner of private negotiations. They are not only used to settle existing disagreements but they are as well used to prevent a dispute from occurring. These ADR systems and institutions have not advanced so as to substitute for the unsuccessful court process but instead as a progression of traditional and civic systems that have been existing as alternative resolution procedures. However, they have greatly influenced the change in the court process. There are various types of ADR’s mechanisms that are used in the settling of disputes amongst different groups of people. These mechanisms include negotiation, arbitration and mediation. These ADR systems are voluntary and hence they do not really require litigants for the negotiation, mediation or conciliation to take place. This is different from the judicial legal processes as they are mandatory and this scares away the disputants. This is because of the availability of the voluntary process that drives the disputants to have a free submission of the dispute as it is entirely determined by the willingness of the people. This is changing the phase of the legal judicial systems as they are transforming from being entirely mandatory but rather they are adopting informal systems that they are using in order to enhance the disputants to freely use this system to solve their disagreements.
Dispute resolution strategy is one of the resolution strategies that have been used over a long period of time outside the courtroom. What is new in this system is the extensive development and increase of the ADR’s replicas, increased use of court related ADR, and the improving utilization of the ADR as a tool that can recognize goals on a broader perspective than that of the settlement of a specific disagreement. Alternative dispute resolution dates back to 1960’s when the United States was experiencing the civic and political disputes (Zekoll, Bälz, & Amelung 2014). The introduction of new laws that were used to protect the rights of individuals, as well as reduce the lenience of unfairness and injustices, more citizens sued others so as to settle the disputes. As a result of the increasing lawsuits, the alternative dispute resolution measures diversified and started to be effective where they solved disagreements (Nosyreva 2010). Therefore, there was need to launch the ADR mechanism in 1970 which started as a social movement that was determined in resolving the wide range of community’s civil rights disagreements through the mediation process. it also started as a legal movement that aimed at addressing the increased delay and the expenditure in litigation process that arose due to the crowded court process. Since that time, the legal ADR movement has gained popularity in the United States and has evolved from the experimentation stage into the institutionalization stage with the support of the court system in America and the states government. With the flourishing mechanisms of ADR, the ADR advocates realized that the use of these mechanisms outside of the courtroom has played a major role in solving of sophisticated disputes that would better meet the needs of the disagreeing parties and with their communities. This therefore reduces the over-reliance on the legal system thus strengthening the public institutions as they preserve the relationship between the disputants and this teaches the use of alternatives to hostility or litigation for disagreements settlement. The demand for ADR has also risen to various sectors and even in businesses as it has aided in the efforts of coming up with a more better and effective option to litigation. This has dramatically increased the use of ADR mechanisms in the private sector hence resulting to an explosion in the numbers of private organizations that provide ADR services. Currently, the ADR mechanism is diversified and can be used to solve a variety of disputes between families, churches, government, institutions, courts and workplaces (Zekoll, Bälz, & Amelung 2014). The move of the ADR’s from the experimentation into institutional field has impacted the United States rule making in their administrative roles and even in the federal litigation procedure. Laws that are now established are used to sanction and persuade agencies to utilize the ADR mechanisms in their administration, local community involvement and disagreement resolution. This ADR movement has grown from the developed nations to the developing nations. They are being implemented everywhere so as to meet goals on social, political, economic and legal sectors.
Alternative dispute resolution mechanisms have been used in supporting a mission aim to reform the court process in various ways. They have been widely used by the judiciary to test as well as to reveal new measures that might be extensive to or incorporated with the existing court actions (Nosyreva 2010). These ADR systems are established as an alternative within the judicial process, either connected with the courts as a way of managing the available caseloads or rather separated from the courts so as to offer disagreement resolution for disputes or constituents that are not adequately served by the court.
The alternative dispute resolutions are used to offer streamlined processes that accelerate case disposition in a courtroom if the main dispute within the court is just complex and unsuitable and not institutional issues such as prejudice and corruption. These processes sometimes serve as models that are later integrated into formal court processes. This may result in an extensive court restructuring as catalyzed by the ADR’s mechanisms.
These ADR’s also play a major role in the reformation of the courts process as they are intended to deal with cases that have an opportunity to go to the courtroom system but may rather be settled using the ADR mechanisms and with more satisfaction than even the one expected in the courtroom system. In such cases, the ADR system compliments the court redesign as it reduces the number of caseloads that the courtroom has to settle. They are as well responsible of court reform since they lead to the increment of access to disagreement settlement of the disadvantaged groups (Main 2005). These ADR systems undertake this through offering of advice to the disadvantaged group on whether and the way in which they should use the court procedure and in dealing with specialized cases that the court process is inadequately equipped to solve. ADR mechanisms offers quantify of justice to particular groups such as the minorities and the women. These groups of people fail to get justice in the legal court systems as they are poorly represented by the courts. These ADR programs are therefore important as they have changed the legal system as they have recruited women who are involved in the ADR panels in the ADR programs (Menkel-Meadow 2013). This allows the women as well as the minorities to be able to receive effective protection and more compensation from these ADR mechanisms than they receive from the formal legal systems.
ADR mechanisms help in the improvement of the public involvement in the local community as the locals are actively involved in the settlement process. This enhances consensus building thus settlement of the social problems. This improves the skills and potential of the local leaders as they are trained on the ADR processes especially in the personal enterprises that help them to develop a moral civic engagement in the society. These ADR processes are designed in a way that impacts on the intensity of social tension and the hidden conflict and individual disagreements. This focus of the ADR processes is far much different from that of the formal legal systems. The public are therefore educated and early interventions are made in any potentially explosive disputes through the use of third parties. These mechanisms are therefore suited into conveying stakeholders together with an aim of reaching a consensus on some of the development initiatives.
The nature of the ADR has encouraged and also complimented the court reform through their various potential to cover a wide range of cases. ADR’s are used in case build up which damage the effectiveness of the court system and in complex procedures that also result to the ineffectiveness of the court process (Zekoll, Bälz, & Amelung 2014). These mechanisms are not limited as they help the illiterate as well as the poor who cannot be able to afford or even manage themselves within the court system. These ADR systems are not limited geographically as they can be used in dispersed populations so as to solve the disputes.
The ADR mechanisms are also essential in the restructuring of the legal systems of the court as they have the ability to find a way around the unsuccessful or discredited courts. Civil courts systems are dominated by institutional weaknesses and malfunctions due to the increased prejudice, corruption and insufficient resources for their effective functioning (Menkel-Meadow 2013). This results to a no near term viewpoint of effective public court reform thus driving the ADR mechanisms to step up as they offer appropriate strategies of implementing an alternative measure that would help to solve the disputes.
Justice has been credited to the populations that are inappropriately served by the court system through the ADR systems. This ADR system has been used with intent to help those populations where corruption and inequality is high and this discredits a court system due to the unreasonable just for a part of the population. Therefore, ADR mechanisms are the best form of resolution programs that are suitable in these regions as they would help to provide reasonable judgment and settlement without any biasness or even corruption. The ADR programs has therefore been implemented thus effectively replacing the court system as they play the role of central measures of resolving civic disagreements (Zekoll, Bälz, & Amelung 2014). The growth of ADR mechanisms in these areas have increased resulting to more of mediation, arbitration and negotiation amongst the population. The number of court systems has lowered as many people prefer the ADR system and only use the court system incase the mediation process fails. These ADR systems and institutions have not advanced so as to substitute for the unsuccessful court process but instead as a progression of traditional and civic systems that have been existing as alternative resolution procedures. However, they have greatly influenced the change in the court process.
The ADR’s have proven to be more effective in handling cases that are complex and those that are technical. These specialized ADR systems are involved in settling of disputes related to the environment, construction and exclusive rights disagreements. They thus act as substitutes for the systems used in the court which may lack qualified expertise to settle the disputes and come up with the best decisions on the issue.
Ethically based issues as well as family issue are better settled using the ADR systems than the court procedures. These specially designed ADR mechanisms usually establish more attractive measures to courts even when the courts are working out well. These ADR systems maybe designed to correspond to formal managerial hearings by the national government organizations.
The satisfaction that is offered by any legal system on the disputants is one of the goals of the system and it determines the user’s population. Satisfaction of the user may be determined by the cost of the system, its accessibility and delay and the outcome of the use of the system. The use of the ADR mechanisms on commercial activities and personal relations builds up the disagreeing party’s confidence as the mechanism responds to their requests. According to an evaluation on the same, the ADR systems offer a higher satisfaction as compared to the legal systems. Due to the preservation of relationships amongst the disputants after reconciliation most people prefer these mechanisms in their reconciliation process. Legal action is not preferable due to its high cost, lack of creativity, inaccessibility and inflexibility of the legal process thus resulting to an inefficient decision making on the disputants.
The ADR mechanisms have a minimal legal formality and this result to the encouragement on the use of the system. On the other hand, the legal system of courts has a level of formality that daunts the disputants thus discouraging them from using the system. This therefore has resulted to a more preference for submission of cases to mediators, arbitrators and negotiators who are local inhabitants and have a well knowledge on the community.
In most of the legal court systems, delays are prevalent throughout the world and this affects a number of development goals. To some extent, the case delays are very intense that they in actual fact denies justice and especially to the disadvantaged group of people who may not be able to drive justice procedure (Menkel-Meadow 2013). These delays in the in the resolution process on the commercial disagreements weakens the economic development and destabilize the competence of the economy. The use of ADR mechanisms for resolving disputes reduces disagreements resolution delays and indirectly minimizes courtroom backlog through the redirecting of cases that would otherwise be taken to court. This may help to serve a selection of USAID strategic goals outside the courtroom. These have thus made the ADR strategies to be successful in dealing with large number of cases in a quick and effective way.
As a result of the many benefits that come along with the alternative dispute resolution mechanisms, the federal courts are transforming from the legal system and are incorporating the use of ADR system. The state courts are thus required by law to provide some types of ADR while most of these courts persuade the disputants to first attempt settling their disagreements through either the mediation, negotiation or arbitration strategies before they can go ahead with suing each other and waiting for a trial date.
Conclusion
It is therefore evident that the ADR mechanisms are aiming at compensating the shortcomings of the existing legal systems such as high expense, more delays, inaccessibility issues, exclusion of some parties due to conflict of interests and a win or lose results which results to a dissatisfaction of the outcomes hence discrediting of the legal system. Practically, all legal court systems are tolerant and also they all actively promote the progression of the alternative dispute resolution systems for some categories of arguments. The growth of the ADR has increased numerously due to the inadequacy of the judicial systems resulting from the inadequate resources hence courts acting either at or above their capacity. The ADR are less expensive and are not limited to any group of people as they are favorable for the disadvantaged groups and the poor due to their cheap cost and flexibility and reduced delays. Due to these benefits the ADR has been incorporated in the legal court systems and are becoming increasingly formalized due to the raised issues of transparency. Therefore the creation of the ADR’s has changed the phase of administration of the legal court system. They act as a rival as well as a compliment to the formal mediation. This is because of the function ability of the ADR mechanisms which makes the system to be competent, convenient and produce good outcome than the legal court system. Thus the modern civil justice is administered in a dual process with the court adjudication system on one end and informal adjudication mechanisms on the other end. This has greatly yielded far much better outcomes with great satisfaction and acceptance of the results. The dual adjudication process of the civil justice has enhanced the legal court systems to adopt some of the best alternative dispute resolution mechanisms that bring about equity. Meanwhile the courts are making efforts in crystallizing the authority of equity of the complex and technical procedures that has turned the court process to be a failure.
References
Main, T. O. (2005). ADR: the new equity. U. Cin. L. Rev., 74, 329.
Menkel-Meadow, C. (2013). Regulation of Dispute Resolution in the United States of America: From the Formal to the Informal to the ‘Semi-formal’. Regulating Dispute Resolution: ADR and Access to Justice at the Crossroads, Felix Steffek, Hannes Unberath, Hazel Genn, Reinhard Greger & Carrie Menkel-Meadow, eds., Hart.
Zekoll, J., Bälz, M., & Amelung, I. (2014). Introduction: The Changing Face of Dispute Resolution. In Formalisation and Flexibilisation in Dispute Resolution (pp. 1-13). Brill.
Nosyreva, E. (2010). Alternative Dispute Resolution in the United States and Russia: A Comparative Evaluation. Annual Survey of International & Comparative Law, 7(1), 3.
We are social beings and we are therefore expected to uphold social contract taking note that individuality is essential and therefore we cannot submerge it. The core purpose of social union is to ensure that our individuality is enhanced hence resulting to a just society. This right goes beyond our hurt feelings and is centered on who we are as human beings. Privacy concept is a broad term that has been used for ages and is well recognized by most of the people due to the benefits that accrue from this kind of protection. Privacy issues are increasing each and every new day as the world is globalizing and thus technological advancement which cause violation of privacy. Generally, privacy refers to the right of a human being which protects against any compromises to a person’s privacy by any institution or other people. Each individual has privacy rights independently of what is decided in any social contract hence forming a just society. This rights acts as a limit to the society’s dominion over a person. This allows for people to keep themselves all matter s which they strongly believe that are not in the legitimate significance of the public. Intellectual matters are intangible and are as a result of the numerous efforts by an individual on a previous work of others hence an advanced quality of work (Warren & Brandeis 194-195). They are therefore a creative mental individual’s efforts which have value which involves facts, thoughts, course of action and modes of operations. This kind of properties can be regarded as private properties that also require legal protection against copyright and any violation. This ensures that the integrity of the intellectual property is upheld.
As a result of the way the world is changing, the contemporary right of privacy is essential due to the high rate of growth due to the mechanical reproduction of information. Legal protection on privacy is essential and the law is greatly working on ensuring that the already established laws on privacy are adhered to and implemented. Thus legal protection is needed so as to ensure that a free society is established hence promoting a human good thus encouraging the flourishing of individuals (Allen 1). This is a social need where the individuals are able to cope to the need of living among others within the society. The opportunity for this privacy models an individual into being fit thus allowing their active social contribution and participation. This encourages the establishment of bonds of affection between individuals within the society and hence a common interest.
Privacy protection through the law ensures that solitude is enhanced where an individual will be free from any form of disturbance within reason (Allen 23). The individual will also be able to act publicly without being identified thus encouraging anonymity (Allen 23). Intimacy will as well be enhanced where any form of private association will be protected. Personal Information will be reserved hence a restriction on access will be enhanced thus allowing secrecy and confidentiality (Allen 24). This right also protects against privacy in various environments, location privacy, body and communication privacy.
There are various forms of privacy from which an individual’s integrity is conserved and restricted. Internal self is a form of privacy which occurs where the individual’s emotions, habits and way of life are protected against accessibility.
Restriction to access to an individual’s body and products of their bodies is essential as t plays a core role in making an individual’s life private (Allen 14).
Information privacy ensures that any data that is either contained inform of electronic or written is protected against accessibility. This form of privacy ensures the confidentiality and integrity of an individual’s information and this is enhanced through the restriction of accessibility. Protection against properties that are tangible, valuable and are transferable is a type of privacy activity. The law therefore protects such properties through restriction of publication activity of the property. Copyright laws are one of the protection activities against duplication and it ensures that the rightful intellectual owners are able to benefit entirely from their publications ((Warren & Brandeis 200). Protection against any form of gossip and press release is a privacy right. This ensures that the individual is allowed to live their lives and they are secured from any gossip and press release that may violate their private lives. It is believed that the press is overstepping in every direction hence resulting to the indecency and lack of property privacy hence leading to more mental pain, distress, body injury and loss of reputation (Warren & Brandeis 196). It is the therefore important for people to be protected against all these types of privacy issues that are building up each single day. This will help in building a just and happy social society with union and oneness. The law has an obligation towards privacy protection as it will ensure that legal protection is implemented while better legal protection procedures are established in cases where the existing laws are inadequate.
B
With the increased issues related to privacy, some of the privacy strategies have been put in place and are still being implemented. However, it has proven to be difficult for most of these strategies to work in the contemporary world due to the globalizing and technological issues. For instance, rights on privacy by communication print and media has yielded strains due to the introduction of even more complex and potentially invasive communications technology thus causing more difficulty in ensuring privacy. The nature of most of this advanced technology has raised some issues which has hindered the success of the rights of privacy. The fact that technology has the ability to copy, communicate and to transfer data at a high speed puts print as well as communication issues such as gossips into a greater risk. This therefore infringes the legal protection from the disclosure of any strictly individual information.
Surveillance by the government has also made it difficult in maintaining privacy and has in one way or the other resulted into violation of rights of privacy (class lecture on 8/30/16). For instance, most of the American police have camera’s that are used to surveillance every street in each and every neighborhood thus potentially losing on privacy. Information technology has also played a difficult role of establishing the right of privacy. This is because information technology has the ability to add an entirely varying range of cases of potential infringement of privacy right. This builds up the fear that privacy in the case of information technology have to deal with the concentration of huge amounts of private data about a person and then providing them with even more widespread allocation.
The government uses data mining process so as to acquire information that would help them combat terrorism. However, there are concerns with the use of radio frequencies identification and consolidating medical personal information which all are violations of an individual’s privacy. The use of these radio frequencies (RFID) is aimed at tracking individual’s products through the manufacturing procedure so as to track the location of persons. Thus the government uses this technology in identifying documents such as passports.
Some of these terrorism governmental programs are aimed at catching terrorists slightly before they attack a nation by monitoring the emails, financial accounts, health records, databases and travel information. This is an essential program as it helps to curb terrorism but it is however not good as it violates the rights of privacy as it is carrying out its operations. It is therefore recommended that the government should adhere to privacy rights and hence any undertaking that they engage in should first consider the right on privacy (class lecture on 8/30/16). However, the government has a role in ensuring that their citizens are protected against any form of attack and thus they should actively involve themselves in ensuring security and safety for the public. It is therefore recommended that a balance should be stricken between the government and the right for privacy as this will help in serving a multi-purpose. Thus it is commended that before any form of government surveillance, the government should attain approval from a special federal court. This will help in ensuring that the information to be collected will only be used to prevent to terrorism. This would therefore limit the searches that are based on suspicions about a particular person. Also a judicial review on data mining strategies is needed as it will help in preservation of the right of privacy. In maintaining the balance between ethical consideration through the right of privacy and the safety of the people through surveillance, there will be ethical development and future benefits from the peace within a nation and by everyone (class lecture on 8/30/16).
Metadata is usually used for computing where it describes information of the stored data. A reasonable protection is expected as it is geared towards the restriction of access to the stored data to the public. The metadata should therefore be restricted as it should have a certain level of secrecy since most of these stored data contains personal information and secured information which is highly sensitive. Hence when privacy is violated on the data in the metadata, a group of people’s privacy may be infringed thus causing injuries and great losses. It is therefore essential to ensure that the metadata is kept far away from others and that a higher security measure on this kind of data is implemented so as to ensure that all the stored data receives the privacy that is required hence allowing for integrity, secrecy, isolation and confidentiality of the stored data. However the measure to whether the metadata requires privacy will be determined by the sensitivity of the data stored and on the level of secrecy needed.
According to the fourth amendment, a person who is invoking it can claim a lawful expectation of privacy especially when the government has invaded on the individual’s privacy. This however embraces two things as to whether a person has exhibited a subjective expectation of privacy and whether the expectation is one that the society can regard as sensible. Smith, the petitioner in this case, failed to entertain any expectation of privacy in his dialed numbers and if there was any expectation it was not lawful (class lecture on 8/30/16). The fact that the petitioner voluntary conveyed numerical information to the telephone organization indicates that he was afraid that the company would expose him and hence the company would reveal the information. He used his home phone rather than a private phone was not regarded as one that preserved the rights of the other person whom he dialed his number (class lecture on 8/30/16). This reason was not one that the society would regard to be sensible.
C
Basing on the argument given by the government it is quite clear that they are very much determined in stopping the terrorist attack which they regard as an issue of national security. However, their numerous efforts are hindered by the Apple Corporation which refuses to unlock the phone of one of the suspect. Thus, the FBI’s thinks that the unlocking of this I-phone by Apple company would help in preventing any future attack as they would use they would use it to access and be able to see others who are involved. However, the Apple Company argues out that once they unlock one phone, the other agencies will as well ask for the unlocking of more and more phones. They continues to argue that once a software for the unlocking is created then this increases the vulnerabilities hence establishing a backdoor where it exposes the company to cyber security issues (class lecture on 8/30/16). This therefore is the core reason as to why they think that unlocking the phone is not a god idea as they have a responsibility of ensuring their customers privacy.
Therefore it is essential that the government should deploy their resources into other various areas where they would acquire the information. This is because of the fact that unlocking of only one phone may result to exposures to other malicious terrorists who may take advantage of the vulnerability while undertaking the unlocking process. This may also be viewed as a plan by the terrorist who may have locked the phone intentionally with an aim of driving the FBI into unlocking the phone so as to be able to hack into the system and hence carrying out their malicious activity. The government n this case should focus more on other indicators and searches which has a lighter burden as they employ all the skills that they have in their enforcement. This will ensure that the integrity of the information held by the Apple Company maintains its integrity and all the sensitive and top secret information within the state are secured. Instead of the government using its power to manipulate the private companies, they should negotiate with the Apple Company so as to ensure that they come to a consensus where each party is able to benefit and secured from risks. This will therefore help in creating a healthy and secure place to live in.
SECTION 2
LEGAL MEMORANDUM
TO:
FROM:
DATE: 13TH DECEMBER 2016
RE: (GRISWOLD, ROE AND CASEY- WOMAN’S HEALTH IN TOTALITY) AND (LAWRENCE AND OBERGEFELL – SAME SEX CASES)
Questions Presented
According to Griswold and Roe is the right of privacy for women found in the constitution?
Does the right to same sex intimacy and marriage as discussed in Lawrence versus Texas and Obergefell be viewed as a right under the right of privacy?
Short Answers
The constitution through the fourteenth amendment in the due process clause restricts the government from intruding in ways that violate upon the right of citizens. The right of privacy started way before Roe where abortion was viewed as non-essential while marital rights were not regarded as important. With Griswold, the right to privacy was protected by the fourteenth amendment. These rights ensured that the women’s rights were adhered to.
The court will find out that the homosexuals have liberty as adults to engage themselves in any private undertaking under the substantive law. Hence the state has no right to disgrace their existence and does not have power over their private life and especially their sexual life. The substantive law gives them total liberty to engage in their undertakings without government interference.
Facts
Estelle Griswold after starting a clinic, she was arrested for violating the same. However, her attorney defended her using the substantive due process concept. According to the fourteenth amendment, the attorney argued that the right of privacy in this case was violated. To support his case he used the first, third, forth, ninth and fourteenth amendments which would enhance them to make their privacy argument strong (Griswold v Connecticut 1965). Roe who was a twenty one years old, alleged that she was raped and later become pregnant due to the raping. After pleading the doctors to carry out an abortion, they refused arguing that according to the Texas Law, it was a crime to undertake an abortion unless the mother was in danger (Roe v. Wade pg.402).
It is after the police were tipped by the neighbors who alleged that there were probable weapons that were causing disturbance. The police on entering Lawrence home they found Lawrence engaging in sex with another man. They were arrested as they were claimed to violate the Texas law which was against homosexual activities (Lawrence v. Texas pg. 430). Obergefell and Arthur who was twenty years wanted to marry before Arthur’s death. As they travelled to Maryland as the state laws there permit same sex marriage. However, before Arthur died, they sued against Ohio officials claiming that ban on marriage by the state infringed on the due process and equal shield as per the fourteenth amendment (Obergefell V. Hodges pg. 438).
Discussion
Roe is suing the county DA of Dallas, Wade as she alleges that Law in Texas violates fundamental personal rights such as medical rights, privacy and marital rights. The issue in this case is whether the mother has a right to abort her pregnancy/ the court is likely to conclude that the woman’s right to abort is within the right f privacy as acknowledged by Griswold versus Connecticut. This decision will give power to the women during their three months while the state will provide different levels of concern on the second and third trimesters. According to the law, the fourteenth amendment is a substantive due process that protects against liberty and privacy is extracted from this clause.
According to the law, a state should not prohibit adults from engaging in intimacy of the same sex and marriage of the same as this would be violating the substantive due process of the fourteenth amendment clause. The court therefore would rule that there is no reason that can justify the state’s infringement into private and individual lives. Hence two people of the same sex have a right of privacy that is the right to legally engage in sex and to marry as well.
Conclusion
In accordance to the facts of the case, the court will find out that the right of personal privacy involves termination decisions. However, this right must be considered against the essential nation’s interest in ruling. Therefore abortion is a right to privacy in the first trimester and the law states that a strict investigation is not needed at this level since the state’s interest is on the second and third trimester.
In consideration of the facts, the court found out that the homosexuals had liberty as adults to engage themselves in any private undertaking under the substantive law. Hence the state has no right to disgrace their existence and does not have power over their private life and especially their sexual life. The substantive law gives them total liberty to engage in their undertakings without government interference.
References
Warren, S. D., and L. D. Brandeis. "The right of privacy. 4: 5 Harv." L. Rev 193 (1980).
Allen, Anita L. Uneasy access: Privacy for women in a free society. Rowman & Littlefield, 1988.
This website is owned and operated by PFS Limited.
Company Registration office is at:
2875 NE 194st St 404, Miami, FL 33180
Edudorm.com provides writing and research services for limited use only. All the materials from our website should be used with proper references and in accordance with Terms & Conditions
