March 2020

Boeing Bailout: 737 Max Crashes and the Coronavirus

Bernard Cryan, MJLST Staffer

Boeing Overview

Boeing plays a major role in the aerospace industry—both domestically and internationally. Boeing employs over 160,000 people worldwide and had a revenue of $76 billion in 2019. According to Forbes’ 2019 Fortune Global List, Boeing is ranked as Fortune 100 company. In fact, Boeing is America’s largest manufacturing exporter. Boeing’s business operations are organized into three units: Commercial Airplanes; Defense, Space & Security; and Boeing Global Services. Boeing’s Commercial Airplanes division is responsible for producing “almost half the world fleet” with more than 10,000 Boeing-built jetliners in service worldwide and “about 90% of the world’s cargo is carried onboard Boeing planes.”

737 Max Crashes

Boeing’s popular commercial airplane—the 737 Max—was recently involved in two deadly crashes. In October 2018, 189 passengers were killed on a Lion Air flight taking off from Indonesia. Again, in March 2019, 157 passengers were killed on an Ethiopian Airlines flight just minutes after takeoff. In response, Boeing grounded all 737 Max airplanes around the world and created a $100 million relief fund “to meet the family and community needs of those affected by the accidents.” Nevertheless, Boeing has received harsh criticism and scrutiny over deficiencies in its product and training. The 737 Max airplanes are still not cleared to fly causing Boeing customers to revise or even cancel orders. Certain airlines have also demanded compensation from Boeing for flight cancellations that resulted from the grounding of 737 Max airplanes. Boeing’s stock price fell after the crashes and Boeing’s revenue fell from $101 billion in 2018 to $76 billion in 2019. Boeing even replaced its CEO after he was unable to stabilize the company following the crashes. In sum, the 737 Max crashes have forced Boeing into a vulnerable financial position.

Coronavirus

The recent COVID-19 outbreak has posed additional challenges for Boeing and the entire aerospace industry. Boeing has publicly acknowledged the struggles of the entire industry caused by the coronavirus. For example, coronavirus’ impact on travel has forced American Airlines to fly its first cargo-only flight in 36 years. Boeing is directly impacted by the coronavirus because struggling airlines are not currently in the position to place orders for new airplanes.

Government’s Response

Although there is fierce competition amongst airlines, there is little competition in the manufacture of commercial airplanes. Boeing and Airbus, a European company, are the two main global suppliers of large commercial aircraft and have almost complete market power. President Trump has recognized Boeing’s indispensable role in keeping America competitive in the global industry and has recently stated, “Yes, I think we have to protect Boeing. We have to absolutely help Boeing.” Boeing has publicly expressed support for the government’s plan to bailout the aerospace industry.

Boeing is requesting a bailout of the aerospace industry in the amount of $60 billion. Boeing has suspended paying dividends and CEO Dave Calhoun has given up his pay temporarily. Additionally, United Airlines has threatened to cut jobs if the bailout relief is not passed by Congress. The aerospace industry wants help from the government. Some, however, caution against using the term ‘bailout’ for this type of situation because the airlines did not cause the hardship resulting from the coronavirus. Although Boeing and the airlines are not responsible for the coronavirus, they are at least partly responsible for their current inability to survive through these challenging times—Boeing and the airlines have spent billions of dollars in recent years buying back their own stock. For example, airlines have spent $42.5 billion on buy backs between 2014 and 2019 which is almost identical to the amount the industry is now requesting from the government.

The Bailout and The Takeaway

A government bailout can be in the form of legislation providing money or resources to a company or even an industry to help that company or industry avoid bankruptcy. For example, Congress approved a $15 billion bailout to the airlines in response to the 9/11 terrorist attacks. Another example is the Emergency Economic Stabilization Act of 2008 where the government provided bailout relief to banks after the mortgage crisis. AIG initially received an $85 billion loan (later receiving more money totaling $150 billion) from the Treasury in exchange for 79.9% equity in AIG. The loan was to be repaid with interest; the U.S. government and taxpayers eventually made $22.7 billion from interest payments.

A government bailout of the aerospace industry appears imminent. Boeing is likely to be considered “too big to fail.” The main questions are how much money will go to Boeing and the aerospace industry, in what form, e.g., debt or equity, and what strings will be attached to that money. Will the government acquire some ownership of Boeing as they did with AIG? Boeing CEO has said Boeing may reject any relief from the government if the government demands stake in the company. Will Boeing be required to change any of its Commercial Airplane division business practices? Will there be more government oversight of Boeing’s operations? Will Boeing be required to cut emissions from its planes to help protect the environment? The aerospace industry bailout will be interesting to monitor as things should come together quickly in the next few weeks, or even days.


Can the Legal System Help Combat COVID-19

Amanda Jackson, MJLST Staffer

As the novel coronavirus, COVID-19, continues its global rampage, the United States has been hard hit.  Now third with respect to number of new cases, there is little evidence to show that the case count will decrease any time soon.  If Italy provides any indication of what is to come, the United States is only going to be hit harder by the life-threatening virus.  Both federal government and local governments have taken drastic measures to combat the spread of COVID-19, including state-wide shelter-in-place orders, closing schools and universities, banning dining in at bars and restaurants, and moving non-essential businesses to work-from-home models.

As the confirmed cases continue to rise, so does uncertainty and uneasiness among the nation and the world as a whole.  What will fix this crisis?  How long will these measures be in place?  How many more people will get sick and potentially pass away from the virus?  What will happen to the economy?  Will my loved ones be okay?  The questions never seem to end.  Luckily, however, there are some answers as to how different laws, administrative agencies, and regulations in place in the United States can aid in the fight against the quickly spreading coronavirus.

First, the Defense Production Act (DPA) can alleviate shortages in medical equipment.  As concern about the novel virus itself grows, concern for the availability of necessary supplies and equipment also seems to grow at record speeds.  A lack of masks and other personal protective equipment for healthcare workers, a shortage in ventilators and beds for sick patients, and even a need for healthcare workers and hospital space are becoming more prevalent as the COVID-19 crisis continues.   The DPA, a Korean War-era law, enables the federal government to require private companies to provide for the needs of national defense.  The DPA may not be able to satisfy the need for healthcare workers and hospital space, but it can allow the federal government to direct manufacturers to produce the desperately needed medical equipment for healthcare workers and patients.  However, the President must invoke the DPA in order for it to make a difference, and as of right now, the DPA has not been invoked to aid in the fight against coronavirus.  Although some companies have increased or altered production to help restock the necessary equipment, it remains unclear whether that alone, without invoking the DPA, will be enough to meet the needs of the United States in the coming weeks.  Even so, the DPA provides a robust option to fulfill the needs of the nation in the fight against the pandemic.

Second, the Federal Drug Administration’s (FDA) and the National Institute of Health’s (NIH) ability to fast track vaccines and therapeutic drugs can speed up development of a COVID-19 vaccine or therapy.  Called an Emergency Use Authorization (EUA), the FDA is able to authorize emergency use of an unapproved product or an unapproved use of an approved product under a declaration of a public health, domestic, or military emergency, or a material threat.  The evidence required for approval of an EUA is that the product “may be effective” to treat, diagnose, or prevent the conditions associated with the declaration.  This is a lower standard than the “effectiveness” standard used for typical FDA approvals, a process that takes on average twelve years to go from a new drug in a laboratory to a drug on a pharmacy shelf.  In determining whether to approve the EUA, the Commissioner has to determine that the known and potential benefits of the product outweigh the risks associated with the product, while also considering the threat prompting the emergency declaration.  Fortunately, the FDA has already issued multiple EUAs with respect to the novel coronavirus, such as for tests to detect COVID-19.  The FDA has also instituted flexible measures outside of EUAs that enable states to take a more prominent role than typically allowed.  For example, the FDA is now allowing states to approve COVID-19 tests without requiring FDA approval or an EUA.  Moreover, NIH is also fast-tracking development of a coronavirus vaccine, with a Phase I clinical trial of the vaccine candidate having already begun.

Third, declarations of major disaster areas will open up emergency funds to help states and local governments respond to an outbreak.  Major disaster area declarations are often requested when a disaster exceeds the response capabilities of state and local governments under extremely severe circumstances.  Major disaster area declarations enable a wide range of federal assistance for both individuals and public infrastructure.  With respect to coronavirus, the President has already declared New York and other hard-hit states as major disaster areas, the first time in United States history that a major disaster has been declared for a public health threat.  The declaration enables the federal government to pay for a majority of the states’ costs and mobilize the Federal Emergency Management Agency (FEMA) to deploy assistance in the state, among other methods of assistance.

Fourth, shelter-in-place orders by local governments may reduce the spread of the virus.  Shelter-in-place orders mandate that residents stay in their homes, except for essential trips (e.g., to the grocery store or a pharmacy).  Many shelter-in-place orders also force all non-essential businesses to close.  These orders are generally constitutional under a state’s police power.  At least eight states and many cities have issued shelter-in-place orders as a means to flatten the curve and reduce the impact of coronavirus on society and the healthcare system.  Some law enforcement officials appear to be taking the orders very seriously, breaking up parties in violation of the shelter-in-place rules or stating that the orders will be “strictly enforced.”

Moreover, there are multiple bills working their way through the federal government that will hopefully provide some more answers and relief for the American people.  Although those options are only a few of the tools in the government’s toolbox, if used properly, they can help the nation combat COVID-19.


#ChonkyBois: When It Comes to Running Shoes, How Thicc is too Thicc?

Molly Woodford, MJLST Staffer

Early last November, I wrote a blog post about the developing controversy surrounding the Nike Vaporfly NEXT%. At that time, the IAAF (track and field’s world governing body, which has now rebranded itself as “World Athletics”) had just announced that it was assembling a working group to examine the Vaporfly controversy and “find the right balance in the technical rules between encouraging the development and use of new technologies in athletics and the preservation of the fundamental characteristics of the sport: accessibility, universality and fairness.” The IAAF also announced that it expected the working group “to report back by the end of the year.”

True to its word, on January 31, 2020, the IAAF promulgated new rules governing footwear. Among other things, the new rules stated that all racing shoes could have a sole no thicker than 40mm and contain no more than one carbon plate. In addition, in order to prevent athletes from racing in prototypes that might otherwise comply with the rules, “any shoe that is first introduced after [April 30,] 2020 may not be used in competition unless and until it has been available for purchase by any athlete on the open retail market (i.e. either in store or online) for at least four months prior to that competition.” Since the first day of Olympic track and field is, for now, scheduled to begin on July 31, 2020, and the Olympics marathons are scheduled to take place on August 8 and 9, any racing shoe used in the Olympics must, therefore, be released for sale to the general public by the end of April.

The IAAF president, Sebastian Coe, stated that:

As we enter the Olympic year, we don’t believe we can rule out shoes that have been generally available for a considerable period of time, but we can draw a line by prohibiting the use of shoes that go further than what is currently on the market while we investigate further.

True to Coe’s words, under the new rules, the Nike Vaporfly NEXT% is legal, as is its successor, the AlphaFly Next%, which was announced by Nike on February 5, 2020, less than a week after the new IAAF rules. The “stack height,” or “the amount of material between your foot and the ground” of the AlphaFly is 39.5mm, versus 37mm in the Vaporfly Next%. By way of comparison, the stack height of the Nike Zoon Streak 7, a conventional marathon racing flat, is 26mm. Thus, the Next% line features a sole that is approximately 50% thicker than its traditional counterparts. “Running twitter” has taken to referring to the Alphafly as #ChonkyBois.

Nike made a limited number of Alphaflys available to Nike Plus members on February 29, 2020, to coincide with the United States Olympic Marathon Trials. In a genius marketing coup, Nike made the Alphafly available, for free, to all athletes competing in the Olympic Marathon Trials. According to Runner’s World, about 25% of competitors opted to wear the Alphafly, even though those who are not sponsored by Nike had just received the shoes days before the race (you generally do not want to try new things during a marathon, like shoes or nutrition). Runners were willing to take this risk because, while the Vaporfly boosts performances by ~4%, the Alphafly may help twice as much.  The previously-unheralded Jacob Riley intentionally chose to forgo pursuing sponsorship until after the Olympic Trials so that he could race in the Alphafly. His gamble paid off, with a personal best and an Olympic berth.

Nike’s competitors are working to match the effectiveness of the Alphafly, but they’re not there yet. With its legality no longer in doubt, the Alphafly is here to stay, for better or for worse.


Davos Attendees Seek Political Cover under 1 Trillion Trees

Noah Cozad, MJLST Staffer

At the World Economic Forum (otherwise known as Davos), the most popular subject was something called the Trillion Tree Initiative to help fight climate change. Nearly every attendee at the forum committed to the initiative. Including President Trump, who in the past has forcefully denied climate change’s existence, calling it a “hoax” invented by the Chinese. President Trump even mentioned the initiative in the State of the Union, and a GOP representative has introduced a bill that would commit the United States to planting 3.3 billion trees every year for the next 30 years. Davos describes the initiative as a “mass-scale nature restoration,” that hopes to provide up to one-third of the emission reductions necessary for the Paris Agreement targets. Practically, the initiative seeks to provide a single platform for a variety of reforestation projects and to mobilize funds and support.  This initiative was started by the UN as part of the New Decade of Ecosystem Restoration, 2021-2030. The UN says the initiative “is about, conserving, restoring, and growing trees. Indeed, the goal of 1 trillion trees by 2030 includes conservation of existing trees (i.e. avoided deforestation), the restoration and natural regeneration of previously degraded forest lands, including actual reforestation and tree-planting schemes on suitable agriculture land, . . . as well as urban tree planting.”

The idea of planting 1 trillion trees comes from a controversial 2019 article in Science. The article finds that global tree restoration is currently one of the most effective carbon drawdown solutions. Accordingly, planting 1 trillion trees has the potential to store 25% of the current atmospheric carbon pool. The study focuses on reforestation, as opposed to afforestation which is planting trees where none were before. Critics have argued that this is an unreliable way to fight climate change and is not a meaningful substitute for cutting back on emissions. Further, it is a very slow solution, for example it takes 25 years for a tree planting project to offset a single commercial flight.

While it is undeniable that planting large amounts of trees will help with climate change, there are still many issues with this idea. The initiative seems like a silver bullet, relatively apolitical, and very easy for people to grasp onto and understand (unlike climate change, which as a whole is extremely complex). But herein lies many of the problems. For one the initiative completely shifted the focus of Davos away from proven solutions like carbon taxes. While carbon taxes are difficult and very political, a trillion trees is a good way for banks and pension funds, that are financially exposed to fossil fuel companies for $1.4 trillion, to act as if they’re doing something. Further, simply planting tons of trees might be bad for an individual ecosystem. In fact the Coalition for Environmental Justice in India has had to ask Leonardo DiCaprio from going forward with a tree planting project as ecologists say the current plan will dry up rivers, harm the floodplains, destroy biodiversity, and eventually make the area uninhabitable for the trees in the first place. The UN itself has said that the project is NOT a silver bullet and should instead be one smaller part of a larger plan.

Perhaps the biggest issue is that the initiative provides political cover to those making climate change worse and distracts from better solutions. Absent other climate policies, the United States would need to plant an area over twice the size of Texas to offset emissions. Trees play a critical role in climate change, but the best way to utilize them is to protect current forests and let them grow back naturally. And the best way to do that is to provide protections for the indigenous peoples living there, according to University of Minnesota Natural Resources Professor Forrest Fleischman. Professor Fleischman stated, “people are getting caught up in the wrong solution. . . . Instead of the guy from Saleforce saying, ‘I’m going to put money into planting a trillion trees,’ I’d like him to go and say, ‘I’m going to put my money into helping indigenous people in the Amazon defend their lands.’. . . That’s going to have a greater impact.”

Overall, the Trillion Tree Initiative is a good start, but should not be allowed to provide political cover for those invested in fossil fuels, and climate deniers. For example, the folks at Davos continue to support President Bolsonaro of Brazil, who has rolled back protections of indigenous people and the Amazon, one of the world’s largest carbon sinks, thus allowing large swathes of the tropical forest to burn and the people who live there to be killed. The trillion tree initiative should not distract us from such actions that ultimately make climate change worse. Instead of one, simplistic solutions, we should push for multiple, better solutions such as protecting public lands, forests, and the rights of the indigenous peoples who live there and protect the environment, along with planting more trees.


Privacy, Public Facebook Posts, and the Medicalization of Everything

Peter J. Teravskis, MD/JD Candidate, MJLST Staffer

Medicalization is “a process by which human problems come to be defined and treated as medical problems.” Medicalization is not a formalized process, but is instead “a social meaning embedded within other social meanings.” As the medical domain has expanded in recent years scholars have begun to point to problems with “over-medicalization” or “corrupted medicalization.” Specifically, medicalization is used to describe “the expansion of medicine in people’s lives.” For example, scholars have problematized the medicalization of obesity, shynesshousing, poverty, normal aging, and even dying, amongst many others. The process of medicalization has become so pervasive in recent years that various sociologists have begun to discuss it as the medicalization “of everyday life,” “of society,”  “of culture,” of the human condition, and “the medicalization of everything”—i.e. turning all human difference into pathology. Similarly, developments in “technoscientific biomedicine” have led scholars to blur the line of what is exclusively “medical” into a broader process of “biomedicalization.”

Medicalization does not carry a valence of “good” or “bad” per se: medicalization and demedicalization can both restrict and expand personal liberties. However, when everyday living is medicalized there are many attendant problems. First, medicalization places problems outside a person’s control: rather than the result of choice, personality, or character, a medicalized problem is considered biologically preordained or “curable.” Medicalized human differences are no longer considered normal; therefore, “treatment” becomes a “foregone conclusion.” Because of this, companies are incentivized to create pharmacological and biotechnological solutions to “cure” the medicalized problem. From a legal perspective, Professor Adele E. Clarke and colleagues note that through medicalization, “social problems deemed morally problematic . . . [are] moved from the professional jurisdiction of the law to that of medicine.” This process is referred to, generally, as the “medicalization of deviance.” Further, medicalization can de-normalize aspects of the human condition and classify people as “diseased.”

Medicalization is important to the sociological study of social control. Social control is defined as the “mechanisms, in the form of patterns of pressure, through which society maintains social order and cohesion.” Thus, once medicalized, an illness is subject to control by medicinal interventions (drugs, surgery, therapy, etc.) and a sick people are expected to take on the “sick role” whereby they become the subjects of physicians’ professional control. A recent example of medical social control is the social pressure to engage in hygienic habits, precautionary measures, and “social distancing” in response to the novel coronavirus, COVID-19. The COVID-19 pandemic is an expressly medical problem; however, when normal life, rather than a viral outbreak, is medicalized, medical social control becomes problematic. For example, the sociologist Peter Conrad argues that medical social control can take the form of “medical surveillance.” He states that “this form of medical social control suggests that certain conditions or behaviors become perceived through a ‘medical gaze’ and that physicians may legitimately lay claim to all activities concerning the condition” (quoting Michel Foucault’s seminal book The Birth of the Clinic).

The effects of medical social control are amplified due to the communal nature of medicine and healthcare, leading to “medical­legal hybrid[]” social control and, I argue, medical-corporate social control. For example, employers and insurers have interests in encouraging healthful behavior when it reduces members’ health care costs. Similarly, employers are interested in maximizing healthy working days, decreasing worker turnover, and maximizing healthy years, thus expanding the workforce. The State has similar interests, as well as interests in reducing end-of-life and old age medical costs. At first glance, this would seem to militate against overmedicalization. However, modern epidemiological methods have revealed the long term consequences of untreated medical problems. Thus, medicalization may result in the diversion of health care dollars towards less expensive preventative interventions and away from more expensive therapy that would help later in life.

An illustrative example is the medicalization of obesity. Historically, obesity was not considered a disease but was a socially desirable condition: demonstrating wealth; the ability to afford expensive, energy-dense foods; and a life of leisure rather than manual labor. Changing social norms, increased life expectancy, highly sensitive biomedical technologies for identifying subtle metabolic changes in blood chemistry, and population-level associations between obesity and later-life health complications have contributed to the medicalization of this conditions. Obesity, unlike many other conditions, it not attributable to a single biological process, rather, it is hypothesized to result from the contribution of multiple genetic and environmental factors. As such, there is no “silver bullet” treatment for obesity. Instead, “treatment” for obesity requires profound changes reaching deep into how a patient lives her life. Many of these interventions have profound psychosocial implications. Medicalized obesity has led, in part, to the stigmatization of people with obesity. Further, medical recommendations for the treatment of obesity, including gym membership, and expensive “health” foods, are costly for the individual.

Because medicalized problems are considered social problems affecting whole communities, governments and employers have stepped in to treat the problem. Politically, the so-called “obesity epidemic” has led to myriad policy changes and proposals. Restrictions designed to combat the obesity epidemic have included taxes, bans, and advertising restrictions on energy-dense food products. On the other hand, states and the federal government have implemented proactive measures to address obesity, for example public funds have been allocated to encourage access to and awareness of “healthy foods,” and healthy habits. Further, Social Security Disability, Medicare and Medicaid, and the Supplemental Nutrition Assistance Program have been modified to cope with economic and health effects of obesity.

Other tools of control are available to employers and insurance providers. Most punitively, corporate insurance plans can increase rates for obese employees.  As Abby Ellin, writing for Observer, explained “[p]enalizing employees for pounds is perfectly legal [under the Affordable Care Act]” (citing a policy brief published in the HealthAffairs journal). Alternatively, employers and insurers have paid for or provided incentives for gym memberships and use, some going so far as to provide exercise facilities in the workplace. Similarly, some employers have sought to modify employee food choices by providing or restricting food options available in the office. The development of wearable computer technologies has presented another option for enforcing obesity-focused behavioral control. Employer-provided FitBits are “an increasingly valuable source of workforce health intelligence for employers and insurance companies.” In fact, Apple advertises Apple Watch to corporate wellness divisions and various media outlets have noted how Apple Watch and iPhone applications can be used by employers for health surveillance.

Indeed, medicalization as a pretense for technological surveillance and social control is not exclusively used in the context of obesity prevention. For instance, the medicalization of old age has coincided with the technological surveillance of older people. Most troubling, medicalization in concert with other social forces have spawned an emerging field of technological surveillance of mental illness. Multiple studies, and current NIH-funded research, are aimed at developing algorithms for the diagnosis of mental illness based on data mined from publicly accessible social media and internet forum posts. This process is called “social media analysis.” These technologies are actively medicalizing the content of digital communications. They subject peoples’ social media postings to an algorithmic imitation of the medical gaze, whereby, “physicians may legitimately lay claim to” those social media interactions.  If social media analysis performs as hypothesized, certain combinations of words and phrases will constitute evidence of disease. Similar technology has already been coopted as a mechanism of social control to detect potential perpetrators of mass shootings. Policy makers have already seized upon the promise of medical social media analysis as a means to enforce “red flag” laws. Red flag laws “authorize courts to issue a special type of protection order, allowing the police to temporarily confiscate firearms from people who are deemed by a judge to be a danger to themselves or to others.” Similarly, it is conceivable that this type of evidence will be used in civil commitment proceedings. If implemented, such programs would constitute a link by which medical surveillance, under the banner of medicalization, could be used as grounds to deprive individuals of civil liberty, demonstrating an explicit medical-legal hybrid social control mechanism.

What protections does the law offer? The Fourth Amendment protects people from unreasonable searches. To determine whether a “search” has occurred courts ask whether the individual has a “reasonable expectation of privacy” in the contents of the search. Therefore, whether a person had a reasonable expectation of privacy in publicly available social media data is critical to determining whether that data can be used in civil commitment proceedings or for red flag law protective orders.

Public social media data is, obviously, public, so courts have generally held that individuals have no reasonable expectation of privacy in its contents. By contrast, the Supreme Court has ruled that individuals have a reasonable expectation of privacy in the data contained on their cell phones and personal computers, as well as their personal location data (cell-site location information) legally collected by third party cell service providers. Therefore, it is an open question how far a person’s reasonable expectation of privacy extends in the case of digital information. Specifically, when public social media data is used for medical surveillance and making psychological diagnoses the legal calculation may change. One interpretation of the “reasonable expectation of privacy” test argues that it is an objective test—asking whether a reasonable person would actually have a privacy interest. Indeed, some scholars have suggested using polling data to define the perimeter of Fourth Amendment protections. In that vein, an analysis of the American Psychiatric Association’s “Goldwater Rule” is illustrative.

The Goldwater Rule emerged after the media outlet “Fact” published psychiatrists’ medical impressions of 1964 presidential candidate Barry Goldwater. Goldwater filed a libel suit against Fact, and the jury awarded him $1.00 in compensatory damages and $75,000 in punitive damages resulting from the publication of the psychiatric evaluations. None of the quoted psychiatrists had met or examined Goldwater in person. Subsequently, concerned primarily about the inaccuracies of “diagnoses at a distance,” the APA adopted the Goldwater Rule, prohibiting psychiatrists from engaging in such practices. It is still in effect today.

The Goldwater Rule does not speak to privacy per se, but it does speak to the importance of personal, medical relationships between psychiatrists and patients when arriving at a diagnosis. Courts generally treat those types of relationships as private and protect them from needless public exposure. Further, using social media surveillance to diagnose mental illness is precisely the type of diagnosis-at-a-distance that concerns the APA. However, big-data techniques promise to obviate the diagnostic inaccuracies the 1960s APA was concerned with.

The jury verdict in favor of Goldwater is more instructive. While the jury found only nominal compensatory damages, it nevertheless chose to punish Fact magazine. This suggests that the jury took great umbrage with the publication of psychiatric diagnoses, even though they were obtained from publicly available data. Could this be because psychiatric diagnoses are private? The Second Circuit, upholding the jury verdict, noted that running roughshod over privacy interests is indicative of malice in cases of libel. Under an objective test, this seems to suggest that subjecting public information to the medical gaze, especially the psychiatrist’s gaze, unveils information that is private. In essence, applying big-data computer science techniques to public posts unveils or reveals private information contained in the publicly available words themselves. Even though the public social media posts are not subject to a reasonable expectation of privacy, a psychiatric diagnosis based on those words may be objectively private. In sum, the medicalization and medical surveillance of normal interactions on social media may create a Fourth Amendment privacy interest where none previously existed.