Noah: Objections to Tara and Henry on Mitchel V. Wisconsin

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Tara’s thesis was extremely well-written, well-thought-out and well-argued. I can only hope to write something as compelling come my senior year.

In my opinion, the most thought-provoking argument of Tara’s thesis came from the use of the Mitchel V. Wisconsin Supreme Court case to frame an “illegitimate choice situation.”  I’ve been thinking about this argument for quite some time, and I’ve come to disagree with parts of both Tara’s account, and also Henry’s (third) critique of her account. (His first two are very compelling).


To start, Henry claims that “As I see it, drunk driving endangers the rightful condition provided by roads, so it seems only reasonable to violate privacy to ensure that this rightful condition is upheld.” I do (obviously) agree that drunk driving endangers a rightful driving condition for others on the road, but I also maintain the majority opinion overreached in allowing privacy violations to unnecessarily ensue for a rightful road condition to be upheld.


 In Justice Sotomayor’s dissent, she states that “The State of Wisconsin conceded in the state courts that it had time to get a warrant to draw Gerald Mitchell’s blood, and that should be the end of the matter.” The police did not need to pursue a blood test without warrant, because they had enough time to get one. Had they received a warrant, the privacy violations from demeaning a nonconsensual blood test would have been legitimate from a forth amendment standpoint. 

Violating privacy to secure a rightful condition should only occur within the proper procedures, and only to the most limited extent possible: having a warrant would have nullified the privacy violation.


Henry continues, claiming “similarly, internet companies' existence requires the sale of user data, so it seems only reasonable to require it as a condition of use.” I think Google and Facebook would find other ways to be profitable without the ability to sell our data. European Union privacy laws are much more extensive and it seems that European internet companies are not going out of business.


Henry’s final anecdote, about the 100 adjacent plots, also misses the mark in my opinion. Before creating his high-speed rail that randomly drug tests passengers, Henry clarifies that we “assume that the government has created an easement connecting all the plots to ensure a rightful condition.” Given this easement with a rightful condition, the choice situation cannot be characterized as illegitimate, regardless of the conditions of the latter option. Whatever coercion you offer in exchange for your rail services are valid. In a similar vein, I think Tara’s argument surrounding Mitchell V. Wisconsin could be completely refuted if there were a comprehensive public transportation system as an alternative to driving.


Henry also brings up air travel to being a similarly fundamental practice as driving. I would argue that in 2017, over 76 percent of Americans drove solo to work every day, and another 9 percent carpooled. While in the same year, less than half of U.S. population rode on an airplane. When an ability to secure income and employment are highly dependent on accessing a vehicle, driving a car is practically necessary to living in the modern age, while air transport is not.


Switching gears, Tara claims that “because the of the social structure [of Wisconsin requiring car transportation to engage in everyday life], people are put in situation where they have no legitimate choice but to consent to blood draws and other bodily intrusions” (54). I fully grant that driving is akin to using the internet in todays society: both are fundamental tools that leave individuals who choose to neglect them significantly disadvantaged. But I think a more accurate representation of the situation is as follows: Wisconsin drivers are forced into a situation where they must consent to blood draws for the purpose of determining alcohol.  Again, this is not really a choice, but I am not as convinced as Tara that this one option is illegitimate.


Tara attempts to draw parallels between the situation for Wisconsin drivers and the situation around data collection. The reason why this analogy falls flat is that bodily intrusion or blood draws are only warranted in the case where one is suspected of having broken the law. If one uses the road within legal bounds, refraining from drinking, driving properly, everything is peachy-keen. And even in the case of someone wrongly being accused of drinking, the default of a breathalyzer test should prove them innocent without severe bodily invasion. Blood draws and bodily intrusions should only become possible once someone has committed a crime. Thus, the only option of choosing to drive given these circumstances is quite reasonable: if you undermine the proper rules of the road enough to where you become unconscious, you cannot reasonably expect to be immune from procedures determining your guilt, as long as they are done through proper means (like obtaining a warrant) and are done with the specific intention of determining BAC. 


The key difference between the analogies is that perusing the internet without breaking the law still gives data to third party companies, and results in having property taken. On the other hand Individuals must break the law in order to have their property taken in Wisconsin. Therefore, I believe blood tests under very specific circumstances are permissible in Wisconsin, because individuals have to have committed wrongs in order to become subject to them. In contrast, no wrongs have to be committed in one’s use of internet before data collections begin, which makes third party data collection much more of a violation of one’s property. 

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