Law Blog

Facebook has been in hot water after it came to light that as many as 87 million users had had their private data scraped, sold, amalgamated, and run through machine learning devices to create profiles all without their knowledge and right under Facebook’s nose. The story has been everywhere, but the details go as follows. Back in 2013, a Cambridge University researcher made an app for use on Facebook called “thisisyourdigitallife.”

The app was a basic personality quiz and was taken by about 270,000 users. However, the app permissions settings policies in Facebook were much more permissive back then. The researchers simple quiz had permissions, after you installed it, to scrape the data off your entire Facebook profile and-more dangerously-the Facebook profiles of the people on your friends list.

Some 30 million of these profiles were purchased in 2014 by Cambridge Analytica–a company run by Donald Trump’s former campaign manager and adviser Steve Bannon. The information run through machine learning devices to create larger profiles for each individual and chart trend among them. This information was used by the Trump campaign in their marketing after Jared Kushner hired Cambridge Analytica in 2016.

This is far from the first bit of criticism Facebook has faced in recent years, the fake news issues for instance. However, this also isn’t the first time it has come out that Facebook had not taken the best care of its users’ private data. It’s not even the first time in the last decade that an app has been misused to mine data for a presidential campaign-the Obama for America app did something similar back in 2012.

The whole situation has led to massive legal and media blockback for Facebook and its CEO Mark Zuckerberg. Zuckerberg has spoken before Congress in the last couple days and has been called to speak before MPs, the UK Parliament, and more. The situation has given rise to lawsuits, potential legal and legislative action from the U.S. government, state governments and even governments abroad.

Legal Issues of the Breach Itself

There is an enormous amount of law that could be discussed here, so we’re going to focus on only the most immediately relevant to the situation. One of the central issues here, in terms of understanding Facebook’s legal duties to monitor the actions and content from their user’s posts revolves around a law that far pre-dates Facebook itself-the 1996 Communications Decency Act (CDA).

The CDA makes it so that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This shields Facebook, and all ISPs and similar websites from liability when it comes to the statements and posts of third parties. There are obviously several exceptions to this.

For instance content which infringes copyright gives rise to separate Digital Millennium Copyright Act safe harbor issues. However, it means that websites such as Facebook are generally immune to many legal claims over the actions of their users as they are not treated “as the publisher or speaker” of that third-party information.

The goal behind this is to help preserve a more robust internet as the reality of the situation is that it is very difficult for a large website to track the actions of all its users. However, it also provides a great deal of legal shelter to a site such as Facebook.

The CDA applies to activities which occur on the internet, the defendant is a “provider or user of an interactive computer service” (this includes websites), and the defendant website isn’t the source of the posted content. It provides protection to websites for essentially any user posting of information online. It also requires the website to not encourage illegal content or design their site to require the input of illegal content.

There are some additional complications to this. However, suffice it to say, social media websites benefit quite a bit from these sort of protections. While there are state by state privacy laws, there’s very little law limiting use of private data at a federal level.

Unless something illegal is happening, the CDA will cover a site such as Facebook when it comes to quite a bit of potential legal issues. Instead, most of the obligations of a site such as Facebook are self-imposed through their privacy policies and terms of service.

These rules have seen some recent changes with the FOSTA-SESTA Acts. However, these changes will have a minimal effect on Facebook’s overall duties to monitor and filter its user’s posts. FOSTA-SESTA mostly acts as a bit of an overbroad attempt to fight online sex trafficking by adding duties on the part of online platforms to police their users, a bit of an odd choice as there is already law on the books which serves the same purpose.

Private Legal Action Against Facebook

Even with protections such as the CDA in mind, there has already been private legal action against Facebook. A class action lawsuit was brought against Facebook, Cambridge Analytica, and Mark Zuckerberg himself on March 22nd.

The lawsuit has six counts including fraud and deceptive practices, breach of contract, negligence, intrusion upon seclusion, and charges under the Stored Communications Act (SCA)–part of the Electronics Communication Privacy Act, one of the few federal privacy laws.

To make a very complicated law simple, the SCA makes it a crime to access without authorization and share with the government the contents of a communication stored online–after a 2010 court case this includes social media messages but not posts on a wall or similar public communications.

The action alleges that Cambridge Analytica mined data with the intent of influencing the 2016 election and Facebook, despite recorded warnings from entities such as the Irish government as early as 2011, irresponsibly let it happen under their nose.

Federal Investigation and Potential Action

At a federal level, we’ve obviously already seen Mark Zuckerberg testify before Congress. However, that is far from the full extent to which the federal government can-and in fact is likely to-go. From potential fines to litigation, there is quite a bit still in movement here.

We already mentioned that this isn’t the first time Facebook has been in trouble over their privacy practices. There is no simpler example of this than the 2011 settlement they reached with the FTC over charges that Facbook had deceived its users by not following its own privacy practices. Under the settlement, Facebook must give it users “clear and prominent notice” and obtain user consent before sharing the user’s information.

They also threw in the most obvious bit, Facebook had to promise not to make any further deceptive privacy claims. Now the question will become whether the FTC will come after Facebook for violating this settlement-known as a consent decree in situations such as this. The fine for such a violation, under the agreement, could be as much $40,000 per user per day–considering this is 87 million users over the course of months that number could end up astronomical.

This has the potential to be the largest fine levied in the history of government regulation, it could even break a trillion dollars. In comparison, the current largest government fine of all time was an approximately $13B fine levied on JP Morgan Chase over its subprime mortgage practices before the recession.

This was followed by a $4B fine levied against BP after their enormous oil spill in the Gulf. This fine, if the FTC chooses to act, has the potential to dwarf both of those combined. This being said, there is little indication of where the FTC plans to go with, so we’ll just have to wait and see where this ends up in the coming days.

Additional federal action could come in the form of new legislation adding additional privacy requirements on online actors, something the U.S. has historically been extremely hesitant to do-especially in light of the push and pull between privacy and the First Amendment. This being said, there are already bills under consideration which may get another look from Congress in light of current events.

A bipartisan bill known as the Honest Ads Act was introduced late last year and would have required social media and other media to disclose which group is running a political advertisement in an effort to increase transparency. The bill has seen little action since its introduction, sitting in the Senate Rules Committee without action. However, it has been backed in recent days by a number of high profile entities such as Twitter and even Facebook itself. This may lead to Congress revisiting the provisions.

State Action in Light of Facebook’s Breach

Individual states have also begun to take action in like of recent events. For instance, California has already put an initiative on the ballot–opposed by Facebook and essentially all broadband providers–that would require companies to disclose what information they gather, how they sell it, and allow people some measure of input over what a given business can do with their data. They’re also seeking to introduce a law which would require social media platforms to identify bot accounts.

Action Taken Abroad

There has been enormous movement on privacy abroad recently, although not really in response to the Facebook situation. The EU has introduced what is almost certainly the most sweeping and powerful privacy protection law ever passed in the world–the General Data Protection Regulation or GDPR.

Taking effect May 25th, the GDPR has had online companies doing business in the EU moving quick to ensure they meet the law’s stringent privacy requirements. With substantial fines for failure to comply, the GDPR applies to all companies doing business in the EU and–among an enormous number of provisions too detailed to even scratch the surface of here–requires companies to maintain full transparency about what information they gather and why.

The users themselves have the power to access this data and can tell companies how they may use it and even have the companies delete that data.

What is Facebook Doing in Light of This Scandal?

As of now, Mark Zuckerberg has said in his testimony to Congress that Facebook will provide apps less access to data and require more transparency as to what data individual apps gather. They have already changed their political advertising policies and, again according to Zuckerberg, will be beefing up their security measures.

However, by Zuckerberg’s own admission, the issue will be a difficult one to completely address. Regardless of what steps are taken, the reality is that the road to eliminating data sharing and breaches is an extremely difficult one just based on the sheer scope of data out there, number of users, and the ever-shifting nature of security threats

As to legal steps on the issue within the U.S., there is a push and pull between limiting the dangers from the content on Facebook and ensuring the proper First Amendment speech protections when it comes to the government creating laws on this issue.

That being said, Facebook is completely free to limit speech, methods of use, etc. through its platform in essentially any way it sees fit through its privacy policies and terms of use. As a private corporation, they are not subject to the First Amendment limitations that the government is. Privacy protections in law are woefully lacking, but complicated to effectively craft. This is an issue should not be rushed, but getting it right is crucial to the ongoing existence of a healthy internet.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

Understanding the body cam laws of the state you live in is crucially important–the obligations of the officers around you and your rights to any footage taken. As we’ve discussed earlier, a lot of this type of footage can be made available though requests under state and federal public records laws. Each state has a different approach and many have–among other laws–limited or even required this sort of disclosure in certain situations.

As we’ve seen in the shooting of Stephon Clark, the required release body cam footage such as the policy of the Sacramento Police Department can make a big difference in public transparency. However, we’ve also seen that holes in those policies such as allowing officers to mute their cameras (as the officers did after shooting Stephon Clark) can raise serious questions about police conduct.

As we discussed in the last article, we’re going to go through the laws of each state alphabetically to help you learn where your state is on the issue. Several states have no laws at all or are in very early stages in creating these laws. These states are listed in the previous article and will not be discussed here.

If you don’t see your state on the list, it is one of these states. Other than that, we’ve already covered the states up to Florida. Go check out the previous article if your state falls into those already covered.

For today, we’ll be discussing Georgia to Indiana. In reading these, remember that individual department policies and county regulations such as Sacramento’s can change these rules further–it’s always worth looking into things like this to know your rights.

Georgia

Georgia law focuses primarily, as discussed above, on when the public can have access to body camera recordings. The law leaves a situation where the recordings are generally accessible by public request, but the exemptions cover an enormous number of situations so as to substantially limit this public access.

Any recording taken in a place where there is a reasonable expectation of privacy–such as the subject of a recording’s home–are exempt from public records rules. They can usually be accessed by the subject of a recording, the parents of a minor in a recording, or anybody subject to criminal or civil action relevant to the video.

The law also makes some provisions covering how police officers handle recording and the footage it creates. First, it creates an exception to usual eavesdropping laws for body cam recordings made as part of official duties.

It also requires officers to maintain body cam records for at least 180 days–a requirement increased to 30 months if the video shows an accident, detainment, arrest, or use of force or if it is part of a criminal investigation or pending litigation. There is explicitly no requirement (or real limitation) on redaction of recordings under state law–any requirements would instead be at a department level.

Illinois

As of 2015, Illinois has required independent standards from their Board of Police Training and Standards on the use of body cams. These rules include that cameras need to be equipped before any substantial event and capable of recoding at least 10 hours. Cameras must be on always, if circumstances prevent a camera from being turned on it must be turned on as soon as possible.

There are a few exceptions to this last rule, such as when the victim asks an officer to turn off the camera, a witness won’t testify on camera, or when an officer is speaking to a confidential informant. Even then, an officer can keep the camera on in extreme circumstances so long as they explain why they’re not turning off their camera.

Officers also can turn off their cameras during community caretaking functions. They are required to give notice when they are recording if there’s any expectation of privacy. This notice must be heard in the recording itself unless extreme circumstances prevent it, even then the notice must come as soon as possible.

Officers must ensure their cameras are in working order and immediately notify superiors of any issues then fix them. The departments themselves need to track and report information on several statistics on body cam usage as well as train officers in the use of the body cams.

Illinois also has in-depth state level laws regarding handling of body cameras and recordings.  Any labeling, duplication, or redaction of recordings must be handled by people specifically designated for the task.

Officers, and their supervisors, can only access the data to complete incident reports and only if that review is documented. The video is maintained for 90 days unless it documents a serious incident in which case it is kept for two years. If there is an ongoing investigation or case, it can only be deleted after the case reaches its end.

The law also, a bit strangely, prevents a recording from being used in disciplining an officer unless there is a complain leveled against that officer, there is a use of force, or the video is used to corroborate other evidence of misconduct. Why the recorded actions of an officer aren’t generally available to punish an officer for misconduct is unclear.

All body camera footage is exempted from the usual Freedom of Information Act public records requests. There is an exception if the data is flagged as part of a complaint or if the video shows a discharged firearm, use of force, an arrest or detention, death or bodily harm, or even if the victim or witnesses give permissions for the release of the video.

Indiana

Indiana laws surrounding body cams focus almost entirely on additional requirements placed on the public before they can access body cam recording data pursuant to the state’s open records law. Requests for such information must be in writing and must specify the date, location and approximate time of incident, and the name of at least one person, other than a law enforcement officer, who was directly involved in the law enforcement activity.

Agencies are required to allow these “requestors” to view the recordings in question at least two times–not the most useful requirement to review a potentially quite long video but still something. Requestors isn’t just anybody requesting the data however, it includes subjects of the recordings, owners of real property depicted in a recording, or victims of person or property damage.

Most notably, there is an additional element that is almost entirely absent in other laws related to body cameras around the nation, there are actual penalties for an agency’s failure to comply. Requestors can get attorney’s fees, court fee, and other expenses refunded if they are successful in a court action to see their footage.

In general, public agencies must allow anybody to inspect a copy of a recording unless they can demonstrate that this release would pose a significant risk of harm to a person or the public, interfere with a person’s ability to get a fair trial, affect an ongoing investigation or would not serve the public interest. There is a specific exception for recordings showing airport security unless there is approval from airport security officers.

All recordings must be maintained, unaltered and unobscured, for at least 280 days by state agencies and for 190 days by local departments. If there is a request to hold it longer from a “requestor” or a complaint is filed related to the incident the footage is held for at least two years. However, footage may generally be retained for any length of time. Footage that is part of a court case is kept until that case is finished.

There are restrictions on copying footage, but the fee to police for such actions is capped at $150. Officers are also limited in what they can obscure in footage before it is released.

Keep on The Look Out for More!

If you haven’t seen your state in the articles thus far, you’re sure to see it soon! We’re going to go through all 50 states laws. We’ll be starting the next article with Kansas. Keep an eye out, and know your rights.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

Individual camera policies can change from department to department. However, most of states have laws on how police body cameras, and their footage, is handled. If it weren’t for the release of footage in the Stephon Clark shooting recently, we may have a much different story of what occurred that day.

However, the availability of that footage has allowed a completely honest conversation about a black man shot in his grandmother’s backyard after a rose gold cell phone was apparently mistaken for a gun in the dark.

In the last few years, especially after the introduction of the Body Worn Camera Pilot Implementation Program by former-President Obama in 2014, there has been quite a bit of legislation on the rules regarding body cams in any given state.

It’s crucial that people know where their state is on these programs. If a loved one is involved in an incident with the police, you may be able to access the recording of that incident–the department in question may even be required to distribute that recording as the Sacramento department was in Stephon Clark’s case.

We’ve already discussed how Sacramento’s body cam policies came into play in the shooting of Stephon Clark. However, we’ve yet to discuss how those types of policies may apply more directly to you. With that in mind, let’s look at the state by state laws on body cams.

We’ll go alphabetically through each state that has laws on body cams so you can easily find a brief summary of the laws in your own state. By necessity, this is going to be a lot of information, it may be best to just scroll down to the states that apply to you and give it a read.

There are several states–such as New York—that have no rules on body cam usage, requiring them or regulating them, on a state level. If you don’t find your state in the list, you live in a state where this is the case.

There are also a few states which have passed laws requiring body cam policies be put together in the future–Arizona, Vermont, Kentucky, Maryland, Massachusetts, Nebraska, Delaware, Colorado, and South Carolina. Many of these states have posted online recommendations, but no other laws on the books. It is a good bet that many department policies are close to mirroring these recommendations.

However, you should look to your local department policies if you live in one of these states. Some, such as New Jersey, have appropriated funds for a body cam program but haven’t gone much further. We won’t be discussing these today either, but if you live in one of these states it’s worth knowing whether there will be new rules soon. With all this being said, let’s get started with the laws! There’s a lot to cover here, so today will go over Arkansas to Florida.

Arkansas’s Body Cam Law

Arkansas body cam laws at this point focus primarily on when the public can view body cam records through methods such as a Freedom of Information Act (FOIA) request–a common means for the public to gain access to government records.

Under Arkansas law, any records that show the death of a law enforcement officer are exempt from disclosure in all their forms–including body cam footage. The only way to get these records is a court order after a showing of good cause to a judge. These records are still available through the usual discovery means in a trial.

California’s Body Cam Law

California has quite a bit of law on how body cameras for police are handled. As of 2015, they’ve been requiring each individual police department and highway patrol to put together best practices and rules for using body cams and storing their data. The laws place special emphasis on a requirement all information be kept for 60 days and recordings with potential evidentiary value be kept at least two years. All the usual evidentiary chain rules apply to storing body cam footage. California law also forbids unauthorized access to this data and, for some reason, uploading the footage to social media.

In 2016, they added some additional rules for these body cam policies including designating somebody specifically responsible for downloading and storing recorded data, categorizing data for easy access, creating safeguards against tampering or deletion, and even more details on where and how long the data is to be stored.

Just last year, California some additional steps to limit the release of body cam videos under the California analog to FOIA–the California Public Records Act. However, they only did this in situations where a recording–video or audio–portrays rape, incest, sexual assault, domestic violence, or child abuse that depicts the face, intimate body part, or voice of a victim of the incident depicted in the recording. But, law enforcement is still required to justify withholding the recording and can’t prevent the video from being viewed by the victim in the video if they request it.

Connecticut’s Body Cam Law

Connecticut, much like California, start putting together body cam requirements in 2015 after the federal grants were offered the year prior–their original law required standards and policies in place for the use of body cams within the state and, as of July 1, 2016, required all police officers to wear the cameras while interacting with the public. The camera’s must be worn on the outermost garment on the upper half of an officer’s torso.

However, this original law went much further than most other similar laws at the time. Law officers are forbidden from editing, erasing, copying, sharing, deleting, altering or distributing without authorization any footage taken by the body cam. They are, however, allowed to review the footage in preparing their reports or preparing to give testimony in a case. If the review is for testimony, they must do it in the presence of an attorney or union representative.

The body cams also are not allowed to be used when speaking with undercover officers or informants, on break, during medical or psych evaluations unless there is crime occurring in a hospital or similar setting. The laws also public disclosure of scenes with domestic or sexual abuse, homicide, suicide, or death by accident if it would be an unwarranted invasion of personal privacy. This policy was partially amended in 2016 to bar FOIA requests of recordings unreasonably invading the privacy of a minor without the permission of that minor’s guardians.

The body cams must have all damage and malfunctions swiftly reported and must be frequently inspected for functionality.

Even more recently, Connecticut has designated a task force to overhaul their body cam laws and policies. This means that there likely be substantial updates to these laws either this year or next year.

Florida’s Body Cam Law

Just like the last two, Florida put its first laws together in 2015. However, it’s original rules were focused almost entirely on when the recordings would be available under their state open records laws. Body cam footage in Florida can’t be released under public records rules if it depicts the inside of a person’s residence, a medical facility, or any area most people would consider private–such as a dressing room. In 2016, an additional exemption was created for the killing of a person or on duty law officer.

The flip side to the initial law made in 2015 was setting standards for when police must release body cam footage–or more specifically who they must share it with. For instance, they are required to share recordings with the subjects of the recordings. Courts are given some direction as to when to allow the release of body cam footage, specifically looking at how sensitive or personal the recording is and considering the privacy interests of the subject of the video.

Later laws acquired funds for widespread use of the cameras and training. They also required each individual law enforcement agency to supplement the laws in place with use polices.

Most recently, Florida has expanded officer access to the videos from body cams. Officers are now allowed to review recorded footage before writing a report or providing a statement regarding recorded events. They are not required to be supervised during this review.

More Analysis of State Body Cam Laws to Come

As you can see, there’s a lot to cover given how many states have these sorts of laws. That being said, it’s worth knowing the responsibilities and obligations of the police as well as your own rights. Keep an eye out for the next set of states, we’ll be starting with Georgia.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

In 2016, 10 year old Caleb Schwab was decapitated during a waterslide. Caleb’s raft became airborne during the ride and hit hoops and netting overhead. Two other adults were injured and Caleb was killed.

Co-owner of Schlitterbahn Waterparks and Resorts, Jeffrey Henry, was arrested for aggravated battery and aggravated child endangerment. The Kansas Attorney General’s office arrested ride designer John Schooley as well, and charged both Henry and Schooley with reckless second-degree murder.

According to the indictment, Henry dropped out of high school and had no technical or engineering background. However, he controlled many decisions regarding Schlitterbahn construction and design projects.

The Attorney General claims the park rushed to complete the world’s tallest waterslide to impress producers of Xtreme Waterparks, a Travel Channel show. Schwab’s death was believed to be an isolated incident until whistleblowers claimed their bosses had covered up prior accidents.

Schwab’s family received a $20 million settlement. The charges against Henry are being filed by the state of Kansas, which is independent from the victims.

Should Corporations Be Criminally Liable?

Second degree murder is defined in most jurisdictions as non-premeditated murder – i.e. the murder was intentional, but not premeditated. This usually involves “crimes of passion,” like a husband who comes home and finds his wife in bed with another man.

The other type of second degree murder occurs when the defendant acts in a manner that shows complete disregard for life. A man who points a loaded gun at everyone he comes across in public and then accidently shoots someone might not have planned to kill someone. However, he had to have known that using his gun like that might result in a dead body.

It would unjust to hold a person responsible for a crime that he or she did not commit. Corporations and other business entities are organizations with multiple individuals, many of whom may not know what other employees are doing. The law only imposes criminal liability on businesses in two instances: first, when the employer is vicariously liable for an employee’s criminal actions.

However, the standard for criminal vicarious liability is higher than civil vicarious liability – the employer must authorize the criminal acts, rather than the employee acting in the employer’s name. Second, the business owner themselves may be held liable if they committed the criminal acts personally.

In this case, prosecutors are alleging that Henry, as an owner, was acting so recklessly that any reasonable person would have known that it would endanger someone’s life. Henry was making important design and construction decisions even though he had no background in engineering.

His decisions were likely influenced by a desire to impress television producers instead of public safety. Henry also knew that the ride was dangerous as employees reported he had helped cover-up similar accidents. While Henry might not have wanted anyone to die, he had to know that his actions would almost certainly lead to death(s).

Business’s Increasing Responsibility to Society

The biggest concern is increased criminal liability for business owners. The goal of every business is profit. Some business owners will put public safety as a lower concern than making money.

There should certainly be consequences if they do not sufficiently prioritize safety, but those consequences were restricted to civil court through personal injury and product liability laws. Criminal courts should only be used if the actors were intentionally malicious.

On the other hand, it is arguable that society has been too lenient on businesses. Big banks played a large role in 2008 recession, but few were punished. Many received bonuses for tanking the global economy.

Recent events reveal that social media companies like Facebook will abuse their consumer’s privacy if left alone. Perhaps if executives were liable for criminal liability as well as financial liability we’d have less corporate and business abuses than we’ve had so far in the 21^st century.

FBI Deputy Director McCabe announced his resignation on January 29, 2018. He went on paid leave until March 18, when he would officially retire. Attorney General Sessions terminated McCabe on March 16, thereby removing McCabe’s pension.

Sessions said he was following the recommendation of the FBI’s Office of Professional Responsibility, which claimed “Mr. McCabe had made an unauthorized disclosure to the news media and lacked candor – including under oath – on multiple occasions.” The report that Sessions cited has not been publicly released.

There are several factors that cloud McCabe’s termination. First, Mr. Trump has constantly taunted McCabe on Twitter, before his resignation and after his termination. McCabe has solid evidence if he wants to sue and argue that his termination was the result of a personal grudge instead of an objective investigation.

Second, McCabe was a witness who observed James Comey documenting his meetings with Mr. Trump. The Special Counsel could prosecute McCabe’s termination as witness tampering and intimidation. Finally, McCabe had approved an investigation into Jeff Sessions for perjury when he testified to Congress last year. If true, McCabe’s termination could be retaliation by the Attorney General.

Employment Law Would Support McCabe’s Claims

Employment in the United States is usually at-will. This means that either employer or the employee can end the relationship at any time for any reason. The exception is if the employer terminates the employee for an illegal reason, such as a breach of contract or racial discrimination.

However, many government positions, especially positions that directly report to elected offices, do not serve at-will. Government positions are protected to ensure that political bias does not affect operations of government that should be non-partisan, such as military defense or criminal investigations. They can only be terminated for good cause.

“Good cause” is essentially the opposite of at-will employment. At-will employment means that an employee can be fired for any reason except for an illegal reason. Good cause means the employer can only terminate the employee if the employer has a legal reason for doing so.

The Justice Department would claim that it had good cause for terminating McCabe – leaking classified information to the media and then denying it while under oath. However, McCabe is denying the allegations completely. Since no one has seen the report by the Office of Professional Responsibility, Sessions may be on thin ice with this decision. If McCabe sues and he is right, then McCabe’s termination would be invalidated and his pension restored.

McCabe would most likely argue that the allegations against him were a pretext. A pretext is a false reason given to fire an employee instead of the actual reason, because the actual justification is illegal.

McCabe could argue in court that he was really fired for all the reasons mentioned above: a President’s personal grudge against him, an attempt at witness tampering, and retaliation by an Attorney General who was afraid of the investigation that his target had authorized against him. Given that there was only two days left before McCabe’s resignation, the Trump Administration’s decision to terminate McCabe is legally very risky.

What Do Employees Get If They Win Their Lawsuit?

Although McCabe is a very high profile case, he is not unusual. According to the EEOC, 41,097 wrongful termination cases based on retaliation were filed in 2017. The average settlement is about $40,000, with 10% of settlements resulting in a million dollars for the employee. About 67% of wrongful termination trials in court are won by the employee.

Notably, very few cases result in the employee returning to work. First, employees are required to mitigate damages – they cannot do nothing and then demand back pay when they could have found another job. Second, a wrongful termination often means bad blood for both sides. Few people want the drama and potential hostility that may come after a lawsuit.

Finally, many states may require the employee to choose between a large settlement and returning to the original job. Most employers would replace the terminated employee right away. It would be unjust to fire the replacement just so that that wrongful terminated employee could return.