Story highlights
Stan Cooper filed suit against the federal government, saying it violated his privacy
The government argues he cannot sue for mental and emotional stress
Cooper: The government should "own up to breaking the law and take responsibility"
High above San Francisco Bay, Stan Cooper can get away from it all in his private plane. His five-decade passion for flying once threatened to upend his personal and professional life – because of his own mistakes, and those of the government. It is a tale of accountability, one the Supreme Court is poised to tackle with oral arguments Wednesday.
At issue: Whether those whose privacy was violated by the federal government can sue for mental and emotional distress. The federal government argues a more tangible proof harm – like lost wages – must be established.
“My privacy is gone and is lost forever. I’d simply like the government to be held accountable,” Cooper told CNN. “They cannot violate the law with impunity, and other people won’t have to go through what I’ve been through. That’s the real bottom line in this lawsuit.”
The 69-year-old California man has HIV, first diagnosed in 1985. More than two decades earlier, he obtained his private pilot’s certificate and his airman medical certificate from the Federal Aviation Administration. Both were needed for him to operate aircraft. After his health declined, he did not renew his certificates, because the agency at the time did not allow those with the HIV virus to fly.
As his symptoms worsened in 1996, Cooper applied for long-term disability with the Social Security Administration.
“I was in bad shape, I didn’t have long to live,” he recalled. “I went out on disability. And then this new class of drugs came out and I started taking, they became known as the cocktail or highly active anti-retroviral therapy. These protease inhibitors were the first of a number of different new drugs. And I started taking those, my T-cell count went up, my viral load had dropped eventually to undetectable. I was healthy, I got off disability after one year and went back to work.”
And then, he said, “two years after all of that that I found out they were issuing medicals (exemptions) and I reapplied (to the FAA) without revealing my HIV status. Big mistake.”
He received his new pilot’s certificate, but unknown to him, a local, joint federal initiative called Operation Safe Pilot was launched in 2002. Using a spreadsheet, the agencies shared and compared the names and personal data of about 45,000 pilots in Northern California, looking for those medically unfit individuals who were also receiving federal benefits. Cooper was tagged as a “person of interest.” When confronted by government agents, he admitted to a misdemeanor charge of filing a false report.
He was sentenced to probation and fined. His pilot’s certificate was revoked.
His name was listed in a federal press release, and later through his prosecution, Cooper’s medical history suddenly was a matter of public record.
“I had been able to control those of whom I shared my information about my HIV status, limited to some co-workers, family, and close friends,” he said “And suddenly that was out of my control.”
Cooper, who was eventually allowed to fly again, sued. A federal judge found both agencies violated the Privacy Act with the information-sharing probe, but said under the law only “actual damages” could be collected by plaintiffs seeking redress. The judge found “emotional injury” alone did not qualify and dismissed the lawsuit.
But a federal appeals court reversed, ruling for Cooper. The agency then asked the high court to intervene.
For Cooper the matter is simple: “I chose not to reveal my HIV infection and that was a very bad thing. I took responsibility for it and I paid the price. I was punished. And I think now it’s the government’s turn to own up to breaking the law and take responsibility for what they did.”
The government obviously does not see it that way. Justice Department lawyers argue Congress made that clear in its law when it limited “actual damages” to the measurable, financial category. The administration warned a victory for Cooper could lead to a flood of lawsuits and massive government liability for those making an “ambiguous” claim like emotional distress.
Neither the FAA, the Social Security Administration, nor the Justice Department would comment on the case publicly.
Daniel Solove, a privacy expert and law professor at George Washington University, says the government will make a simple argument before the high court.
“No harm, no foul, that’s kind of what the government’s trying to say, even though it very well is saying we might have committed a foul but guess what – you can’t show a harm and therefore you can’t prevail in this case. … The government argues that they didn’t do it intentionally, they didn’t do it willfully, and the plaintiff is saying, ‘no you knew what you were doing, and you went ahead and did it.’”
Cooper’s lawyer says the case is about faith in government.
“The government is telling you that it doesn’t need to follow the law that it can intentionally break it and you have no remedy,” said Raymond Cardozo, who will argue the case before the justices. “If someone had the most personal and confidential details intentionally revealed by the government, and it was so crippling they couldn’t get out of bed for a month, wouldn’t go out in public, their life’s emotionally shattered, the government’s position is – there is no remedy without economic loss. It’s a position we think is absolutely untenable.”
In the larger sense, privacy advocates worry whatever the outcome, people will have a more difficult time controlling their own information in today’s digital age.
“No matter where we turn, the law is in fact lagging behind the technology,” Solove said. “I think it does need to catch up, and I think the way it can catch up is by making the right holding in this particular case, because this really goes to an understanding of what privacy is all about and the nature of what a privacy injury is about.
“And if the Supreme Court gets this right, I think that’s an important step for privacy law more generally.”
Cooper believes there is no going back, since much of his medical history is now available for all to see. He has become a crusader of sorts in this legal fight, but an uncomfortable one.
“They’ve betrayed my trust and I can get that back,” he said. “And so I’ve become a public figure as a result of that. There was nothing to lose here, I had to do it. It was the right thing to do.”
The case is Cooper v. FAA (10-1024). A ruling is expected next spring.