defendant was likely using a high-intensity lamp, and the agent then sought a SEARCH WARRANT from a federal magistrate judge. A subsequent search of the home discovered marijuana. The Supreme Court, per Justice ANTONIN SCALIA , found that the use of the device to survey the inside of the defendants home constituted a “search” for Fourth Amendment purposes. The government argued that because the device only sensed heat emanating from the exterior of the house, use of the device was not an unlawful intrusion on the defendant. Scalia disagreed, noting that Katz forbids a mechanical applica- tion of the Fourth Amendment that focuses only upon the physical capability of a surveil- lance device. He noted, “Reversing that ap- proach [in Katz] would leave the homeowner at the mercy of advancing technology—including imaging technology that could discern all human activity in the home.” Because the agent had not obtained a warrant until after he conducted a search of Kyllo’s home, the search violated Kyllo’s Fourth Amendment rights. Legislation One year after Katz, Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968 (Pub. L. 90-351, June 19, 1968, 82 Stat. 197; Pub. L. 90-462, § 1, Aug. 8, 1968, 82 Stat. 638; Pub. L. 90-618, Title III, Oct. 22, 1968, 82 Stat. 1236). Title III of the act governs the interception of wire and oral communications in both the public and private sectors. Electron- ic surveillance is used in the public sector as a tool of criminal investigation by law enforce- ment, and in the private sector as a means to obtain or protect valuable or discrediting information. Many of the fifty states have enacted legislation similar to Title III. Public Sector Title III outlines detailed proce- dures the federal government must follow before conducting electron ic surveillance. Pur- suant to authorization by the attorney general or a specially designated assistant, federal law enforcement agents must make a sworn written application to a federal judge specifically describing the location where the communica- tions will be intercepted, the reasons for the interception, the duration of the surveillance, and the identity of any persons whose con- versations will be monitored. The application must also explain whether less intrusive investi- gative techniques have been tried. Electronic surveillance may not be used as a first step in criminal investigation when less intrusive means are likely to succeed without creating a signifi- cant danger to law enforcement personnel or the public. A federal judge must then review the surveillance application to ensure that it satisfies each of the statutory requirements and estab- lishes probable cause. The surveillance must be executed as soon as practicable, terminate after fulfillment of its objective, and in no event last longer than thirty days without further judicial approval. Federal agents must also take steps to minimize the interception of communications not relevant to the investigation. Evidence obtained in violation of Title III or of the Fourth Amendment is generally not admissible in court and may give rise to civil and criminal penalties. Courts have interpreted Title III to cover information intercepted from satellite unscram- bling devices, cellular telephones, and pagers. However, Title III does not cover information intercepted from pen registers, which record the telephone numbers of outgoing calls, or caller identification, which displays the telephone numbers of incoming calls, because neither intercepts conversations of any sort. Although Title III does not regulate photographic Cameras are used for traffic surveillance in the Manhattan neighborhood of Chelsea. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ELECTRONIC SURVEILLANCE 119 interception, some federal courts have used it as a guide when reviewing the constitutionality of video surveillance. The procedural requirements of Title III are not without exception. Where there are exigent circumstances involving conspiratorial activities that threaten national security, Title III permits federal law enforcement agents to conduct electronic surveillance for up to 48 hours before seeking judicial approval. At one time, many observers believed that Title III also sanctions warrantless electronic surveillance by the EXECU- TIVE BRANCH for national security purposes. In 1972, the Supreme Court ruled to the contrary, holding that presidential surveillance of domes- tic organizations suspected of national security breaches during the Nixon administration had to comply with the Fourth Amendment’s warrant requirement (United States v. United States district court for Eastern District of Michigan, Southern Division, 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752). Congress attempted to clarify the murky area of covert presidential surveillance by passing the Foreign Intelligence Surveillance Act of 1978 (FISA) (Pub. L. 95-511, Oct. 25, 1978, 92 Stat. 1783). FISA regulates the federal government’s surveillance of foreign officials, emissaries, and agents within the United States but has no application to such surveillance abroad. Similar to Title III, FISA sets forth specific application procedures that a federal judge must review for probable cause before any form of eavesdropping may commence. Unlike Title III, FISA has been interpreted to govern video surveillance as well. As part of the so-called war on terror conducted by the administration of then- president GEORGE W. BUSH, federal agents wir- etapped U.S. citizens without FISA warrants. Between 2002 and 2005 the government relied on the voluntary cooperation of major tele- communications providers . After the program was revealed in the press, Congress enacted a law that required these providers to assist in the warrantless gathering of foreign intelligence when it involved targeted third persons, such as the provider’s customers, reasonably believed to be located outside the United States. The act expired in February 2008, and the provisions were repealed in July 2008. However, private citizens have filed civil lawsuits challenging the practice and seeking damages. In 2008, Congress passed a law immunizing the telecom companies from liability. This law was also under challenge as of summer 2009. Private Sector Electronic surveillance is most common in two areas of the private sector: employment and domestic relations. In addition to legislation in many of the 50 states, Title III governs these areas as well. It prohibits any person from intentionally using or disclosing information knowingly intercepted by electronic surveillance, without the consent of the interest- ed parties. The intent element may be satisfied if the person knew or had reason to know that the information intercepted or disclosed was ac- quired by electronic surveillance; it is not satisfied if the person inadvertently intercepted or disclosed such information. Sixty-eight percent of all reported WIRETAP- PING involves divorce cases and custody battles. Spouses, attempting to obtain embarrassing or discrediting information against each other, have planted video recording and listening devices throughout the marital home. Spousal surveillance most commonly involves telephone taps and bedroom bugs but has also included videotaping of activities as innocuous as grocery shopping and movie-going. The fruits of inter- spousal electronic eavesdropping have been offered in court to reveal extramarital affairs, illegal drug use, and other criminal or deviant activity. If interspousal surveillance is the most pervasive form of electronic eavesdropping, employer surveillance is the fastest growing. Employers videotape employee movement throughout the workplace, search employee computer files, and monitor employee phone calls. Reasons for such surveillance range from deterring THEFT and evaluating performance to protecting trade secrets. The advent of electronic mail ( E-MAIL)has provided employers with a new playground for mechanical snooping. As with telephone calls, employees may send personal messages while they are at work. Courts have permitted employ- ers to eavesdrop surreptitiously on employee phone calls for legitimate and significant business purposes, leading many employers to review employee email. However, in 2008 the Ninth CIRCUIT COURT of Appeals in Quon v. Arch Wireless Operating Co. (529 F.3d 892) ruled that employ- ers cannot read an employee’stextmessages without the employee’s knowledge and consent, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 120 ELECTRONIC SURVEILLANCE even if those messages were s ent or received using a company-owned electronic device. Without a search warrant, service providers cannot turn over the contents of an employee’smessagesto the employer, even if an employer pays for the messaging service. Employers can read e-mail only if they inform employees of the policy and have them agree. Common Law State COMMON LAW provides a third avenue of legal protection against electronic surveillance. Throughout the twentieth century, common law increasingly recognized a sphere of private activity beyond public consumption. The some- times-amorphous right to privacy consists of three discrete interests: secrecy, seclusion, and autonomy. The right to secrecy prevents non- consensual public disclosure of valuable, confidential, embarrassing, or discrediting in- formation. The right to seclusion creates a realm of personal solitude upon which society may not trammel. The right to autonomy represents the freedom to determine one’s own fate unfettered by polemical publicity. Common law protects these distinct privacy interests by imposing civil liability upon anyone who publicizes private facts; besmirches some- one’s reputation; profits from another’s name, likeness, or ideas; or otherwise intrudes upon an individual’s private affairs. Common-law pro- tection of privacy interests is broader than Title III because it is not limited to wiretapping and bugging but extends to photographic and video surveillance as well. Thus, video surveillance of restrooms, locker rooms, and dressing rooms may give rise to a claim for invasion of privacy under common law but not under Title III. At the same time, common law is narrower than Title III because liability is only established by proof that the published information was sufficiently private to cause outrage, mental suffering, shame, or humiliation in a person of ordinary sensibilities. Title III creates liability for any nonconsensual, intentional disclosure of electronically intercepted information, thus establishing a much lower threshold. For exam- ple, a newspaper would not be liable under the common-law invasion-of-privacy doctrine for accurately reporting that someone had engaged in criminal conduct. However, the nonconsensual, electronic interception of such information would give rise to liability under Title III. FURTHER READINGS Bazan, Elizabeth, ed. 2008. The Foreign Intelligence Surveil- lance Act: Overview and Modifications.Hauppauge, New York: Nova Science. Levy, Leonard. 1988. Original Intent and the Framers’ Constitution. New York: Macmillan. Staples, William G. 2000. Everyday Surveillance: Vigilance and Visibility in Postmodern Life. Lanham, MD: Row- man & Littlefield. Volkman, Earnest. 2008. The History of Espionage: The Clandestine World of Surveillance, Spying, and Intelli- gence, from Ancient Times to the Post-9/11 World. London: Carlton. CROSS REFERENCES Criminal Law; Criminal Procedure; Exclusionary Rule; Search Warrant. ELEMENT A ma terial factor; a basic component. The term is used to mean one of several parts that unite to form a whole, as in elements of a CRIMINAL ACTION or CIVIL ACTION. In the tort of ASSAULT AND BATTERY, an essential element of the offense would be unwanted physical con- tact. An element of the crime of RAPE is lack of consent on the part of the victim. ELEVENTH AMENDMENT The Eleventh Amendment to the U.S. Consti- tution reads: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. The Eleventh Amen dment limits the power of federal courts to hear lawsuits against state governments brought by the citizens of another state or the citizens of a foreign country. The Supreme Court has also interpreted the Elev- enth Amendment to bar federal courts from hearing lawsuits instituted by citizens of the state being sued and lawsuits initiated by the governments of foreign countries. For example, the state of New York could invoke the Eleventh Amendment to protect itself from being sued in federal court by its own residents, residents of another state, residents of a foreign country, or the government of a foreign country. The Eleventh Amendment is rooted in the concept of federalism, under which the U.S. Constitution carefully enumerates the powers of Congress to govern at the national level, while GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ELEVENTH AMENDMENT 121 safeguarding the power of states to govern locally. By limiting the power of federal courts to hear lawsuits brought against state govern- ments, the Eleventh Amendment attempts to strike a balance between the sovereignty shared by the state and federal governments. “The object and purpose of the Eleventh Amendment [is] to prevent the indignity of subjecting a state to the coercive process of [federal] judicial tribunals at the instance of private parties” (Ex parte Ayers, 123 U.S. 443, 8 S. Ct. 164, 31 L. Ed. 216 [1887]). The Eleventh Amendment highlights an understanding that the state governments, while ratifying the federal Constitution to form a union, “maintain certain attributes of sovereignty, including sovereign immunity” from being sued in federal court (Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 [1890]). However, the Eleventh Amendment does not bar all lawsuits brought against state governments in federal court. Four major exceptions have been recognized by the Supreme Court. First, the Eleventh Amendment does not apply to lawsuits brought against a state’s political subdivisions. Accordingly, counties, cities, and municipalities may be sued in federal court without regard to the strictures of the Eleventh Amendment. In 2006 the Supreme Court was asked to recognize an exception to the political-subdivi- sion exception in Northern Insurance Company of New York v. Chatham County, Georgia, 547 U.S. 189, 126 S. Ct. 1689, 164 L. Ed. 2d 367 (2006). The case stemmed from an incident in which a vessel was damaged in a collision with a malfunctioning drawbridge operated by Cha- tham County, Georgia. The vessel’s owner submitted a claim to his insurance company, which paid the claim, but then brought a subrogation action against the county, arguing that the county had been negligent in main- taining and operating the bridge. The U.S. district court for the Southern District of Georgia granted the county’s motion to dismiss the insurance company’s complaint (Zurich Ins. Co. v. Chatham County, Georgia, 2004 WL 5137599 [2004]). While acknowledg- ing that the Eleventh Amendment typically does not apply to political subdivisions of the state, the district court said the opposite is true when the county is acting as an “arm of the state.” In this case, the court found that the county had purchased the land on which the drawbridge was located, erected the drawbridge, and then proceeded to operate the drawbridge, and oversee those operations. In so doing, the county was exercising powers delegated to it by the state and thus enjoyed ’residual immunity” protecting it from the plaintiff’s subrogation claim. The U.S. Court of Appeals for the Eleventh Circuit affirmed, and the insurer appealed (Zurich Ins. Co. v. Chatham County, GA, 129 Fed. Appx. 602, 2005 A.M.C. 2698 [2005]). The Supreme Cour t, in a unanimous opinion written by Justice CLARENCE THOMAS, made short work of the appeal. While acknowl- edging that the Eleventh Amendment affords SOVEREIGN IMMUNITY not only to states but to political subdivisions operating as “arms of the state,” the Court said that it has repeatedly refused to extend sovereign immunity to counties. This is true, the Court emphasized, “even when, as [Chatham County] alleges here, such entities exercise a slice of state power.” Similarly, the Court rejected out of hand the county’s argument that the Court should recognize a new form of immunity for countie s against claims arising out of admiralty law. This argument, too, is unsupported by any prece- dent, the Court said. Still, Thomas’s opinion did raise some questions among legal scholars. “The Court’s cases have recognized that the immunity of States from suit is a fundamental aspect of the sovereignty which the states enjoyed before the ratification of the Constitution,” Thomas wrote, “and which they retain today.” Consistent with this recognition, Thomas continued, the Court has observed that the phrase “Eleventh Amend- ment immunity” is a “convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment.” Thomas is perceived by legal scholars as a faithful adherent to two schools of jurisprudential thought, positivism and ORIGINAL INTENT . According to these schools of jurispru- dence, CONSTITUTIONAL LAW is limited to those duties, rights, and powers expressly recognized in the four corners of the federal constitution and nowhere else. For Justice Thomas to proclaim that the doctrine of sovereign immu- nity embodied in the Eleventh Amendment exists independent and outside that amend- ment, then, would seemingly undermine one of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 122 ELEVENTH AMENDMENT the core beliefs he had been articulating over the previous fifteen years. The second exception to the Eleventh Amendment permits a state government to waive its constitutional protections by consenting to a lawsuit against it in federal court. For example, Minnesota could waive its Eleventh Amendment protections by agreeing to allow a federal court to hear a lawsuit brought against it. The third exception permits Congress to abrogate a state’s immunity from being sued in federal court by enacting legislation pursuant to its enforcement powers under the EQUAL PROTEC- TION and due process clauses of the FOURTEENTH AMENDMENT (Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 [1976]). Congressional intent to abrogate a state’s Eleventh Amendment immunity must be “un- mistakably clear” (Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 87 L. Ed. 2d 171 [1985]). Evidence of this intent may be found in the legislative floor debates that precede a congressional enactment (Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358 [1979]). In 1996 the Supreme Court ruled that Congress may not abrogate a state’s sovereign immunity from being sued in federal court pursuant to its regulatory powers under the Indian commerce clause contained in Article I, Section 8, of the Constitution (Seminole Tribe v. Florida, 517 U.S.44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 [1996]). Seminole ove rruled Pennsyl vania v. Union Gas Co., 491 U.S. 1, 109 S. Ct. 2273, 105 L. Ed.2d1(1989),whichheldthatCongressmay abrogate a s tate’s immunity under the Interstate Commerce Clause, which adjoins the Indian commerce clause in Article I. Although Seminole involved the Indian Gaming Regulatory Act (18 U.S.C.A. §§ 1166 to 1168, 25 U.S.C.A. § 2701 et seq.), which governs certain gambling activities of Native American tribes, the Court’s decision calls into question the continuing power of federal courts to hear lawsuits against state governments seeking to enforce environmental statutes, BANK- RUPTCY laws, INTELLECTUAL PROPERTY legislation, and scores of other business regulations that have been enacted pursuant to congressional power under the commerce clause. The Comprehensive Environmental Re- sponse, Compensation, and Liability Act (CER- CLA) (42 U.S.C.A. § 9601 et seq.) is one federal law passed pursuant to congressional power under the commerce clause. This act makes states liable in federal court for costs incurred from cleaning up hazardous waste sites. (See Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S. Ct. 2273, 105 L. Ed. 2d 1 [198 9].) The Court’s decision in Seminole could affect thousands of lawsuits filed each year under this statute alone. The final exception to the Eleventh Amend- ment permits citizens of any state to seek an injunction against state officials in federal court to “end a continuing violation of federal law” (Green v. Mansour, 474 U.S. 64, 106 S. Ct. 423, 88 L. Ed. 2d 371 [1985]; Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 [1908]). For example, residents of Ohio are permitted to bring a lawsuit in federal court seeking to compel the state ’s governor to construct housing in compliance with the Americans with Disabilities Act (42 U.S.C.A. § 12101 et seq.), a federal statute designed to protect the rights of handicapped U.S. citizens (see Martin v. Voino- vich, 840 F. Supp. 1175 S.D. Ohio [1993]). However, such a lawsuit would be barred by the Eleventh Amendment if the remedy sought were not injunctive relief but money damages to be paid out of the state’s treasury. The Supreme Court has distinguished per- missible lawsuits seeking prospective equitable relief, such as the injunctive remedy sought by the Ohio residents, from impermissible lawsuits seeking money damages for past actions: “[F]ederal court[s] may award an injunction that governs [a state] official’s future conduct, but not one that awards retroactive monetary relief” (Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 [1984]). The distinction between prospective injunctive relief and retroactive money damages can be traced back to the Framers ’ original understanding of the Eleventh Amendment. Ratified in 1795, the Eleventh Amendment was drafted to overrule the Supreme Court’s decision in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L. Ed. 440 (1793), which held that a citizen of one state may sue the government of another state in the U.S. Supreme Court. Chisholm created a maelstrom across the United States. At the close of the American Revolution, each state was greatly indebted to foreign creditors for financial and other assistance received during the war. Congressional GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ELEVENTH AMENDMENT 123 representatives feared that Chisholm would permit these foreign creditors to ask federal courts to force the fiscally troubled state treasuries to bear the burden of these debts. Representatives also expressed concern that British loyalists who had been dispossessed of their homes and personal belongings by the colonies during the revolution could now sue the state governments to recover their property. JOHN JAY , the chief justice of the Supreme Court, exacerbated these concerns by advocating the full restoration of Loyalist property. A defiant Georgia House of Representatives passed a resolution providing that any person who attempted to collect a Revolutionary War debt or recover property pursuant to Chisholm “shall be declared guilty of a felony and … suffer death without BENEFIT OF CLERGY,bybeinghanged.” Two days after Chisholm was handed down by the Supreme Court, an anonymous senator submitted to Congress a proposal that later became the Eleventh Amendment to the Consti- tution.Fromitsinception,theEleventhAmend- ment has fueled heated discussions among judges and lawyers about the appropriate manner in which it should be interpreted. Federal courts derive their power to hear lawsuits from Article 3 of the Constitution. Section 2 of Article 3 specifies particular “Cases” and “Controversies” that can be decided by the federal judiciary. These cases and controversies fall into two general categories: those identified by their subject matter and those identified by their parties. Federal courts have jurisdiction to hear cases whose subject matter “arise[s] under” the U.S. Constitution, an EXECUTIVE ORDER promul- gated by the president, a federal law enacted by Congress, or a treaty between the United States and another country (U.S. Const. art 3, sec. 2). Such cases are said to present federal questions because they involve legal issues based on one of these species of federal law. For example, cases involving free speech claims under the FIRST AMENDMENT or discrimination claims under the Civil Rights Act of 1871 (42 U.S.C.A. § 1983) present federal questions and confer upon federal courts the SUBJECT MATTER JURISDICTION to resolve them. Federal courts also have jurisdiction to hear cases based on the parties involved in the lawsuit. Under what is sometimes called party-based jurisdiction, federal judges have the power to decide cases affecting “Ambassadors” and “other public Ministers and Consuls.” The federal judiciary may also entertain disputes “between twoormoreStates,”“between Citizens of different states,” or “between a State and Citizens of another State” (U.S. Const. art. 3, § 2). The italicized clause contemplates federal jurisdiction extending to cases between state governments and citizens of other states and provided the basis for the Supreme Court’sdecisioninChisholm. Although the Eleventh Amendment was clearly adopted in response to the Supreme Court’s interpretation of Article III in Chisholm, it has not been applied in a clear or uniform manner by the courts. Four alternative theories of interpretation have been advanced by lawyers and judges. The first theory of interpretation, espoused by Justice THURGOOD MARSHALL,insiststhatthe Eleventh Amendment protects states from being sued in federal court without their consent. It “had been widely understood prior to ratification of the Constitution,” Marshall said, “that t he provision in Art[icle] III, Section 2 … would not provide a mechanism for making states unwilling defendants in federal court” (Department of Public Health & Welfare v. Department of Public Health & Welfare, 411U.S.279,93S.Ct.1614, 36 L. Ed. 2d 251 [1973]). Marshall believed that the Eleventh Amendment did not change this original understanding of federal jurisdiction. For Marshall, then, the meaning of the Eleventh Amendment was simple: A state could not be sued in federal court under any circumstances in which the state did not consent. According to the second theory of interpre- tation, the Eleventh Amendment applies only to party-based jurisdiction and not to subject matter jurisdiction. This theory, advanced by Justice William J. Brennan Jr., permits federal courts to hear lawsuits against states that present federal questions, such as those “arising under” the Constitution, but bars federal judges from deciding cases in which the PLAINTIFF lives in a different state than the one being sued. Adherents of this theory point out that Chisholm, the Supreme Court decision that was overruled by the Eleventh Amendment, involved party-based jurisdiction and was not subject matter jurisdiction. The third theory of interpretation relies on the text of the Eleventh Amendment itself. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 124 ELEVENTH AMENDMENT Again, the lang uage of the Eleventh Amend- ment suggests that federal courts may hear only two types of lawsuits against state governments: those brought by citizens of another state and those brought by citizens of another country. Under this theory, federal courts can entertain lawsuits seeking to vindicate a federal constitu- tional or statutory right only if the plaintiff lives in a different state from the one he or she is suing or is the citizen of a foreign country. If the plaintiff resides in the state he or she is suing, only a state court may hear the case . The fourth theory of interpretation also focuses on the language of the Eleventh Amendment, but in a different way. This theory stresses that the Eleventh Amendment explicitly limits the “Judicial power of the United States” but makes no mention of federal legislative power (U.S. Const. art. 3, sec. 2). In this light, the Eleventh Amendment explicitly restricts the power of federal judges to hear cases against state governments and implicitly permits Con- gress to abrogate a state’s sovereign immunity from being sued in federal court. This theory permits citizens of any state, including the state being sued, to file a lawsuit against a state government in federal court to enforce a LEGAL RIGHT delineated by congressional legislation. Many advocates of this theory argue that Congress’s authority to enact such legislation derives from any of its constitutionally enumer- ated powers, and not just its powers under the Fourteenth Amendment as the Supreme Court concluded in Seminole. The diversity of these theories demonstrates the complexity of Eleventh Amendment juris- prudence, as does the Supreme Court’s decision in Seminole, which overruled a case less than eight years old. Yet mos t adherents to these various theories would agree on one point: There is an advantage, however slight, to filing a lawsuit in federal court rather than state court. A federal court is more likely to render an impartial VERDICT than is a judge or juror who resides in the state bein g sued. For this reason, plaintiffs, and the lawyers representing them, will continue to sue state governments in federal court and argue vociferously for the most narrow interpretation of the Eleventh Amend- ment’s sovereign immunity. In Lapides v. Bd. of Regents, 535 U.S. 613, 122 S. Ct. 1640, 152 L. Ed. 2d 806 (2002), the petitioner, a professor in the Georgia state university system, filed a state-court suit against the system’s board of regents and university officials, alleging that the officials had violated state TORT LAW and 42 U. S. C. § 1983 when they placed SEXUAL HARASSMENT allegations in his personnel files. The defendants removed the case to federal district court and then sought dismissal. Conceding that a state statute had waived Georgia’s sovereign immunity from state-law suits in state court, the state claimed Eleventh Amendment immunity from suit in the federal court. The Supreme Court found that a state waives its Eleventh Amendment immunity when it removes a case from state court to federal court. FURTHER READINGS Fletcher, William A. 1983. “AHistoricalInterpretationofthe Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibi- tion against Jurisdiction.” Stanford Law Review 35. Jacobs, Clyde F. 1972. The Eleventh Amendment and Sovereign Immunity. Westport, CT: Greenwood. Lash, Kurt T. 2009. “Leaving the Chisholm Trail: The Eleventh Amendment and the Background Principle of Strict Construction.” William and Mary L. Rev. 1577 102. Marshall, Lawrence C. 1989. “Fighting Words of the Eleventh Amendment.” Harvard Law Review 102. CROSS REFERENCES Ambassadors and Consuls; Equity; Federal Question; Gaming; Immunity; Legislative History. v ELLIS, GEORGE WASHINGTON George Washington Ellis w as born May 4, 1875 , i n Weston, Missouri. He earned a bachelor of laws degree from the University of Kans as i n 189 3, attended Howard University in Washington, D.C., for two years where he studied psychology and philosophy, and graduated from Gunton’sInsti- tute of Economics and Sociology in New York in 1900. After practicing law for several years, Ellis worked in the Census Depart ment in Washing- ton in 1900. He served as secretary of the American legation to the Republic of Liberia for eight years beginning in 1902. In 1910 Ellis returned from Liberia and established a legal practice in Chicago, earning a reputation as a prestigious counse lor. From 1917 to 1919, he served as assistant corporation counsel for Chicago. Ellis’s interest in Africa continued through- out his life, and his experiences in Liberia influenced his career as a writer and lecturer. He investigated the social structure and folklore GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ELLIS, GEORGE WASHINGTON 125 history of that nation and presented speeches concerning Africa and the question of race. He was an editor of the Journal of Race Develop- ment, and authored several publications, in- cluding Negro Culture in West Africa (1914); Negro Achievements in Social Progress (1915); and The Leopard’s Claw (1917). Ellis died November 26, 1919, in Chicago, Illinois. v ELLSWORTH, OLIVER Oliver Ellsworth served as the third chief justice of the U.S. Supreme Court. Though his tenure on the Court was undistinguished, Ellsworth played an important part in shaping the political and legal structure of the United States as a representative at the Constitutional Convention and as a U.S. senator. Ellsworth was born April 29, 1745, in Windsor, Connecticut, into a prosperous and distinguished family. He attended Yale College (now Yale University), then transferred to Princeton, where he graduated in 1766. Ells- worth entertained thoughts of becoming a minister but decided to enter the legal profes- sion. He was admitted to the Connecticut bar in 1771 and was quickly recognized as an able attorney. Politics soon attracted Ellsworth. A pro- ponent of American independence, he served in the Connecticut General Assembly in 1775. From 1777 to 1783 he was a member of the CONTINENTAL CONGRESS and from 1780 to 1784 he sat on the Connecticut Governor’s Council. Ellsworth also served as a trial judge during this period. Ellsworth advocated a strong national gov- ernment and aligned himself with the FEDERALIST PARTY . When the Constitutional Convention convened in 1787, Ellsworth served as a representative from Connecticut. During the writing of the Constitution Ellsworth contrib- uted the phrase “United States.” More impor- tant, Ellsworth and ROGER SHERMAN convinced the convention to adopt their Connecticut Compromise (sometimes called the Great Compromise), which resolved the nature of the federal legislature. The convention had been divided over this issue. EDMUND RANDOLPH offered the Virginia Plan, which was supported by the more pop- ulated states. This plan provided for a bicameral (two-chambered) legislature with representa- tion based on each state’s population. WILLIAM PATERSON of New Jersey put forward his New Jersey Plan, which was favored by the smaller states. This plan called for equal representation for each state, regardless of population. Ellsworth and Sherman proposed a compromise: The legislature would be bicameral, with the lower house based on proportional representa- tion and the upper house based on equal representation, and all revenue bills would originate in the lower house. The Connecticut Compromise was approved July 16, 1787. The structure proposed in the compromise has proved to be an important check and balance, giving smaller states equality in the upper house, called the Senate. Ellsworth learned firsthand about the Senate as he served in that institution from 1789 to 1796. He was the leader of the Federalists in the Senate and drafted the conference report that recommended the adoption of the amend- ments to the Constitution that became known as the BILL OF RIGHTS. He also helped write the JUDICIARY ACT OF 1789 (1 Stat. 73). The Judiciary Act implemented the vague language of Article III of the Constitution by organizing the federal George Washington Ellis 1875–1919 ❖ ◆ 1875 Born, Weston, Mo. ◆ 1867 Howard University founded 1893 Earned LL.B from University of Kansas 1900 Joined Census Department in Washington, D.C. 1914–18 World War I 1861–65 U.S. Civil War ◆ ▼▼ ▼▼ 19001900 19251925 18501850 18751875 ◆ 1896 Supreme Court approved "separate but equal" racial segregation in Plessy v. Ferguson ◆ 1919 Died, Chicago, Ill. ◆◆ 1917–19 Served as assistant corporation counsel for Chicago 1910 Returned from Liberia and established legal practice in Chicago 1902–10 Served as secretary of American legation to Liberia ❖ 1915 Negro Achievements in Social Progress published 1914 Negro Culture in West Africa published GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 126 ELLSWORTH, OLIVER court system into the Supreme Court, circuit courts of appeal, and district courts. The basic structure of the federal courts has remained substantially the same since 1789. President GEORGE WASHINGTON appointed Ellsworth chief justice of the Supreme Court in 1796. Once on the Court, Ellsworth proved generally ineffective. Because of illness and the undertaking of diplomatic assignments, he had little time or energy to devote to Court business. Ellsworth resigned in 1799 following an arduous trip to France. President JOHN ADAMS had sent him there to negotiate a trade agreement with Napoléon. The trip aggravated his illness. Ellsworth did not abandon public life. He sat on the Connecticut Governor’s Council for a second time, serving from 1801 to 1807. In 1807 he was appointed chief justice of Connecticut. He died on November 26 of that year, in Windsor, before taking his seat. FURTHER READINGS Abraham, Henry J. 1992. Justices and Presidents: A Political History of Appointments to the Supreme Court. New York: Oxford Univ. Press. Brown, William Garrott. 1970. The Life of Oliver Ellsworth. New York: Da Capo. Casto, William R. 1996. “Oliver Ellsworth.” In Journal of Supreme Court History (annual). E-MAIL Electronic mail, or e-mail, developed as part of the revolution in high-tech communications during the mid 1980s. Although statistics about the number of e-mail users is often difficult to compute, the total number of person-to-person e-mails delivered each day has been estimated at more than ten billion in North America and 16 billion worldwide. Faster and cheaper than traditional mail, this correspondence is com- monly sent over office networks, through many national services, and across the INTERNET. E-mail, is less secure than traditional mail, even though federal law protects e-mail from unauthorized tampering and interception. Un- der the Electronic Communications Privacy Act of 1986 (ECPA), Pub. L. No. 99-508, 100 Stat. 1848, third parties are forbidden to read private e-mail. However, a loophole in the ECPA that allows employers to read their work ers’ e-mail has proven especially controversial. It has provoked several lawsuits and has produced Oliver Ellsworth 1745–1807 ▼▼ ▼▼ 17501750 18001800 18251825 17751775 ❖ ◆◆ 1745 Born, Windsor, Conn. ❖ 1775–1783 American Revolution 1766 Graduated from Princeton University 1789–96 Served in U.S. Senate 1801–07 Served on the Connecticut Governor's Council 1807 Died, Windsor, Conn. 1775 Participated in Connecticut General Assembly ◆ 1771 Admitted to Connecticut bar 1777–83 Served as member of the Continental Congress 1780–84 Served on the Conn. Governor's Council 1787 Served as representative at the U.S. Constitutional Convention 1812–14 War of 1812 ◆ 1796–99 Presided as chief justice of the U.S. Supreme Court 1784–89 Sat on the bench of the Conn. Superior Court Oliver Ellsworth. THE LIBRARY OF CONGRESS INSTITUTIONS WITHOUT RESPECT , LAWS VIOLATED WITH IMPUNITY , ARE, TO A REPUBLIC, THE SYMPTOMS AND SEEDS OF DEATH . —OLIVER ELLSWORTH GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION E-MAIL 127 legislative and extralegal proposals to increase e-mail privacy. Congress intended to increase privacy by passing the ECPA. Lawmakers took note of increasingly popular communications devices that were readily susceptible to eavesdropping— cellular telephones, pagers, satellite dishes, and e-mail. The law updated existing federal crimi- nal codes in order to qualify these emerging technologies for constitutional protection under the FOURTH AMENDMENT. In the case of e-mail, Congress gave it most of the protection already accorded by law to traditional mail. Just as postal employees may not divulge information about private mail to third parties, neither may e-mail services. The law provides criminal and civil penalties for violators: In cases of third- party interception, it establishes fines of up to $5,000 and prison sentences of up to six months. In cases of industrial espionage — where privacy is invaded for purposes of commercial advantage, malicious destruction, or private commercial gain — it establishes fines of up to $250,000 and prison sentences of up to one year. Commentators have noted that cases in- volving employers reading their employees’ e-mails tend to favor the employers, especially where the employer owns the equipment that stores the e-mail. Many companies also provide written policies regarding the ownership of stored e-mail messages, indicating whether the employer considers stored e-mail to be the property of the employer. E-mail raises additional issues of privacy in the context of communications between an attorney and client. Because communications between attorney and client must remain confidential, questions have arisen about wheth- er sending unencrypted e-mail messages by attorneys to clients could pose ethical problems. In 1999 the AMERICAN BAR ASSOCIATION issued its opinion that the mere use of unencrypted messages does not pose ethical problems. E-mail raises some evidentiary problems as well. Commentators have noted that the origin of some e-mail messages might be difficult to authenticate, while messages might constitute hearsay. Nevertheless, many courts have admit- ted e-mail messages into evidence. To protect against disclosure of private or sensitive infor- mation, some attorneys advise employers and employees to exercise caution with e-mail, as it can be subpoenaed. Some experts have advised users to delete their e-mail regularly and even to avoid saving it in the first place. Still others advocate the use of encryption software, which scrambles messages and makes them unreadable without a digital password. The problem of email spam has remained a problem for both Internet service providers and users. The CAN-SPAM Act of 2003 ( PUBLIC LAW No. 108-187) was enacted by Congress to establish standards for sending commercial email. The FEDERAL TRADE COMMISSION enforces the act and may assess fines up to $16,000 for non-compliance. However, much spam comes from outside the United States, which limits the effectiveness of the law. FURTHER READINGS Harris, Micalyn S. 2002. “Is Email Privacy an Oxymoron? Meeting the Challenge of Formulating a Company Email Policy.” St. John’s Journal of Legal Commentary 553. Joseph, Gregory P. 2003. “Internet and Email Evidence.” ALI-ABA Course of Study. Pearlstein, Mark W., and Jonathan D. Twombly. 2002. “Cell Phones, Email, and Confidential Communications: Protecting Your Client’s Confidences.” Boston Bar Journal 20. EMANCIPATION The act or process by which a person is liberated from the authority and control of another person. The term is primarily employed in regard to the release of a minor by his or her parents, Senator Charles Schumer of New York, shown displaying his unsolicited e-mail, introduced legislation in April 2003 that would restrict spam as well as create criminal and civil penalties for spammers. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 128 EMANCIPATION . jurisdiction. The third theory of interpretation relies on the text of the Eleventh Amendment itself. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 1 24 ELEVENTH AMENDMENT Again, the lang uage of the Eleventh. folklore GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ELLIS, GEORGE WASHINGTON 125 history of that nation and presented speeches concerning Africa and the question of race. He was an editor of the. Served as secretary of American legation to Liberia ❖ 1915 Negro Achievements in Social Progress published 19 14 Negro Culture in West Africa published GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 126