Focusing public attention on emerging privacy and civil liberties issues

EPIC Amicus Curiae Briefs

EPIC frequently files amicus curiae, or "friend of the court", briefs in federal and state appellate cases concerning emerging privacy and civil liberties issues.

We work closely with technical experts and legal scholars, members of the EPIC Advisory Board, on these briefs. EPIC's amicus briefs assist judges in their analyses of novel privacy issues, often involving new technology. Many of these cases are complex and technical. Judges often acknowledge EPIC's briefs in their opinions, and have expressed gratitude for EPIC's participation in important cases. EPIC's decision to participate as amicus in a particular case typically follows an extensive review of matters pending before federal and state courts.

EPIC Amicus Curiae Briefs

  • Pending Cases with EPIC briefs
    • Bass v. Aitkin County (8th Cir. ___) (Whether the statute of limitations under the DPPA accrues based on when the violation occurs or when it is discovered)
    • In re National Security Letter (9th Cir. ___) (Whether the nondisclosure provision in the National Security Letter statute violates the First Amendment)
    • Fraley v. Facebook (9th Cir. ____) (Whether Facebook's proposed settlement of privacy claims arising from "Sponsored Stories" advertisements is fair and sufficient for class members)
  • Decided cases with EPIC briefs
  • Top News

    • Supreme Court to Hear Cell Phone Privacy Cases: The Supreme Court is set to hear oral arguments next week in two cases concerning the warrantless search of a cell phone following an arrest. EPIC filed a "friend of the court" brief, signed by twenty-four technical experts and legal scholars, arguing that the Fourth Amendment requires a warrant because of the vast amount of personal information available on a cellphone. EPIC wrote, "Allowing police officers to search a person's cell phone without a warrant following an arrest would be a substantial infringement on privacy, is unnecessary, and unreasonable under the Fourth Amendment." Also the Supreme Court this week agreed to review a case considering whether the police may detain a person based on a mistaken interpretation of the law. In Heien v. North Carolina, the person was detained by the police because of a broken taillight. EPIC routinely files amicus briefs in cases raising novel privacy issues. For more information, see EPIC: Riley v. California and EPIC: Amicus Curiae Briefs. (Apr. 24, 2014)
    • EPIC Asks Supreme Court to Protect Cellphone Privacy: EPIC, joined by twenty-four technical experts and legal scholars, has filed a "friend of the court" brief in a Supreme Court case concerning the warrantless search of a cell phone. In Riley v. California, the Court will determine whether the search of a phone following an arrest violates the Fourth Amendment if no warrant is obtained. Lower courts are currently divided on this issue. EPIC's amicus brief explains that "modern cell phone technology provides access to an extraordinary amount of personal data . . . Allowing police officers to search a person's cell phone without a warrant following an arrest would be a substantial infringement on privacy, is unnecessary, and unreasonable under the Fourth Amendment." EPIC's brief describes the vast amount of personal information available on the phone and from the phone. "From a cellphone," EPIC explains "users can even see into their homes and control devices and appliances." EPIC points out that "there is no need to allow warrantless searches when currently available techniques allow law enforcement to secure the cell phone data pending a judicial determination of probable cause." EPIC routinely participates in privacy cases before the US Supreme Court. For more information, see EPIC: Riley v. California, EPIC: EPIC Amicus Curiae Briefs. (Mar. 7, 2014)
    • Supreme Court Allows Warrantless Search of Home: In a case that narrows the warrant requirement for searches of homes, the Supreme Court upheld the warrantless search of a suspect's home by the LAPD after the person objected. In Fernandez v. California, the officers returned to the apartment of the resident after he had been arrested, and obtained consent from a roommate to conduct a search. Justice Alito, writing for the 6-3 majority, found that the roommate's consent was sufficient once the defendant was no longer present. Justice Ginsburg, writing in a dissent joined by Justices Sotomayor and Kagan, argued that the decision "tells the police they may dodge" the warrant requirement and is contrary to a prior a decision of the Court. In Georgia v. Randolph, the Supreme Court previously ruled that when one occupant refuses to consent to a search, the other's consent is not sufficient to permit a search. EPIC has previously filed amicus briefs in a number of important Supreme Court Fourth Amendment cases. For more information, see EPIC: United States v. Jones, EPIC: Maryland v. King, EPIC: Amicus Curiae Briefs. (Feb. 26, 2014)
    • Supreme Court to Rule on Cellphone Privacy: Today the U.S. Supreme Court granted certiorari in Riley v. California and United States v. Wurie, two cases involving the warrantless search of an individual's cell phone incident to arrest. The Court will need to determine whether the Fourth Amendment limits a law enforcement officer from searching through the troves of data that are stored on an individual's cell phone when that individual is arrested. Courts have previously held that officers can search an individual's person and effects when they place them under arrest. But modern cell phones enable access to a wealth of personal data, which is unrelated to the Government’s reason for securing an arrestee. For more information, see EPIC: Riley v. California and EPIC: Amicus Curiae Briefs. (Jan. 17, 2014)
    • Supreme Court Lets Stand Fourth Amendment Protections At the Border: This week the Supreme Court declined to review the decision of the Ninth Circuit in United States v. Cotterman, leaving in place expanded Fourth Amendment protections for searches occurring at the U.S. border. In Cotterman, the federal appeals court held that the Fourth Amendment requires a border agent to have reasonable suspicion before using forensic tools to search laptops, cameras, and other digital devices. The court emphasized that the "comprehensive and intrusive nature of the forensic examination" is the key factor in triggering greater Fourth Amendment scrutiny. EPIC has previously argued that advanced traveler screening methods should only be employed subject to privacy protections. For more information, see EPIC: Traveler Privacy, EPIC: Florida v. Jardines, and EPIC: Amicus Curiae briefs. (Jan. 15, 2014)
    • EPIC Argues for Privacy of Driver's Records in Supreme Court Case: In a "friend of the court" brief, EPIC has urged the U.S. Supreme Court to limit the disclosure of personal information covered by the Driver's Privacy Protection Act. At issue in Maracich v. Spears is a lower court's decision to allow disclosure of information stored in state departments of motor vehicles. EPIC's amicus brief details the staggering amount of personal information in driver's records, particularly as a consequence of the REAL ID regulations. In Reno v. Condon, the Supreme Court upheld the Constitutionality of the federal law. EPIC filed an amicus brief in that case and said "The Drivers Privacy Protection Act safeguards the personal information of licensed drivers from improper use or disclosure. It is a valid exercise of federal authority in that it seeks to protect a fundamental privacy interest." For more information, see EPIC: Maracich v. Spears and EPIC: The Driver's Privacy Protection Act. (Nov. 16, 2012)
    • Justices Hear Arguments in Surveillance Standing Case: The Supreme Court heard oral arguments in Clapper v. Amnesty International, a case concerning the right to challenge illegal surveillance. A federal appeals court ruled in favor of a group of plaintiffs, including human rights advocates, journalists and attorneys, and held that their costs incurred to avoid surveillance were sufficient to establish a live controversy under the Constitution. Solicitor General Donald Verilli, arguing on behalf of the United States and the Director of National Intelligence, claimed that plaintiffs could not establish a sufficiently concrete injury because they do not know if they had been subject to surveillance. The Justices, including Justice Kennedy, seemed concerned about the possibility of government surveillance of privileged attorney-client communications. EPIC filed an amicus brief, joined by thirty-two legal scholars and technical experts, and six privacy and open government organizations, arguing that the plaintiffs concerns were well founded considering the surveillance capabilities of the NSA and the failure to establish sufficient public reporting requirements for lawful surveillance. For more information, see: EPIC: Clapper v. Amnesty Int'l USA and EPIC: Foreign Intelligence Surveillance Act. (Oct. 29, 2012)
    • New Jersey Supreme Court Considers Cellphone Tracking Case: In State v. Earls, the New Jersey Supreme Court is today hearing arguments on whether the police may use cellphone tracking techniques without court approval. Earlier this year, the US Supreme Court ruled that the police must obtain a court order if they attach a GPS tracking device to a vehicle. EPIC filed a "friend of the court" brief in Earls, urging the New Jersey court to uphold Fourth Amendment protections. The cell phone tracking techniques at issue in the New Jersey case, EPIC argued, "is more invasive than the GPS tracking in Jones." Princeton attorney Grayson Barber is arguing for EPIC as amicus before the New Jersey court. (Oct. 22, 2012)
    • EPIC Urges Supreme Court to Uphold Review of Wiretapping Programs: Today EPIC filed an amicus brief with the US Supreme Court in Clapper v. Amnesty International USA, a case challenging the interception of communications of US persons under foreign intelligence surveillance laws. This case presents the issue of constitutional "standing," whether the journalists and human rights organizations who brought he lawsuit can establish an imminent threat or reasonable fear that their communications will be collected. The federal appeals court found in their favor. In urging affirmance, EPIC argued that the capacity of National Security Agency to intercept private communications combined with the failure to establish meaningful oversight underscores the concern that the interception of private communications would occur. The EPIC brief is supported by 32 legal scholars and technical experts, and six organizations devoted to privacy and open government. For more information, see EPIC: Clapper v. Amnesty, EPIC: Foreign Intelligence Surveillance Act (FISA). (Sep. 24, 2012)
    • EPIC Supreme Court Brief: Investigative Techniques are Not Infallible: EPIC has filed an amicus brief with the US Supreme Court, arguing that new "investigative techniques should be subject to close scrutiny by the courts." EPIC submitted the brief in Florida v. Harris, a case involving a car search in response to an "alert" by a drug detection dog. The Florida Supreme Court held that a law enforcement agent relying on such an "alert" must produce evidence to support the reliability of the detection technique. Filing in support of the Florida decision, EPIC argued that new investigative techniques, such as terahertz scanners, airport body scanners, and digital intercept devices, raise similar concerns about reliability. EPIC described a growing consensus among legal scholars and technical experts about the need to improve the reliability of many forensic techniques.  "The 'perfect search,'" EPIC wrote, "like the 'infallible dog,' is a null set." For more information, see EPIC: Florida v. Harris and EPIC: Florida v. Jardines. (Aug. 30, 2012)
    • EPIC and Others Ask Supreme Court to Review Controversial State FOI Law: EPIC, and several other leading open government organizations, have filed an amicus brief in support of a petition for Supreme Court review challenging the Virginia Freedom of Information law, which allows only Virginia residents and news media representatives to access state public records. The amicus brief argues that Virginia's "citizens-only" provision is constitutionally impermissible as it unecessarily burdens the rights of individuals and organizations outside of Virginia. This case is of particular interest to EPIC because state FOI laws are often necessary for oversight of new surveiilance programs. In 2008, EPIC brought a successful FOIA lawsuit in Virginia and obtained documents revealing an agreement to limit oversight of a State Fusion Center. For more information, see EPIC: v Virginia Department of State Police: Fusion Center Secrecy Bill. (Aug. 30, 2012)
    • Supreme Court Dismisses Challenge to Congress's Ability to Define Harm: The Supreme Court today dismissed First American v. Edwards, a challenge to the ability of plaintiffs to sue for a violation of statutory rights established by Congress. The lower court ruled that the plaintiffs had standing because "[t]he injury required by Article III can exist solely by virtue of statutes creating legal rights, . . .." The Supreme Court held that its decision to review the case was "improvidently granted," which means that the lower court opinion stands. EPIC filed a "friend of the court" brief, responding to briefs from several prominent Internet companies that supported the challenge. EPIC argued that Congress must maintain the power to define injuries and provide remedies, and that this was particularly important for privacy protection. For more information, see EPIC: First American v. Edwards. (Jun. 28, 2012)
    • Supreme Court Says Federal Immigration Law Trumps Arizona Law, But Upholds Narrow Application of "Papers Please" Provision: In Arizona v. United States, the Supreme Court invalidated much of SB 1070, the controversial Arizona state law. However, the Court upheld a new identification requirement though cautioned that it could be subject to preemption and constitutional challenges after it goes into effect. The provision allows state officers to make a "reasonable attempt" to determine immigration status during the course of "an authorized, lawful detention." Justice Kennedy, writing for the Court, cautioned that the provision might "raise constitutional concerns" as applied, but said that the law "could be read to avoid these concerns." EPIC argued in Hiibel v. Sixth Judicial District Court of Nevada that "stop and identify" statutes are unconstitutional. The Supreme Court upheld the state law in that case in a 5-4 opinion by Justice Kennedy. For more information, see: EPIC: Hiibel v. Sixth Judicial District Court of Nevada and EPIC: Your Papers, Please. (Jun. 25, 2012)
    • EPIC Urges Federal Appeals Court Court to Uphold Workplace Privacy: EPIC has filed an amicus brief in United States v. Hamilton, urging the Fourth Circuit Court of Appeals to uphold employee privacy interests in personal e-mails. The Government contends that it may obtain private emails from an employer even when they are privileged communications between spouses and there is no use policy in place, explaining that communications are subject to disclosure. The district court agreed. EPIC argued that employees in the modern workplace routinely communicate about private matters with spouses and that an employee's privacy interest cannot be retroactively waived by a use policy implemented a year later, as the lower court suggested. For more information, see EPIC: Workplace Privacy and EPIC: United States v. Hamilton. (Apr. 9, 2012)
    • EPIC Urges Court to Affirm Privacy Protections for Home Wi-Fi Networks: EPIC has filed an amicus brief in the Ninth Circuit urging the court to affirm legal protections for users of home Wi-Fi networks. In Joffe v. Google, the plaintiffs sued Google for the interception and capture of private communications transferred over residential Wi-Fi networks. Google argued that it should be exempt from liability under the federal Wiretap Act because Wi-Fi communications are "readily accessible to the general public." However, a lower court held that saying "that a network is unencrypted does not render that network readily accessible to the general public and serve to remove the intentional interception of electronic communications from that network from liability under the ECPA." EPIC's brief for the Court of Appeals, which contains a detailed technical discussion of Wi-Fi technology, explains that residential Wi-Fi networks are unlike traditional radio broadcasts and should be protected Electronic Communications Privacy Act. EPIC also said that consumers should not bear the burden of securing their networks against sophisticated eavesdroppers when the purpose of the ECPA is to protect communications from such interception. For more information, see EPIC: Investigation of Google Street View, EPIC: Ben Joffe v. Google. (Apr. 2, 2012)
    • Supreme Court Limits Privacy Act Remedies : In a 5-3 opinion, the Supreme Court held today that the Privacy Act does not allow recovery of mental and emotional damages suffered as a result of the Government's "willful and intentional violation" of the Act. Justice Alito, writing for the Court in FAA v. Cooper, said that the key term "actual damages" was ambiguous, and should be narrowly construed to limit Government liability. In a dissenting opinion, joined by two other Justices, Justice Sotomayor argued that the purpose of the Privacy Act is unambiguous: to protect individuals from "substantial harm, embarrassment, inconvenience, or unfairness" that result from Government privacy violations. EPIC filed an amicus curiae brief in the case, stating that privacy laws routinely provide recovery for mental and emotional harm, that such damages are the most common result of privacy violations, and that civil remedies are necessary to ensure enforcement of the Privacy Act. Congress is currently considering amendments to the Privacy Act. For more information, see EPIC: FAA v. Cooper and EPIC to Congress: Privacy Act Modernization Bill Should be Stronger. (Mar. 28, 2012)
    • EPIC Urges Court to Uphold Location Privacy in Cell Phone Tracking Case: EPIC filed a "Friend of the Court" brief in the Fifth Circuit urging the court to uphold Fourth Amendment protections for cell phone users. In the case, In re US for Historical Cell-Site Data, the lower court held that the disclosure of historical cell phone location records without a warrant would violate the Fourth Amendment. EPIC argued that this opinion should be upheld in light of the Supreme Court's recent decision in United States v. Jones, because cell phone location records are collected without the knowledge or consent of users. The records in this case, EPIC argued, create a "comprehensive map of an individual’s movements, activities, and relationships, . . . precisely the type of information that individuals reasonably and justifiably believe will remain private." For more information, see In re Historical Cell-Site Location Information, EPIC: State v. Earls, and EPIC: US v. Jones. (Mar. 19, 2012)
    • EPIC Urges Court to Uphold Location Privacy in Cell Phone Tracking Case: EPIC filed a "friend of the court" brief in the New Jersey Supreme Court urging the court to uphold Fourth Amendment protections for cell phone users. In State of New Jersey v. Thomas W. Earls, the lower court held that an individual has no legitimate expectation of privacy in the location of their cell phone. EPIC argued that the lower court opinion should be overturned in light of the Supreme Court's recent decision in United States v. Jones. The cell phone tracking techniques in this case, EPIC argued, "is more invasive than the GPS tracking in Jones." For more information, see EPIC: State v. Earls, and EPIC: US v. Jones. (Feb. 29, 2012)
    • Supreme Court Upholds Fourth Amendment in GPS Tracking Case: Today the Supreme Court unanimously held in U.S. v. Jones that the warrantless use of a GPS tracking device by the police violated the Fourth Amendment. The Court said that a warrant is required "[w]here, as here, the government obtains information by physically intruding on a constitutionally protected area," like a car. Concurring opinions by Justices Sotomayor and Alito urged the court to focus on the reasonableness of the suspect's expectation of privacy because physical intrusion is unnecessary to surveillance in the digital age. EPIC, joined by 30 legal and technical experts,filed a "friend of the court" brief. EPIC warned that, "it is critical that police access to GPS tracking be subject to a warrant requirement." For more information, see EPIC: US v. Jones, and EPIC: Location Privacy. (Jan. 23, 2012)
    • Federal Court Revives Suit Over NSA Dragnet Surveillance: A federal appeals recently revived a lawsuit, Jewel v. NSA, challenging the NSA's use of the nation's largest telecommunication providers to conduct suspicionless surveillance of Americans. The three-judge panel reversed a lower court decision that rejected claims based on lack of standing. The case will now return to the district court for a decision on the merits. The same three-judge panel also rejected a related suit against the telecommunications providers, Hepting v. AT&T, based on the "retroactive immunity" provided by Congress in 2008. EPIC, in cooperation with the Stanford Constitutional Law Center, filed a "Friend of the Court" brief in support of the plaintiffs in these cases, arguing that statutory and constitutional privacy violations are sufficient to establish standing, and that the state secrets doctrine should not bar adjudication. For more information, see EPIC: Hepting v. AT&T and EPIC: NSA Warrantless Surveillance. (Jan. 5, 2012)
    • Supreme Court Hears Arguments in Privacy Act Damages Case: The US Supreme Court heard arguments on Wednesday in FAA v. Cooper. At issue is whether "actual damages" recoverable for "willful and intentional" violations of the Privacy Act include mental and emotional damages. A federal appeals court held that Congress "unambiguously" intended to allow recovery of such non-pecuniary damages when it drafted the Privacy Act. The Government argued that the term "actual damages" is ambiguous, and that the Court should adopt a narrower interpretation in light of the Privacy Act's waiver of sovereign immunity. EPIC filed a brief in support of respondent Cooper and argued that proper enforcement of the Privacy Act requires recovery of a broad range of provable damages, including mental and emotional distress, which are the common and expected injuries resulting from privacy violations. For more information, see EPIC: FAA v. Cooper. (Dec. 1, 2011)
    • Supreme Court Hears Arguments in Constitutional "Standing" Case: The US Supreme Court heard arguments on Monday in First American Financial Corp. v. Edwards. At issue is whether Congress can pass a law that gives customers the ability to sue companies that engage in illegal kickback schemes for mortgage settlement services, or whether those customers must also show additional injury. A federal appeals court held that the existence of the kickback arrangement violated the Real Estate Settlement Procedures Act of 1974, and was an "injury in fact" for the Constitutional standing requirement. After several Internet firms filed a brief in support of First American Financial, arguing that privacy laws with similar enforcement provisions result in "no injury" claims, EPIC filed a brief in support of respondent and argued that enforcement provisions in federal statues are the cornerstone of federal privacy law. For more information, see EPIC: First American v. Edwards. (Nov. 28, 2011)
    • Supreme Court to Hear Arguments in GPS Tracking Case: The United States Supreme Court will hear arguments on November 8 to determine whether the warrantless use of a GPS tracking device by the police violates the Fourth Amendment. EPIC filed a "friend of the court" brief in US v. Jones, urging the Supreme Court to uphold robust Fourth Amendment protections. Along with 30 legal and technical experts, EPIC argued that 24-hour GPS surveillance by law enforcement constitutes a "search" under the Fourth Amendment and requires judicial oversight. Arguing in support of a lower court decision, EPIC warned that, "it is critical that police access to GPS tracking be subject to a warrant requirement." The Supreme Court will consider both whether persistent GPS tracking constitutes a "search" and also whether the installation of a GPS tracking device on a private vehicle is a "seizure." For more information, see EPIC: US v. Jones, and EPIC: Location Privacy. (Nov. 4, 2011)
    • EPIC Urges Supreme Court to Affirm Congress' Power to Pass Effective Privacy Laws: EPIC filed a "friend of the court" brief in the United States Supreme Court urging the Court to affirm Congress' power to enact strong statutes that protect consumer privacy. First American v. Edwards presents the question of whether a person can sue to enforce a provision of the Real Estate Settlement Procedures Act (RESPA), which gives individuals a right to untainted real estate referral services, and enforces this right by specifying an amount of damages for which violators are liable. Surprisingly, Facebook, Linkedin, Yahoo, and Zynga filed a brief in support of the bank First American and arguing against enforcement of privacy statutes in certain circumstances. EPIC then filed a brief in support of the consumer Edwards and argued that if the Court did not uphold statutory damage provisions, "it would become virtually impossible to enforce privacy safeguards in the United States." Statutory damage provisions help ensure compliance with Fair Information Practices, the foundation of modern privacy law. For more information, see EPIC: First American v. Edwards, and EPIC: Privacy Act. (Oct. 17, 2011)
    • Federal Appeals Court Protects Employees from Covert Video Recording: The Third Circuit Court of Appeals ruled that a police deputy's privacy claims against her employer can proceed despite the government's objections. The case involves Jane Doe, who was secretly videotaped by a co-worker during a mandatory decontamination shower. The digital footage was uploaded onto a government computer and disclosed over the municipal network. The appeals court held that Ms. Doe had a reasonable expectation of privacy in remaining free from videotaping during the shower, and wrote "the potential harm of nonconsensual disclosure [of the video] is exacerbated by the existence of the Internet, where one can upload image and video files and irretrievably share them with the world in a matter of moments." EPIC filed a brief and presented oral argument in the case, stating that the case "presents novel privacy issues involving new technology" and that "the District Court failed to appreciate the unique damage caused by unlawful disclosures over computer networks." For more, see EPIC: Doe v. Luzerne. (Oct. 12, 2011)
    • EPIC Urges Supreme Court to Affirm Privacy Act Remedies: EPIC filed a "friend of the court" brief in the United States Supreme Court urging the Court to enforce the rights granted under the Privacy Act, which regulates the use of personal information held by federal agencies. EPIC argued that the government should not be allowed to avoid liability by asserting that it caused only mental and emotional harm when it intentionally and willfully violated the federal statute. FAA v. Cooper involves the Social Security Administration's disclosure of a pilot’s HIV status. The lower court held that "the term 'actual damages'" in the Privacy Act "unequivocally encompasses nonpecuinary damages." EPIC urged affirmance of the decision, stating that the Privacy Act "provides compensation for harm suffered" and aims to "ensure compliance with statutory obligations." For more information, see EPIC: US v. Cooper, and EPIC: Privacy Act. (Oct. 4, 2011)
    • EPIC Urges Supreme Court to Uphold Fourth Amendment in GPS Case: EPIC filed a "friend of the court" brief in the United States Supreme Court urging the Court to limit the scope of pervasive GPS surveillance by upholding robust Fourth Amendment protections. Along with 30 legal and technical experts, EPIC argued that 24-hour GPS surveillance by law enforcement constitutes a "search" under the Fourth Amendment. US v. Jones involves the government's use, without a judicial warrant, of a GPS device to track a person "24/7." The lower court held that "the use of the GPS device violated [Jones'] 'reasonable expectation of privacy,' and was therefore a search subject to the reasonableness requirement of the Fourth Amendment." Arguing in support of the earlier decision, EPIC said "it is critical that police access to GPS tracking be subject to a warrant requirement." For more information, see EPIC: US v. Jones, and EPIC: Locational Privacy. (Oct. 3, 2011)
    • Seventh Circuit Court Hears Oral Argument in Students' Privacy Case: The US Court of Appeals for the Seventh Circuit heard oral arguments today in Chicago Tribune v. University of Illinois. EPIC filed a "friend of the court" brief in the case, which concerns student privacy rights protected by the Family Educational Rights and Privacy Act ("FERPA"). EPIC's brief argued that Congress intended to protect student records, including admissions files, from unauthorized release and that Illinois' open government law must yield to the federal privacy law. In this case, the Tribune requested documents from the University of Illinois, under Illinois' open government law, while investigating alleged corruption in the admissions practices of the University. The University denied the Tribune's request, stating that the requested documents contained the personally identifiable information of students and were thereby protected by federal law. A lower federal court found that Illinois law required the documents to be released. The Depart of Justice also filed a brief in support of student privacy in the case. For more information, see EPIC: Chicago Tribune v. University of Illinois and EPIC: Student Privacy. (Sep. 30, 2011)
    • EPIC Urges Federal Appeals Court to Protect Employees from Covert Video Recording: EPIC Senior Counsel John Verdi argued before the Third Circuit Court of Appeals in Doe v. Luzerne County that secretive video surveillance, coupled with the storage and dissemination of sensitive personal information, violates the right to information privacy and should not be permitted. The case involves a Jane Doe police deputy who is suing to recover monetary damages for privacy violations. A coworker captured semi-nude video footage of Ms. Doe without her consent during a mandatory decontamination shower. The digital footage was uploaded onto a government computer and disclosed over the municipal network. EPIC argued that the case "presents novel privacy issues involving new technology" and that "the District Court failed to appreciate the unique damage caused by unlawful disclosures over computer networks." EPIC previously filed an amicus brief in the case. For more, see EPIC: Doe v. Luzerne. (Sep. 14, 2011)
    • Federal Appeals Court Holds Individuals Have a Right to Record Public Officials: In a case concerning the arrest of a person who used a cell phone camera to film a police officer, the First Circuit Court of Appeals has held in Glik v. City of Boston that the First Amendment protects "the filming of government officials engaged in their duties in a public place." The Court found that members of the public enjoy the same rights as credentialed members of the press, stating that "the public's right of access to information is coextensive with the press." The Court further held that, in arresting Glik, the City of Boston violated the Fourth Amendment probable cause requirement as there was no reason to believe that Gilk had violated any state law. EPIC agreed that the Massachusetts state wiretap law was not intended to limit the ability of the public to record police activity, but did not file an amicus brief in the case. For more information, see EPIC: EPIC Amicus Curiae Briefs. (Sep. 1, 2011)
    • EPIC Urges Seventh Circuit to Protect Students' Privacy Rights: EPIC filed a "friend of the court" brief in Chicago Tribune v. University of Illinois, a case involving student privacy rights protected by the Family Educational Rights and Privacy Act ("FERPA"). EPIC's brief argues that Congress intended to protect student records, including admissions files, from unauthorized release and that Illinois' open government law must yield to the federal privacy law. While investigating alleged corruption in the admissions practices of the University of Illinois, the Tribune sought documents from the University under Illinois' open government law. The University denied the Tribune's request, stating that the requested documents contain the personally identifiable information of students and are thereby protected by federal law. A lower federal court found that Illinois law required the documents to be released.The Depart of Justice has also filed a brief in support of student privacy in the case. For more information, see EPIC: Chicago Tribune v. University of Illinois and EPIC: Student Privacy. (Jul. 21, 2011)
    • High Court To Decide Major GPS Tracking Case: The Supreme Court will decide if warrantless locational tracking violates the Fourth Amendment. The Court granted review of a District of Columbia Circuit Court of Appeals opinion on two legal questions. The first is whether police need a warrant to monitor the movements of a car with a tracking device. The second is whether policy can legally install such a device without their target's consent, and without a valid warrant. EPIC previously filed an amicus brief in Commonwealth v. Connolly, a Massachusetts case which established that the state Constitution prohibited warrentless GPS tracking. The Massachusetts Supreme Judicial court imposed time limits on GPS monitoring, ruling that warrants will expire fifteen days after they are issued. For more information, see EPIC: US v. Jones and EPIC: Locational Privacy. (Jun. 27, 2011)
    • Supreme Court Strikes Down Prescription Privacy Law: In a 6-3 decision, the Supreme Court struck down Vermont's prescription privacy law. IMS Health, Inc. v. Sorrell held that the Vermont statute, which bars disclosure of prescription data for marketing purposes, violates data mining firms' free speech rights. Vermont "burdened a form of protected expression that it found too persuasive. At the same time, the State has left unburdened those speakers whose messages are in accord with its own views. This the State cannot do." the Court wrote. The Court suggested that a more privacy-protective statute might have withstood Constitutional scrutiny, writing "the State might have advanced its asserted privacy interest by allowing the information’s sale or disclosure in only a few narrow and well-justified circumstances. A statute of that type would present quite a different case than the one presented here." EPIC filed an amicus brief on behalf of 27 technical experts and legal scholars, as well as nine consumer and privacy groups, arguing that the privacy interest in safeguarding medical records is substantial and that the "de-identification" techniques adopted by data-mining firms do not protect patient privacy. For more information, see EPIC: IMS Health v. Sorrell. (Jun. 23, 2011)
    • Supreme Court to Hear Arguments in Medical Record Data-mining Case: Oral argument for IMS Health, Inc. v. Sorrell will take place in the Supreme Court on Tuesday, April 26, 2011. The case concerns a state privacy law that seeks to regulate data-mining of prescription records for commercial purposes. EPIC filed an amicus brief on behalf of 27 technical experts and legal scholars, as well as nine consumer and privacy groups, arguing that the privacy interest in safeguarding medical records is substantial and that the "de-identification" techniques adopted by data-mining firms do not protect patient privacy. For more information, see EPIC: IMS Health v. Sorrell. (Apr. 25, 2011)
    • Solicitor General to Supreme Court: Review GPS Tracking Cases: The Solicitor General filed a petition with the Supreme Court about the growing dispute in the federal courts over warrantless locational tracking. There is a split among the appellate court about GPS tracking by police agencies. The petition appeals a decision from the DC Circuit which held that the warrantless tracking of a motor vehicle violates the Constitutional right against unlawful searches. Earlier, EPIC filed an amicus brief in the Massachusetts Supreme Judicial Court case that also held that a warrant is required for the use of a GPS tracking device. For more information, see EPIC - Commonwealth v. Connolly and EPIC - Locational Privacy. (Apr. 18, 2011)
    • EPIC Champions Constitutional Right to Informational Privacy Before Third Circuit: EPIC has filed an amicus brief in the Third Circuit Court of Appeals in support of a Jane Doe police deputy, who is suing to recover monetary damages for privacy violations. A coworker captured semi-nude video footage without her consent during a mandatory decontamination shower at a local hospital. The footage was uploaded onto a government computer. EPIC argued in support of Doe that the case implicates "freedom, intimacy, autonomy, and human dignity," and urged the Federal appeals court to hold that the Sheriff's Department violated the Constitutional right to informational privacy. EPIC has filed similar briefs in other cases, including NASA v. Nelson, decided by the Supreme Court earlier this year. For more information, see EPIC: Doe v. Luzerne. (Apr. 14, 2011)
    • Supreme Court To Hear Arguments in ID Search Case: Oral argument for the Supreme Court case Tolentino v. New York will take place on Monday, March 21, 2011. The case concerns an unlawful police stop. Tolentino asserts that that police had no basis for pulling his car over and then running his license. EPIC has filed a "friend of the court" brief arguing that the Constitution protects individuals from suspicionless searches of government databases. For more information, see EPIC: Tolentino v. NY. (Mar. 18, 2011)
    • EPIC Files Amicus Brief on Risk of "Reidentification," Urges US Supreme Court to Uphold Vermont Privacy Law: EPIC has filed an amicus brief in Sorrell v. IMS Health, a case now before the US Supreme Court concerning a state privacy law that seeks to regulate datamining of prescription records for commercial purposes. Datamining companies have challenged the Vermont law, arguing that it violates the First Amendment and also that there is no privacy interest in the transfer of "deidentified" prescriber records. The EPIC brief, filed on behalf of 27 technical experts and legal scholars, as well as 9 consumer and privacy groups, argues that the privacy interest in safeguarding medical records is substantial and that the "deidentification" techniques adopted by data-mining firms do not protect patient privacy. EPIC's amicus brief for the lower appellate court was cited in the opinion of Judge Deborah Ann Livingston. As Judge Livingston explained, "neither appellants nor the majority advances any serious argument that the state does not have a legitimate and substantial interest in medical privacy . . . " For more information, see EPIC: IMS Health, Inc. v. Sorrell. (Feb. 28, 2011)
    • New Jersey Supreme Court Holds Expungement Statute Does Not Protect Private Facts in Defamation Case: In G.D. v. Kenny, a case raising both defamation and privacy tort claims, the Supreme Court of New Jersey has held that defendants are entitled to assert truth as a defense, even when the relevant facts are subject to an expungement order under a state statute. The Court relied on the fact that criminal conviction information is disseminated before the entry of an expungement judgement. In an amicus brief, EPIC had urged the New Jersey Supreme Court to preserve the value of expungement and further argued that data broker firms will make available inaccurate and incomplete information if expungement orders are not enforced by the state. The case may have implications for the "Right to be Forgotten." For more information, see EPIC - G.D. v. Kenny, EPIC - Expungement. (Jan. 31, 2011)
    • Supreme Court Affirms Right to Informational Privacy, But Says Privacy Act Safeguards Sufficient for NASA Records: The Supreme Court has issued a decision in NASA v. Nelson, a case brought by NASA scientists who argued that the government's invasive background checks violated the Constitution. The Supreme Court found that the inquiries implicate "a privacy interest of Constitutional significance" but that the requests were reasonable and that the information would be protected under the Privacy Act. Writing in concurrence, Justice Scalia said the Court's opinion "will dramatically increase the number of lawsuits claiming violations of the right to informational privacy." EPIC authored a amicus brief, cosigned by 27 technical experts and legal scholars, which highlighted problems with the Privacy Act, including the "routine use" exception, security breaches, and the agency's authority to carve out its own exceptions. For more information, see EPIC: NASA v. Nelson and EPIC: Workplace Privacy.   (Jan. 19, 2011)
    • Supreme Court Hears Oral Argument in "Personal Privacy" case: The Supreme Court heard oral argument in FCC v. AT&T. EPIC has filed a "friend of the court" brief in the case, which concerns the meaning of "personal privacy." EPIC urged the Justices to reject AT&T's claim that the corporation's "personal privacy" prevents the public disclosure of records subject to the Freedom of Information Act. EPIC cited the commonly understood meaning of "personal privacy" in the work of legal scholars and technical experts, as well as the use of these terms in an extensive survey of US privacy laws. The records at issue in the case pertain to contract work for the federal government. The Supreme Court agreed to review a lower court opinion which held that AT&T could assert a personal privacy interest. EPIC's brief argued that if upheld, the lower court's "interpretation of 'personal privacy' would stand as an outlier, untethered to common understanding, legal scholarship, technical methods, or privacy law." For more information, see EPIC: FCC v. AT&T. (Jan. 19, 2011)
    • EPIC Urges Supreme Court to Limit Police Access to Identity Documents: EPIC filed an amicus brief in Tolentino v. New York, a Supreme Court case concerning police access to government databases, enabled by patrol cars with Mobile Device Terminals. EPIC urged the Court to uphold Fourth Amendment protections for the Petitioner, who asserted that police had no basis for pulling him over and running his license. EPIC's brief states that "the risk is real that car stops will increasingly become pretextual because of the opportunity to search a government database for data unrelated to the reason that gave rise to the original stop." EPIC has filed briefs in related cases, including Hiibel v. Sixth Judicial District, in which the Supreme Court upheld, by a 5-4 margin, a state identification law because the individual did not have to produce his drivers license. In that case, Justice Stevens wrote "a name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases." For more information, see EPIC: Tolentino v. NY, EPIC: Herring v. US, and EPIC: Drivers Privacy Protection Act. (Jan. 18, 2011)
    • EPIC Files Amicus Brief in Supreme Court Case on "Personal Privacy": EPIC has filed a "friend of the court" brief in a case concerning the meaning of "personal privacy." EPIC urged the Justices to reject AT&T's claim that its "personal privacy" prevents the public disclosure of records subject to the Freedom of Information Act. EPIC cited the commonly understood meaning of "personal privacy" in the work of legal scholars and technical experts, as well as the use of these terms in an extensive survey of US privacy laws. The records at issue in the case pertain to contract work for the federal government. The Supreme Court agreed to review a lower court opinion which held that AT&T could assert a personal privacy interest. EPIC's brief argued that if upheld, the lower court's "interpretation of 'personal privacy' would stand as an outlier, untethered to common understanding, legal scholarship, technical methods, or privacy law." For more information, see EPIC: FCC v. AT&T. (Nov. 15, 2010)
    • In Open Government Case, Government Opposes "Personal Privacy" Rights for Corporations: The Solicitor General filed the government's brief in an important Supreme Court case that will determine if corporations have personal privacy rights in Freedom of Information Act cases. The Solicitor General is defending the FCC's decision to disclose records pertaining to an investigation concerning AT&T. AT&T challenged the agency and a federal appeals court sided with AT&T and held that the FOIA grants corporations personal privacy rights. In its brief, the Solicitor General argues that the opinion is "a singular outlier in an otherwise uniform body of more than 35 years of decisional law and commentary." EPIC will file an amicus brief in support of the FCC. For more information, see EPIC: FCC v. AT&T. (Nov. 9, 2010)
    • Supreme Court to Hear Arguments in NASA Privacy Case: On October 5, 2010 the Supreme Court will hear arguments in a case that will determine whether public contract employees have a right to limit the government's collection of their personal information. The case, NASA v. Nelson, was brought by a NASA scientist who argued that the Constitution grants a right to privacy from invasive government background checks. NASA claims that the Privacy Act provides sufficient legal protections. EPIC authored a "friend of the court" brief in the case, cosigned by 27 technical experts and legal scholars. EPIC's brief highlights exceptions in the Privacy Act, claimed by the federal agency, that place the scientists' personal information at risk. For more information, see EPIC: NASA v. Nelson and EPIC: Workplace Privacy. (Oct. 4, 2010)
    • Ninth Circuit Strips Search Guidelines from Fourth Amendment Opinion: A new opinion from the United States Court of Appeals for the Ninth Circuit raises many questions about procedures to be followed in electronic searches. Last year in United States v. Comprehensive Drug Testing, Inc., the court set out guidelines for electronic searches and seizures so that the "plain view" doctrine did not allow electronic fishing expeditions. The guidelines followed an approach that is routinely used for electronic surveillance. However, on rehearing the case following objections from government prosecutors, the court's new opinion removed the guidelines though it still concluded that the search at issue was impermissible. EPIC had argued in an amicus brief for the Supreme Court that the guidelines in Comprehensive Drug Testing should be broadly applied to searches of electronic media. For more information, see EPIC: City of Ontario v. Quon. (Sep. 15, 2010)
    • Appeals Court Protects Free Speech for Privacy Advocate: Privacy Advocate Betty Ostergren has won in federal appeals court in her challenge to a state law designed to prosecute her for drawing attention to the state's online publication of SSNs. In Ostergren v. Cuccinelli, the court ruled that the Commonwealth of Virginia may not prosecute Ostergren for publishing the SSNs of state officials available in public land records until the Commonwealth itself stops making these unredacted documents available. EPIC filed a "friend of the court" brief in support of Ostergen, urging the court to hold that the First Amendment protects Ostergren's speech. For more information, see EPIC Ostergren v. McDonnell, EPIC Social Security Numbers, and EPIC Identity Theft. (Jul. 26, 2010)
    • Supreme Court Permits Disclosure of Petitioner Signatures: The Supreme Court has held in Doe v. Reed that, as a general matter, the state's interest in ensuring election integrity outweighs the First Amendment interest of petitioner signatories. Chief Justice Roberts writing for the Court, said that disclosure of signatures under a state open records law "would not violate the First Amendment with respect to referendum petitions in general." However, the Court left open the possibility that the disclosure of names for a particular referendum could violate the First Amendment. Justice Thomas, writing in dissent, said that it was not necessary for the state to publish the names of those who sign petitions to ensure valid elections. He noted techniques that could protect privacy and safeguard election integrity. In a concurrence, Justice Alito warned that the state could obtain vast powers to collect and disclose personal information about those who engage in the petition process. Justices Breyer, Scalia, Sotomayor, and Stevens also filed concurrences. EPIC submitted an amicus brief in the case, arguing that "the privacy of petitioner signatories safeguards First Amendment interests and helps to ensure meaningful participation in the political process without fear of retribution." For more information see, EPIC - Doe v. Reed. (Jun. 24, 2010)
    • Supreme Court Rules Against Text Message Privacy, Permits Search of Public Employee's Pager: The Supreme Court has issued a ruling in City of Ontario v. Quon, a case concerning the reasonablenees of a search of a public employee's pager. EPIC filed a "friend of the court" brief in the case, arguing that data minimization practices should be followed for electronic searches, and that the search, which uncovered personal texts unrelated to the purpose of the search, was therefore unreasonable. EPIC urged the Supreme Court to apply the approach set out in Comprehensive Drug Testing v. United States, which allows a government agency to undertake appropriate searches without unnecessarily violating privacy interests. The Court ruled that the search was reasonable, reversing the Ninth Circuit's decision that such a search be conducted through the least intrusive means possible. For more information, see EPIC: City of Ontario v. Quon. (Jun. 17, 2010)
    • EPIC Urges Federal Court to Protect Individuals from Wiretap Abuse: EPIC filed a "friend of the court" brief, urging a federal appeals court to protect the privacy of innocent individuals who were inadvertently recorded on federal wiretaps. In SEC v. Rajaratnam, a trial court judge ordered disclosure of all wiretaps conducted in a criminal investigation, even though a court has yet to rule on the recordings' legality or relevance. EPIC noted that "hundreds of thousands of individuals are recorded on wiretaps every year," and "80% of those personal communications are wholly unrelated to criminal activity." For more information, see SEC v. Galleon and EPIC Wiretapping. (Apr. 30, 2010)
    • Supreme Court Hears Arguments in Text Messaging Case: The U.S. Supreme Court held arguments in City of Ontario v. Quon. The Court will determine whether a government employer can review the contents of private text messages sent from an employee's pager through a private communications company. EPIC filed a "friend of the court" brief arguing that data minimization practices should be applied to public sector searches and that the search was therefore unreasonable.  EPIC urged the court to apply the standards set out in Comprehensive Drug Testing v. United States, which allow a government agency to undertake appropriate searches without unnecessarily violating privacy interests. For more information, see EPIC: City of Ontario v. Quon. (Apr. 20, 2010)
    • Supreme Court to Hear Arguments in Text Messaging Privacy Case: The Supreme Court will hold oral arguments on Monday, April 19 in City of Ontario v. Quon, a case in which the Court will determine whether a government employer can search the content of text messages sent from an employee's pager. EPIC's has filed a "friend of the court" brief arguing that data minimization practices should be applied to public sector searches because of the Fourth Amendment reasonableness requirement and the fact that communications devices today collect and store detailed personal information, including internet search history, text messages, emails, and locational data.  EPIC urged the court to apply the standards set out in Comprehensive Drug Testing v. United States[4], which allow a government agency to undertake appropriate searches without unnecessarily violating privacy interests. For more information, see EPIC: City of Ontario v. Quon. (Apr. 15, 2010)
    • EPIC Files Supreme Court Brief for Petitioner Privacy: EPIC has filed a "friend of the court" brief in the United States Supreme Court, urging the Justices to protect the privacy of those who sign petitions. In Doe v. Reed, the Court has been asked to determine whether the state of Washington may force disclosure of the names of citizens who have signed petitions for ballot initiatives. EPIC's brief argues that revealing the names would subject signatories to the risk of retribution, that signing petitions constitutes anonymous speech, and that signing petitions is similar to casting a vote and should be protected accordingly. For more information, see EPIC Doe v. Reed. (Mar. 3, 2010)
    • Supreme Court to Hear Workplace Privacy Case, Rule on Safeguards for Text Messages: The Supreme Court agreed to hear a case that will determine what privacy safeguards apply to text messages transmitted through government employees' pagers. In City of Ontario v. Quon, a federal appeals courts held that California police officers "have a reasonable expectation of privacy" in some personal text messages sent while at work. The Supreme Court will review the ruling. For more, see EPIC Workplace Privacy. (Dec. 14, 2009)