The Digital Self: Current Issues in Privacy

Alan Butler,
EPIC Appellate Advocacy Counsel

Chautauqua Institution
Chautauqua, NY
July 7-9

The U.S. Supreme Court has denied a petition from Google to reverse the decision in the Google Street View case. In Joffe v. Google, a group of plaintiffs sued Google for intercepting private communications, including passwords, medical records, and financial information, with its "Street View" vehicles. EPIC filed a friend of the court brief in support of Internet users, arguing that Wi-Fi communications are not "readily accessible to the general public," and that companies should not intercept communication of private residential networks. The Ninth Circuit agreed and found that the wiretap exception for access to "radio communications" does not apply Wi-Fi networks. More than twelve countries have investigated Google for its collection of private Wi-Fi data, and at least nine countries have found that Google violated their national wiretap laws. For more information, see EPIC: Joffe v. Google and EPIC: Investigations of Google Street View.
The Federal Trade Commission has settled charges against fourteen companies that misrepresented compliance with the EU-US Safe Harbor privacy arrangement. In response to the FTC's request for public comment on the pending settlements, EPIC recommended that the Commission: (1) require the companies to comply with the Consumer Privacy Bill of Rights; (2) publish the companies' consent order compliance reports as they are submitted; and (3) strengthen the sanctions against a DNA testing firm, whose misrepresentations puts genetic information at risk. However, the FTC declined to make any changes. EPIC has previously stated that the Commission's ongoing failure to modify consent orders in response to public comments is "contrary to the interests of American consumers." An Irish Court has recently asked the European Court of Justice to determine whether the Safe Harbor Arrangement still provides adequate protection for EU consumer. For more information, see EPIC: EU Data Protection Directive and EPIC: Federal Trade Commission.

"US-German Cyber Dialogue;Ensuring Security and Freedom"

Marc Rotenberg,
EPIC President

Federal Foreign Office
Berlin, Germany
June 27, 2014

The Supreme Court ruled today that a warrantless search of a cell phone violates the Fourth Amendment, even when it occurs during a lawful arrest. The Court's decision in Riley v. California makes clear that "a search of the information on a cell phone bears little resemblance to the type of brief physical search" allowed in the past. The Court said "Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person." EPIC, joined by 24 legal scholars and technical experts on the EPIC Advisory Board, filed a friend of the court brief, arguing that cell phones contain a wealth of sensitive personal data, and that officers can reasonably secure phones while they apply for a warrant to search them. 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." The EPIC brief was cited by the Supreme Court in its decision. For more information, see EPIC: Riley v. California.
The Defense Logistics Agency, an agency component within Department of Defense, has amended its Freedom of Information Act rules. EPIC submitted extensive comments on the initial proposal. EPIC said that several of the proposals are contrary to law, exceed the scope of the agency's authority, and should be withdrawn. The final rule incorporates many of EPIC's recommendations. For example, DLA revised several key definitions, including "administrative appeal," "adverse determination, and "consultation," and modified its general FOIA policy to promote agency transparency. EPIC routinely comments on agency proposals that impact the rights of FOIA requesters. The Privacy and Civil Liberties Oversight Board, the Federal Trade Commission, and the Interior Department have adopted EPIC's recommendations on proposed FOIA rule changes. For more information, see EPIC: Open Government.
EPIC, EFF, ACLU, Defending Dissent, and a coalition of over 30 organizations have urged Attorney General Holder to immediately conduct a privacy assessment of the FBI's proposed "Next Generation Identification" system. NGI is a massive database that includes biometric identifiers, such as digitized fingerprints and facial images, of millions of Americans. The system is set to go fully operational despite a required privacy assessment. EPIC previously sued the FBI to obtain details about the system. According to a FOIA document obtained by EPIC, the FBI accepts a 20% error rate for facial recognition searches of the Next Generation Identification database. Last year, EPIC also obtained documents from the FBI regarding the use of facial recognition on state DMV photos. For more information, see EPIC's Spotlight on Surveillance on FBI's Next Generation Identification Program.
A bipartisan Freedom of Information Act reform bill was introduced today by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX). The FOIA Improvement Act of 2014 addresses chronic problems with overuse of exemptions by federal agencies, excessive fee assessments, and the culture of secrecy. The bill will codify a "presumption of openness" in the processing of FOIA requests. The bill will require agencies to weigh the public interest in disclosure against the agency’s interest in secrecy before withholding documents such as Office of Legal Counsel memos. The FOIA Improvement Act will also close a loophole that agencies have used to make requesters pay excessive fees, even when the agency takes years to process the request. EPIC has recommended many of these reforms. EPIC specifically recommended proposed changes to the "(b)(5)" exemption. For more information see: EPIC: FOIA Cases.

Freedom of Information Act Modernization Federal Advisory Committee Inaugural Meeting

Ginger McCall,
Director, EPIC Open Government Project

National Archives
Washington, D.C.
June 24, 2014

The Court of Appeals for the Second Circuit today made public the legal analysis justifying the Administration's controversial "targeted killing" drone program. The action follows an earlier ruling by the federal appeals court in New York Times v. Department of Justice. The government had argued that this memo could not be disclosed under the Freedom of Information Act because it was a privileged "deliberative" document. But the plaintiffs explained that the government relied on the analysis to defend the program and that it operated as secret law. EPIC filed an amicus brief, supported by seven open government organization, arguing that under the FOIA such a legal opinion by the Justice Department cannot be a deliberative documents. The federal appeals court agreed, and has now released the opinion to the public. Last week, in EPIC v. NSA the Department of Justice released to EPIC NSPD-54, the President Directive concerning cybersecurity. For more information, see EPIC: New York Times v. DOJ and EPIC v. DOJ - Warrantless Wiretapping Program.

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