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January 2011 Archives

January 4, 2011

DHS Files Brief in EPIC Airport Body Scanner Case

The Department of Homeland Security has filed its answer brief in EPIC's suit to suspend the agency's controversial airport body scanner program. EPIC filed its opening brief on November 1, 2010, arguing that the body scanners are "unlawful, invasive, and ineffective." Since then, a national grassroots movement of citizens, advocates, and lawmakers staged protests, sent letters, held hearings (2), and introduced legislation (2, 3) to stop the program. DHS has repeatedly attempted to delay resolution of EPIC's lawsuit, but the Court has scheduled oral argument for March 10, 2011. For more information, see EPIC: EPIC v. DHS and EPIC: Whole Body Imaging Technology.

California Supreme Court Allows Warrantless Searches of Cell Phones

In People v. Diaz, the California Supreme Court has held that an exception to the Fourth Amendment permits warrantless searches of a person's cellphone following an arrest. The court said that the search in this case was "incident to a lawful arrest." In a dissenting opinion, Judge Werdegar said that the exception was intended to permit warrantless searches of clothing or small physical containers, and that accessing electronic data storage devices is uniquely invasive. "Never before has it been possible to carry so much personal or business information in one's pocket or purse" the judge stated. In a recent Supreme Court "friend of the court" Brief, EPIC explained that modern communications devices contain extensive personal information and should be entitled to privacy protection. For more information, see City of Ontario v. Quon.

January 6, 2011

EPIC Files Brief in Airport Body Scanner Case

EPIC has filed its reply brief in the suit to suspend the Department of Homeland Security's controversial airport body scanner program. The brief argues that "the TSA has acted outside of its regulatory authority and with profound disregard for the statutory and constitutional rights of air travelers, the agency’s rule should be set aside and further deployment of the body scanners should be suspended." EPIC filed its opening brief on November 1, 2010, arguing that the body scanners are "unlawful, invasive, and ineffective." On January 6, EPIC held a one-day public conference "The Stripping of Freedom: A Careful Scan of TSA Security Procedures" in Washington, DC. Oral argument will be heard in the case on March 10. For more information, see EPIC: EPIC v. DHS and EPIC: Whole Body Imaging Technology.

EPIC Conference Draws Broad Coalition in Opposition to Airport Body Scanners

EPIC hosted "The Stripping of Freedom: A Careful Scan of TSA Security Procedures" at the Carnegie Institute for Science in Washington, DC. Speakers included Representative Rush Holt, Ralph Nader, New York City Councilman David Greenfield, and representatives of the Libertarian Party, the Council on American Islamic Relations, Flyer’s Rights, and the CATO Institute. The conference, covered by CSPAN, was fully interactive, with a videocast and a Twitter feed (#ScanTSA). For more information, see EPIC v. DHS (Suspension of Body Scanner Program).

January 7, 2011

Supreme Court to Hear Medical Privacy Case

The Supreme Court granted review of Sorrell v. IMS Health Inc., after the Second Circuit Court of Appeal's decision to strike down Vermont's prescription confidentiality law. The law regulates data mining companies that sell or use doctors' prescribing records containing personal information on patients. The Court of Appeals' decision, which relied on the First Amendment, diverged significantly from other decisions upholding similar laws. EPIC filed a "friend of the court" brief in support of the Vermont law, arguing that the state has a substantial interest in protecting the privacy of medial records and that the data miners' de-identification practices do not, in fact, protect patient privacy. For more, see EPIC: IMS Health v. Sorrell, EPIC: IMS Health v. Ayotte, and EPIC: Medical Privacy.

January 10, 2011


Marc Roteberg,
EPIC President

Political and Civil Rights Law Review
Temple Law School
Philadelphia, PA
February 5, 2011

January 12, 2011

Court Grants Government Motion in EPIC Body Scanner FOIA Lawsuit

A federal district court has granted the Department of Homeland Security's motion to conclude one of EPIC's Freedom of Information Act lawsuits. EPIC was seeking more than 2,000 images generated by airport body scanners held by the TSA. The DHS objected to the disclosure and the court sided with the government. The court relied on a legal theory, "Exemption High (b)(2)" that is currently under review by the Supreme Court in Milner v. Dept. of Navy. As a result of this lawsuit, EPIC obtained many documents concerning the airport screening program, including Procurement Specifications, Operational Requirements, traveler complaints, and vendor contracts with L3 and Rapiscan, that were subsequently made available to the public. EPIC may appeal the district court's decision as to the release of the body scanner images. For more information see EPIC:EPIC v. DHS and EPIC: Body Scanners. (Press Release)

January 18, 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.

Facebook Drops Plan to Disclose Users' Home Addresses and Personal Phone Numbers

Facebook has retreated from its decision to allow third-party access to users home addresses and phone numbers. Facebook backed off after criticism of the new policy, but said it would go forward once it has made further changes. EPIC Executive Director Marc Rotenberg said "Facebook is trying to blur the line between public and private information. And the request for permission does not make clear to the user why the information is needed or how it will be used." EPIC, and several consumer organizations, have complaints pending at the Federal Trade Commission concerning Facebook's earlier changes to users' privacy settings. For more information, see EPIC: In Re Facebook, EPIC: In Re Facebook II, and EPIC: Facebook Privacy.

January 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.

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.  

January 20, 2011

"4th International Conference: Computers, Privacy, and Data Protection"

"4th International Conference: Computers, Privacy, and Data Protection"

Marc Rotenberg,
EPIC President

Lillie Coney,
EPIC Associate Director

Brussels, Belgium
25-27 January 2011

"Pecha Kucha"

"Pecha Kucha"

Lillie Coney,
EPIC Associate Director

Les Halles de Schaerbeek
Brussels, Belgium
25 January 2011

"Pressing Legal Issues in Aviation Security"

John Verdi,
EPIC Senior Counsel

Federal Bar Association
TSA Headquarters
Arlington, VA
February 1, 2011

"9/11 and the Legal Landscape: A Decade Later"

"9/11 and the Legal Landscape: A Decade Later"

Marc Rotenberg,
EPIC Executive Director

Wayne Law School
Detroit, MI
February 4, 2011

FTC: Investigating Google Street View is a "waste of summer"

In documents obtained by EPIC through a Freedom of Information Act request, a senior attorney with the Federal Trade Commission describes the Google WiFi investigation as a "wasted summer" and hopes that a Hill briefing on Google WiFi "won't be too much of a time suck." EPIC sought these documents after the FTC dropped its investigation of Google Streetview. Several countries, including the U.K., Germany, Spain, and Canada, have conducted similar investigations and determined that Google violated their privacy laws. In the U.S., the Federal Communications Commission opened an investigation after EPIC filed a complaint, asking the Commission to investigate violations of US wiretap law and the Communications Act. For more information, see EPIC: Google Street View.

January 21, 2011

Senate Commerce Committee to Explore Internet Privacy, Airport Screening, Cybersecurity

Chairman Rockefeller's (D-WV) priorities for the Senate Commerce Committee in the new Congress will include consumer privacy, oversight of the Federal Trade Commission, airport screening, and cybersecurity, according a recent statement. Senator Rockefeller has specifically called for strong Internet privacy laws. "There are no baseline privacy protections for most consumer online activity," he stated. "Industry self-regulation has largely failed, and I hope that the Department of Commerce . . .will reach the conclusion that legislation is necessary to protect consumers." EPIC has testified previously before the Committee on the Childrens' Online Privacy Protection Act (COPPA), protecting consumers' phone records, and spam e-mail. For more information, see EPIC: Online Tracking and Behavioral Profiling and EPIC: Cybersecurity Privacy Practical Implications.

January 24, 2011

Federal Trade Commission Extends Deadline for Comments on Privacy Report

To provide business groups more time to express their views on consumer privacy, the FTC has extended the deadline for submitting comments on the agency's Internet privacy report to February 18th. The preliminary staff report "Protecting Consumer Privacy in an Era of Rapid Change: a Proposed Framework for Businesses and Policy Makers" recommends the creation of a Do Not Track mechanism, the adoption of "privacy by design" techniques, and the use of simplified consumer privacy notices. However, the FTC's report did not address the privacy implications of cloud computing and social networking, the need for a US privacy agency, or a comprehensive federal privacy law based on "Fair Information Practices," as privacy groups had urged. For more information, see EPIC: Federal Trade Commission and EPIC: Online Tracking and Behavioral Profiling.

Jury Vindicates Right to Fly Without Producing Identification

A New Mexico jury exonerated civil rights activist Phil Mocek for refusing to show his identification to the TSA before boarding a plane and for filming TSA agents. Mocek has published footage of the incident, stemming from his attempt to board a flight in Albuquerque in 2009. Agents instructed Mocek to put down his camera. When he refused, insisting that TSA rules and regulations do not prohibit filming in publicly-accessible areas of the airport, agents raised their voices and accused him of "causing a disturbance." Police officers arrived on scene and informed Mocek that he was under criminal investigation for "disturbing the peace," demanding that he produce identification. Mocek carried no identification and was brought up on four separate charges relating to the incident. The jury in the case took an hour to deliberate and returned with a verdict of NOT GUILTY on all charges. EPIC is currently suing to strike down the TSA's body scanner checkpoint program and recently submitted a "Friend of the Court" brief urging the Supreme Court to limit police access to identity documents. For more information, see EPIC: EPIC v. DHS and EPIC: Tolentino v. New York.

DHS Releases FOIA Report, But Questions Remain

The Department of Homeland Security has released the Freedom of Information Act Report for 2010. The report analyzes the processing of FOIA requests made throughout the year by each DHS component, detailing the disposition of each request, response times, and the number of backlogged requests. DHS is under scrutiny for their policy of referring FOIA requests to political appointees before processing. The release of over 1,000 agency documents revealed a persistent agency practice of flagging FOIA requests from EPIC and other watchdog organizations for referral.The FOIA does not permit agencies to select FOIA requests for political scrutiny and the Supreme Court has stated that neither the identity of the FOIA requester nor the reason for the request is relevant to the processing of requests. EPIC has recommended that the FOIA Ombudsman investigate the Department’s policy. For related information see EPIC: Open Government and EPIC: Litigation under the Federal Open Government Laws 2010.

January 26, 2011

INEX/CPDP Roundtable "Body Scanners"

INEX/CPDP Roundtable "Body Scanners"

Marc Rotenberg,
EPIC President

Centre for European Policy Studies
Brussels, Belgium
27 January 2011

EPIC Urges Commerce Department to Support Effective Privacy Standards

EPIC submitted comments on the Commerce Report, "Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework." EPIC called for an independent privacy agency with enforcement powers, and a comprehensive federal privacy law based on robust Fair Information Practices. EPIC also urged the Department to push forward an international framework for privacy protection and explained how effective regulation will promote innovation for privacy as it has for alternative energy. EPIC warned the Commerce Department not to "repeat the dreadful mistake of P3P," a privacy protocol widely viewed as one of the failures of self regulation. For more information, see EPIC: Internet Privacy, EPIC: EU Data Protection Directive, and EPIC: Privacy Act of 1974.

January 28, 2011

EPIC Awards 2011 Privacy Champion Award to Sophie in't Veld and Jeff Chester

EPIC has presented the 2011 International Privacy Champion Award to European Parliament Member Sophie in't Veld and the 2011 Domestic Privacy Champion Award to Jeff Chester, founder and executive director of the Center for Digital Democracy. In't Veld was recognized for her work as "leading defender of fundamental freedoms," Chester as a "tireless champion of consumer rights." Professor Stefano Rodotà and Justice Michael Kirby have previously received the EPIC International Privacy Champion Award. The 2010 EPIC Domestic Privacy Champion Award went to Beth Givens, founder and director of the Privacy Rights Clearinghouse.

EPIC's Rotenberg Repeats Call for US to Ratify International Privacy Convention

Speaking before the Council of Europe and the European Commission at a high-level meeting in Brussels, EPIC President Marc Rotenberg urged the United States to ratify "Convention 108," the International Privacy Convention. Rotenberg pointed out that the United States had recently ratified the Council of Europe Convention on Cybercrime and had urged its allies to do so as well. Rotenberg's remarks followed a letter from EPIC to Secretary of State Hilary Clinton a year earlier asking that the United States begin the process of ratification. Rotenberg said the Convention is a "remarkable document that recognizes the value of innovation and the importance of fundamental freedoms." For more information, see Public Voice - The Madrid Declaration and EPIC - EU Data Directive.

PI, EPIC, CMCS Release EU Privacy Report

Privacy International, EPIC, and the Center for Media and Communications Studies (CMSC) released "European Privacy and Human Rights (EPHR) 2010," a report investigating the scope of privacy and data protection laws a in Europe. The study includes 33 individual reports covering issues from privacy enforcement to ID cards, biometrics, and data-sharing and video surveillance The study ranks privacy protection across the European Union (EU). An interactive map allows is available. The EPHR is based on EPIC's report Privacy & Human Rights: An International Survey of Privacy Laws and Developments

January 31, 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.

EPIC Joins Campaign to Promote Transparency in Europe

EPIC has supported a global initiative, led by Access Info, to urge the LIBE Committee of the European Parliament to safeguard government transparency. Under consideration is a proposal to limit open government by withholding documents that are not "formally" transmitted. 180 organizations, journalists, and activists support the campaign, and over 90 countries worldwide have adopted laws, constitutional amendments or regulations protecting the right to freedom of information. For related information, see EPIC: Open Government and EPIC: Privacy & Human Rights: An International Survey of Privacy Laws and Developments.

"Secondary and Intermediary Liability on the Internet"

"Secondary and Intermediary Liability on the Internet"

Marc Rotenberg,
EPIC Executive Director

Stanford Technology Law Review
Stanford Law School
Palo Alto, CA
March 3, 2011

"Privacy and the Supreme Court"

Marc Rotenberg,
EPIC Executive Director

Columbia School of Law
New York, NY
March 4, 2011

"The Web: Wiring Our World"

Marc Rotenberg,
EPIC Executive Director

United Nations
New York, NYM
March 4, 2011

About January 2011

This page contains all entries posted to epic.org in January 2011. They are listed from oldest to newest.

December 2010 is the previous archive.

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