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August 2013 Archives

August 1, 2013

On Point: NSA Chief Speaks At Black Hat

On Point: NSA Chief Speaks At Black Hat

Alan Butler,
EPIC Appellate Advocacy Counsel

Washington, D.C.
August 1, 2013

August 6, 2013

The TSA Isn't Just in Airports Anymore

"The TSA Isn't Just in Airports Anymore"

Khaliah Barnes,
EPIC Administrative Law Counsel

HuffPost Live
August 6, 2013

August 8, 2013

TSA Conducts Warrantless Searches Outside of Airports

The Transportation Security Administration has expanded its Visible Intermodal Prevention and Response (VIPR) program to perform warrantless searches at various locations, including festivals, sporting events, and bus stations. The VIPR program uses "risk-based" profiling and "behavior detection" to search and detain individuals. Members of Congress have opposed these searches, and the GAO has questioned the validity of TSA's behavior detection and dispelled behavior detection effectiveness. Last year, EPIC prevailed in a lawsuit against the TSA that revealed the agency's plan to deploy body scanners outside of the airport at bus stations, train stations, and elsewhere. For more information, see EPIC: EPIC v. DHS (Mobile Body Scanners FOIA Lawsuit).

August 12, 2013

National Institutes of Health Protects Genetic Privacy of HeLa Cells

The National Institutes of Health has agreed to safeguard Henrietta Lacks's family genetic privacy while still allowing research on the famous HeLa cells. During her fight against an aggressive form of cervical cancer in the 1950s, Henrietta Lacks's cells were given to scientists, without her consent, for experimentation because of their ability to replicate in a lab setting. Her cells are still used today for scientific research. EPIC previously submitted comments to the Department of Health and Human Services and argued for stronger privacy protections for genetic data. More recently, EPIC filed a friend of the court brief with the Supreme Court in Maryland v. King arguing for limited law enforcement access to DNA. For more information, see EPIC: Maryland v. King and EPIC: Genetic Privacy.

Administration Argues NSA Domestic Surveillance is Lawful; President Supports FISA Court Adversary

The administration released a white paper outlining its legal argument for why the Patriot Act Section 215 authorizes the NSA to collect all Americans' telephone records. The government also released a NSA memo discussing the agency's program. At a press conference on Friday, President Obama outlined proposals that would address some, but not all, problems with the domestic surveillance programs, such as appointing a special advocate to argue in favor of civil liberties before the FISA Court. EPIC has brought a lawsuit in the Supreme Court challenging the legal authority for the NSA telephone surveillance program. For more information, see In re EPIC.

August 13, 2013

Solicitor General to Respond to EPIC Mandamus Petition

The Solicitor General requested on Friday an extension to file a response to EPIC's Mandamus Petition in In re EPIC. The Court granted the extension, and the Solicitor's response is due on September 11, 2013. In the Mandamus Petition, EPIC argues that the FISA Court exceeded the statutory authority under Section 215 of the USA PATRIOT Act when it authorized bulk collection of American's telephone records. Under Section 215, the FISA Court may order businesses to produce records that are "relevant" to an authorized national security investigation, but the Verizon Order requires production of millions of private records unrelated to any investigation. The Administration recently argued that bulk collection meets the relevance standard, but it has scant legal authority to support that proposition. For more information, see In re EPIC.

Leading Privacy Scholars Support EPIC's Supreme Court Petition

The nation's leading privacy law scholars have filed a series of amici briefs with the U.S. Supreme Court supporting EPIC's challenge to the NSA domestic surveillance program. A brief by privacy and surveillance law professors argues that the bulk collection of telephone metadata is unlawful under the Patriot Act. Their brief explains that the program violates the Foreign Intelligence Surveillance Act and the Executive Order governing intelligence operations. A brief by former Church Committee members and twenty-eight law professors, submitted by constitutional expert Erwin Chemerinsky, outlines the history of domestic surveillance abuses and explains that the FISA was enacted specifically to limit such collection. Another brief by Fourth Amendment experts at the Cato Institute argues that the Verizon Order is equivalent to a "general warrant" issued in violation of the Fourth Amendment, and that the Supreme Court's recent decision in United States v. Jones shows that "EPIC has a legal and constitutional interest in data about its telephone calls." Finally, a brief filed by Professors James Pfander and Stephen Vladeck, leading experts in federal courts, argues that the Supreme Court has jurisdiction to grant EPIC's petition and that the legal question is properly before the Court. For more information, see In re EPIC.

August 19, 2013

NSA Violated Law Thousands of Times and Intercepted American Communications

An internal audit has revealed that the NSA violated both legal rules and privacy restrictions thousands of times each year since 2008, leading to the unauthorized surveillance of American communications. According to the 2012 report, there were 2,776 violations in the previous 12 months alone. A "large number" of calls placed from Washington DC were intercepted when its area code was confused with that of Egypt. Another document shows how NSA analysts are trained to avoid giving "extraneous information" to their "FAA overseers" when they want to target an individual. In 2006, EPIC wrote to the Senate Judiciary Committee regarding instances of intelligence gathering misconduct by the FBI that were uncovered through EPIC's Freedom of Information Act requests. EPIC is currently petitioning the NSA to suspend its domestic surveillance program pending a public comment period. EPIC has also filed a petition with the U.S. Supreme Court challenging the legal authority of the FISA Court to authorize the NSA's program.

EPIC Submits Ninth Petition to NSA to Suspend Domestic Surveillance

EPIC, joined by over 3,000 members of the public, leading privacy experts, and journalists, has petitioned the National Security Agency for the ninth time, urging the suspension of the NSA domestic surveillance program pending public comments. EPIC first petitioned the agency on June 17, 2013. Because the NSA has failed to respond, EPIC has renewed the petition on a weekly basis. EPIC's petition states, "NSA's collection of domestic communications contravenes the First and Fourth Amendments to the United States Constitution, and violates several federal privacy laws, including the Privacy Act of 1974, and the Foreign Intelligence Surveillance Act of 1978 as amended." The petition further states that the NSA's domestic surveillance "substantively affects the public to a degree sufficient to implicate the policy interests" that require public comment, and that "NSA's collection of domestic communications absent the opportunity for public comment is unlawful." By law, the NSA is required to respond. General Keith Alexander, NSA Director, has publicly stated that the agency is interested in receiving public comments: "Help us defend this country and protect our civil liberties and privacy. And if anybody has a better way to do it than what we are doing today, we want to hear that." EPIC intends to renew its request for a public rulemaking each week until the NSA responds. For more information and to join EPIC's petition, see EPIC: NSA petition.

FTC Chairwoman Calls for Transparency in Big Data

In a keynote speech at the Technology Policy Institute Aspen Forum, FTC Chairwoman Edith Ramirez called upon companies to "move their data collection and use practices out of the shadow and into the sunlight." Chairwoman Ramirez highlighted the risks of big data including indiscriminate collection, data breaches, and behind-the-scenes profiling. She stressed the importance of protecting consumers' privacy and said, "with big data comes big responsibility." EPIC previously testified before Congress and called for the regulation of data brokers because there is too much secrecy and too little accountability in their business practices. EPIC has also consistently recommended that the FTC enforce Fair Information Practices, such as those contained in the Administration's Consumer Privacy Bill of Rights, against commercial actors. For more information, see EPIC: Choicepoint and EPIC: Privacy and Consumer Profiling.

August 20, 2013

US Supreme Court May Consider Cell Phone Privacy

Can the police warrantlessly search the emails, texts, and address book on your cell phone if you are arrested? The U.S. Supreme Court is likely to address that question in the upcoming term. Two cases pending before the Court ask whether, under the Fourth Amendment, a cell phone's contents can be searched incident to an arrest without a warrant. In Riley v. California, the defendant Riley challenges a police officer's search of his smartphone. In United States v. Wurie, the Department of Justice seeks review of an appeals court's decision that warrants are necessary to search a cell phone. EPIC recently argued successfully to the New Jersey Supreme Court that a warrant is required to track a cell phone's location. The U.S. Supreme Court held last year in United States v. Jones that warrants are required to use GPS tracking devices. For more information, see EPIC: Riley v. California.

Pew Survey Finds Most Teens Seek Advice on Privacy Management

A survey by the Pew Internet and American Life Project and the Berkman Center for Internet and Society found that while many teens report a high level of comfort with online privacy settings, "at some point, 70% of them have sought advice from someone else about how to manage their privacy online." Friends, parents, or other close family members were those most often sought out by teens for privacy advice. Other Pew surveys have found that most teens were taking steps to protect their privacy, that a majority of parents were concerned about their children’s online privacy, and that users were becoming more active in managing their social media accounts. For more information, see EPIC: Public Opinion on Privacy.

August 22, 2013

"New Details On The Scope of NSA Surveillance"

"New Details On The Scope of NSA Surveillance"

Marc Rotenberg,
EPIC Executive Director

The Diane Rehm Show
August 22, 2013

FISA Court: NSA Violated Fourth Amendment and the FISA

A newly released opinion by the Foreign Intelligence Surveillance Court found that the NSA violated the Fourth Amendment and the Foreign Intelligence Surveillance Act when it acquired tens of thousands of wholly-domestic Internet communications. According to the opinion of the former Presiding Judge of the FISA Court, the NSA acquired more than 250 Million Internet communications per year. Roughly 9% of these communications are obtained via "upstream collection" and more than 50,000 each year contain domestic communications. The FISC found that NSA's targeting and minimization procedures were not reasonable under the Fourth Amendment given the large number of wholly domestic communications obtained. The FISC also found that NSA's minimization procedures violated the FISA, and required that the agency adopt additional protections to ensure privacy. For more information, see EPIC: Foreign Intelligence Surveillance Court.

EPIC, Privacy Groups, Urge Court to Reject Proposed Google Settlement

EPIC, joined by several leading privacy and consumer protection organizations, submitted a letter to the Northern District of California regarding a proposed settlement in a class-action lawsuit against Google. The settlement was proposed by class action lawyers on behalf of Google users in a case concerning the unlawful disclosure of search terms by Google to third parties. Under the terms of the proposed settlement, Google would be allowed to continue to disclose user search terms to third parties. The letter explains that the proposed settlement "provides no benefit to Class members" because it does not require Google to change its business practices. "Furthermore," the letter states, "the proposed cy pres allocation is not aligned with the interests of the purported Class members." "Cy press" ("as near as possible") is a legal doctrine that allows courts to allocate funds to protect the interests of individuals when there is a class action settlement. Under Ninth Circuit precedent, cy pres funds must be used to advance the interests of the class members. EPIC previously highlighted the dangers of improper cy pres distributions in settlements. For more information, see EPIC: Fraley v. Facebook, EPIC: Lane v. Facebook, and EPIC: Search Engine Privacy and EPIC: Google Buzz.

Jeffco Public Schools Board of Education Study Session Regarding inBloom, Inc.

Jeffco Public Schools Board of Education Study Session Regarding inBloom, Inc.

Khaliah Barnes,
EPIC Administrative Law Counsel

Jefferson County Board of Education
August 22, 2013

EPIC FOIA - DHS Facial Recognition System Lacks Privacy Safeguards

In response to an EPIC FOIA request, the Department of Homeland Security has produced documents revealing that the agency has failed to establish privacy safeguards for "BOSS" (the Biometric Optical Surveillance System), an elaborate system for facial recognition and individual identification. The documents obtained by EPIC indicate that none of the agency's contracts or statements of work require any data privacy or security protections for BOSS' design, production, or test implementations. The New York Times reported on EPIC's acquisition of these documents, noting also high failure rates for these systems. EPIC is also pursuing a FOIA lawsuit with the FBI over the agency's development of "Next Generation ID," which, when complete, will be the largest biometric identification database program in the world. For more information, see EPIC: Face Recognition, EPIC: EPIC Opposes DHS Biometric Collection, and EPIC - Biometric Identifiers.

August 23, 2013

EPIC to Host International Privacy Conference in Warsaw

EPIC, in collaboration with many of the world's leading privacy organizations, will host "Our Data, Our Lives" on September 24, 2013 in Warsaw, Poland. The event will feature technical experts, legal scholars, NGO representatives, and officials from the OECD, the US Privacy and Civil Liberties Oversight Board, and the Article 29 Working Party. The Public Voice conference will be held in conjunction with the 35th annual International Conference of Data Protection and Privacy Commissioners. The 2012 Public Voice conference "Privacy Rights are a Global Challenge" was held in Punta del Este, Uruguay and included more than 100 participants from 20 countries. For more information, see The Public Voice - The Madrid Declaration.

August 28, 2013

President Announces Intelligence Review Group, EPIC Presses for FISA Reform

President Obama met this week with the members of a newly formed group of experts to review intelligence and communications technologies. The group consists of computer security advisor Richard Clark, former CIA Director Michael Morell, and legal scholars Geoffrey Stone, Cass Sunstein, and Peter Swire. The White House said the group would advise the President on how "the United States can employ its technical collection capabilities in a way that optimally protects our national security and advances our foreign policy while respecting our commitment to privacy and civil liberties, recognizing our need to maintain the public trust, and reducing the risk of unauthorized disclosure." This week, EPIC contacted each of the review group members to provide important materials regarding the protection of privacy and civil liberties. EPIC sent to the Review Group members copies of EPIC's Supreme Court petition, arguing that the current domestic surveillance program is unlawful, as well as EPIC's Congressional testimony on the FISA Amendments Act and EPIC's 2010 letter to the Foreign Intelligence Surveillance Court concerning reform of FISA procedures. For more information, see EPIC: FISA Reform.

August 30, 2013

New Surveillance Reports for Intelligence Community

The Director of National Intelligence has announced that  the Intelligence Community will release annually "aggregate information concerning" the use of national security authorities. The reports will include the use of both FISA and National Security Letter legal authorities. EPIC has previously recommended improved reporting of FISA activities, similar to the wiretap reports issued by the Administrative Office of the U.S. Courts. News reports indicate that the Intelligence Community paid Internet companies $394 m in 2011 to provide customer data to the US government.  For more information, see EPIC: FISA Reform.

NSA Responds to EPIC's Petition Concerning Domestic Surveillance, EPIC Considers Next Steps

Two months after EPIC formally petitioned the National Security Agency to suspend the domestic surveillance program, the NSA has responded. In the petition, EPIC stated that "NSA's collection of domestic communications contravenes the First and Fourth Amendments to the United States Constitution, and violates several federal privacy laws, including the Privacy Act of 1974, and the Foreign Intelligence Surveillance Act of 1978 as amended." EPIC further stated that NSA's domestic surveillance "substantively affects the public to a degree sufficient to implicate the policy interests" that require public comment. In response to EPIC, the NSA argued "any NSA activities involving the collection of communications that may meet the description set forth in your letter, if any, would not constitute Agency actions that are subject to notice-and-comment requirements . . ." The letter from the NSA Associate Director for Policy and Records also stated the "NSA operates in accordance with the Constitution and the laws of the United States." EPIC is considering subsequent legal action. For more information, see EPIC: NSA petition.

Solicitor General Seeks Second Extension for Response to EPIC in Supreme Court Challenge to Domestic Surveillance Program

The Solicitor General of the United States has asked the clerk of the US Supreme Court for a second extension to prepare a response to EPIC's Petition, which argues that the order of the FISA Court for domestic telephone toll records was unlawful and must be overturned. EPIC filed the Petition on July 8, 2013. Subsequently, several amicus briefs in support of EPIC were filed with the Court by privacy scholars, Constitutional scholars, experts in the Court's jurisdiction, and former members of the Church Committee. The Solicitor General asked for a 30-day extension for the initial August 12, 2013 deadline which was granted. The SG has now asked for a second 30-day extension. The case is In re EPIC, Petitioner, No. 13-58. For more information, see In re EPIC - NSA Telephone Records Surveillance.

About August 2013

This page contains all entries posted to epic.org in August 2013. They are listed from oldest to newest.

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