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EPIC Alert 20.05

======================================================================= E P I C A l e r t ======================================================================= Volume 20.05 March 15, 2013 ----------------------------------------------------------------------- Published by the Electronic Privacy Information Center (EPIC) Washington, D.C. "Defend Privacy. Support EPIC." =========================================================================== Table of Contents =========================================================================== [1] States Fine Google for Street View Privacy Violations [2] EPIC Mounts Petition after FOIA Documents Reveal Drone Spy-Tech [3] EPIC Prevails in Two FOIA Cases, Obtains More Data on Body Scanners [4] EPIC Prevails in Social Media Monitoring FOIA Suit [5] EPIC Testifies Before Maryland Legislature on Location Privacy [6] News in Brief [7] EPIC in the News [8] Book Review: 'Trust Me, I'm Lying' [9] Upcoming Conferences and Events TAKE ACTION: Sign EPIC's Petition to Suspend CBP's Drone Program! - SIGN the Petition: - READ the FAA Announcement: - LEARN about Drones: - SUPPORT EPIC: ======================================================================== [1] States Fine Google for Street View Privacy Violations ======================================================================== Attorneys General for 38 states and the District of Columbia have reached a $7 million settlement with Google over consumer protection and privacy claims stemming from Google's unauthorized collection of personal data via the company's Street View vehicles. According to the "Assurance of Voluntary Compliance" settlement, as Google Street View mapping vehicles roamed US streets between 2008 and 2010, they also accessed unsecured wireless networks within their range "for use in offering 'location aware' or geolocation services." In the process they collected unauthorized "payload data" from the wireless networks of residential and business Internet users, including "URLs of requested Web pages, partial or complete email communications, or any other information, including any confidential or private information being transmitted to or from the network user." The payload data, which remained "unparsed" and in "binary, machine- readable form" and "was not and will not be used in any product or service" was not discovered until 2010, after which Google "terminated" the data collection, "segregated" the existing data, and "disabled the [data collection] equipment and software" on Street View vehicles. However, the data itself was never destroyed. As a result of previous settlements with the Federal Trade Commission, Google is already required to implement a comprehensive privacy program. Now, in addition to the $7 million fine, Google must add further provisions to the company's existing privacy regime, including implementing a privacy training and development program; deleting all unlawfully acquired data; submitting biennial reports to the Attorneys General; and educating consumers about wireless network security via a YouTube video, blog posts, half-page newspaper ads, and running "daily online ads promoting the how-to video for at least two years from the data the campaign begins." However, the settlement only disposes of civil claims against Google; it does not release the company from any potential criminal liability for violating state wiretap laws. In 2010, EPIC urged the Federal Communication Commission to investigate the Google Street View program after it became clear that Google had intercepted the private communications of millions of US wireless network users. Google already has acknowledged that it may have intercepted URLs of requested web pages and the content of email messages sent over these networks. Countries in the EU and elsewhere, including Hong Kong and South Korea, have previously sued Google for violation of national law. EPIC also has pursued FOIA requests about Street View from the FCC and the Department of Justice. Federal wiretap claims over Street View are still pending in federal court. CT AG's Office: Announcement of Street View Settlement (Mar. 12, 2013) CT AG's Office: Street View Settlement Agreement (Mar. 12, 2013) EPIC: Letter to FCC re: Google Street View (May 21, 2010) EPIC: FCC Street View Investigation FOIA Documents (Apr. 13, 2012) EPIC: DOJ Google Street View FOIA Documents (Apr. 27, 2012) EPIC: Google Street View ======================================================================== [2] EPIC Mounts Petition after FOIA Documents Reveal Drone Spy-Tech ======================================================================== EPIC has launched a petition to suspend US government drone surveillance programs after obtaining new records under the Freedom of Information Act indicating that the US Bureau of Customs and Border Protection is operating drones in US airspace capable of intercepting electronic communications. The records also suggest that the ten Predator B drones operated by the agency have the capacity to recognize and identify an individual as well as detect specific substances on the ground. The agency did not provide any responsive records to EPIC's request for documentation of any limitations on drone image capture, storage, or copying. The approximately 700 pages of documents CPB provided in response to EPIC's FOIA request include performance specifications, contracts, and statements of work. These records also raise questions about CPB's compliance with federal privacy laws and the scope of domestic surveillance. EPIC's current domestic drones petition ( was precipitated by specific documents ascertaining that Predator B drones operated by Customs and Border Protection along the border region can watch more than two-thirds of the US population, and that the agency allows federal, state, and local law entities to utilize their drones for operations unrelated to the agency's mission. Under federal law, the agency is required to respond to public petitions. Petitioners must sign on by March 18. In 2012, EPIC petitioned the Federal Aviation Administration to conduct a Notice and Comment Rulemaking on the impact of civilian and government use of drones. Specifically, EPIC urged the agency to address drones' impact on privacy and civil liberties. The FAA responded with a recent announcement that it will begin public rulemaking on such a privacy impact. The agency's chief counsel, in a letter to EPIC President Marc Rotenberg, recognized that drones "raise privacy concerns" and highlighted the agency's intention to address these issues "through engagement and collaboration with the public." EPIC has testified before Congress twice in 2012 about domestic drone use, submitted comments to the FAA, and held a symposium on drones and domestic surveillance. EPIC: Domestic Drone Petition EPIC: FAA Petition on US Drones (Feb. 24, 2012) FAA: Announcement on Drone Rulemaking (Feb. 14, 2013) FAA: Letter to EPIC re: Drones (Feb. 14, 2013) EPIC: Congressional Testimony on Drones (Jul. 19, 2012) EPIC: Symposium on Drones and Domestic Surveillance (Jan. 15, 2013) EPIC: Domestic Unmanned Aerial Vehicles (UAVs) and Drones ========================================================================= [3] EPIC Prevails in Two FOIA Cases, Obtains More Data on Body Scanners ========================================================================= A federal judge has granted EPIC victories in two Freedom of Information Act cases involving the controversial airport backscatter machines. Washington, DC District Court Judge Royce Lamberth held March 13 that the Department of Homeland Security must turn over two safety reports on backscatter machine radiation output, as well as a set of PowerPoint slides about Automated Target Recognition software. The agency previously claimed it was not required to release the documents to EPIC. The Transportation Safety Administration, a component of DHS, has used full-body scanners in airports since 2005. In 2010, they became the primary method for screening passengers. In response to passenger privacy concerns, DHS began to test automatic screening, or ATR, software that would eliminate the need for airport security agents to look at the naked body scans. As a result of this testing, EPIC pursued two FOIA requests that sought details about the body-scanner program, including documents describing the machines' functionality, the Automated Target Recognition software, training manuals given to TSA employees, and contracts with the manufacturer. EPIC received an initial set of documents from DHS in February 2013, but many of the records were heavily redacted. One of these redacted documents was a substantial PowerPoint presentation "prepared by TSA's Office of Security Technology (OST) and presented in a briefing to the House Appropriations Committee in connection with future funding" for the ATR software. Because the document also had been presented to Congress, Judge Lamberth ruled that it was not eligible for redaction and had to be disclosed. The second document is a 2006 report authored by a government official evaluating the radiation safety of a body- scanning machine called the "Dual Smart Check." Judge Lamberth ruled that this document was not eligible for redaction either, and ordered disclosure. EPIC has pursued several related Freedom of Information Act cases as a challenge to the deployment of body scanners. In 2011, the DC Circuit of Appeals ruled in the case EPIC v. DHS that the agency must take public comments on the decision to deploy body scanners for primary screening. EPIC's petition to the court stressed that the scanner program violated the Administrative Procedures Act, the Privacy Act, the Religious Freedom Restoration Act, the Video Voyeurism Prevention Act, and the Fourth Amendment. Since that lawsuit, the TSA has ceased buying the "Whole Body Imaging" backscatter devices and is actively replacing them with millimeter wave scanners, a less intrusive but also controversial scanning technology. DC District Ct.: Decision in EPIC v. DHS (Scanners) (Mar. 7, 2013) DC District Ct.: Decision in EPIC v. DHS (PowerPoint) (Mar. 7, 2013) EPIC: Initial Documents from DHS re: Body Scanners (Feb. 11, 2013) EPIC: EPIC v. DHS: Suspension of Body Scanner Program EPIC: Whole Body Imaging Technology ======================================================================== [4] EPIC Prevails in Social Media Monitoring FOIA Suit ======================================================================== EPIC has obtained a court order and an opinion in a Freedom of Information Act lawsuit against the Department of Homeland Security, requiring that the agency turn over more documents about the monitoring of social and Internet media organizations. Washington, DC District Court Judge John Bates determined that DHS could have separated out more disclosable information from the agency's previously redacted documents, and ordered DHS to disclose these portions of the documents to EPIC. EPIC had obtained several hundred pages of documents in 2012 that revealed DHS monitors the Internet for reports that "reflect adversely" on the agency or the federal government. The documents included contracts and statements of work with General Dynamics for around-the- clock media and social network monitoring and periodic reports to DHS. One of these reports - "Residents Voice Opposition Over Possible Plan to Bring Guantanamo Detainees to Local Prison-Standish MI" - summarized the Standish public's dissent on blogs and social networking cites, and quoted specific commenters. EPIC also obtained a list of very broad search terms used by the agency to monitor social media. The list was divided into subcategories, including "Hazmat & Nuclear," "Health Concern + H1N1," "Domestic Security," "Infrastructure Security," and "Southwest and Border Violence." Among the search terms that DHS flagged were "cloud," "drill, "pork," "relief," "cops," and "subway." As a result of EPIC's findings, Congress held a hearing on "DHS Monitoring of Social Networking and Media: Enhancing Intelligence Gathering and Ensuring Privacy." EPIC testified at the hearing, asking the House Committee on Homeland Security to halt the monitoring program. EPIC asserted that the monitoring was "entirely without legal basis and threaten[ed] important free speech and expression rights," and stressed that "law enforcement agency monitoring of online criticism and dissent chills legitimate criticism of the government, and implicates the First Amendment." EPIC's suggestions to Congress included requiring the immediate and permanent end to DHS' practice of monitoring for dissent; adopting guidelines for greater oversight of the DHS' social network and media monitoring program; and imposing the same oversight requirements on similar social network and media monitoring programs at other agencies. DC District Ct.: Order in EPIC v. DHS (Media Monitoring) (Mar. 3, 2013) EPIC: Complaint in EPIC v. DHS (Media Monitoring) (Dec. 20, 2011) EPIC: Documents on DHS Social Media Monitoring Obtained via FOIA US House: Hearing on DHS Social Media Monitoring (Feb. 16, 2012) EPIC: EPIC v. DHS (Social Media Monitoring) ======================================================================== [5] EPIC Testifies Before Maryland Legislature on Location Privacy ======================================================================== EPIC Appellate Advocacy Counsel Alan Butler testified February 26 before the Maryland House Judiciary Committee in support of Maryland HB 887, a location privacy bill that would establish a search warrant requirement for the collection of private location information. In his testimony, Butler discussed the current state of location tracking and privacy under the state and federal constitutions. "The collection and use of location data implicates constitutional privacy interests as the data necessarily reveals intimate details of user activities, associations, and habits within private spaces such as homes," Butler said. "Recent disclosures by cell phone service providers give a rough estimate of the scale of this surveillance activity, and the numbers are staggering - 1.3 million requests across the country for subscriber information in 2011 alone." The Maryland bill would require a warrant for location tracking and an annual report on electronic surveillance reports, similar to federal wiretap reports. Federal statutes require law enforcement to apply for a search warrant before wiretapping a phone line, provide notification to the surveilled person after the investigation is complete, and give annual reporting statistics to a judicial oversight office. EPIC recently submitted "friend of the court" briefs in State v. Earls and In re United States, both of which center around location privacy. In State v. Earls, the New Jersey Supreme Court will decide whether a warrant is required for police to track a suspect's cell phone location. Butler also argued before the New Jersey Court in favor of a warrant requirement. In re United States, in the 5th Circuit Court of Appeals, concerns Fourth Amendment protections for historic cell site location records. Maryland House of Representatives: HB 887 EPIC: Alan Butler Testimony Before MD House on HB 887 (Feb. 16, 2013) EPIC: "Friend of the Court" Brief in State v. Earls (Dec. 20, 2012) EPIC: In re Historic Cell-Site Location Information EPIC: Locational Privacy ========================================================================= [6] News in Brief ========================================================================= EPIC Sues DHS for Information on 'Internet Kill Switch' EPIC has filed a Freedom of Information Act lawsuit against the Department of Homeland Security, following the agency's failure to produce any documents about so-called "Emergency Wireless Protocols," (otherwise known as Standard Operating Procedure 303 or "SOP 303"). SOP 303 describes the process that DHS would follow in order to execute a communications shutdown in the event of a national crisis. DHS has stated publicly that under SOP 303 an agency component "will function as the focal point for coordinating any actions leading up to and following the termination of private wireless network connections, both within a localized area, such as a tunnel or bridge, and within an entire metropolitan area." In response to EPIC's initial FOIA request, however, DHS wrote that it was "unable to locate or identify any responsive records." EPIC: FOIA Lawsuit against DHS re "SOP 303" (Feb. 27, 2013) DHS: "2006-2007 NSTAC Issue Review" (2007) EPIC: Initial FOIA Request to DHS re: SOP 303 (Jul. 10, 2012) EPIC: Open Government Court Rejects Appeal in Facebook Beacon 'Cy Pres' Case The US Ninth Circuit Court has refused to hear an appeal in a class- action lawsuit over Facebook's Beacon program, which disclosed personal information without user consent. "Cy pres" ("as near as possible") is a legal doctrine that allows courts to allocate funds to protect the interests of individuals in a class action settlement. Courts typically provide cy pres awards that reflect the reason for the litigation and are aligned with the interests of class members. In the Facebook Beacon case, the court originally chose to award the funds to a new foundation created by Facebook, a decision that was subsequently appealed. Six judges dissented from the denial, writing, "The majority in this case creates a significant loophole in our case law that will confuse litigants and judges, while endorsing cy pres settlements that in no way benefit class members." EPIC previously highlighted the dangers of improper cy pres distributions in settlements with Facebook and Google. Ninth Circuit Court: Decision in Facebook Beacon Suit (Feb. 26, 2013) EPIC: Fraley v. Facebook EPIC: Lane v. Facebook EPIC: In re: Google Buzz ======================================================================= [7] EPIC in the News ======================================================================= "Drone Industry: Privacy 'Distractions' Could Have Major Economic Impacts." US News & World Report, Mar. 13, 2013. privacy-distractions-could-have-major-economic-impacts "On new technological front, Rockville seeks to balance information with privacy." Maryland Gazette.Net, Mar. 13, 2013. technological-front-rockville-seeks-to-balance-information& template=gazette "Lawsuit charges Ed Department with violating student privacy rights." The Washington Post, Mar. 13, 2013. lawsuit-charges-ed-department-with-violating-student-privacy-rights/ "Google Concedes That Drive-By Prying Violated Privacy." The New York Times, Mar. 11, 2013. street-view-privacy-breach.html?_r=1& "Facebook 'Likes' reveal more about you than you think." USA Today, Mar. 11, 2013. likes-predictions-privacy/1975777/ "Harvard's Search for E-Mail Leak Raises Campus Ire." Bloomberg BusinessWeek, Mar. 11, 2013. e-mail-leak-on-scandal-raises-campus-ire "Judge: DHS must release scanner radiation reports." Salon, Mar. 7, 2013. radiation_reports/ "Petition demands an end to drone surveillance." BoingBoing, Mar. 6, 2013. Editorial: "States can stop drone abuse before it occurs." The Washington Examiner, Mar. 5, 2013. drone-abuse-before-it-occurs/article/2523223 "Postal Service 'welcome kit' raises questions; White House now cites Privacy Act." The Washington Times, Mar. 4, 2013. welcome-kit-raises-questions/ "DHS Considers Eavesdropping Tech for Spy Drones on Border." Slate, Mar. 1, 2013. drones_may_be_next_for_border_surveillance_efforts_in_texas.html "Border Patrol Drones May Get Wiretapping, Human Identification Capabilities." The Huffington Post, Mar. 1, 2013. n_2792127.html For More EPIC in the News: ======================================================================== [8] Book Review: 'Trust Me, I'm Lying' ======================================================================== "Trust Me, I'm Lying: Confessions of a Media Manipulator," Ryan Holiday Blogs are the digital equivalent of Gilded-Age Yellow Journalism, says Ryan Holiday, and if you read, write, advertise on, or believe much of what you see on them, you are complicit in the degradation of the First Amendment, the death of journalistic honesty, and the corrosion of personal privacy and free thought. Holiday should know: Officially the marketing director of clothing company American Apparel, the 25-year- old self-described "media manipulator" runs a side business specializing in lying to bloggers in order to promote his clients. "Trust Me, I'm Lying" is a speedy, excruciating read through the half- truths and dissumulations perpetually propagating up and down the media food chain: planted anonymous comments that appear on blogs like Gawker and wind up in the print editions of The New York Times; bloggers' provocative corruption of print headlines and press releases to feed the online public's insatiable appetite for controversy, emotionalism, and snark. In the process, data analysts and third-party data brokers plumb your online viewing habits to feed you targeted advertising - which is exactly what the blogs and their sponsors want. It's all about the click-through, says Holiday. Top blogs - particularly those specializing in celebrity, tech, or political rumors - don't really care about the validity of their subject matter, the truth of their headlines, or the relevance of teaser photographs. If you, the reader, click or share, the blog and thus the advertisers win. According to Holiday, even the biggest companies bait one another: "Facebook hired a high-profile PR agency to execute an anonymous whisper campaign against [Google] through manufactured warnings about privacy. Bloggers of all stripes had been pitched, with the idea of building enough buzz for the grand finale: editorials in the Washington Post, Politico, USA Today, and The Huffington Post . . . Google was stunned senseless by the plot." Nor do the blog sites of otherwise upstanding print or TV news organizations maintain the journalistic standards of their analog parents. Holiday maintains that the 24/7 news cycle has corrupted journalism, press ethics, reader mentality, and even the advertising industry. Bloggers are desperate to be "on" a news story first, and will fact-check later. Advocates call this process "iterative journalism"; Holiday calls it "stupid and dangerous" even as he exploits it. In fact, "Trust Me, I'm Lying" itself has a titillating narrative structure reminiscent of blog posts. Holiday first reveals modern marketers' secrets of winning search engine favorability, more advertising revenue, and general "buzz" - all of which rely on distortion, sentimentality, and over-simplification of issues that normally couldn't be distilled into a 140-character tweet. Then he explains how detrimental these practices are to society as a whole. But Holiday's already set up his readers by laying out the lucrative, power-tripping joys of twisting the truth for dollars and notoriety; it's hard to believe his recent conversion to old-style media ethics. Is there a path out of the feverish, amoral mess we've blogged ourselves into? "I was hoping to be able to go out on a hopeful note," Holiday says, "but I'm not able to do that" - unless we as a society are willing to pull back from our digital world, be critical thinkers, and not to believe everything we read in the passion of the moment. - EC Rosenberg ================================ EPIC Publications: "Litigation Under the Federal Open Government Laws 2010," edited by Harry A. Hammitt, Marc Rotenberg, John A. Verdi, Ginger McCall, and Mark S. Zaid (EPIC 2010). Price: $75 Litigation Under the Federal Open Government Laws is the most comprehensive, authoritative discussion of the federal open access laws. This updated version includes new material regarding President Obama's 2009 memo on Open Government, Attorney General Holder's March 2009 memo on FOIA Guidance, and the new executive order on declassification. The standard reference work includes in-depth analysis of litigation under: the Freedom of Information Act, the Privacy Act, the Federal Advisory Committee Act, and the Government in the Sunshine Act. The fully updated 2010 volume is the 25th edition of the manual that lawyers, journalists and researchers have relied on for more than 25 years. ================================ "Information Privacy Law: Cases and Materials, Second Edition" Daniel J. Solove, Marc Rotenberg, and Paul Schwartz. (Aspen 2005). Price: $98. This clear, comprehensive introduction to the field of information privacy law allows instructors to enliven their teaching of fundamental concepts by addressing both enduring and emerging controversies. The Second Edition addresses numerous rapidly developing areas of privacy law, including: identity theft, government data mining and electronic surveillance law, the Foreign Intelligence Surveillance Act, intelligence sharing, RFID tags, GPS, spyware, web bugs, and more. Information Privacy Law, Second Edition, builds a cohesive foundation for an exciting course in this rapidly evolving area of law. ================================ "Privacy & Human Rights 2006: An International Survey of Privacy Laws and Developments" (EPIC 2007). Price: $75. This annual report by EPIC and Privacy International provides an overview of key privacy topics and reviews the state of privacy in over 75 countries around the world. The report outlines legal protections, new challenges, and important issues and events relating to privacy. Privacy & Human Rights 2006 is the most comprehensive report on privacy and data protection ever published. ================================ "The Public Voice WSIS Sourcebook: Perspectives on the World Summit on the Information Society" (EPIC 2004). Price: $40. This resource promotes a dialogue on the issues, the outcomes, and the process of the World Summit on the Information Society (WSIS). This reference guide provides the official UN documents, regional and issue-oriented perspectives, and recommendations and proposals for future action, as well as a useful list of resources and contacts for individuals and organizations that wish to become more involved in the WSIS process. ================================ "The Privacy Law Sourcebook 2004: United States Law, International Law, and Recent Developments," Marc Rotenberg, editor (EPIC 2005). Price: $40. The Privacy Law Sourcebook, which has been called the "Physician's Desk Reference" of the privacy world, is the leading resource for students, attorneys, researchers, and journalists interested in pursuing privacy law in the United States and around the world. It includes the full texts of major privacy laws and directives such as the Fair Credit Reporting Act, the Privacy Act, and the OECD Privacy Guidelines, as well as an up-to-date section on recent developments. New materials include the APEC Privacy Framework, the Video Voyeurism Prevention Act, and the CAN-SPAM Act. ================================ "Filters and Freedom 2.0: Free Speech Perspectives on Internet Content Controls" (EPIC 2001). Price: $20. A collection of essays, studies, and critiques of Internet content filtering. These papers are instrumental in explaining why filtering threatens free expression. ================================ EPIC publications and other books on privacy, open government, free expression, and constitutional values can be ordered at: EPIC Bookstore ================================ EPIC also publishes EPIC FOIA Notes, which provides brief summaries of interesting documents obtained from government agencies under the Freedom of Information Act. Subscribe to EPIC FOIA Notes at: ======================================================================= [9] Upcoming Conferences and Events ======================================================================= "The Government and Your Personal Information - Balancing Privacy, National Security and the Public Interest." 20 March 2013, Washington, DC. For More Information: DynamicPage.aspx?Site=FCBA&WebCode=EventDetail&evt_key=a773b7b6-8e91- 46c7-9654-237035d7e160. "Online Privacy: Consenting to your Future." 21-22 March 2013, Portomaso, Malta. For More Information: Florida State University ACLU Lecture on Privacy and Government Surveillance. 1 April 2013, Tallahassee, FL. For More Information: florida-state-university-aclu-lecture-on-privacy-and-government- surveillance. EPIC Champion of Freedom Awards Dinner. 3 June 2013, Washington, DC. For More Information: 2013 Health Privacy Summit, 5-6 June 2013, Washington, DC. For More Information: privacy-summit/event-summary-1bfa9be80d364092aeed1a8803377fa8.aspx. 22nd Annual Computers, Freedom, & Privacy Conference. 25-26 June 2013, Washington, DC. For More Information: Contact Chris Calabrese at ======================================================================= Join EPIC on Facebook and Twitter ======================================================================= Join the Electronic Privacy Information Center on Facebook and Twitter: Join us on Twitter for #privchat, Tuesdays, 11:00am ET. Start a discussion on privacy. Let us know your thoughts. Stay up to date with EPIC's events. Support EPIC. ======================================================================= Privacy Policy ======================================================================= The EPIC Alert mailing list is used only to mail the EPIC Alert and to send notices about EPIC activities. We do not sell, rent or share our mailing list. 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For more information, see or write EPIC, 1718 Connecticut Ave. NW, Suite 200, Washington, DC 20009. +1 202 483 1140 (tel), +1 202 483 1248 (fax). ======================================================================= Donate to EPIC ======================================================================= If you'd like to support the work of the Electronic Privacy Information Center, contributions are welcome and fully tax-deductible. Checks should be made out to "EPIC" and sent to 1718 Connecticut Ave. NW, Suite 200, Washington, DC 20009. Or you can contribute online at: Your contributions will help support Freedom of Information Act and First Amendment litigation, strong and effective advocacy for the right of privacy and efforts to oppose government and private-sector infringement on constitutional values. 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