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EPIC Alert 27.05

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1. EPIC Prevails in Case for Release of Mueller Report, Court Will Review Unredacted Document

A federal court, ruling in EPIC v. Department of Justice, rebuked Attorney General Bill Barr and agreed to review the complete Mueller Report to determine what additional material must be released. The court also denied the Department of Justice's motion for summary judgment.

"The Court has grave concerns about the objectivity of the process that preceded the public release of the redacted version of the Mueller Report," Judge Reggie B. Walton wrote. The court cited the summary of the principal findings prepared by the Attorney General.

Judge Walton explained that "the need for the American public to have faith in the judicial process" requires that the court review the Mueller Report without redactions. "Adherence to the FOIA's objective of keeping the American public informed of what its government is up to demands nothing less."

In a related development, the court this week decided to review the unredacted version of a key memo by Special Counsel Mueller. The memo, which summarizes Mueller's investigation of a suspected "unregistered agent of a foreign government," was partially disclosed to EPIC in response to EPIC's FOIA request.

EPIC filed the first case in the nation for the disclosure of the complete Mueller Report. The book EPIC v. DOJ: The Mueller Report is available for purchase at the EPIC Bookstore. The case is EPIC v. Department of Justice, No. 19-810.

2. EPIC Celebrates Sunshine Week with 2020 FOIA Gallery

In celebration of Sunshine Week, EPIC has unveiled the 2020 FOIA Gallery. Since 2001, EPIC has annually published highlights of EPIC's most significant open government cases.

For example, last year EPIC filed the first lawsuit in the country for the public release of the Mueller Report. The federal court rebuked Attorney General Barr and agreed to review the complete Mueller Report to determine what additional material must be released.

EPIC also prevailed in EPIC v. AI Commission. A federal court ruled that the Commission on Artificial Intelligence is subject to the FOIA. Following the court's decision, the AI Commission released documents about its activities to EPIC.

In this year's FOIA gallery, EPIC also highlighted pre-trial risk assessment reports, documents about Justice Kavanaugh's role in the warrantless surveillance program, a DHS drone status report, the Census data transfer plan, and more than 29,000 complaints against Facebook pending at the FTC.

3. EPIC v. AI Commission: Court Orders Rapid Disclosure of Records

In EPIC's open government case concerning U.S. AI policy, a federal court has ordered the National Security Commission on Artificial Intelligence to process 800 pages of records a month for disclosure to EPIC.

The order follows the court's previous ruling in EPIC v. AI Commission that the Commission is subject to the Freedom of Information Act. Since that ruling, the Commission has begun releasing records to EPIC.

In November, the AI Commission published a report to Congress that criticizes the EU General Data Protection Regulation and calls for greater "government access to data on Americans." Before issuing its report, the Commission held more than two hundred secret meetings with tech firms, defense contractors, and others but did not gather opinions from the American public.

EPIC is also litigating to enforce Congress's mandate that the Commission hold open meetings under the Federal Advisory Committee Act. "It is not for the Government or the courts to second-guess that legislative choice simply because the AI Commission's transparency obligations flow from two statutes rather than one," EPIC wrote in a recent brief.

The case is EPIC v. AI Commission, No. 19-2906 (D.D.C.).

4. EPIC to Supreme Court: Allow Disclosure of Trump Tax Returns

In a recent amicus brief, EPIC urged the Supreme Court to allow the release of President Trump's tax returns to a grand jury. EPIC explained that President Trump broke with 40 years of precedent by concealing his tax records, even as he sought to collect sensitive voter and citizenship data from the public.

"This is inverted liberty: privacy for the President and compelled disclosure of personal data for the public," EPIC argued. "That is antithetical to the structure and practice of modern democracies which safeguard the privacy of citizens and impose transparency obligations on political leaders, most notably the President."

"By refusing to disclose his tax returns, President Trump has claimed a right of privacy that is at odds with the original conception and has broken from more than 40 years of precedent," EPIC wrote. EPIC explained that Presidents have routinely disclosed their tax returns since the Nixon administration.

EPIC previously sought public release of President Trump's tax returns in EPIC v. IRS, arguing that disclosure was necessary to correct numerous factual misstatements made by the President. In EPIC v. IRS II, EPIC is currently seeking "offers-in-compromise" and related tax records of President Trump and his businesses.

The case before the Supreme Court is Trump v. Vance, No. 19-635.

5. EPIC Announces New Advisory Board Members

EPIC has announced the newest members of the EPIC Advisory Board. They are Joy Buolamwini, Professor Margot Kaminski, Professor Kate Klonick, Professor William McGeveran, Professor Priscilla Regan, Rashida Richardson, and Vivian Schiller.

Joy Buolamwini is a computer scientist and poet of code who uses art and research to illuminate the social implications of artificial intelligence. She founded the Algorithmic Justice League to create a world with more equitable and accountable technology. Her TED Featured Talk on algorithmic bias has over 1 million views. Her MIT thesis methodology uncovered large racial and gender bias in AI services from companies like Microsoft, IBM, and Amazon.

Margot Kaminski is an Associate Professor at the University of Colorado Law and the Director of the Privacy Initiative at Silicon Flatirons. She specializes in the law of new technologies, focusing on information governance, privacy, and freedom of expression. In 2018, she researched comparative and transatlantic approaches to data privacy in the Netherlands and Italy as a recipient of the Fulbright-Schuman Innovation Grant.

Kate Klonick is an Assistant Professor at St. John's University Law School and an Affiliate Fellow at Yale Law School's Information Society Project. Her research focuses on networked technologies' effect on social norm enforcement, freedom of expression, property law, and private online governance. Her writing on these topics has appeared in the Harvard Law Review, New York Times, New Yorker, The Atlantic, The Guardian, Vox, Slate, and numerous other publications.

Professor William McGeveran specializes in information law, including data privacy, intellectual property, communications and technology, and free speech. In addition to his teaching and scholarship, he currently serves as the Associate Dean for Academic Affairs. McGeveran's research focuses on legal and other rules governing digital identity and privacy, ranging from online impersonation to data security to social media.

Priscilla Regan is a Professor in the Schar School of Policy and Government at George Mason University. Prior to that, she was a Senior Analyst in the Congressional Office of Technology Assessment (1984-1989). Since the mid-1970s, Dr. Regan's primary research interests have focused on both the analysis of the social, policy, and legal implications of organizational use of new information and communications technologies.

Rashida Richardson is Director of Policy Research at New York University's AI Now Institute, where she designs, implements, and coordinates AI Now's research strategy and initiatives on the topics of law, policy, and civil rights. She previously worked as Legislative Counsel at the American Civil Liberties Union of New York (NYCLU), where she led the organization's work on privacy, technology, surveillance, and education issues.

Vivian Schiller is a longtime executive at the intersection of journalism, media, and technology. She recently joined the Aspen Institute in a new position heading up programs across media, technology, and cybersecurity. Over the last 30 years, Vivian has held executive roles at some of the most respected media organizations in the world, including President and CEO of NPR; Global Chair of News at Twitter; General Manager of NYTimes.com; Chief Digital Office of NBC News; chief of the Discovery Times Channel; and head of CNN documentary and long form divisions.

The EPIC Advisory Board is a distinguished group of experts in law, technology, and public policy who contribute to EPIC's work on privacy and civil liberties. The publication of the EPIC Advisory Board members are available at the EPIC Bookstore.

News in Brief

UN Urges Countries to Protect Human Rights During Coronavirus Crisis

United Nations human rights experts are urging government leaders not to abuse emergency powers in response to the coronavirus outbreak. UN High Commissioner for Human Rights Michelle Bachelet stated: "Being open and transparent is key to empowering and encouraging people to participate in measures designed to protect their own health and that of the wider population, especially when trust in the authorities has been eroded." Andrea Jelinek, Chair of the European Data Protection Board, also released a statement, saying: "even in these exceptional times, the data controller must ensure the protection of the personal data of the data subjects." Some countries, such as Israel, intend to use cellphone data to track coronavirus, threatening civil liberties. A recent book by EPIC Advisory Board Member Professor Francisca Bignami on EU Law in Populist Times at the EPIC Bookstore explores derogations for national security.

EPIC Advises White House on Regulation of Private Sector AI

EPIC submitted comments on the OMB draft Guidance for Regulation of Artificial Intelligence Applications. The OMB Guidance instructs federal agencies to regulate private sector use of AI. EPIC recommended that the OMB guidance also apply to government uses of AI, that OMB establish prohibitions on secret profiling and unitary scoring, and require transparency to ensure fairness and accountability in automated decisions concerning people. EPIC has recently petitioned the FTC to undertake a rulemaking for AI in commerce. EPIC has published the AI Policy Sourcebook, the first reference book on AI policy.

EPIC Backs Strong Crypto and 230 Reform

In a statement to the Senate Judiciary Committee on the EARN IT Act, EPIC supported both end-to-end encryption and reform to Section 230 of the Communications Decency Act. EPIC backed the plan to establish Best Practices to limit the distribution of child sexual exploitation material, but cautioned "against recommendations that would reduce privacy and security for Internet users." EPIC pointed out that actual end-to-end encryption "protects users, promotes commerce, and ensures cybersecurity." In an amicus brief in Herrick v. Grindr, EPIC objected to a court decision that found "online platforms bear no responsibility for the harassment and abuse their systems enable."

EPIC, Consumer Groups Call for Review of Robocall Ruling

EPIC joined the National Consumer Law Center and other consumer groups in an amicus brief supporting review of recent decision that limits consumer robocall protections. In Gadelhak v. AT&T Services, the Seventh Circuit concluded that consumers who receive an automated text message can sue under the federal anti-robocall law, but only if the autodialer has a random number generator. The decision deepened a split among federal appeals courts over the scope of federal robocall protections. EPIC and NCLC also filed an amicus brief during the court's original consideration of the case. The EPIC brief explained that allowing telemarketers to auto-dial consumers "would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete." EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.

EPIC Obtains Documents about DC Risk Assessment Use

In response to EPIC's FOIA Request, the DC Pretrial Services Agency produced several documents about its risk assessment instrument developed and validated by Maxarth. The government reduced the number of factors in risk factors from 70 to 43 in 2019 after review, and place more emphasis on recent criminal charges. EPIC also obtained a 2019 Validation Study and a Predictive Bias report. The Validation Study rated the predictive ability "sufficient." EPIC has obtained documents about pre-trial risk assessments nationwide as well as a scoring system developed by the DHS to assign risk assessments to travelers, including US citizens. EPIC has urged government agencies to make transparent algorithmic-based decision making to ensure fairness and accountability.

EPIC Urges Court to Open Meetings, Records of AI Commission

EPIC has filed a reply brief in EPIC v. AI Commission urging a federal court in Washington, DC to enforce the Commission's obligation to hold open meetings and publish its records on a regular basis. The court previously ruled that the AI Commission must comply with the Freedom of Information Act. In briefs with the court, EPIC explained that the Commission must also comply with the Federal Advisory Committee Act, citing the law enacted by Congress. "It is not for the Government or the courts to second-guess that legislative choice simply because the AI Commission's transparency obligations flow from two statutes rather than one," EPIC wrote. In a recent report for Congress and the President, the Commission recommended weakening privacy safeguards for Americans but never consulted with the public as the Federal Advisory Committee Act would require. The case is EPIC v. AI Commission, No. 19-2906 (D.D.C.).

EPIC Seeks Records About the Government's Use of Clearview AI App

EPIC has filed a Freedom of Information Act request to several government agencies seeking records about the government's use of Clearview AI technology. Clearview AI permits law enforcement agencies to conduct suspicionless searches of people in public spaces. The company scraped billions of facial images, without permission, from websites, including Facebook, Youtube, Venmo, and Twitter. Clearview's recently stolen client list revealed that the company has sold its surveillance technology to more than 2,200 law enforcement and government agencies, and companies across 27 countries. EPIC, and more than a hundred organizations, have called for a moratorium on facial recognition technology.

EPIC, Coalition Recommend Changes to Pending Washington Privacy Law

EPIC along with a coalition of groups proposed changes to the Washington Privacy Act, a bill now pending in the Washington legislature. The Washington Privacy Act would give consumers the right to access, correct and delete personal data held by companies, and it wold require companies to uphold privacy obligations, including transparency, purpose specification, data minimization, security, and nondiscrimination. But the bill lacks an effective mechanism for enforcement, permits the deployment of facial recognition, and contains many loopholes. EPIC and the coalition urged the Washington legislature to establish a private right of action, narrow the exemptions, make risk assessments publicly accessible, and remove the provisions permitting facial recognition. At the federal level, EPIC supports H.R. 4978, the Online Privacy Act, and S. 3300, to establish a US Data Protection Agency. EPIC has also called for a moratorium on face surveillance. The EPIC State Policy Project monitors privacy bills nationwide.

In FOIA Case, EPIC Obtains New Documents From AI Commission

EPIC has obtained a more documents from the National Security Commission on Artificial Intelligence. The records obtained by EPIC show that the AI Commission was aware of work on algorithmic transparency and AI bias. But the Commission's recent report to Congress did not endorse these recommendations, instead criticizing EU privacy law and calling for greater "government access to data on Americans." The Commission's disclosure follows a court ruling in EPIC v. AI Commission that the Commission is subject to the FOIA. Before issuing its report, the AI Commission held regular secret meetings with tech firms and defense contractors but did not gather opinions from the American public. EPIC is also litigating to enforce Commission's obligation to hold open meetings.

Tech Companies Block Washington State Privacy Law

Last minute lobbying by big tech companies blocked passage of the Washington Privacy Act. The state privacy law have given consumers the right to access, correct and delete their personal data held by tech firms. EPIC and a broad coalition of privacy groups backed a comprehensive bill that would include, as privacy laws typically do, the right of consumers to bring legal action but that was opposed by industry groups. The Washington legislature did pass a modest bill limiting the government use of facial recognition technology. EPIC has long supported federal baseline legislation and the creation of a data protection agency. EPIC has also called for a moratorium on face surveillance. The EPIC State Policy Project monitors privacy bills nationwide.

D.C. Circuit: Congress Can Obtain Mueller Grand Jury Materials

The D.C. Circuit Court of Appeals has granted Congress access to the grand jury materials referenced in the Mueller Report. The appeals court upheld a lower court decision to disclose the grand jury records to the House Judiciary Committee, citing the "compelling need for the material and the public interest." Recently, the court in EPIC v. Department of Justice ruled that it would review the unredacted Mueller Report to determine what additional material must be released to EPIC. The court in EPIC's case also rebuked Attorney General Barr, citing "grave concerns about the objectivity of the process that preceded the public release of the redacted version of the Mueller Report[.]" The book EPIC v. DOJ: The Mueller Report, which includes EPIC's original FOIA request and related materials, is available for purchase at the EPIC Bookstore. EPIC's case is EPIC v. Department of Justice, No. 19-810.

New Rule Promotes Patient Access but Raises Privacy Concern

The Department of Health and Human Services finalized rules that require insurance and healthcare companies to provide patient access to their medical data in a format suitable for cellphones and other electronic devices. However, federal privacy protections under HIPAA no longer apply once patients transfer their data to consumer apps, creating serious risks to medical privacy. The CEO of the American Medical Association warned regulators that "These practices jeopardize patient privacy, commoditize an individual's most sensitive information, and threaten patient willingness to utilize technology to manage their health." Tech firms pushed for these changes. Last year, the Wall Street Journal reported that Google's 'Project Nightingale' intends to amass health data on millions of Americans. There will be a six-month period before the rule goes into effect. EPIC has recommended strong safeguards for medical records in agency comments and briefs for the Supreme Court.

EPIC in the News

More EPIC in the News »

EPIC Bookstore

EPIC publications and books by members of the EPIC Advisory Board, distinguished experts in law, technology and public policy are available at the EPIC Bookstore. Featured now at the EPIC Bookstore:

EU Law in Populist Times: Crises and Prospects (Francesca Bignami ed., 2020).

Authored by leading academics and policymakers, EU Law in Populist Times provides a comprehensive and cutting-edge analysis of the fields of European Union law at the heart of contemporary political debates—economic policy, human migration, internal security, and constitutional fundamentals at the national level.

Recent EPIC Publications

The AI Policy Sourcebook 2020, edited by Marc Rotenberg (EPIC 2020).

The AI Policy Sourcebook includes global AI frameworks such as the OECD AI Principles and the Universal Guidelines for AI. The Sourcebook also includes AI materials from the European Union and the Council of Europe, national AI initiatives, as well as recommendations from professional societies, including the ACM and the IEEE. The Sourcebook also includes an extensive resources section on AI, including reports, articles, and books from around the world.

The Privacy Law Sourcebook 2020, edited by Marc Rotenberg (EPIC 2020).

The Privacy Law Sourcebook is the leading resource for students, attorneys, and policymakers interested in privacy law in the United States and around the world. The Sourcebook includes major U.S. privacy laws. The Sourcebook also includes key international privacy frameworks such as the EU General Data Protection Regulation and the modernized Council of Europe Convention on Privacy. The Privacy Law Sourcebook 2020 includes the new California Consumer Privacy Act, the Illinois Biometric Information Privacy Act, the Public Voice Declaration for a Moratorium on Facial Recognition, and updates on GDPR implementation. The Sourcebook also includes an extensive resources section with information on privacy agencies, organizations, and publications.

EPIC v. Department of Justice: The Mueller Report, edited by Marc Rotenberg (EPIC 2019).

EPIC v. Department of Justice: The Mueller Report chronicles the efforts to obtain a full account of Russian interference in the 2016 presidential election. EPIC filed the first lawsuit in the country for the release of the full and unredacted Mueller Report and obtained a newly redacted version in early May 2019. EPIC is now challenging the redactions made by the Department of Justice in federal court. This volume is an essential guide to the legal arguments about the redactions, the dispute between the Attorney General and the Special Counsel, and EPIC's request for the Mueller Report and other records about Russian interference in the 2016 presidential election.

Communications Law and Policy: Cases and Materials, 5th Edition, by Jerry Kang and Alan Butler (Direct Injection Press 2016).

This teachable casebook provides an introduction to the law and policy of modern communications. The book is organized by analytic concepts instead of current industry lines, which are constantly made out-of-date by technological convergence. The basic ideas—power, entry, pricing, access, classification, bad content, and intermediary liability—equip students with a durable and yet flexible intellectual structure that can help parse a complex and ever-changing field.

Privacy Law and Society, 3rd Edition, by Anita Allen, JD, PhD, and Marc Rotenberg, JD, LLM. West Academic (West Academic 2015).

The Third Edition of "Privacy Law and Society" is the most comprehensive casebook on privacy law ever produced. It traces the development of modern privacy law, from the early tort cases to present day disputes over drone surveillance and facial recognition. The text examines the philosophical roots of privacy claims and the significant court cases and statues that have emerged. The text provides detailed commentary on leading cases and insight into emerging issues. The text includes new material on developments in the European Union, decisions grounded in fundamental rights jurisprudence, and exposes readers to current debates over cloud computing, online profiling, and the role of the Federal Trade Commission. Privacy Law and Society is the leading and most current text in the privacy field.

Privacy in the Modern Age: The Search for Solutions, edited by Marc Rotenberg, Julia Horwitz and Jeramie Scott (The New Press 2015).

The threats to privacy are well known: The National Security Agency tracks our phone calls; Google records where we go online and how we set our thermostats; Facebook changes our privacy settings when it wishes; Target gets hacked and loses control of our credit card information; our medical records are available for sale to strangers; our children are fingerprinted and their every test score saved for posterity; and small robots patrol our schoolyards while drones may soon fill our skies.

The contributors to this anthology don't simply describe these problems or warn about the loss of privacy—they propose solutions.

Contributors include: Steven Aftergood, Ross Anderson, Christine L. Borgman (coauthored with Kent Wada and James F. Davis), Ryan Calo, Danielle Citron, A. Michael Froomkin, Deborah Hurley, Kristina Irion, Jeff Jonas, Harry Lewis, Anna Lysyanskaya, Gary T. Marx, Aleecia M. McDonald, Dr. Pablo G. Molina, Peter G. Neumann, Helen Nissenbaum, Frank Pasquale, Dr. Deborah Peel, MD, Stephanie E. Perrin, Marc Rotenberg, Pamela Samuelson, Bruce Schneier, and Christopher Wolf.

Upcoming Conferences and Events

OECD Expert Group. Apr. 17, 2020. Paris, France (by remote). Marc Rotenberg, EPIC President.

EPIC Champion of Freedom Awards Dinner. June 3, 2020. Washington, DC.

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