EPIC Alert 27.17

1. EPIC Urges Supreme Court to Preserve Essential Robocall Protections

EPIC has filed an amicus brief in Facebook v. Duguid urging the U.S. Supreme Court to preserve the broad federal ban on robocalls to cell phones.

Since Facebook was sued in 2016 for sending automated texts to a non-user, the company has argued that the federal ban on automated dialing systems—or "autodialers"—only covers a small subset of the systems currently in use. But EPIC, in its brief, explained that Facebook's interpretation "is completely unmoored from the structure and purpose of the law."

EPIC argued that "Congress was concerned above all else with protecting the privacy of cell phone users from the scourge of robocalls" and "narrowing the autodialer definition would not protect privacy." Instead, such a narrowing "would put the most widely used mass dialing systems outside the scope of the" ban, and "nearly every American will be the target of an unending telemarketing campaign."

"The [federal robocall ban] is one of the few tools available to directly limit these overwhelming privacy invasions," EPIC wrote. "The autodialer ban should not be interpreted in a way that allows mass dialing without user consent at a time when unauthorized collection and use of personal data has become such a widespread problem."

EPIC previously filed an amicus brief in Gadelhak v. AT&T Services, in which the Seventh Circuit decided the same legal question. EPIC routinely files amicus briefs on the federal anti-robocall law, including the recently decided Supreme Court case, Barr v. American Association of Political Consultants.

2. EPIC Seeks Documents About ICE's Use of Clearview AI, Other Facial Recognition Services

EPIC filed a Freedom of Information Act lawsuit this week challenging Immigration and Customs Enforcement's failure to respond to two Freedom of Information Act requests from earlier this year.

EPIC's first FOIA request sought information on ICE's use of Clearview AI facial recognition technology. The second request focused on the agency's broader use of facial recognition services and requested commercial contracts, training materials, audits, and agreements with other law enforcement agencies concerning the use of facial recognition services.

"ICE's use of commercial [facial recognition] vendors poses a substantial threat to privacy by exposing the data of individuals, possibly obtained against social media site policies, to ICE without a warrant," EPIC explained in its complaint. "[Facial recognition] searches allow ICE to collect a large amount of personal information without a warrant. In addition, errors in facial recognition searches may pull the wrong individuals into criminal databases."

EPIC previously obtained documents in a FOIA lawsuit against Customs and Border Protection pertaining to CBP's use of facial recognition at airports. EPIC is currently litigating a FOIA lawsuit against the State Department to obtain the agreements the agency has with other entities granting access to its massive facial recognition database.

3. EPIC to Massachusetts Supreme Court: Reject Third Party Doctrine for Electronic Data Collected for a Service

EPIC has filed an amicus brief in the Massachusetts Supreme Judicial Court urging the court to reject the decades-old third-party doctrine, which allows the government to access electronic data collected by third parties without a warrant. In Commonwealth v. Zachery, the court will decide whether an individual has a reasonable expectation of privacy in the data collected by transit authorities through their public transportation card.

EPIC, in its brief, explained that individuals today are "largely unaware of the volume and sensitivity of data collected about them" by digital services that have become necessary in today's world. Although people may recognize that third parties collect their data to an extent, "they expect their data to be used only for the limited purposes associated with that service."

EPIC explained that the third-party doctrine is a relic of the past that is at odds with modern technologies and urged the court to replace the doctrine with an approach based on modern privacy law principles.

"The third-party doctrine is inconsistent with this fundamental principle of data privacy law, and the warrantless collection of personal data from third parties violates the reasonable expectation of privacy," EPIC wrote. "By rooting a decision in the actual expectations of individuals and the underlying privacy law principles, the Court can ensure that privacy is protected even as many aspects of daily life become inextricably linked with digital services."

EPIC has previously argued against the continued use of the third-party doctrine in constitutional privacy analysis.

4. EPIC, Coalition Urge University of Miami to Ban Face Surveillance

EPIC has joined over 20 consumer, privacy, civil liberties, and student organizations to call on the University of Miami to ban the use of facial recognition technology. The coalition letter comes after reports the University used facial recognition to identify student protesters.

In the letter, the coalition argued that "facial recognition technology is invasive and ineffective. It's biased and is more likely to misidentify students of color, female students, and transgender/non-binary students, which can result in traumatic interactions with law enforcement, loss of class time, disciplinary action, and potentially a criminal record."

"Invasive surveillance technology poses a profound threat to academic freedom," the coalition added. "Exposing students and educators to facial recognition aggressively limits their ability to study, research, and express freely without fear of official retaliation. Students should not have to trade their right to privacy for an education."

EPIC has launched a campaign to Ban Face Surveillance and through the Public Voice coalition gathered the support of over 100 organizations and many leading experts across 30 plus countries. Earlier this year, an EPIC-led coalition called on the Privacy and Civil Liberties Oversight Board to recommend the suspension of face surveillance systems across the federal government.

5. EPIC Calls on DHS Advisory Committee to Investigate Fusion Centers

EPIC Law Fellow Jake Wiener spoke at a recent public meeting of the Department of Homeland Security's Data Privacy and Integrity Advisory Committee, urging the Committee to investigate rampant privacy and civil liberties violations by fusion centers. Fusion centers are centralized systems that pool and analyze intelligence from federal, state, local, and private sector entities.

Addressing the Committee's new tasking, Mr. Wiener directed the Committee's attention to recent reports of protest monitoring and ineffective privacy oversight. He urged the Committee to recommend a ban on the use of facial recognition technology at fusion centers and to consider whether funding of fusion centers is justified in light of the privacy and civil liberties harms the centers cause.

EPIC previously urged the Committee to recommend that Customs and Border Protection halt the use of facial recognition. In July, EPIC obtained an email from the executive director of the National Fusion Center Association proposing an "automate[d] contact tracing and notification" system to the White House as part of the U.S. COVID-19 response.

News in Brief

White House: President Didn't Actually Mean to Declassify Mueller Documents

In a filing from EPIC's and BuzzFeed's joint cases for disclosure of the complete Mueller Report, White House Chief of Staff Mark Meadows asserted that President Trump didn't actually mean to declassify any records when he tweeted that he had "fully authorized the total Declassification of any & all documents" pertaining to the Russia investigation. According to Meadows, Trump informed him that his "statements on Twitter were not self-executing declassification orders[.]" The filing came in response to an order from Judge Reggie B. Walton, who had previously rejected the DOJ's argument—made without consulting the President directly—that Trump did not intend any new releases of records. Walton ultimately accepted Meadows' supplemental statements last week and declined to order the disclosure of any classified material. But Walton has already ordered the DOJ to provide EPIC with extensive new material from the Report by November 2, in addition to the material previously disclosed as a result of EPIC's case. EPIC's Freedom of Information Act suit—the first in the nation for the disclosure of the Mueller Report—is EPIC v. DOJ, No. 19-810.

EPIC, Consumer Groups Urge Limits to FCC Robocall Exemptions

EPIC has joined the National Consumer Law Center and other consumer groups in recommending limits to FCC exemptions to the broad federal ban on robocalls. Under the TRACED Act, which Congress passed last year, the FCC is required to specify certain limits to new and existing exemptions to the robocall ban, including the number of calls that can be made under each exemption. The consumer groups recommend that the FCC place strict limits on the most intrusive calls, such as those made to collect a debt. Last week, EPIC filed an amicus brief urging the Supreme Court to preserve the broad ban on robocalls. EPIC has done extensive work on the federal anti-robocall law, the Telephone Consumer Protection Act.

Court Blocks Rule That Would Okay Algorithmic Housing Decisions, Limit Discrimination Claims

A federal judge in Massachusetts has blocked a federal regulation that would have made it significantly harder to sue landlords and lenders for housing discrimination under the Fair Housing Act. The rule created a defense to any disparate impact claim in which a "predictive analysis" tool was used to make a housing decision, so long as that tool "accurately assessed risk" or was not "overly restrictive on a protected class." The court ruled that this regulation would "run the risk of effectively neutering disparate impact liability under the Fair Housing Act." In 2019, EPIC and others warned the federal housing agency that sanctioning the use of algorithms for housing decisions would exacerbate discrimination unless the agency imposed transparency, accountability, and data protection requirements. The Alliance for Housing Justice called the rule "a vague, ambiguous exemption for predictive models that appears to confuse the concepts of disparate impact and intentional discrimination." EPIC has called for greater accountability in the use of automated decision-making systems, including the adoption of the Universal Guidelines for Artificial Intelligence and requirements for algorithmic transparency.

Department of Justice Files Antitrust Suit Against Google

The Department of Justice has filed an antitrust case against Google in federal court, alleging violations of anti-monopoly laws in the search and advertising markets. EPIC has long warned regulators about the harmful privacy consequences of market consolidation by Google and other technology firms. More than a decade ago, EPIC urged the FTC to block Google's proposed acquisition of DoubleClick. EPIC said that the acquisition would enable Google to collect the personal information of billions of users and track their browsing activities across the web. EPIC correctly warned that this acquisition would accelerate Google's dominance of the online advertising industry and diminish competition. The FTC ultimately allowed the merger to go forward. EPIC has since repeatedly warned the FTC that other mergers posed similar risks to consumer privacy and competition. In 2011, EPIC warned the FTC that Google's dominance in the internet search marketplace was allowing it to preference its own content in search results. Today Google occupies 92% of the search market worldwide.

EPIC in the News

• Privacy Group Sues ICE for Records on Facial Recognition Work, Bloomberg Law, Oct. 27, 2020
• Facebook Promises Privacy Reform. Critics Aren't Convinced, WIRED, Oct. 23, 2020
• U.S. judge accepts White House statement as rescinding Trump tweet calling for full declassification of Russia probe, Washington Post, Oct. 21, 2020
• Judge, Calling Trump's Tweets 'Inartful,' Rejects Bid to Release More Secret Mueller Info, Law.com, Oct. 21, 2020
• Judge Won't Release More Mueller Docs After Trump Tweets, Law360, Oct. 21, 2020
• Judge rules to not release Russia probe documents over Trump tweets, The Hill, Oct. 21, 2020
• US sues Google in biggest anti-trust case: What it means for India, Indian Express, Oct. 21, 2020
• Trump's tweet on 'total' declassification of Russia docs isn't an order, White House tells judge, NBC News, Oct. 20, 2020
• Trump didn't order declassification of Russia docs despite tweets to the contrary, Meadows says, CNN, Oct. 20, 2020
• Meadows to judge: Trump didn't promise more declassification, POLITICO, Oct. 20, 2020
• Meadows says Trump did not order declassification of Russia documents, The Hill, Oct. 20, 2020
• Trump 'Declassify' Tweet Not An Order To Declassify, Feds Say, Law360, Oct. 20, 2020
• White House to court: Trump's declassification tweet wasn't true, MSNBC, Oct. 20, 2020

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.

Recent EPIC Publications

Communications Law and Policy: Cases and Materials, 7th Edition, by Jerry Kang and Alan Butler (Direct Injection Press 2020)

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, (indecent) content, privacy, and intermediary liability—equip students with a durable and yet flexible intellectual structure that can help parse a complex and ever-changing field. This book includes concise technological and legal summaries and carefully edited opinions and FCC reports. It also includes "just-in-time" delivery of the text of statutes and regulations so that students get accustomed to parsing statutory material as they analyze legal questions.

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.