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April 2021 Archives

April 1, 2021

Supreme Court Weakens Autodialer Protections

Today, the U.S. Supreme Court ruled in Facebook v. Duguid that individuals can only claim protection under the Telephone Consumer Protection Act from unwanted calls made using a mass dialing system or "autodialer" if the system uses a random or sequential number generator to either store or produce the numbers called. EPIC filed an amicus brief urging the Court to interpret the autodialer restriction broadly to include systems that automatically dial numbers stored in lists or databases. EPIC argued that "narrowing the autodialer definition would not protect privacy" but would instead "put the most widely used mass dialing systems outside the scope" of the ban.

Many robocallers and would-be robocallers will interpret the Court’s decision today as essentially abrogating the autodialer restriction, which will likely lead to a surge in unwanted automated calls to cell phones. Automated calls are already a daily nuisance for Americans. Individuals increasingly ignore calls from unknown numbers because they assume the calls are robocalls, which has caused particular harm to contact tracing during COVID-19. Congress must update the autodialer restriction to protect Americans from the coming onslaught of unwanted automated calls.

But the Court’s decision today is not a total victory for robocallers. The decision does not limit the definition of an autodialer to systems that create random or sequential telephone numbers. The Court says that autodialers include systems that use random or sequential number generators to order numbers in a list. Because computer programs commonly use sequential number generators to store or pull information from a list, it is hard to think of a mass dialing system that would not use a sequential number generator at some point in the program.

Litigation will continue over the scope of the autodialer definition. Americans need protection from robocallers now, and Congress should act swiftly to update the autodialer restriction.

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Posted by Melodi Dincer on April 1, 2021 1:31 PM |

California Supreme Court Rules Phone Calls Cannot be Recorded Without Consent of All Parties

The California Supreme Court held today that all parties must consent to the recording of a cellular phone call under the state's Invasion of Privacy Act. In Smith v. LoanMe, an individual alleged that a loan servicer had recorded their call without obtaining consent from the called party. The lower court found that the law's ban on recording calls without consent only applied to eavesdroppers and did not apply when one of the parties to the communication recorded the call. The lower court ruling went against decades of cases and guidance that held California was a "two party consent" state. The California Supreme Court reversed and held that the law prohibited both eavesdroppers and parties to a call from recording without consent. The Court recognized that the California legislature intended to create an all-party consent regime and that recording a call without consent of all parties "can implicate significant privacy concerns, regardless of whether a party or someone else is performing the recording." EPIC filed an amicus brief arguing that recording a call without consent of all parties "poses unique threats to privacy." EPIC routinely files amicus briefs in cases implicating consumer privacy.

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Posted by Melodi Dincer on April 1, 2021 2:20 PM |

April 2, 2021

EPIC, Coalition Urge States to Investigate Pharmacies Over Handling of Vaccine Recipients' Personal Data

EPIC and a coalition of civil society groups urged officials in five states today to investigate major pharmacy chains over their collection and use of personal data from patients receiving COVID-19 vaccines. The federal government has partnered with retail pharmacies to expand vaccine distribution, including CVS, Walgreens, Walmart, and Kroger. But as the coalition letter explains, some pharmacies "are requiring patients seeking access to the vaccine to register through their existing customer portals, which in turn exposes patients to broad personal data collection and marketing." According to a recent report, CVS executives "plan to stay in touch with vaccine recipients beyond receiving their second shot and use information gleaned in the process to better market to them." The coalition urged state consumer protection authorities in California, Illinois, Massachusetts, New York, and the District of Columbia to conduct investigations, to prohibit the use of vaccine registrant data for commercial purposes, and to require pharmacies to separate vaccine registrant information from their general customer data. "Patients should not have to trade unrestricted use of their sensitive personal information for a life-saving vaccine," the letter argues. "We believe these practices are unfair and deceptive and should be halted immediately." The coalition called on state officials "to remove barriers to access the vaccine and promote an equitable vaccine distribution process by protecting the personal data of vaccine recipients."

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Posted by John Davisson on April 2, 2021 4:26 PM |

Privacy Oversight Board Releases Report on EO 12333

The Privacy and Civil Liberties Oversight Board released its report on Executive Order 12333, which provides broad legal authority for data collection. The Oversight Board conducted three deep-dives into 12333-related counterterrorism activities—two on classified CIA programs and one on NSA’s XKEYSCORE. XKEYSCORE is a tool used to search data collected under Executive Order 12333 that was revealed by the Snowden revelations. The report lacks specifics on the 12333 programs the Board reviewed, but according to the Board the focus was on programs that either likely collected US persons information, targeted US persons, or occurred in the US. The report also does not indicate the specific advice or recommendations the Board provided, but it does reveal that many intelligence agencies were using guidelines to protect US persons that had not been updated since the 1980s or were never implemented as required by 12333. EPIC previously urged the Oversight Board to conduct a review of 12333.

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Posted by Jeramie D. Scott on April 2, 2021 6:23 PM |

April 5, 2021

EPIC, Coalition Urge Florida Lawmakers to Preserve Private Right of Action

EPIC and a coalition of privacy and consumer organizations today sent letters to Florida Governor Ron DeSantis, the Florida House Commerce Committee, and Florida's Senate Rules Committee urging them to preserve private rights of action in two pending privacy bills, SB 1734 and HB 969. "The inclusion of a private right of action in HB 969 and SB 1734 is the most important tool the Legislature can give to Floridians to protect their privacy," the groups wrote. "The statutory damages set in privacy laws are not large in an individual case, but they can provide a powerful incentive in large cases and are necessary to ensure that privacy rights will be taken seriously and violations not tolerated. In the absence of a private right of action, there is a very real risk that companies will not comply with the law because they think it is unlikely that they would get caught or fined."

Continue reading "EPIC, Coalition Urge Florida Lawmakers to Preserve Private Right of Action" »

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Posted by Caitriona Fitzgerald on April 5, 2021 4:48 PM |

April 6, 2021

ABA Urges Withdrawal of Algorithmic Safe Harbor Rule for Disparate Impact Claims in Housing

In September 2020, the Department of Housing and Urban Development released a final rule creating a defense to a discrimination claim under the Fair Housing Act where “predictive analysis” tools are not "overly restrictive on a protected class" or where they “accurately assessed risk.” Shortly after, a federal judge in Massachusetts blocked the rule, saying the regulation would "run the risk of effectively neutering disparate impact liability under the Fair Housing Act.” Today, American Bar Association President Patricia Lee Refo urged the agency to "act immediately to withdraw the 2020 FHA Rule and to adopt new guidance and a new rule to ensure the danger of algorithmic bias is adequately tackled.” EPIC and several others warned the federal housing agency during the initial rule announcement that providing such a safe harbor for the use of algorithms in housing without imposing transparency, accountability, or data protection regulations would exacerbate harms to individuals subject to discrimination. EPIC has called for greater accountability in the use of automated decision-making systems, including the adoption of the UGAI principles and requirements for algorithmic transparency.

Posted by Ben Winters on April 6, 2021 5:12 PM |

Facebook Breach Exposes Personal Data of Over 500 Million Users

A trove of sensitive personal data from more than 500 million Facebook users was posted online over the weekend, according to press reports. The leaked data includes names, phone numbers, email addresses, birthdates, location information, and biographical details. The original breach of personal data appears to have occurred in 2019. At least one privacy regulator, the Irish Data Protection Commissioner, has launched an investigation into Facebook's handling of the breach. The Commissioner's office said today that it had "received no proactive communication from Facebook" following the disclosure of personal data. EPIC has fought for transparency and accountability for Facebook's privacy abuses for over a decade, from filing the original FTC Complaint in 2009 that led to the FTC's 2012 Consent Order with the company, to moving to intervene in and filing an amicus brief challenging the FTC's 2019 settlement with Facebook.

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Posted by John Davisson on April 6, 2021 5:29 PM |

April 8, 2021

EPIC, Coalition Urge Attorney General and Senate Judiciary to Conduct Oversight and Restore Government Transparency

EPIC and a coalition sent letters to Attorney General Garland and the Senate Judiciary Committee urging them to conduct oversight and review agency implementation of the Freedom of Information Act. The coalition requested the Senate Judiciary to hold an oversight hearing on agency FOIA compliance. The committee's last oversight hearing on FOIA was more than three years ago. The letter to Senate Judiciary states, "[I]t is imperative that the Committee provide oversight of agencies' compliance with FOIA, both to understand FOIA implementation by the Trump administration, as well as to seek commitments to comply with the law from the newly confirmed Biden administration officials." The coalition also asked Attorney General Garland to follow the precedent of many former AGs and issue a memorandum to agencies on how to interpret and apply the FOIA and to support legislative reform. During Sunshine Week, Attorney General Garland remarked that for the Justice Department to succeed, it must adhere to "the principles that have become core to our DNA" and that "faithful administration of FOIA is essential to American democracy." EPIC recently published its 2021 FOIA Gallery highlighting EPIC's most significant open government cases and records obtained through government records requests.

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Posted by EPIC on April 8, 2021 4:30 PM |

April 9, 2021

Virginia to Ban Local Police from Using Facial Recognition

A bill passed in Virginia will ban local law enforcement agencies from using facial recognition technology without prior legislative approval starting July 1, 2021. Even when such approval is given, the bill further requires local police agencies to have "exclusive control" over the facial recognition systems they use, preventing the use of Clearview AI and other commercial FR products. However, Virginia State Police and other state law enforcement agencies may continue to use facial recognition without legislative approval. EPIC and a coalition recently urged New York City Council to enact a comprehensive ban on facial recognition. EPIC leads a campaign to Ban Face Surveillance and through the Public Voice Coalition gathered support from over 100 organizations and experts from more than 30 countries.

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Posted by EPIC on April 9, 2021 12:00 PM |

April 14, 2021

EPIC Urges Florida Lawmakers to Pass Strong Privacy Law

As the Florida Legislature considers pending privacy bills, HB 969 and SB 1734, EPIC is urging lawmakers to enact strong privacy protections for all Floridians. The House Commerce Committee is today hearing HB969, would give Floridians the right to know what information companies have collected about them, the right to delete and correct that information, the right to opt-out of the sale or sharing of their personal information, strong limits on the retention of their data, and additional protections for their children’s privacy. Critically, the bill would create robust enforcement mechanisms, including a private right of action, to ensure companies do not flout the law. In written testimony, EPIC urged committee members to further strengthen the bill to prohibit discriminatory uses of data, remove the "right to cure" provision, require data minimization, support global opt-out mechanisms, ban pay-for-privacy schemes, and provide enhanced safeguards for sensitive uses of data. EPIC had previously led a coalition of groups urging Florida lawmakers to preserve the private right of action in the bills.

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Posted by Caitriona Fitzgerald on April 14, 2021 9:50 AM |

EPIC, Coalition Call for Ban on Corporate Use of Facial Recognition

In an open letter released today, EPIC and twenty four civil rights and social justice organizations called on elected officials to ban corporate, private, and government use of facial recognition technology, suggesting Portland, OR's recent ban on facial recognition as a model. The letter also urges corporate leaders to ban the technology within their companies. The coalition notes recent uses of facial recognition to monitor workers and instances of wrongful firings when facial recognition systems mis-identified black gig workers. EPIC and a coalition recently urged New York City Council to enact a comprehensive ban on facial recognition. EPIC leads a campaign to Ban Face Surveillance and through the Public Voice Coalition gathered support from over 100 organizations and experts from more than 30 countries.

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Posted by EPIC on April 14, 2021 2:10 PM |

Draft EU AI Regulation Would Ban Social Scoring, Limit 'High-Risk' Uses

A leaked draft of the European Commission's proposed AI regulation includes a ban on social scoring and strict limits on mass surveillance and other "high-risk" uses of AI. The draft regulation would generally prohibit AI which "manipulates human behaviour, opinions or decisions" to a person's detriment or which "exploits information or prediction about a person or group of persons in order to target their vulnerabilities[.]" The draft also requires notice to individuals when they interact with AI, prior authorization for the use of remote biometric identification tools (including facial recognition), and data impact assessments for "high-risk" systems. The draft is broadly worded and subject to exceptions—including exemptions for "investigating serious crime and terrorism"—but would impose a penalty of up to 4% of annual revenue on companies that violate the regulation. The official release of the proposed regulation is expected on April 21. EPIC has called for prohibitions on secret scoring, mass surveillance, and facial recognition.

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Posted by John Davisson on April 14, 2021 3:32 PM |

April 20, 2021

FTC: Racially Biased AI Violates FTC Act

The FTC announced Monday that the sale or use of racially biased algorithms is an unfair and deceptive trade practice in violation of the FTC Act. In a blog post, the Commission warned companies to ensure fairness and equity in their use of AI. The FTC cautioned companies to "Start with the right foundation," "Watch out for discriminatory outcomes," "Embrace transparency and independence," "Don't exaggerate what your algorithm can do or whether it can deliver fair or unbiased results," "Tell the truth about how you use data," "Do more good than harm," and "Hold yourself accountable–or be ready for the FTC to do it for you." The FTC cited its 2016 report on big data analytics and machine learning; its 2018 hearing on algorithms, AI and predictive analytics; and its 2020 business guidance on AI and algorithms. The post also cited a recent study from the Journal of the American Medical Informatics Association finding that AI may worsen healthcare disparities for people of color, even if an AI system was meant to benefit all patients. In 2019, EPIC filed a complaint with the FTC asking the Commission to investigate HireVue's use of opaque, unproven AI and to require baseline protections for AI use. Last year, EPIC petitioned the FTC to conduct a rulemaking on commercial uses of AI, including protections against discrimination and unfair bias.

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Posted by John Davisson on April 20, 2021 4:18 PM |

In EPIC Suit, DOJ Identifies 75 Location Data Requests in the Virgin Islands from 2016-2019

As part of EPIC's ongoing lawsuit for cell phone surveillance orders issued by federal prosecutors, the Department of Justice identified 75 orders and warrants for cell phone location data under ยง 2703(d) from the U.S. Attorney's Office for the Virgin Islands from 2016-2019. During the same period, the attorneys handled 283 criminal cases. The U.S. Attorney's Office for the Virgin Islands is one of the smallest districts in the country. In February, EPIC obtained the number of location data requests for the District of Delaware, the first of five districts that the DOJ has agreed to search for location data requests. EPIC is still waiting for responses from 3 of the agency's other prosecutors' offices and will continue to update its comparative table as each district releases more information. Currently prosecutors do not release any comprehensive or uniform data about their surveillance of cell phone location data. In 2018, the U.S. Supreme Court ruled in Carpenter v. United States that the collection of cell phone location data without a warrant violated the Fourth Amendment. The case is EPIC v. DOJ, No. 18-1814 (D.D.C.).

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Posted by EPIC on April 20, 2021 4:59 PM |

April 21, 2021

Department of Education Investigating School District's Disclosure of Personal Data for Predictive Policing Program

Following a report by the Tampa Bay Times about the Pasco County Sherriff’s broad-ranging predictive policing and scoring program, the Department of Education is investigating a Florida school district’s practice of giving the Sherriff access to students’ personal data. The disclosures may have violated the Federal Education Rights and Privacy Act, which places strict limits on the use of students’ educational records. In January, Rep. Robert Scott (D-VA), Chair of the House Committee on Education and Labor, called for an investigation of the Sheriff’s program, which used personal data to compile a list of students that the Sheriff believed could “fall into a life of crime.” EPIC has called for bans on secret scoring and mass surveillance and strict limits on the use of AI in the criminal justice system.

Posted by Ben Winters on April 21, 2021 11:46 AM |

Florida House of Representatives Passes Florida Privacy Protection Act

The Florida House of Representatives today passed the Florida Privacy Protection Act, HB 969, on a 118-1 vote. The bill gives Floridians the right to know what information companies have collected about them, the right to delete and correct that information, the right to opt-out of the sale or sharing of their personal information, strong limits on the retention of their data, and additional protections for their children’s privacy. Critically, the bill would create robust enforcement mechanisms, including a private right of action, to ensure companies do not flout the law. EPIC and a coalition of privacy and consumer organizations had previously sent letters to Florida Governor Ron DeSantis, the Florida House Commerce Committee, and Florida's Senate Rules Committee urging them to preserve private rights of action the bill. "The inclusion of a private right of action in HB 969 and SB 1734 is the most important tool the Legislature can give to Floridians to protect their privacy," the groups wrote. "The statutory damages set in privacy laws are not large in an individual case, but they can provide a powerful incentive in large cases and are necessary to ensure that privacy rights will be taken seriously and violations not tolerated. In the absence of a private right of action, there is a very real risk that companies will not comply with the law because they think it is unlikely that they would get caught or fined." The Senate Rules Committee removed the private right of action provisions from the Senate bill, but the Senate could restore the crucial enforcement provision on the floor this week.

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Posted by Caitriona Fitzgerald on April 21, 2021 7:35 PM |

April 23, 2021

Supreme Court Limits FTC Authority to Recover Ill-Gotten Gains

The Supreme Court, ruling Thursday in AMG Capital Management v. Federal Trade Commission, sharply limited the FTC’s ability to obtain restitution for individuals harmed by companies’ unlawful trade practices. Disagreeing with years of FTC practice and numerous decisions by appellate courts, the Court ruled that a key provision in the FTC Act “does not authorize the Commission to seek, or a court to award, equitable monetary relief such as restitution or disgorgement.” As a result of the decision, the FTC must now go through a burdensome administrative process to force companies to give up ill-gotten gains rather than going directly to court. Acting Chairwoman Rebecca Kelly Slaughter responded that the decision is a ruling “in favor of scam artists and dishonest corporations, leaving average Americans to pay for illegal behavior.” Members of Congress have already proposed amendments to Section 13(b) of the FTC Act that would restore the Commission’s power to seek consumer redress. EPIC routinely advocates before the FTC for meaningful financial penalties against companies whose unlawful data and privacy practices harm consumers.

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Posted by Caitriona Fitzgerald on April 23, 2021 10:01 AM |

April 22, 2021

European Commission Proposes Risk-Based AI Regulation, Banning 'Unacceptable' Uses

The European Commission released a long-awaited proposal for how to regulate AI throughout the European Union. The proposed regulation includes a ban on “unacceptable” uses of AI such as general social scoring and “real time remote biometric identification” for law enforcement. The proposal also imposes testing and transparency obligations for "high-risk" uses of AI, including a publicly accessible EU database on stand-alone “high-risk” systems. The proposal requires notice to individuals when they interact with certain types of AI and “conformity” assessments for "high-risk" systems. The prohibitions on unacceptable AI are very limited and many of the strongest provisions are subject to vast exceptions. However, a penalty of up to 4% of annual revenue on companies that violate the regulation is included. EPIC has called for prohibitions on secret scoring, mass surveillance, and facial recognition. EPIC urges legislators to implement the OECD Principles on AI and adopt the Universal Guidelines of AI.

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Posted by Caitriona Fitzgerald on April 22, 2021 10:23 AM |

April 26, 2021

EPIC to Court: Don't Undermine 2020 Census Privacy Protections

EPIC has filed an amicus brief urging an Alabama federal court not to upend the Census Bureau's system for protecting personal data collected in the 2020 Census. Alabama is challenging the Bureau's use of differential privacy, in which controlled amounts of statistical noise are added to published census data to prevent individuals from being identified and linked with their census responses. The Bureau recently demonstrated that sophisticated reidentification "attacks" can identify tens of millions of people from published census data unless stronger privacy safeguards are used. As EPIC argues in its brief, "differential privacy is the only credible technique to protect against such attacks, including those that may be developed in the future." EPIC's brief explains that federal law imposes on the Bureau an "affirmative duty to protect the privacy of census respondents—not merely to avoid direct, unfiltered publication of census responses." EPIC also argues that differential privacy "is not the enemy of statistical accuracy," but rather "vital to securing robust public participation in Census Bureau surveys[.]" EPIC has long advocated for the confidentiality of personal data collected by the Census Bureau. In 2004, Bureau revised its "sensitive data" policy after an EPIC FOIA request revealed that the Department of Homeland Security had improperly acquired census data on Arab Americans from following 9/11. In 2018, EPIC filed suit to block the citizenship question from the 2020 Census, alleging that the Bureau failed to complete several privacy impact assessments required under the E-Government Act.

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Posted by John Davisson on April 26, 2021 4:21 PM |

April 27, 2021

Poll: Vast Majority of Americans Support Online Data Protection Legislation

A new poll from Morning Consult found that 83% of voters say that Congress should pass national data privacy legislation this year. Democrats (86%) and Republicans (81%) expressed bipartisan support for Congress to prioritize a federal privacy bill. The poll also found that voters place similar amounts of responsibility on both federal and state lawmakers, as well as federal regulators, to regulate data privacy. With respect to regulating how companies collect, store, and share personal information, 72% of voters said Congress is either “very responsible” or “somewhat responsible” while 79% said the same for federal agencies and 75% for state governments. Nearly 9 in 10 adults said it was either “very” or “somewhat” important to protect their most sensitive identifiable information under a privacy law, including Social Security number (89%), banking information (89%), biometric data (88%), and driver’s license number (88%). EPIC has called for comprehensive baseline federal legislation and the creation of a U.S. data protection agency, and has advocated for strong state privacy laws.

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Posted by Caitriona Fitzgerald on April 27, 2021 3:59 PM |

April 28, 2021

EPIC, Coalition Urge End to DC-Area Facial Recognition System

In a letter to the Metropolitan Washington Council of Governments, an EPIC-led coalition of privacy, civil liberties, and good government groups urged the Council to end the National Capital Region Facial Recognition System (NCR-FRILS) project and disclose all documents associated with it. In a Washington Post article covering the coalition letter, EPIC Senior Counsel, Jeramie Scott, argued that "facial recognition is a particularly invasive surveillance technology that undermines democracy and First Amendment rights." NCR-FRILS is a facial recognition system used by police departments and government agencies in the DC, Maryland, and Virginia area. The system runs comparisons against a database of 1.4 million local mug shots. The project was never publicly announced and was only revealed during the prosecution of a Black Lives Matter protester last fall. EPIC previously submitted a series of open government requests to police departments in the DC-area seeking more information on the system.

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Posted by EPIC on April 28, 2021 11:15 AM |

April 29, 2021

Surveillance Court Finds FBI Repeatedly Misused FISA Program to Conduct Unlawful Surveillance of Americans

The Foreign Intelligence Surveillance Court (FISC) recently disclosed an opinion revealing that the FBI has repeatedly misused Section 702 of Foreign Intelligence Surveillance Act (FISA) to gather information in domestic investigations. Section 702 (sometimes referred to as the "PRISM" program) authorizes certain programs of surveillance of private communications for foreign intelligence purposes, without prior court approval, where the surveillance targets non-US persons located abroad. The law has been widely criticized, in part, because of the "backdoor search" loophole that allows domestic law enforcement officials to access Americans' communications without a warrant. The surveillance court previously found that the FBI's procedures for obtaining information through backdoor searches violated the Fourth Amendment. The newly published opinion demonstrates how the FBI has failed to reform these unlawful practices. An audit revealed that the agency searched FISA information 40 times last year while investigating a wide range of purely domestic crimes, including health-care fraud, gang violence, domestic terrorism by "racially motivated violent extremists," and public corruption. Again, the FISC expressed "concern[] about the [FBI's] apparent widespread [Section 702] violations." EPIC has long tracked FISA court orders and advocated for FISA reform. More recently, EPIC filed a Freedom of Information Act lawsuit seeking disclosure of a report concerning FBI use of Section 702 authority for domestic criminal investigations and participated as amicus to address the scope of U.S. surveillance authorities in the Court of Justice of the European Union.

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Posted by Melodi Dincer on April 29, 2021 11:07 AM |

April 30, 2021

EPIC v. Drone Advisory Committee: Divided Appeals Court Endorses Secrecy of Key Working Groups

A divided panel of the D.C. Circuit, ruling today in EPIC's case against the FAA Drone Advisory Committee, held that the committee can keep the records of its controversial working groups secret. EPIC filed suit in 2018 against the industry-dominated body, which ignored the privacy risks posed by the deployment of drones even after identifying privacy as a top public concern. As a result of EPIC's lawsuit, the committee was forced to disclose hundreds of pages of records under the Federal Advisory Committee Act. But a lower court ruled in 2019 that the records from the committee's working groups could be withheld from the public—a decision that the D.C. Circuit affirmed today. Judge Robert L. Wilkins, writing in dissent, accused the majority of "doing violence to the text" of the FACA and argued that the decision "undermines FACA's purpose and greenlights an easily abusable system[.]" Noting the "obvious privacy concerns that drones present" and the fact that the DAC was "stacked with industry representatives," Wilkins warned that "[w]e should look with suspicion upon agency efforts to circumvent FACA by using subgroups." The case is EPIC v. Drone Advisory Committee, No. 19-5238 (D.C. Cir.).

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Posted by John Davisson on April 30, 2021 4:09 PM |

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About April 2021

This page contains all entries posted to epic.org in April 2021. They are listed from oldest to newest.

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