EPIC Alert 20.17

======================================================================= E P I C A l e r t ======================================================================= Volume 20.17 September 3, 2013 ----------------------------------------------------------------------- Published by the Electronic Privacy Information Center (EPIC) Washington, D.C. http://www.epic.org/alert/epic_alert_20.17.html "Defend Privacy. Support EPIC." http://epic.org/donate ========================================================================= Table of Contents ========================================================================= [1] EPIC to Host International Privacy Conference in Warsaw [2] NSA Violated Law Thousands of Times, Intercepted US Communications [3] FISA Court: NSA Violated Both Fourth Amendment and FISA [4] EPIC, Privacy Groups Urge Court to Reject Proposed Google Settlement [5] EPIC FOIA: DHS Facial Recognition System Lacks Privacy Safeguards [6] News in Brief [7] EPIC in the News [8] EPIC Book Review: 'The Great Dissent' [9] Upcoming Conferences and Events TAKE ACTION: Tell Facebook: "Stop Changing Our Privacy Settings!" - READ about the Changes: http://epic.org/redirect/090313-facebook.html - LEARN More about Facebook Privacy: http://epic.org/privacy/facebook/ - SUPPORT EPIC: http://www.epic.org/donate/ ======================================================================== [1] EPIC to Host International Privacy Conference in Warsaw ======================================================================== EPIC, in collaboration with many of the world's leading privacy organizations, will host the 2013 Public Voice conference in Warsaw, Poland on September 24, 2013. The conference, "Our Data, Our Lives," will feature civil society groups, privacy advocates, tech experts, and other data privacy professionals, and is being held in conjunction with the annual meeting of the International Conference of Data Protection and Privacy Commissioners. This year's Public Voice conference will cover five major topics: measuring the impact of the Madrid Declaration of 2009; civil society's response to the NSA's surveillance programs; data-protection responsibilities of Internet intermediaries; US-EU trade agreement discussions; and NGO strategies for a data-protection agenda. Keynote speaker will be Jacob Kohnstam, Chairman of the Article 29 Working Party. Panelists include high-level privacy officials and advocates from countries including France, Poland, Belgium, Japan, Peru, India, and Canada, as well as representatives from the European Union. Public Voice conference participants will be able to attend presentations and discussions at the 35th Annual Data Protection and Privacy Commissioners' Conference, the world's largest annual privacy forum, which runs from September 23-26. The Privacy Commissioners' Conference brings together governmental data-protection and privacy authorities and institutions, and academics, NGOs and other experts. The 2013 conference explores "Privacy: A Compass in Turbulent World." EPIC established The Public Voice coalition 1996 to promote public participation in decisions concerning the future of the Internet. The Public Voice has pursued issues ranging from privacy and freedom of expression to consumer protection and Internet governance. Through international conferences, reports and funding for travel The Public Voice seeks to increase the presence of NGOs at meetings across the globe. In cooperation with the OECD, UNESCO, and other international organizations, The Public Voice project brings civil society leaders face-to-face with government officials for constructive engagement about current policy issues. Public Voice events have been held in Buenos Aires, Cape Town, Dubai, Hong Kong, Honolulu, Kuala Lumpur, Madrid, Mexico City, Ottawa, Paris, Punta del Este, Seoul, Tel Aviv, Washington, and Wroclaw. The Public Voice http://thepublicvoice.org The Public Voice: "Our Data, Our Lives" http://thepublicvoice.org/events/warsaw13/ 35th Annual Conference of Data Protection and Privacy Commissioners https://privacyconference2013.org/ The Public Voice: The 2009 Madrid Declaration http://thepublicvoice.org/madrid-declaration/ ======================================================================== [2] NSA Violated Law Thousands of Times, Intercepted US Communications ======================================================================== A 2012 NSA internal audit has revealed that the agency violated both legal rules and privacy restrictions thousands of times each year since 2008, leading to unauthorized surveillance of American communications, including 2,776 violations in the last 12 months alone. During that time, the number of violations rose each quarter. The audit attributed violations to a number of different factors, including a lack of training, human error, and a failure to follow standard operating procedures. The incidents included the interception of a "large number" of calls placed from Washington, DC to Egypt when an NSA algorithm confused the DC area code (202) with the Egyptian country code (20). Another incident involved the unauthorized use of the data of more than 3,000 American citizens and green-card holders. A document called "Targeting Rationale (TAR)" reveals how NSA analysts are trained to avoid giving "extraneous information" to their "FAA overseers" when they want to target an individual. The document emphasizes that NSA analysts are not to give additional information including "probable cause-like information (i.e. proof of your analytic judgment), how you came to your analytic conclusions . . . or selector information." In 2006, EPIC wrote to the US Senate Judiciary Committee about instances of FBI intelligence gathering misconduct uncovered through EPIC's Freedom of Information Act requests. The incidents included possible violations of the Foreign Intelligence Surveillance Act. One incident involved the collection of the content of 181 phone calls instead of just billing and toll records. EPIC urged the Committee to investigate the FBI's use of expanded authority to undertake intelligence investigations in the US. EPIC recently petitioned the NSA to suspend domestic surveillance programs pending a public comment period. The petition was signed by a number of leading privacy experts and thousands of individuals. The NSA has now responded, arguing that "any NSA activities involving the collection of communications that may meet the description set forth in your letter, if any, would not constitute Agency actions that are subject to notice-and-comment requirements . . ." EPIC also has filed a petition with the US Supreme Court challenging the legal authority of the FISA Court to authorize the NSA's program. The government has requested an extension to reply to EPIC's filing. NSA: Intelligence Oversight Quarterly Report (May 3, 2012) http://s3.documentcloud.org/documents/758651/1qcy12-violations.pdf NSA: Targeting Rationale (TAR) http://epic.org/redirect/090313-NSA-TAR.html EPIC: Letter to Senate re: FBI Surveillance (Jun. 16, 2006) http://epic.org/privacy/surveillance/sen_iob_letter.pdf EPIC: Response to Petition from NSA (Aug. 31, 2013) http://epic.org/privacy/nsa/NSA-Petition-Reply-8-30-13.pdf EPIC: Petition to the NSA (June 17, 2013) http://epic.org/NSApetition/ EPIC: In re EPIC - NSA Telephone Records Surveillance http://epic.org/privacy/nsa/in-re-epic/ ========================================================================= [3] FISA Court: NSA Violated Both Fourth Amendment and FISA ========================================================================= A newly released opinion by the Foreign Intelligence Surveillance Court has revealed that the NSA violated the Fourth Amendment and the Foreign Intelligence Surveillance Act when the agency acquired tens of thousands of wholly domestic Internet communications. In the fall of 2011, the FISA Court found that the NSA's targeting and minimization procedures, as applied to collection directly from Internet fiber optic cables (i.e. "upstream collection"), violated the Fourth Amendment because they were "unreasonable." Upstream collection involves acquiring "Internet transactions" that can contain multiple communications. According to the opinion of the former presiding judge of the FISA Court, the NSA has acquired more than 250 million Internet communications per year. Roughly 9% of these communications are obtained via upstream collection and more than 50,000 each year contain domestic communications. Because of the large number of wholly domestic communications obtained by the NSA, the FISA Court found that NSA's targeting and minimization procedures were not reasonable under the Fourth Amendment. The Court also found that NSA's minimization procedures violated the FISA, and required that the agency adopt additional protections to ensure privacy. The FISA Court opinion further stated that the US government had repeatedly misrepresented the scope of the collection programs, and suggested that the "volume and nature" of Internet communications acquired under Section 702 of the USA PATRIOT Act was not what the government originally represented to the FISA Court. According to the opinion, the US government also misrepresented the program to collect domestic telephone records. The Court noted that the NSA, for at least three years, routinely ran queries of the agency's telephone metadata database that did not meet the standards set by FISA Court. In June, EPIC petitioned the NSA to suspend domestic surveillance programs pending a public comment period. The petition has been signed by a number of leading privacy experts and thousands of individuals. The NSA has responded, arguing that ""any NSA activities involving the collection of communications that may meet the description set forth in your letter, if any, would not constitute Agency actions that are subject to notice-and-comment requirements . . ." EPIC also has filed a petition with the US Supreme Court challenging the FISA Court's legal authority to authorize the NSA's domestic surveillance program. ODNI: Press Release on Declassified FISA Court Opinions (Aug. 21, 2013) http://epic.org/redirect/090313-ODNI-FISA-docs.html EPIC: Foreign Intelligence Surveillance Court (FISC) http://epic.org/privacy/terrorism/fisa/fisc.html EPIC: Foreign Intelligence Surveillance Act (FISA) http://epic.org/privacy/terrorism/fisa/ EPIC: Petition to the NSA re: Domestic Surveillance (Jun. 17, 2013) http://epic.org/NSApetition/ EPIC: Mandamus Petition to the Supreme Court (Jul. 8, 2013) http://epic.org/EPIC-FISC-Mandamus-Petition.pdf EPIC: USA Patriot Act http://epic.org/privacy/terrorism/usapatriot/ ========================================================================= [4] EPIC, Privacy Groups Urge Court to Reject Proposed Google Settlement ========================================================================= EPIC, joined by several leading privacy and consumer protection organizations, has submitted a letter to the Court of the Northern District of California over a proposed settlement in a class-action lawsuit against Google. The settlement was proposed by class action lawyers in a case centered on Google's unlawful disclosure of search terms to third parties; however, under the terms of the proposed settlement, Google would not be required to change any business practices. EPIC's letter states, "It is absurd to argue that a benefit is provided to the Class where the company makes no material change in its business practices and is allowed to continue the practice that provides the basis for the putative class action." EPIC explained that under the terms of the proposed settlement, "a company that manufactures a faulty toaster that catches fire because of poor wiring is permitted post-settlement to continue to manufacture the toaster as before with no change to the wiring that created the risk to the customers, as long as it notifies customers of the risk arising from its ongoing negligence." EPIC's letter also objects to the proposed settlement's failure to address the needs of the Class members. In addition to providing "no benefit to Class members" because the settlement does not require Google to change its business practices, EPIC argues, "the proposed cy pres allocation is not aligned with the interests of the purported Class members." "Cy pres" (a term which roughly translates to "as near as possible") is a legal doctrine that allows courts to allocate funds to protect the interests of individuals when there is a class action settlement. Under Ninth Circuit Court precedent, cy pres funds must be used to advance the interests of the class members. However, under the proposed Google settlement, only one of the seven organizations that would receive the cy pres funds has the protection of privacy as a mission and is aligned with the interests of class members. Privacy class action cases have become very contentious, with privacy organizations arguing that the settlements provide little actual benefit to Internet users, though attorneys receive substantial fees and companies are permitted to continue the privacy-invading practice that provided the basis for the lawsuit. A petition to review the fairness of class action settlements in privacy cases in currently pending before the US Supreme Court. EPIC: Letter to Judge Davila re: Google Settlement (Aug. 22, 2013) http://epic.org/redirect/090313-epic-letter-davila.html EPIC: Letter to Judge Seeborg re: Facebook Settlement (Jul. 11, 2012) http://epic.org/redirect/090313-epic-letter-seeborg.html EPIC: Search Engine Privacy http://epic.org/privacy/search_engine/ EPIC: Google Buzz http://epic.org/privacy/ftc/googlebuzz/default.html EPIC: Facebook Privacy http://epic.org/privacy/facebook/ US Supreme Court: Marek v. Lane (Jul. 26, 2013) http://epic.org/redirect/090313-scotus-marek-lane.html ======================================================================== [5] EPIC FOIA: DHS Facial Recognition System Lacks Privacy Safeguards ======================================================================== In response to an EPIC Freedom of Information Act request, the Department of Homeland Security has produced documents revealing that the agency has failed to establish privacy safeguards for "BOSS" (the Biometric Optical Surveillance System), an elaborate system for facial recognition and identification of individuals. The documents obtained by EPIC indicate that none of the agency's contracts or statements of work require any data privacy or security protections for BOSS' design, production, or test implementations. In one of the records produced, DHS stated, "DHS components require the ability to positively identify/screen people in a secure, efficient, accurate, and timely manner. This ability encompasses the collection, storage, transmission, and receipt of biometric and biographic data to support the component missions." However, in over 100 pages of responsive documents, DHS does not describe any system of checks or safeguards for the "collection, storage, transmission, and receipt" of the personally identifiable biometric and biographic data. The New York Times reported August 21 on EPIC's acquisition of these documents, drawing attention to high failure rates for these systems. The article noted, "Several independent biometric specialists, given a description of the project's test results, agreed that the system was not yet ready. They said 30 seconds was far too long to process an image for security purposes, and that its accuracy numbers would result in the police going out to question too many innocent people." EPIC staff interviewed for the article emphasized that now is the time to build in privacy protections for technologies that are still in development, rather than allowing privacy safeguards to become an afterthought. EPIC is also pursuing a FOIA lawsuit against the FBI over the agency's development of "Next Generation ID," which, when complete, will be the largest biometric identification database program in the world. The NGI biometric identifiers will include fingerprints, iris scans, DNA profiles, voice identification profiles, palm prints, and photographs. The system will include facial recognition capabilities to analyze collected images. Millions of individuals who are neither convicted nor suspected criminals will be included in the database. Using facial recognition on images of crowds, NGI will enable the identification of individuals in public settings, whether or not the police have made the necessary legal showing to compel the disclosure of identification documents. EPIC: FOIA Request to DHS re: BOSS (Feb. 13, 2013) http://epic.org/open_gov/foia/BOSSRequest.pdf EPIC: BOSS Documents (#1 of 2) (Apr. 5, 2013) http://epic.org/open_gov/foia/BOSS1.pdf EPIC: BOSS Documents (#2 of 2) (Jun. 3, 2013) http://epic.org/open_gov/foia/BOSS2.pdf The New York Times: Article on BOSS (Aug. 21, 2013) http://www.nytimes.com/2013/08/21/us/facial-scanning-is-making- gains-in-surveillance.html3 EPIC: Face Recognition http://epic.org/privacy/facerecognition/ EPIC: EPIC Opposes DHS Biometric Collection http://epic.org/2013/06/epic-opposes-dhs-biometric-col.html EPIC: Biometric Identifiers http://epic.org/privacy/biometrics/ EPIC: EPIC v. FBI (Next Generation ID) http://epic.org/foia/fbi/ngi/ ======================================================================== [6] News in Brief ======================================================================== President Announces Intelligence Review Group; EPIC Presses for Reform President Obama recently met with the members of a newly formed group of experts to review intelligence and communications technologies. The group consists of computer security advisor Richard Clark, former CIA Director Michael Morell, and legal scholars Geoffrey Stone, Cass Sunstein, and Peter Swire. The White House said the group would advise the President on how "the United States can employ its technical collection capabilities in a way that optimally protects our national security and advances our foreign policy while respecting our commitment to privacy and civil liberties, recognizing our need to maintain the public trust, and reducing the risk of unauthorized disclosure." After the President's announcement, EPIC contacted each of the review group members to provide materials on the protection of privacy and civil liberties. Documents included copies of EPIC's petition to the US Supreme Court, arguing that the current domestic surveillance program is unlawful; EPIC's 2012 Congressional testimony on the FISA Amendments Act; and EPIC's 2010 letter to the Foreign Intelligence Surveillance Court on reform of FISA procedures. The White House: Statement on Review Group (Aug. 27, 2013) http://epic.org/redirect/090313-whitehouse-committee.html EPIC: Petition to the Supreme Court re: Surveillance (Jul. 8, 2013) http://epic.org/EPIC-FISC-Mandamus-Petition.pdf EPIC: Congressional Testimony on FISA Amendments Act (May 31, 2012) http://epic.org/privacy/testimony/EPIC-FISA-Amd-Act-Testimony-HJC.pdf EPIC: Comments to FISA Court on Amended Rules (Oct. 4, 2010) http://epic.org/redirect/090313-EPIC-FISA-comments.html EPIC: FISA Reform http://epic.org/privacy/terrorism/fisa/reform/ US Supreme Court May Consider Cell Phone Privacy The US Supreme Court is likely to address two mobile phone privacy cases during the 2013 term, both centering on whether law enforcement has the right to warrantlessly search the emails, texts, and address book on an arrestee's cell phone. In Riley v. California, the defendant challenged a police officer's search of his smartphone. In United States v. Wurie, the Department of Justice seeks review of an appeals court's decision that warrants are necessary to search a cell phone. Earlier in 2013, EPIC successfully argued to the New Jersey Supreme Court that a warrant is required to track a cell phone's location. In 2012, the US Supreme Court held in United States v. Jones that warrants are required to use GPS tracking devices. EPIC: Riley v. California http://epic.org/amicus/cell-phone/riley/ US Supreme Court: Petition to Hear US v. Wurie (Aug. 2013) http://epic.org/redirect/090313-wurie-petition.html EPIC: US v. Jones http://epic.org/amicus/jones/ EPIC: Mobile Privacy http://epic.org/privacy/location_privacy/apple.html FTC Chairwoman Calls for Transparency in Big Data In an August 19 keynote speech at the Technology Policy Institute Aspen Forum, Federal Trade Commission Chairwoman Edith Ramirez called upon companies to "move their data collection and use practices out of the shadow and into the sunlight." Chairwoman Ramirez's speech highlighted the risks of big data, including indiscriminate collection, data breaches, and behind-the-scenes profiling. She also stressed the importance of protecting consumers' privacy and stated, "[W]ith big data comes big responsibility." EPIC has testified before Congress on data collection and called for the regulation of data brokers because "[t]here is too much secrecy, too little accountability, and too much risk of far-reaching economic damage" in data-broker business practices. EPIC has recommended that the FTC enforce Fair Information Practices, such as those contained in the Obama Administration's Consumer Privacy Bill of Rights, against commercial actors. FTC Chair Ramirez: Speech to Aspen Forum (Aug. 19, 2013) http://ftc.gov/speeches/ramirez/130819bigdataaspen.pdf EPIC: Testimony before Congress on Data Brokers (Mar. 15, 2005) http://epic.org/privacy/choicepoint/testimony3.15.05.pdf EPIC: Recommendation to FTC on Appointing FTC Chair (Dec. 4, 2012) http://epic.org/privacy/ftc/EPIC-Ltr-SenComm-FTC-12-12.pdf EPIC: Choicepoint http://epic.org/privacy/choicepoint/ EPIC: Privacy and Consumer Profiling http://epic.org/privacy/profiling/ Pew Survey Finds Most Teens Seek Advice on Privacy Management A new survey by the Pew Internet and American Life Project and Harvard University's Berkman Center for Internet and Society finds that while many teens report a high level of comfort with online privacy settings, "at some point, 70% of them have sought advice from someone else about how to manage their privacy online." According to the survey, teens generally turned to friends, parents, or other close family members for online privacy advice. Other Pew surveys have found that most teens were taking steps to protect their online privacy; that a majority of parents were concerned about their children's online privacy; and that social media users were becoming more active in managing the privacy of their accounts. Pew Internet: "Where Teens Seek Privacy Advice" (Aug. 15, 2013) http://epic.org/redirect/090313-pew-teens-privacy-advice.html Pew Internet: "Teens, Social Media, and Privacy" (May 21, 2013) http://epic.org/redirect/090313-pew-teens-privacy-media.html Pew Internet: "Parents, Teens, and Online Privacy" (Nov. 20,2012) http://pewinternet.org/Reports/2012/Teens-and-Privacy.aspx Pew Internet: "Privacy management on social media sites" (Feb. 24, 2012) http://epic.org/redirect/090313-pew-privacy-management.html EPIC: Public Opinion on Privacy http://epic.org/privacy/survey ======================================================================== [7] EPIC in the News ======================================================================== "The Face Scan Arrives." Op-Ed by former EPIC Open Government Counsel Ginger McCall. The New York Times, Aug. 30, 2013. http://www.nytimes.com/2013/08/30/opinion/the-face-scan-arrives. html?_r=0 "NSA paying U.S. companies for access to communications networks." The Washington Post, Aug. 29, 2013. http://www.washingtonpost.com/world/national-security/nsa-paying- us-companies-for-access-to-communications-networks/2013/08/29/ 5641a4b6-10c2-11e3-bdf6-e4fc677d94a1_story.html "DNI to release surveillance-request data." Politico, Aug. 29, 2013. http://www.politico.com/story/2013/08/dni-surveillance-data- request-96063.html?hp=l2 "U.S. plans reports on secret court orders to telecom providers." Reuters, Aug. 29, 2013. http://www.reuters.com/article/2013/08/30/us-usa-security- transparency-idUSBRE97T03A20130830 "Uncle Sam Wants Your Facebook Data." Tech News World, Aug. 28, 2013. http://www.technewsworld.com/story/Uncle-Sam-Wants-Your-Facebook- Data-78827.html "Hey Ohio Drivers, Welcome to the Police Lineup!" Reason, Aug. 27, 2013. http://reason.com/blog/2013/08/27/hey-ohio-drivers-welcome-to- the-police-l "DeWine backs use of facial-recognition software." The Columbus Dispatch, Aug. 27, 2013. http://www.dispatch.com/content/stories/public/2013/08/26/DeWine- Ohio-facial-recognition.html "N.S.A. Phone Data Collection Is Illegal, A.C.L.U. Says." The New York Times, Aug. 26, 2013. http://www.nytimes.com/2013/08/27/us/nsa-phone-data-collection-is- illegal-aclu-says.html?_r=0 "inBloom debate blossoms." Our Colorado News, Aug. 26, 2013. http://www.ourcoloradonews.com/arvada/news/inbloom-debate-blossoms/ article_599f3cb5-fc3e-5144-9dd9-ad2ba6da7d3a.html "Google's $8.5M Privacy Deal Cracks Puzzling Injury Issues." Law 360, Aug. 26, 2013. http://www.law360.com/m/articles/467370/google-s-8-5m-privacy-deal- cracks-puzzling-injury-issues "FAA approves drone use over Alaskan oil fields." The Daily Caller, Aug. 23, 2013. http://dailycaller.com/2013/08/26/faa-approves-drone-use-over- alaskan-oil-fields/ "Privacy groups hit $8.5M Google settlement plan." ComputerWorld, Aug. 23, 2013. http://www.computerworld.com/s/article/9241854/Privacy_groups_hit_ 8.5M_Google_settlement_plan "Privacy Groups Want Judge To Reject Google's $8.5 Million Settlement Over Search Privacy Lawsuit." Search Engine Land, Aug. 23, 2013. http://searchengineland.com/privacy-groups-want-judge-to-reject- google-settlement-for-search-privacy-lawsuit-170520 "New Details On The Scope Of NSA Surveillance." NPR's "The Diane Rehm Show," Aug. 22, 2013. http://thedianerehmshow.org/shows/2013-08-22/new-details-scope- nsa-surveillance "Former U.S. officials to be named to surveillance panel." The Washington Post, Aug. 22, 2013. http://www.washingtonpost.com/politics/former-us-officials-to-be- named-to-surveillance-panel/2013/08/22/41ce4dae-0b5e-11e3-b87c- 476db8ac34cd_story.html "Cell phone data latest threat to privacy." Fox News, Aug. 22, 2013. http://www.foxnews.com/politics/2013/08/22/cell-phone-data-latest- threat-to-privacy/?test=latestnews "Attempts to Protect Privacy Have a Long History." TruthDig, Aug. 22, 2013. http://www.truthdig.com/eartotheground/item/privacy_defenses_on_ the_rise_but_theyve_been_around_20130822/ "Privacy Groups Seek To Scuttle Google's $8.5 Million Data-Leakage Settlement." MediaPost, Aug. 22, 2013. http://www.mediapost.com/publications/article/207420/ "Facial Scanning Is Making Gains in Surveillance." The New York Times, Aug. 21, 2013. http://www.nytimes.com/2013/08/21/us/facial-scanning-is-making- gains-in-surveillance.html?_r=1& "Petition seeks end to NSA's domestic spying." Consumer Affairs, Aug. 19, 2013. http://www.consumeraffairs.com/news/petition-seeks-end-to-nsas- domestic-spying-081913.html "Government surveillance spurs Americans to fight back." The Washington Post, Aug. 14, 2013. http://www.washingtonpost.com/lifestyle/style/government- surveillance-spurs-americans-to-fight-back/2013/08/14/edea430a- 0522-11e3-a07f-49ddc7417125_story.html "In re: Electronic Privacy Information Center." CATO Blog, Aug. 12, 2013. http://www.cato.org/publications/legal-briefs/re-electronic- privacy-information-center For More EPIC in the News: http://epic.org/news/epic_in_news.html ======================================================================== [8] EPIC Book Review: 'The Great Dissent' ======================================================================== "The Great Dissent: How Oliver Wendell Holmes Changed His Mind -- and Changed the History of Free Speech in America," Thomas Healey http://epic.org/redirect/090313-great-dissent-healy.html Not long after the end of the first World War, two Supreme Court justices put in place the foundation of the modern rights of privacy and free expression. One was an architect of Progressive-era reforms and a student of Athenian democracy; the other found no moral purpose in law, stating once that "if my fellow citizens wish to travel to hell, I shall be happy to oblige." So it is all the more remarkable that the stirring dissent in Abrams v. US, the cornerstone of modern First Amendment law, was penned by Justice Oliver Wendell Holmes. As a Civil War veteran, Holmes' defense of the speech of Russian anarchists is at once improbable and the predestined outcome of the esteemed jurist's career. For it was Holmes who instructed that "The life of the law has not been logic; it has been experience," and in this remarkable telling of the events that led up to the Abrams dissent, Seton Hall Law professor Thomas Healey has proven Holmes' famous adage with rich detail, brisk prose, and a sense of humanity befitting both the actors and the outcome. Abrams v. US was a challenge to the Espionage and Sedition Acts that reached the Supreme Court after the end of World War I. The Court recently had upheld convictions of war protesters, including the popular socialist leader Eugene Debs. Holmes, who disfavored such prosecutions, nonetheless found no legal objection to the laws of Congress; in fact, he remarked bluntly on "the right to kill those with whom we disagree." In one of the early protest cases, Holmes wrote an opinion relying on Blackstone's narrow view of free speech. According to the British jurist, government could not prohibit speech prior to publication, but once the words were spoken, criminal prosecution could follow. For a country at war, speech in opposition could well be viewed as seditious. The question the Supreme Court faced was whether the First Amendment to the US Constitution could permit prosecution. Judge Learned Hand, the admired and influential lower court jurist, had set out a "clear and present danger" test to allow prosecution for only the most dangerous speech in an opinion that was later overturned. It was a phrase Holmes would adopt casually in an early case before he considered Abrams. ("Casually" because if Holmes had fully embraced the standard, he likely would have voted to overturn the conviction.) But even more than Hand, Harold Laski, the brilliant young Harvard scholar who had become like a son to Holmes, helped change the old man's views. Laski provided Holmes with books, argument, and the timely flow of articles and opinion from colleagues who Holmes knew and respected. As the reading material made its way to Holmes and the exchange of letters continued, the US was experiencing the upheaval of the post-War era. Anarchist bombs were sent to the homes of prominent politicians and business leaders (one was addressed to Holmes). The labor movement was gaining force. Racism and anti-Semitism were on the rise. The Attorney General and a young agent named J. Edgar Hoover were stepping up their investigations of political dissidents. When Holmes first circulated his unexpected dissent, three of his fellow Justices visited him at home and urged him to withdraw his opinion so that the Court could stand united. Holmes declined. Holmes' powerful and purposeful dissent in Abrams would become one of the most famous documents in American legal history. Recasting the earlier American experience with sedition laws and sidestepping his own prior opinion, Holmes argued for a view of the First Amendment that reflected both the value of free expression and the limitations of human knowledge: ". . . that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." Holmes would go on to write several more dissents in the First Amendment cases that followed. Along with Justice Louis Brandeis, he helped build support for a view of the First Amendment that reflected a country strong enough to fight for its beliefs, but also wise enough to know that ideas worth defending could always withstand criticism. It is a view that has transformed governments, established democracies, and helped place freedom of expression among the core human rights of the modern age. Not all those who contributed to the Abrams moment faired as well in the years that followed. Laski found himself on the receiving end of free speech with a sharp satire in the Harvard Lampoon. He left for England, and joined the London School of Economics. Though he later rose in the ranks of the British Labor Party, his separation from Holmes must have hurt both men. Judge Hand, perhaps embittered that he had not been named to the highest court, wrote the unfortunate 1950 opinion in Dennis v. US, which gave support to Joe McCarthy and those who sought to prosecute dissent. Justice Frankfurter, the great liberal reformer of the Progressive era, had embraced judicial restraint once on the Supreme Court. He affirmed Dennis. It would be more than a decade before the Court restored the "clear and present danger" test, though slightly revised as "imminent lawless" acts. And what of Abrams today? The First Amendment remains a complex field of law. Though the text says simply "Congress shall make no law . . . abridging the freedom of speech, or of the press", the definition of "speech" or the standard by which the Court should review such laws remains in dispute. Still, people in the US remain free to criticize their government, to oppose military intervention even in times of war. A century ago this was not at all obvious. We have Holmes, the Civil War veteran, to thank for our modern-day freedom. -- Marc Rotenberg ====================================== EPIC Bookstore: "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. http://epic.org/bookstore/foia2010/ 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. http://www.epic.org/redirect/aspen_ipl_casebook.html 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. http://www.epic.org/phr06/ 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. http://www.epic.org/bookstore/pvsourcebook 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. http://www.epic.org/bookstore/pls2004/ 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. http://www.epic.org/bookstore/filters2.0 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: http://www.epic.org/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: http://mailman.epic.org/mailman/listinfo/foia_notes ======================================================================= [9] Upcoming Conferences and Events ======================================================================= The Public Voice Conference, Warsaw, Poland, September 2013. For More Information: http://thepublicvoice.org. ======================================================================= Join EPIC on Facebook and Twitter ======================================================================= Join the Electronic Privacy Information Center on Facebook and Twitter: http://facebook.com/epicprivacy http://epic.org/facebook http://twitter.com/epicprivacy 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. We also intend to challenge any subpoena or other legal process seeking access to our mailing list. We do not enhance (link to other databases) our mailing list or require your actual name. In the event you wish to subscribe or unsubscribe your e-mail address from this list, please follow the above instructions under "subscription information." ======================================================================= About EPIC ======================================================================= The Electronic Privacy Information Center is a public interest research center in Washington, DC. It was established in 1994 to focus public attention on emerging privacy issues such as the Clipper Chip, the Digital Telephony proposal, national ID cards, medical record privacy, and the collection and sale of personal information. EPIC publishes the EPIC Alert, pursues Freedom of Information Act litigation, and conducts policy research. For more information, see http://www.epic.org 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: http://www.epic.org/donate 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. Thank you for your support. ======================================================================= Subscription Information ======================================================================= Subscribe/unsubscribe via web interface: http://mailman.epic.org/mailman/listinfo/epic_news Back issues are available at: http://www.epic.org/alert The EPIC Alert displays best in a fixed-width font, such as Courier. ------------------------- END EPIC Alert 20.17------------------------

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