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EPIC Alert 17.22

======================================================================= E P I C A l e r t ======================================================================= Volume 17.22 November 9, 2010 ----------------------------------------------------------------------- Published by the Electronic Privacy Information Center (EPIC) Washington, D.C. "Defend Privacy. Support EPIC." ======================================================================= Table of Contents ======================================================================= [1] In Opening Brief, EPIC Urges Court to Suspend Body Scanner Program [2] Public Voice Hosts Civil Society Privacy Conference in Jerusalem [3] EPIC Urges Support for Comprehensive Data Protection Framework [4] FTC Closes Non-investigation of Google Street View [5] EPIC Releases 2010 E-Deceptive Campaign Practices Report [6] News in Brief [7] EPIC Book Review: "The Great Decision" [8] Upcoming Conferences and Events TAKE ACTION: Stop Airport Strip Searches! - JOIN Facebook Group "Stop Airport Strip Searches" and INVITE Friends - DISPLAY the IMAGE - SUPPORT EPIC ======================================================================= [1] In Opening Brief, EPIC Urges Court to Suspend Body Scanner Program ======================================================================= EPIC has filed the opening brief in EPIC v. DHS, No, 10-1157, a case that challenges the unilateral decision of the TSA to make body scanners the primary screening technique in U.S. airports. Three frequent air travelers are joining EPIC in the lawsuit: security expert Bruce Schneier, human rights activist Chip Pitts, and the Council on American-Islamic Relations legal counsel Nadhira Al-Khalili. The Petitioners are seeking the suspension of the body scanner program. The opening brief alleges violations of several federal statutes, including the Administrative Procedure Act, the Privacy Act, the Video Voyeurism Prevention Act, the Religious Freedom Restoration Act. EPIC also asserts that the program violates the Fourth Amendment, as the body scanners are highly invasive and are applied to all air travelers without any regard to suspicion. In its brief, EPIC argues that the Department of Homeland Security "has initiated the most sweeping, the most invasive, and the most unaccountable suspicionless search of American travelers in history." EPIC further argues that the Transportation Security Administration "must comply with relevant law, and it must not be permitted to engage in such a fundamental change in agency practice without providing the public the opportunity to express its views." Consumer advocate Ralph Nader expressed his support, saying, “The EPIC lawsuit challenging the TSA full body scanner program should sound alarms for Airlines.” Nader cautioned Airline CEOs “to pay more attention to the growing passenger complaints regarding the ineffectiveness, privacy-invading and safety risks of these machines.” Nader added, “the airlines are sure to lose passengers on trips under 500 miles if the use of these devices continues.” Libertarian Party Chair Mark Hinkle offered his support, "The TSA should end the strip-search machine program immediately. We've reached a point where our government has no qualms about humiliating us." Mr. Hinkle expressed support for the EPIC lawsuit aimed at suspending the body scanner program. Mr. Hinkle further said, "We encourage Americans to call their newly-elected members of Congress and tell them that they don't want this expensive, worthless, intrusive, unconstitutional program." EPIC v. DHS, No, 10-1157 EPIC: EPIC v. DHS (Suspension of Body Scanner Program) EPIC: Whole Body Imaging Technology EPIC v. DHS (Freedom of Information Act) ======================================================================= [2] Public Voice Hosts Civil Society Privacy Conference in Jerusalem ======================================================================= On October 25, 2010 the Public Voice hosted, "Next Generation Privacy Challenges and Opportunities" in Jerusalem, Israel. This event was held in conjunction with the 32nd International Conference of Data Protection and Privacy Commissioners from Oct. 27-29th in Jerusalem. Following the Public Voice event, the Organization for Economic Cooperation and Development held a symposium to celebrate the 30th anniversary of the OECD Privacy Guidelines. The conference in Jerusalem reviewed progress on the Madrid Declaration and examined topics such as airport full body scanners, biometric identity systems, and the establishment of international frameworks for privacy protection. The conference was co-sponsored by the Israeli Law, Information, and Technology Authority. Civil Society representatives from 20 countries participated, including the Palestinian Peace Society, Association for Civil Rights in Israel, Consumers Korea, Interfaith Encounter, Privacy International, Electronic Frontier Foundation, and the Australian Privacy Foundation. Leading privacy officials from Canada, Mexico, Spain, the European Union, and the European Parliament also participated. Lillie Coney, Associate Director of The Electronic Privacy Information Center, chaired the event. EPIC established the Public Voice Coalition was established in 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 project seeks to increase the presence of Non-Governmental Organizations at meetings across the globe. In cooperation with the OECD, UNESCO, and other international organizations, the Public Voice 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, Ottawa, Paris, Washington, and Wroclaw. Public Voice Public Voice Jerusalem Conference 32nd Int'l Conference of Data Protection and Privacy Commissioners OECD Symposium ======================================================================= [3] EPIC Urges Support for Comprehensive Data Protection Framework ======================================================================= Appearing before the European Parliament in Brussels, EPIC President Marc Rotenberg urged the adoption of a comprehensive framework to protect the flow of personal data between the United States and the European Union. Citing the growing concern about the misuse of sensitive data and the absence of effective legal remedies, Mr. Rotenberg said it was time for the U.S. and the EU to develop an effective legal framework that would safeguard the rights of citizens and the users of Internet-based services. EPIC has previously supported the Madrid Privacy Declaration and the Council of Europe Privacy Convention as good models for international privacy frameworks. In the Madrid Privacy Declaration, civil society groups pressed countries that have not yet ratified the Council of Europe Convention to do so because “privacy is a fundamental human right…[and] in the 21st century, it may become one of the most critical human rights of all.” The Madrid Privacy Declaration reminds the European Union member countries and Organization for Economic Co-operation and Development member countries of their obligations to protect the civil rights of their citizens under national constitutions and laws. The Declaration urges countries to develop means of properly implementing and enforcing legal frameworks that take full account of new surveillance practices and ensure that individuals are notified after a data breach has occurred. The Declaration recommends further research into the effectiveness of data anonymous techniques. In past comments to the Council of Europe Privacy Convention, EPIC urged the strengthening of legal protection of individuals with regard to automatic processing of personal information in the context of profiling. EPIC has both recommended the adoption of privacy-enhancing technologies to protect individuals and advised the Committee to adopt legal frameworks that will ensure individuals are able to freely exchange information without risk that improper profiles will be established. EPIC also advised the Committee to guard against the unauthorized disclosure or misuse of information, and to protect the data, hardware and software against physical hazards. European Parliament Marc Rotenberg, Testimony in European Parliament (October 26, 2010) The Madrid Privacy Declaration, November 3, 2009 EPIC: Comments to the Council of Europe (June 1-4, 2010) ======================================================================= [4] FTC Closes Non-investigation of Google Street View ======================================================================= The Federal Trade Commission has sent a letter to Google, ending an investigation that never began. In a letter to Google's law firm, David Vladeck, director of the Bureau of Consumer Protection at the FTC, explained that while he has "concerns" about Google's "internal review process," the agency is satisfied by steps Google has taken and "assurances" Google has made to the agency. EPIC has requested documents from the FTC under the Freedom of Information Act to determine the scope of inquiry and the reason it was ended. In May, the Federal Trade Commission was asked by members of Congress to investigate Google's secretive collection of Wi-Fi data as part of Street View, a mapping program characterized by the collection of digital imagery. In the letter, the Representatives asked the FTC whether Google's actions "form the basis of an unfair or deceptive act or practice that constitutes harm to consumers" and whether Google's actions are "illegal under federal law." No response by the FTC to this letter can be found on the Congressmen's website. In addition, the Federal Trade Commission never pursued an independent investigation of Street View, examined the data collected by Google in the United States, or even acknowledged the findings of other agencies. In a letter to the FCC, EPIC further explained that Google's conduct likely violated federal wiretap laws and the U.S. Communications Act, and urged the FCC to investigate. The FCC has not done so thus far. Several countries have investigated Google's Wi-Fi data collection and issued findings that Google violated their laws, including the U.K, Germany, Spain, and Canada. Other countries, such as France and Italy, are still investigating. Additionally, Connecticut Attorney General Richard Blumenthal announced that 38 states and the District of Columbia are seeking additional information about Google's collection of Wi-Fi data from private, residential computer networks. Following these investigations, Google was forced to admit that it had been collecting Wi-Fi data for three years, and that it had collected full emails, passwords, and URLs. Google has ceased the collection of Wi-Fi data by its Street View cars. FTC: Letter to Google (October 27, 2010) Letter from Markey and Barton to FTC (May 19, 2010) EPIC: Letter to FCC (May 21, 2010) Connecticut Attorney General Announcement EPIC: Google Street View Google: Street View ======================================================================= [5] EPIC Releases 2010 E-Deceptive Campaign Practices Report ======================================================================= EPIC has released the 2010 update to "E-Deceptive Campaign Practices Report: Technology & Democracy 2.0",f irst published in 2008. The report reviews the potential for abuse of Internet-based technology in the election context and recommends steps that should be taken by Election Administrators, voters, and those involved in Election Protection efforts to guard against those abuses. Deceptive campaigns are attempts to misdirect targeted voters regarding the voting process for public elections. Historically, deceptive campaign practices have been aimed at reducing voter participation among low-income, minority, young, disabled, and elderly voters. Examples of deceptive election practices can include false statements about polling times, date of the election, voter identification rules, or the eligibility requirements for voters who wish to cast a ballot. E-Deceptive campaign practices involve the manipulation or deployment of Internet-based technologies, such as search engine results, VoIP (Voice over Internet Protocol), and online behavioral targeting, to discourage voter participation. Each section of the report addresses how a particular Internet based technology can be abused and provides recommendations for defending against that abuse. The report also provides contact information for voters to determine the rules governing voting requirements in their states as well as to report instances of voter suppression. In 2010, millions of new voters are engaging in the voting process through the Internet, increasing the potential for incidents of e-deceptive campaign tactics. The use of new technology for deceptive campaign tactics significantly increases the number of potential victims. Further, the ability to identify a deceptive campaign may be more difficult because of the very nature of Internet communications and social networking services. The best defense against these tactics is to be prepared with accurate information about election participation and be able to deliver it to those who need it. E-Deceptive Campaign Practices Report: Technology & Democracy 2.0 EPIC: Voting ======================================================================= [6] News In Brief ======================================================================= EPIC Releases Litigation Under the Federal Open Government Laws 2010 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 fully updated 2010 volume is the 25th edition of the manual that lawyers, journalists and researchers have relied on for more than 25 years. Litigation Under the Federal Open Government Laws is published by EPIC in cooperation with Access Reports and the James Madison Project. The book draws upon the expertise of practicing attorneys who are recognized experts in the field. The publication features a foreword by Senator Patrick Leahy and has been endorsed by the Federation of American Scientists' Steve Aftergood. Electronic Privacy Information Center Cornell University Law School: Freedom of Information Act EPIC: FOIA 2010 EPIC Receives Department of Energy Smart Grid Documents EPIC has received documents from the Department of Energy in response to a Freedom of Information Act Request regarding documents that relate to the Department's Smart Grid Investment Grant Program. The Program intended to accelerate the country's transition to a modern electric transmission and distribution system by promoting investment in smart grid technology. The Program seeks to accomplish this goal through competitive grants, whereby the Department will provide up to 50% of the cost for new projects implementing the smart grid. As part of the grant process, the Department required applicants to submit a Project Plan describing how the project would address cybersecurity concerns. EPIC received the evaluation criteria used by the Department to assess these cybersecurity plans, as well as the actual plans themselves from grant applicants. Smart Grid Investment Grant Program Announcement EPIC: Smart Grid FOIA Request EPIC: Smart Grid China Census Fends With Population's Rising Sense of Privacy The Chinese government is facing popular resistance after dispatching six million census workers to track economic, geographic, and demographic changes in its domestic population. The census will focus on detailing the number of migrant workers and pinning down families who have violated the government's one-child law. Multiple press sources report a growing sense of privacy in the ranks of average Chinese citizens, which is leading individuals to refuse to cooperate with census workers. In order to ease anxiety about government incursions into the citizenry's private matters, the government claims that it will reduce the fine for violators of the controversial policy, and this year's census will not document taxable income. EPIC Privacy and Human Rights Report EPIC: The Census and Privacy EPIC: International Privacy Standards EPIC: Privacy and the 2008 Olympic Summer Games Resources National Bureau of Statistics of China Information Commissioner Finds Google Violated UK Privacy Laws British officials announced that Google violated UK data protection laws when the company's Street View cars collected Wi-Fi data from private wireless networks. In lieu of a fine, Google UK will undergo an audit and must sign a commitment to ensure that data protection breaches do not happen again. UK Information Commissioner stated, "the collection of this information was not fair or lawful and constitutes a significant breach of the first principle of the Data Protection Act." EPIC is requesting documents from the US Federal Trade Commission under the Freedom of Information Act to determine why the agency ended the US inquiry into Google Street View, even after members of Congress urged a comprehensive investigation. Information Commissioner's Office: Press Release FTC: Letter to Google EPIC: Street View Letter from Markey and Barton to FTC (May 19, 2010) EPIC Joins Debate on CALEA 2.0 in Harvard Security Journal EPIC President Marc Rotenberg participated in the Harvard National Security Journal forum on "Concerns about Wiretapping the Internet." The discussion addresed security and privacy issues regarding the proposed Internet monitoring legislation. Other participants included Susan Landau, a fellow at the Radcliffe Institute for Advanced Study at Harvard University and a former Sun Distinguished Engineer, and John Palfrey, Henry N. Ess Professor of Law and Vice Dean for Library and Information Resources at Harvard Law School, as well as the faculty co-director of the Berkman Center for Internet & Society at Harvard University. EPIC is pursuing a FOIA request for the details of the proposal. NSJ Forum: Concerns about Wiretapping the Internet Marc Rotenberg, "Surveillance Over Security - The Risk of a Wiretap Friendly Internet" ======================================================================= [7] EPIC Book Review: "The Great Decision" ======================================================================= "The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court," Cliff Sloan, David McKean Cliff Sloan and David McKean's new book, The Great Decision, delivers a compelling depiction of the ambitious rivalries driving the pre-eminent power players who influenced and decided the 1803 case Marbury v. Madison. The authors give modern policy wonks a unique opportunity to relate to previous generations of Americans struggling to prioritize the long-term stability of their country over the myopic, partisan rhetoric of the moment. In Marbury, which established the judiciary's prerogative to overturn legislation, the Supreme Court answered one of the most fundamental structural questions posed by democratic governance: what result when the democratically controlled branches contradict the Constitution? The right result in 1803, as now, was that the Constitution prevails. The Great Decision draws out the difficulty in reaching this result, partially due to a din of boundary-blurring civic discourse. The partisan clamor it describes resembles today's talk show squabbles about interventionist judges and public sector bureaucrats. What's worse is that chief among the ideologues repulsed by the Court's decision to hear the case was an office holder and the Defendant: Secretary of State James Madison, who went so far as to instruct Attorney General Levi Lincoln not even to file or argue in his defense. Sloan and McKean's portrayal of Chief Justice Marshall's crafty response illustrates that judging is both a legal craft and an ongoing campaign. Marshall was a savvy, if jovial, political figure interested in developing the Court's authority and stature: he knew that the Court's strength was its objectivity - its capacity to transcend political slogans and instead delve into explorations of the country's fundamental principles and values. Marshall used this to his great advantage in drafting the final opinion in Marbury. He sharply rebutted and then dismissed warnings from the Jefferson White House not to "intermeddle" in executive affairs. As Marshall put it, "The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have discretion." In our country's finest moments, this universal proposition has been shown to withstand the test of time. By weaving through a great number of important debates at the turn of the 18th century, The Great Decision ultimately melds keen historical insight with a forceful defense of the American system of checks and balances. The take home is two fold: first, the judiciary's proper role is to maintain the rule of law. Second, the storied lineage of Justices making subtle, incremental, yet productive efforts to protect that role deserves our respect and admiration. -- Conor Kennedy ================================ EPIC Publications: "Litigation Under the Federal Open Government Laws 2010," edited by Harry A. Hammitt, Ginger McCall, Marc Rotenberg, John A. Verdi, and Mark S. Zaid (EPIC 2010). Price: $75. "The EPIC FOIA litigation manual will help ensure that those who are pursuing open government requests understand their rights, and the best strategies to pursue their requests." - Senator Patrick Leahy "Deserves a place in the library of everyone who is involved in, or thinking about, litigation under the Freedom of Information Act." - Steve Aftergood, Federation of American Scientists 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 fully updated 2010 volume is the 25th edition of the manual that lawyers, journalists and researchers have relied on for more than 25 years. Litigation Under the Federal Open Government Laws is published by EPIC in cooperation with Access Reports and the James Madison Project. The book draws upon the expertise of practicing attorneys who are recognized experts in the field. For those who litigate open government cases, or need to learn how to litigate them, this is an essential reference manual. You can purchase EPIC's 2010 FOIA Manual through Amazon. ================================ "Information Privacy Law: Cases and Materials, Second Edition" Daniel J. Solove, Marc Rotenberg, and Paul Schwartz. (Aspen 2005). Price: $98. This clear, comprehensive introduction to the field of information privacy law allows instructors to enliven their teaching of fundamental concepts by addressing both enduring and emerging controversies. The Second Edition addresses numerous rapidly developing areas of privacy law, including: identity theft, government data mining and electronic surveillance law, the Foreign Intelligence Surveillance Act, intelligence sharing, RFID tags, GPS, spyware, web bugs, and more. Information Privacy Law, Second Edition, builds a cohesive foundation for an exciting course in this rapidly evolving area of law. ================================ "Privacy & Human Rights 2006: An International Survey of Privacy Laws and Developments" (EPIC 2007). Price: $75. This annual report by EPIC and Privacy International provides an overview of key privacy topics and reviews the state of privacy in over 75 countries around the world. The report outlines legal protections, new challenges, and important issues and events relating to privacy. Privacy & Human Rights 2006 is the most comprehensive report on privacy and data protection ever published. ================================ "The Public Voice WSIS Sourcebook: Perspectives on the World Summit on the Information Society" (EPIC 2004). Price: $40. This resource promotes a dialogue on the issues, the outcomes, and the process of the World Summit on the Information Society (WSIS). This reference guide provides the official UN documents, regional and issue-oriented perspectives, and recommendations and proposals for future action, as well as a useful list of resources and contacts for individuals and organizations that wish to become more involved in the WSIS process. ================================ "The Privacy Law Sourcebook 2004: United States Law, International Law, and Recent Developments," Marc Rotenberg, editor (EPIC 2005). Price: $40. The Privacy Law Sourcebook, which has been called the "Physician's Desk Reference" of the privacy world, is the leading resource for students, attorneys, researchers, and journalists interested in pursuing privacy law in the United States and around the world. It includes the full texts of major privacy laws and directives such as the Fair Credit Reporting Act, the Privacy Act, and the OECD Privacy Guidelines, as well as an up-to-date section on recent developments. New materials include the APEC Privacy Framework, the Video Voyeurism Prevention Act, and the CAN-SPAM Act. ================================ "Filters and Freedom 2.0: Free Speech Perspectives on Internet Content Controls" (EPIC 2001). Price: $20. A collection of essays, studies, and critiques of Internet content filtering. These papers are instrumental in explaining why filtering threatens free expression. ================================ EPIC publications and other books on privacy, open government, free expression, crypto and governance can be ordered at: EPIC Bookstore ================================ EPIC also publishes EPIC FOIA Notes, which provides brief summaries of interesting documents obtained from government agencies under the Freedom of Information Act. Subscribe to EPIC FOIA Notes at: ======================================================================= [8] Upcoming Conferences and Events ======================================================================= "2010 Administrative Law Conference." American Bar Association, Capital Hilton, Washington D.C., 4-5 November 2010. For More Information: "Broadband Networks and Smart Grid at the Crossroad Between ICT & Energy." Columbia Business School, New York, New York, 3 December 2010. For More Information: "Computers, Privacy, and Data Protection Conference European Data Protection: In Good Health?" Brussels, Belgium, 25-28 January 2011. For More Information: "The Tenth Workshop on Economics of Information Security." The George Mason University, 14-15 June 2011. For More Information: "Computers, Freedom, and Privacy 2011." Georgetown Law Center, Washington D.C., 14-16 June 2011. For More Information: ======================================================================= Join EPIC on Facebook ======================================================================= Join the Electronic Privacy Information Center on Facebook 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 or write EPIC, 1718 Connecticut Ave., NW, Suite 200, Washington, DC 20009. +1 202 483 1140 (tel), +1 202 483 1248 (fax). ======================================================================= Donate to EPIC ======================================================================= If you'd like to support the work of the Electronic Privacy Information Center, contributions are welcome and fully tax-deductible. Checks should be made out to "EPIC" and sent to 1718 Connecticut Ave., NW, Suite 200, Washington, DC 20009. Or you can contribute online at: Your contributions will help support Freedom of Information Act and First Amendment litigation, strong and effective advocacy for the right of privacy and efforts to oppose government regulation of encryption and expanding wiretapping powers. Thank you for your support. ======================================================================= Subscription Information ======================================================================= Subscribe/unsubscribe via web interface: Back issues are available at: The EPIC Alert displays best in a fixed-width font, such as Courier. ------------------------- END EPIC Alert 17.22 ------------------------

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