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EPIC Alert 26.23

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1. Supreme Court to Hear Disputes About Release of Trump's Tax Returns

The U.S. Supreme Court announced that it will consider President Trump's appeals to block subpoenas by Congressional committees and the Manhattan District attorney for his financial records, including tax returns.

In October, the D.C. Circuit Court of Appeals ruled that the accounting firm used by President Trump must turn over the President's tax returns and other financial records subpoenaed by the U.S. House. The Court wrote that the Houses's "interests in pursuing their constitutional legislative function is a far more significant public interest than whatever public interest inheres in avoiding the risk of a Chief Executive's distraction arising from disclosure of documents reflecting his private financial transactions."

In November, the Second Circuit Court of Appeals rejected the President's attempt to block a grand jury subpoena for tax records held his by accountants, finding "no support" for the argument "that a President's private and nonā€privileged documents may be absolutely shielded from judicial scrutiny."

Both cases—and a third case involving financial records of the President held by Deutsche Bank—will be argued before the Supreme Court in March 2020. The Court is expected to rule by June.

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

2. Court Orders FTC and Facebook to Reply to EPIC’s Brief

The U.S. District Court for the District of Columbia has ordered both Facebook and the FTC to file responses to EPIC's amicus brief and EPIC's motion to intervene in United States v. Facebook. The case concerns the proposed settlement between the FTC and Facebook for violations of consumer privacy.

In its amicus brief, EPIC argued that "This Court should not adopt the proposed Consent Decree because the parties have not established that it would be fair, adequate, reasonable, appropriate, or consistent with the public interest." EPIC explained that the proposed settlement "largely mirrors the preexisting Consent Order from 2012. There are few new obligations on the company that would limit the collection and use of personal data, nor will there be any significant changes in business practices."

EPIC also noted that the "Commission also seems entirely unconcerned by Facebook's planned integration of the personal data of WhatsApp users even though this would violate representations both firms previously made to the Commission."

Soon after the court ordered the parties to respond to EPIC's arguments, news organizations reported that the FTC may pursue an injunction against Facebook to prevent the integration of WhatsApp and Instagram user data.

When Facebook proposed to acquire WhatsApp in 2014, EPIC filed a complaint with the FTC advising the agency to block the sale unless adequate privacy safeguards were established for WhatsApp user data. The FTC wrote in response that "if the acquisition is completed and WhatsApp fails to honor these promises, both companies could be in violation of Section 5 of the Federal Trade Commission (FTC) Act and, potentially, the FTC's order against Facebook." The European Commission fined Facebook 122 million dollars in 2017 for misleading statements about the integration of the data sets.

Through a Freedom of Information Act Request, EPIC has uncovered more than 29,000 complaints against Facebook currently pending at the FTC.

3. EPIC Petitions Supreme Court in Case Over Census Bureau Privacy Impact Assessments

EPIC has petitioned the U.S. Supreme Court to review the D.C. Circuit decision in EPIC v. Commerce, which denied EPIC the right to obtain privacy impact assessments that the Census Bureau was required to publish before adding the citizenship question to the 2020 Census.

EPIC told the Court that the lower court decision conflicts with earlier Supreme Court opinions, creating obstacles to public access to privacy impact assessments that Congress never intended. EPIC warned the Court that the decision makes the impact assessment provision of the E-Government Act, "which establishes foundational accountability obligations for federal government recordkeeping systems, essentially unenforceable."

EPIC also warned that the lower court's ruling "improperly discounts the injury inherent in being denied access to information that must be published by law. If the lower court ruling is left undisturbed, it could lead courts to reject the Article III standing of plaintiffs to sue under other open government statutes for which federal court jurisdiction has long been available."

Earlier this year, the Supreme Court's decision in Commerce v. New York led to the removal of the citizenship question from the 2020 Census. EPIC filed an amicus brief in support of that outcome.

4. Documents Obtained by EPIC Show Idaho's Use of Subjective Categories in Calculating Risk

In response to EPIC's Public Record Request, the Idaho Department of Correction has released several key documents about its risk assessment instrument, the "Level of Service Inventory-Revised" (LSI-R).

Revealed in an annotated scoresheet that informs the LSI-R's calculation, the Idaho Department of Corrections uses several subjective categories to calculate an offender's purported risk and recidivism rate—including information about the alleged criminality of a defendant's social network, participation in leisurely activity, and mental health.

EPIC also obtained a detailed scoring guide, LSI-R training materials, validation studies, and contract details. Only two validation studies were produced, and they were thirteen years apart.

EPIC has previously obtained documents about pre-trial risk assessments as well as a scoring system developed by the DHS to assign risk assessments to travelers, including US citizens. In EPIC v. DOJ, EPIC obtained records concerning predictive policing and federal agencies' reliance on risk assessment algorithms.

EPIC has long urged government agencies to make transparent algorithmic-based decision making.

5. ICANN Responds Somewhat to Concerns About .ORG

Following widespread protest over the proposed sale of the .ORG domain by the Public Interest Registry to a private equity fund, ICANN posted a response.

In a blog post, the ICANN CEO and Board Chair acknowledged that "PIR must obtain ICANN's prior approval before any transaction that would result in a change of control of the registry operator." ICANN further stated that it sent a letter to both ISOC and PIR, "asking them to please be clear and open in all of their communications."

EPIC President Marc Rotenberg, a founding board member and former chair of PIR, said that the secrecy of the deal was "a failure of process." He told the Financial Times "You can't make decisions about the allocation of internet domain names in the dark."

In a recent commentary for The Hill, Rotenberg wrote that "ICANN should block this sale and if does not, national governments, including the United States, should weigh in. This may be the last opportunity to preserve the internet that many of us still believe in."

Prior to establishing PIR, EPIC launched The Public Voice project to promote civil society participation in decisions concerning the future of the Internet.

EPIC Book Review: ‘Nobody’s Victim’

Nobody's Victim: Fighting Stalkers, Pervs, and Trolls by Carrie Goldberg

In Nobody's Victim, author Carrie Goldberg weaves together her personal narrative and her clients' stories with expert legal analysis to tell a compelling account of what it means to reclaim sexual privacy. Part memoir, part legal manifesto, Nobody's Victim is a guide for those seeking to understand how perpetrators use the internet to abuse (mostly) women and girls.

Goldberg started her law firm to become the lawyer she'd needed when she was in crisis, and it is clear that she is that lawyer for her clients. Those clients include Vanessa, the thirteen-year old whose rape was recorded by a classmate and was suspended after reporting it to her guidance counselor. Goldberg won Vanessa's lawsuit against the city of New York for violating her civil right to an education under Title IX. And there's Francesca, whose ex created imposter accounts to depict her as an anti-Semite and then reported that she planted a bomb at a Jewish community center to law enforcement. He was eventually sentenced to five years in prison, the maximum sentence.

Goldberg cannot always get the relief her clients deserve through the courts. Matthew's ex created fake profiles of him on the dating app Grindr, sending over 1,200 men to his home seeking sex and endangering his physical safety. But both the district and appellate courts held that Section 230 of the Communications Decency Act shielded Grindr from liability for the abuse facilitated by its platform.

These legal barriers have led Goldberg to expand her fight from the courtroom to the legislature. Her experience advocating for clients has convinced her that fighting the perpetrators one by one will not be enough to combat the epidemic of online sexual abuse. Due in large part to Goldberg's advocacy, 45 states now have revenge porn statutes. Still, the bills introduced in Congress have not moved forward.

Despite the horrors detailed in the book and the failures of the legal system to address them adequately, the tone is not despairing. Nobody's Victim will make you angry at the abusers that target victims out of revenge, greed, or a thirst for power and control. But it will also make you angry at the school administrators, internet companies, and lawmakers who continue to fail survivors. Goldberg closes the book with a list of resources to channel this anger into action. She says that "fighting back is a transformative act," and her story makes the reader believe it.

—Christine Bannan

EPIC Holiday Gift Guide

Scratching your head over holiday gift ideas for the privacy buff in your life? Fear not: EPIC has you covered! Here are a few products to help safeguard the privacy and security of you and your loved ones.

1. YubiKey 5 NFC

The YubiKey 5 NFC is billed as "a hardware based authentication solution that provides superior defense against phishing, eliminates account takeovers, and enables compliance requirements for strong authentication."

2. Facial Surveillance-Blocking Sunglasses

Reflectacles' IRpair, Phantom, and Ghost glasses won't ship until April 2020, but consider pre-ordering these face surveillance-blocking sunglasses for a loved one this year.

2. Facial Surveillance-Blocking Jewelry

Face-concealing sunglasses not enough? Not to worry—there's face surveillance-blocking jewelry coming to market soon, too.

4. A Strong, Secure Password

A strong, secure password is something we can all use. Why not gift a password generated by an enterprising New York City tenth grader?

5. Clothes That Trigger License Plate Readers

If your loved one is as tired as we are of creeping police surveillance, head over to Adversarial Fashion to buy them a stylish ALPR Print sweatshirt. Take that, automated license plate readers!

6. Rattlesnake Privacy Poster

Hey, rattlesnakes need their privacy, too.

7. A Privacy Booth

The market for privacy booths keeps growing. This year's hottest entry: the Black PoppinPod Kolo 1.

8. A Good Book on Privacy

Visit the EPIC Bookstore for the best publications on privacy. Find such classics as 1984, Brave New World, The Handmaid's Tale, The Origins of Totalitarianism, and The Trial. All sales support the work of EPIC.

9. GDPR Compliant Wrapping Paper

Need something to wrap one of your excellent purchases from the EPIC Bookstore? We've got just the thing.

10. Contribute to EPIC

Why not give the gift of privacy to a loved one? We'll litigate, advocate, and educate on your behalf. Drop a little coin at epic.org/donate.

News in Brief

Mary Stone Ross Joins EPIC

Mary Stone Ross, former President of Californians for Consumer Privacy, will join the Electronic Privacy Information Center (EPIC) as Associate Director in January 2020. Ross led the most successful privacy campaign in US history gathering 600,000 signatures for a California ballot initiative. That campaign led to enactment of the California Consumer Privacy Act, the most comprehensive consumer privacy law in the United States. The CCPA goes into effect January 1, 2020. EPIC President Marc Rotenberg said, "We are thrilled that Mary is joining EPIC. She brings to EPIC a powerful combination of deep policy expertise, effective grassroots engagement, and concrete legislative results that have benefitted consumers across the country." Press release.

EPIC FOIA - Kavanaugh Drafted White House Speeches on Warrantless Wiretapping

Emails obtained by EPIC in a FOIA lawsuit show that now Justice Kavanaugh, as a top White House advisor, drafted several speeches defending warrantless wiretapping after the New York Times exposed the controversial program in 2005. EPIC has created an index of the email subject lines to illustrate Kavanaugh's role in President Bush's 2006 State of the Union, former Attorney General Gonzales' January 2006 speech at Georgetown Law, and speeches promoting border surveillance. Kavanaugh was particularly involved in revising a paragraph on the NSA program in the 2006 State of the Union. Documents previously obtained by EPIC revealed that Kavanaugh exchanged hundreds of emails with White House and DOJ staff about the NSA surveillance program and gathered legal justifications for the program. Congress ended the controversial program in 2015, following extensive hearings. On the DC Circuit Court of Appeals in 2015, Judge Kavanaugh issued a surprising opinion on surveillance authority. Senator Leahy pursued Kavanaugh's views on surveillance during the Supreme Court nomination hearing.

Facebook Admits to Location Tracking, Ignoring Privacy Settings

Facebook has admitted that it can determine a user's location even after the user has disabled location services. The statement came in response to a letter from Sens. Josh Hawley (R-Mo.) and Chris Coons (D-Del.). Sen. Hawley tweeted: "There is no opting out. No control over your personal information. That's Big Tech. And that's why Congress needs to take action." The FTC's 2011 consent order with Facebook, followed EPIC's 2009 complaint which established that Facebook ignores user privacy settings. EPIC is challenging the proposed 2019 settlement in part because it does not fix the location tracking problem. A federal court has ordered both Facebook and the FTC to file replies to EPIC. In a related matter, an EPIC case required Accuweather to end surreptitious tracking of users.

FTC Fails to Improve Unrollme Settlement

The FTC recently finalized a settlement with Unrollme without making changes, contrary to what EPIC had urged. Unrollme is an email management company that "falsely told consumers that it would not 'touch' their personal emails in order to persuade consumers to provide access to their email accounts." The FTC required the company to delete personal data it had unlawfully obtained. EPIC further advised the FTC to require Unrollme to notify all users of past deceptive practices and to obtain reauthorization from users before using personal data. The FTC declined to adopt EPIC's recommendations. The agency responded to EPIC that "the Commission has now determined that the public interest would best be served by issuing the Complaint and the Decision and Order in the above-entitled proceeding in final form without any modifications." EPIC routinely comments on proposed FTC settlements in accordance with a provision that requires the agency to seek public comment before finalizing any proposed settlements.

EPIC Pursues Release of Location Tracking Orders

EPIC has moved for summary judgment in EPIC v. DOJ, concerning law enforcement's collection of cell site location data through "§ 2703(d) orders." In Carpenter v. United States, the Supreme Court ruled that these searches were unconstitutional. EPIC filed multiple Freedom of Information Act requests to obtain the government orders issued between 2016 and 2019. However, the DOJ claimed that it "does not track" the information EPIC sought and refused to search for records. EPIC explained to the Court that the DOJ has not satisfied its obligations under the FOIA. EPIC also charged that the agency has engaged in "an unlawful pattern and practice" of refusing to search files even when it could do so. EPIC stated that "This unlawful agency practice impacts EPIC and all other requesters who would seek disclosure of records" at the Department of Justice. The case is EPIC v. DOJ, No, 18-1814 (D.D.C.).

EPIC, Coalition Issue Warning About Amazon Ring

EPIC and a coalition of organizations led by Fight for the Future issued a product warning for Amazon Ring devices, the neighborhood surveillance system posing as a doorbell. The Ring devices have been hacked to initiate conversations with children, leaked user WiFi passwords, assisted ICE with deportations, and used in racially discriminatory profiling. Five prominent Senators have demanded that Amazon provide information about Ring's facial recognition techniques. EPIC has recently launched a campaign to Ban Face Surveillance worldwide.

Inspector General's Report Highlights Need for FISA Reforms

The Inspector General's review of FISA applications for the FBI's investigation into Russian interference in the 2016 Presidential Election raises new concerns about the use of the surveillance authority. The Inspector General concluded that the FBI investigation was properly predicated and there was no evidence of political bias or improper motivation. However, the IG Report also detailed significant misrepresentations and errors made in the investigation designated "Crossfire Hurricane." The Report found that "FBI personnel fell far short of the requirement in FBI policy that they ensure that all factual statements in a FISA application are 'scrupulously accurate.'" EPIC has advocated for significant FISA reforms for more than a decade, and recently advised Congress to reform Section 702 of FISA and to sunset Section 215 of the Patriot Act.

New Report Recommends Privacy Law, Data Protection Agency for US

The Transatlantic Consumer Dialogue (TACD) and the Heinrich Boll Stiftung Foundation published a new report on the privacy practices of Amazon, Netflix, and Spotify in the EU and the US. "Privacy in the EU and US: Consumer experiences across three global platforms" revealed that the companies provided less protection to US users, and that none of the companies complied fully with GDPR. The report recommends "baseline federal data protection and privacy law that does not pre-empt stronger state privacy protections and that creates an independent data protection agency." EPIC's recent report on federal privacy legislation Grading on a Curve: Privacy Legislation in the 116th Congress evaluates federal privacy bills. EPIC has called for comprehensive baseline, federal legislation and the creation of a data protection agency.

EPIC Advises FTC to Strengthen the COPPA Rule to Protect Student Privacy

EPIC recently submitted comments to the FTC on the agency's regulatory review of the Children's Online Privacy Protection Act (COPPA) Rules. EPIC said the FTC should : (1) maintain the strong safeguards for children's data, (2) reject the "school official exception", (3) the FTC define the term "commercial purpose" and ensure that children's personal data collected in schools is not transferred to EdTech companies; and (4) the FTC require notification within forty-eights of a data breach of children's data by a company subject to COPPA. EPIC said "the FTC must now establish clear safeguards for children's data gathered in schools." EPIC testified before Congress in 1996 in support of the original children's privacy law. The FTC previously considered EPIC's recommendations in an early review of the COPPA Rule and incorporated several of EPIC's recommendations in the 2013 regulations.

Max Schrems Files GDPR Complaints with French Data Protection Agency

European privacy advocacy group None of Your Business—led by Max Schrems—filed three complaints with the French Data Protection Authority (CNIL). The NOYB complaints charged that companies obtained "fake consent" for online tracking. Max and EPIC have challenged the use of "standard contractual clauses" in a case now before the European Court of Justice, known as "Schrems 2.0". A preliminary decision in that case is expected on December 19. Schrems met with the Privacy Coalition last month in Washington, DC to discuss the GDPR and litigation strategies.

EPIC to Congress: End Section 215 Surveillance Program

In advance of a hearing on the Foreign Intelligence Surveillance Act, EPIC has sent a statement to the Senate Judiciary Committee urging Congress to end the NSA's phone record collection program, known as "Section 215." EPIC wrote "events of the past few years make clear that Section 215 should not be renewed." Section 215 of the Patriot Act allowed the NSA to collect the telephone records of Americans. In 2013, following the Snowden disclosures, EPIC filed a petition with the Supreme Court, challenging the lawfulness of Section 215. Congress found the 215 program was ineffective and passed the USA Freedom Act to limit data collection. NSA has since acknowledged significant compliance problems. The former Director of National Intelligence also confirmed that the program was suspended. Section 215 will sunset unless Congress chooses to reauthorize the program.

EPIC to Congress: Strong Encryption Keeps Our Nation Secure

In advance of a hearing on "Encryption on Lawful Access," EPIC wrote to the Senate Judiciary Committee "now is not the time to undermine the systems that we all rely upon to secure our data and communications." EPIC cited growing problems of data breach and cyber attack. Leading computer scientists and security experts, including members of the EPIC Advisory Board, have found that proposals to add "backdoors" for law enforcement are "unworkable in practice, raise enormous legal and ethical questions, and would undo progress on security at a time when Internet vulnerabilities are causing extreme economic harm." EPIC previously filed an amicus brief in Apple v. FBI in support of robust security safeguards for cellphone users. EPIC argued that the "security features in dispute in this case were adopted to protect consumers from crime." EPIC explained that an order to compel Apple to take extraordinary measures to undo these features places at risk millions of cell phone users across the United States. EPIC President Marc Rotenberg warned of the risk of NSA-mandated backdoors in a 1990 article, "The Only Locksmith in Town."

FTC Announces Non-Penalty in Cambridge Analytica Case

The FTC recently issued a press release about Cambridge Analytica, the company blamed for the Brexit vote that harvested the personal data of 87 m Facebook users for voter profiling and tracking. The misuse of personal data occurred while Facebook was under a consent order and subject to the supervision of the FTC. EPIC urged the FTC to reopen the investigation of Facebook after news of the Cambridge Analytica breach in early 2018. More than 18 months after the scandal broke, the FTC found that Cambridge Analytica, a company now bankrupt, deceived consumers through its data-gathering practices. EPIC previously told Congress that the Cambridge Analytica scandal could have been avoided if the FTC had enforced its own Consent Order.

EPIC Backs Strong Implementation of California Privacy Law

In comments to the California Attorney General on proposed regulations to the California Consumer Privacy Act, EPIC backed provisions that would strength consumer protections and identified topics for future action, such as the creation of data protection agency. EPIC's comments followed from its recent report on federal privacy legislation, Grading on a Curve: Privacy Legislation in the 116th Congress. EPIC has long supported state efforts to establish strong privacy safeguards, and opposed federal preemption. EPIC's State Policy Project provides expertise to the states to help shape effective privacy laws.

EPIC in the News

More EPIC in the News »

EPIC Bookstore

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

Recent EPIC Publications

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

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

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

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

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

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

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

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

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

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

Privacy in the Modern Age: The Search for Solutions, edited by Marc Rotenberg, Julia Horwitz and Jeramie Scott. The New Press (2015). Price: $25.95.

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

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

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

Upcoming Conferences and Events

2020 Aspen Institute Roundtable on Artificial Intelligence. Jan. 12-14, 2020. Santa Barbara, CA. Marc Rotenberg, EPIC President.

EPIC International Champion of Freedom Awards. Jan. 22, 2020. Brussels, Belgium.

CPDP 2020: Data Protection and Artificial Intelligence. Jan. 22–24, 2020. Brussels, Belgium. Marc Rotenberg, EPIC President.

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

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