EPIC v. DHS - FAST Program
- EPIC Files Appeal with D.C. Circuit, Seeks Release of 'Predictive Analytics Report': EPIC has appealed a federal district court decision for the release of a "Predictive Analytics Report." The district court backed the Department of Justice when the agency claimed the "presidential communications privilege." But neither the D.C. Circuit Court of Appeals nor the Supreme Court has ever permitted a federal agency to invoke that privilege in a FOIA case. EPIC sued the agency in 2017 to obtain records about "risk assessment" tools in the criminal justice system. These controversial techniques are used to set bail, determine criminal sentences, and even contribute to determinations about guilt or innocence. EPIC has pursued numerous FOIA cases concerning algorithmic transparency, passenger risk assessment, "future crime" prediction, and proprietary forensic analysis. The D.C. Circuit will likely hear EPIC's appeal next year. (Oct. 12, 2018)
- Court Blocks EPIC's Efforts to Obtain "Predictive Analytics Report": A federal court in the District of Columbia has blocked EPIC's efforts to obtain a secret "Predictive Analytics Report" in a FOIA case against the Department of Justice. The court sided with the agency which had withheld the report and asserted the "Presidential communications privilege." Neither the Supreme Court nor the D.C. Circuit has ever permitted a federal agency to invoke that privilege in a FOIA case. EPIC sued the agency in 2017 to obtain records about "risk assessment" tools in the criminal justice system. These techniques are used to set bail, determine criminal sentences, and even contribute to determinations about guilt or innocence. Many criminal justice experts oppose their use. EPIC has pursued several FOIA cases concerning "algorithmic transparency," passenger risk assessment, "future crime" prediction, and proprietary forensic analysis. The case is EPIC v. DOJ (Aug. 14, 2018 D.D.C.). EPIC is considering an appeal. (Aug. 16, 2018)
- NYC Establishes Algorithm Accountability Task Force: New York City has passed the first bill to examine the discriminatory impacts of "automated decision systems." A task force will develop recommendations for how to make the city's algorithms fairer and more transparent. James Vacca, the bill's sponsor, said "If we're going to be governed by machines and algorithms and data, well, they better be transparent." EPIC supports algorithmic transparency and opposed systemic bias in "risk assessment" tools used in the criminal justice system. EPIC has filed Freedom of Information lawsuits to obtain information about "predictive policing" and "future crime prediction" algorithms. EPIC President Marc Rotenberg has called for laws that mandate algorithmic transparency and prohibit automated decision-making that results in discrimination. (Dec. 21, 2017)
- EPIC FOIA: Justice Department Admits Algorithmic Sentencing Report Doesn't Exist: The Justice Department, in response to an EPIC FOIA lawsuit, has admitted that the United States Sentencing Commission never produced an evaluation of "risk assessment" tools in criminal sentencing. In 2014, Attorney General Eric Holder expressed concern about bias in criminal sentencing "risk assessments" and called on the Sentencing Commission to study the problem and produce a report. But after EPIC requested that study and sued the DOJ to obtain it, the DOJ conceded that the report was never produced. EPIC did obtain emails confirming the existence of a 2014 DOJ report about "predictive policing" algorithms, but the agency also withheld that report. "Risk assessments" are secret techniques used to set bail, to determine criminal sentences, and even make decisions about guilt or innocence. EPIC has pursued several FOIA cases to promote "algorithmic transparency", including cases on passenger risk assessment, "future crime" prediction, and proprietary forensic analysis. (Dec. 15, 2017)
- EPIC FOIA: EPIC Uncovers Report on "Predictive Policing" but DOJ Blocks Release: EPIC has just received new documents in a FOIA case against the Department of Justice, however the agency is refusing to release reports about the use of "risk assessment" tools in the criminal justice system. In 2014, the Attorney General called on the U.S. Sentencing Commission to review the use of "risk assessments" in criminal sentencing, expressing the concern about potential bias. EPIC requested that document and filed suit against the DOJ to obtain it, but the agency failed to release the report by a court-ordered deadline. EPIC did obtain emails confirming the existence of a 2014 DOJ report about "predictive policing" algorithms, but the agency also withheld that report. "Risk assessments" are secret techniques used to set bail, to determine criminal sentences, and even decide guilt or innocence. EPIC has pursued several FOIA cases to promote algorithmic transparency, including cases on passenger risk assessment, "future crime" prediction, and proprietary forensic analysis. (Nov. 1, 2017)
- Supreme Court Won't Review Ruling on Secretive Sentencing Algorithms: The Supreme Court has declined to review the ruling of a state court that upheld the use of a secret algorithm to determine a criminal sentence. The petitioner Loomis argued that he was not able to assess the fairness or accuracy of the legal judgement, and that the secret "risk assessment" algorithm therefore violated fundamental Due Process right. EPIC has pursued several related cases to establish the principle of algorithmic transparency in the United States. In EPIC v. DHS, EPIC obtained documents about secret behavioral algorithms that purportedly determine an individual's likelihood of committing a crime. In a series of state FOI cases, EPIC obtained records from state agencies about the use of propriety DNA analysis tools to determine guilt or innocence. EPIC is currently litigating EPIC v. CBP before the DC Circuit Court of Appeals, a case concerning the secret scoring of airline passengers by the federal government. (Jun. 26, 2017)
- EPIC Sues Justice Department Over "Risk Assessment" Techniques: EPIC has filed a FOIA lawsuit against the Department of Justice for information about the use of "risk assessment" tools in the criminal justice system. These proprietary techniques are used to set bail, determine criminal sentences, and even contribute to determinations about guilt or innocence. Many criminal justice experts oppose their use. EPIC has pursued several FOIA cases to promote "algorithmic transparency." The EPIC cases include passenger risk assessment, "future crime" prediction, and proprietary forensic analysis. The Supreme Court is now considering whether to take a case on the use of a secretive technique to predict possible recidivism. (Mar. 7, 2017)
- EPIC Pursues FOIA Requests at DHS Concerning Aerial Surveillance, Social Media Monitoring, and ID Theft: EPIC has submitted an urgent FOIA request to the Department of Homeland Security about aerial surveillance, social media monitoring and ID theft following statements made by DHS Secretary John Kelly in a Congressional hearing on Homeland Security. The Secretary described plans to expand the use of "aerostats" (surveillance blimps) and monitoring of social media. The Secretary also stated that he has been a victim of data breach. The EPIC FOIA request follows earlier cases brought by EPIC which revealed efforts by the DHS to expand aerial surveillance within the United States, develop techniques for "pre-crime" detection, interrupt Internet service, as well as the impermissible monitoring of social media services and news organizations. (Feb. 8, 2017)
- Department of Homeland Security Releases Revised Privacy Impact Assessments: The Privacy Office of DHS has released several revised Privacy Impact Assessments for various DHS programs. These reports analyze the privacy risks of federal government systems. Last year, EPIC FOIA requests regarding a Minority Report-like program called "FAST" found that the DHS had failed to adequately assess privacy risks. According to the agency, the "Future Attribute Screening Technology" program assesses "physiological and behavioral signals" to determine the probability that an individual might commit a crime. For more information, see: EPIC: Future Attribute Screening Technology (FAST) Project FOIA Request. To order the movie Minority Report from Amazon and support EPIC, click here. (Mar. 23, 2012)
- Documents Obtained by EPIC Reveal Government's "Minority Report" Scanning Program: Through a Freedom of Information Act request, EPIC has obtained documents from the Department of Homeland Security about a secretive "pre-crime" detection program. The "Future Attribute Screening Technology" (FAST) Program gathers "physiological measurements" from subjects, including heart rate, breathing patterns, and thermal activity, to determine "malintent." According to the documents obtained by EPIC, the agency is considering the use of the device at conventions and sporting events, and has already conducted field testing. CNET first reported on the EPIC FOIA request. For more information, see: EPIC: Future Attribute Screening Technology Project. (Oct. 7, 2011)
EPIC filed three Freedom of Information Act (FOIA) requests with the United States Department of Homeland Security's Science & Technology Directorate (S&T) to obtain information about the agency's public testing of a new sensor array used to conduct covert surveillance of individuals who are not suspected of any crime. The sensors secretly collect and record information concerning individuals, including video images, audio recordings, cardiovascular signals, pheromones, electrodermal activity, and respiratory measurements. From EPIC's first FOIA request filed in June 2011, EPIC received several responsive documents, including emails, contracts, and program descriptions.
EPIC also filed a second, follow-up request in August 2011 and obtained a "Privacy Threshold Analysis" that was referenced in the first set of documents.
More recently, EPIC filed a third FOIA request in October 2014 after new contracting activity began related to the FAST Program.
According to documents published by the Department of Homeland Security, FAST is a "Minority Report" style initiative that seeks to determining the probability that an individual, who is not suspected of any crime, might commit a future criminal act. Under the FAST program, the DHS will collect and retain of a mix of "physiological and behavioral signals" from individuals as they engage in daily activities.
FAST is funded by S&T's Homeland Security Advanced Research Projects Agency, and is managed by S&T's Human Factors Behavior Sciences Division. FAST is designed to allow the agency capture biological and behavioral information from subjects. According to a 2008 Privacy Impact Assessment prepared by the agency, the DHS intends to monitor and collect data including "video images, audio recordings, cardiovascular signals, pheromones, electrodermal activity, and respiratory measurements."
News reports state that DHS tested the FAST Project in a public space in early 2011. DHS spokesman John Verrico acknowledged the test. DHS refused to make public the test results. DHS has not provided the location or duration of the test, but has stated that field-testing occurred in the "northeast" and in a "large venue that is a suitable substitute for an operational setting" (but not an airport). The laboratory testing was scrutinized by a 2008 DHS Privacy Impact Assessment (PIA). An Institutional Review Board oversaw testing methodology. The unannounced field test, however, has not been subject to review and DHS failed to perform a new PIA.
In 2011, EPIC filed two FOIA requests regarding the FAST Program and received several responsive documents detailing the scope of the technology, DHS's plans for public testing, and the agency's failure to adequately address privacy risks.
EPIC's First FOIA Request
Documents Produced in Response to First Request
- DHS FAST Contract and Statement of Work
- DHS FAST Technical Requirements
- DHS FAST Project Presentation
- DHS FAST Test-Site Installation
EPIC's Second FOIA Request
Documents Produced in Response to Second Request
EPIC filed a third FOIA request in 2014 after noticing new contracting activity relating to the FAST Program. EPIC requested four categories of documents: (1) all requests for proposals, contracts, grant allocations, and statements of work for performing field testing; (2) technical specifications for data retention from sensors deployed in field testing; (3) recordings of any testing of FAST technologies since 2011; and (4) all documents related to future field testing. After the DHS failed to respond to the FOIA request, EPIC filed a lawsuit against agency in order to obtain the documents requested.
EPIC's Third FOIA Request
- EPIC FOIA Request (Oct. 20, 2014)
- DHS Acknowledgment (Mar. 16, 2015)
- TSA Acknowledgment (Mar. 23, 2015)
- DHS Final Response (May 11, 2015)
Documents Produced in Response to Third Request
- EPIC's Complaint against DHS (February 26, 2015)
- DHS's Answer (April 6, 2015)
- DHS's Answer (April 6, 2015)
- Joint Status Report (May 6, 2015)
- Court Production Order (May 7, 2015)
- Joint Status Report (May 28, 2015)
- Joint Status Report (June 29, 2015)
- Joint Status Report (July 20, 2015)
- Joint Status Report (August 5, 2015)
- Eko Armunanto, FAST: a machine to detect people who will soon break the law, Digital Journal, Apr. 2, 2013.
- Alexander Furnas, Homeland Security's 'Pre-Crime' Screening Will Never Work, Slate, Apr. 17, 2012.
- Declan McCullagh, Real Life Minority Report Program Gets a Tryout, CBS News, Oct. 7, 2011.
- Declan McCullagh, Homeland Security Moves Forward with 'Pre-crime' Detection, CNet News, Oct. 7, 2011.
- Jim Coyle, We all lie. Will that help catch terrorists?, Toronto Star, July 8, 2011.
- Darlene Storm, Homeland Security testing mind-reading terrorist 'pre-crime' detectors, Computer World, June 1, 2011.
- Sharon Weinberger, Terrorist 'pre-crime' detector field tested in United States, Nature News, May 27, 2011.
- Pam Benson, Will Airports Screen for Body Signals? Researchers Hope SoCNN, Oct. 7, 2009.
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