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EPIC Alert 15.22 [2008] EPICAlert 22 (11 November 2008)


E P I C A l e r t


Volume 15.22 November 11, 2008
Published by the
Electronic Privacy Information Center (EPIC)
Washington, D.C.

http://www.epic.org/alert/EPIC_Alert_15.22.html


Table of Contents
[1] Privacy '08: Election of Barack Obama to Be the 44th President
[2] In EPIC lawsuit, Federal Judge to Review Warrantless Wiretap Memos
[3] Federal Regulators Delay Implementation of Final Rules on ID Theft
[4] United States Supreme Court agrees to hear DNA case
[5] Google, Yahoo Drop Deal After Antitrust Review
[6] News in Brief
[7] EPIC Bookstore: "The Supreme Court"
[8] Upcoming Conferences and Events - Subscription Information - Privacy Policy - About EPIC - Donate to EPIC http://www.epic.org/donate - Support Privacy '08 http://www.privacy08.org - Job Announcement


[1] Privacy '08: Election of Barack Obama to Be the 44th President

On January 20, 2009, President Elect Obama will become the 44th President of the United States. Throughout his campaign for the presidency, Senator Obama addressed the issues of privacy, Executive Authority, and data protection beginning with the release of his technology policy's position paper for his campaign in November 2007. The technology policy position paper said, "Safeguard our Right to Privacy: The open information platforms of the 21st century can also tempt institutions to violate the privacy of citizens. As president, Barack Obama will strengthen privacy protections for the digital age and will harness the power of technology to hold government and business accountable for violations of personal privacy."

In December 2007, Senator Obama, responded to a Boston Globe presidential candidate survey on presidential power. The survey included a question on whether the president has inherent powers under the Constitution to conduct surveillance for national security purposes without judicial warrants. Senator Obama's reply rejected the assertion that the President has the power by stating "The Supreme Court has never held that the president has such powers. As president, I will follow existing law, and when it comes to U.S. citizens and residents, I will only authorize surveillance for national security purposes consistent with FISA and other federal statutes." The survey asked a question about presidential discretion, "Does the Constitution empower the president to disregard a congressional statute limiting the deployment of troops...?" Senator Obama responded that "No, the President does not have that power."

In March 2008, it was disclosed that a State Department employee repeatedly breached the passport files of Senators Clinton, McCain, and Senator Obama. In response, Senator Obama spoke forcefully about the privacy rights of data subjects and said that the matter should be investigated "diligently and openly." He spoke of the need of the American people to be secure in the belief that their records with government agencies are kept private by saying, "One of the things that the American people count on in their interactions with any level of government is that if they have to disclose personal information, that it will stay personal and stay private." Senator Obama also called for the full participation of Congressional Oversight Committees in the investigation, "I think that it should be done in conjunction with those Congressional Committees that have oversight so that it is not simply an internal matter. It is not because I have any particular concern... but because we should have a set clear principles for people having confidence that when they give information to their government, that it is not going to be misused."

Senator Obama also spoke in support of medical and family privacy when confronted by reporters for comment following the disclosure that Governor Palin's unwed teenage daughter was pregnant, by saying "Let me be as clear as possible. I think people's families are off- limits, and people's children are especially off-limits. This shouldn't be part of our politics. It has no relevance to Gov. Palin's performance as governor or her potential performance as a vice president." He ended his comments by saying, "My mother was eighteen when she had me."

President-elect Obama, a former Constitutional law professor, in the final debate prior to the election, expressed his position that the "Constitution has a right to privacy in it that should not be subject to state referenda."

Privacy emerged in other ways during the campaign, for example, following her nomination, Governor Palin's personal e-mail account was accessed by online snoopers. When accused of breaching local and state government records related to a plumber repeatedly referenced by Senator McCain during the final debate, Senate Obama said, "Invasions of privacy should not be tolerated. If these records were accessed inappropriately, it had nothing to do with our campaign and should be investigated fully."

EPIC's Privacy '08 campaign enters the transition phase in preparation for the next Administration. The campaign was successful in engaging candidates in discussions related to privacy policy and the next administration. The focus of the project now shifts to administration transition and federal government institution reform.

Candidate Obama Statement on Technology http://www.barackobama.com/issues/technology/

Obama's Replies to Boston Globe Survey on Executive Authority http://epic.org/redirect/110708_Obama_Boston_Globe.html

EPIC Alert 15.07 passport breach of State Department Records: http://epic.org/alert/EPIC_Alert_15.07.html

Obama's Response to Data Breach: http://epic.org/redirect/110708_Obama_CNN_Passport.html

Obama on Constitutional Right to Privacy: http://epic.org/redirect/110708_Obama_CNN_DebatePrivacy.html

Obama on family privacy: http://epic.org/redirect/110708_Obama_CNN_FamilyPrivacy.html

Joe the Plumber Data Breaches: http://epic.org/redirect/110708_Obama_JoePlumber_DataBrch.html

Privacy '08 Facebook Cause: http://www.epic.org/redirect/fbprivacy08.html

Privacy '08 on Twitter: http://twitter.com/privacy08

Privacy '08 CafePress: http://www.cafepress.com/epicorg


[2] In EPIC lawsuit, Federal Judge to Review Warrantless Wiretap Memos

On October 31, a federal judge ordered the US Department of Justice to provide for independent judicial inspection of documents relating to the President's warrantless wiretapping program. In EPIC v. DOJ, EPIC, the ACLU, and the National Security Archive are seeking documents authored by government lawyers regarding the President's warrantless wiretapping program. The opinions, prepared by the Office of Legal Counsel, provided the legal basis for the President to wiretap American citizens in the United States without court approval. The order requires the government to disclose the documents to the court by November 17.

EPIC seeks the disclosure of opinions prepared by the Department of Justice Office of Legal Counsel regarding the President's warrantless domestic surveillance program. The Office of Legal Counsel (OLC) regularly issues opinions on a variety of topics in response to legal questions posited by the President and the heads of executive departments.

Government lawyers have also withheld the memos from lawmakers charged with overseeing the department. After the department stymied efforts to shed light on the OLC opinions, Senate Judiciary Committee Chairman Patrick Leahy recently issued a subpoena requiring Attorney General Michael Mukasey to disclose information regarding the federal government's terrorism-related activities, including its warrantless surveillance program. Senator Leahy wrote, "There is no legitimate argument for withholding the requested materials from this Committee." Senator Edward Kennedy previously criticized the secrecy surrounding the Office of Legal Counsel opinions, arguing that the Administration's selective disclosure of the documents to a tiny number of legislators "is a pale shadow of the real disclosure that Americans deserve."

EPIC began the Freedom of Information Act lawsuit in December 2005, after the New York Times first reported the details of the wiretap program. EPIC requested documents relating to legal opinions that were prepared to justify the program. The DOJ refused to produce several key documents, and EPIC sued, demanding that the DOJ disclose the documents in compliance with the Freedom of Information Act.

EPIC v. DOJ Page on the National Security Agency's Warrantless Surveillance Program: http://epic.org/privacy/nsa/foia/

Court Order Requiring Judicial Review of DOJ Documents: http://epic.org/privacy/nsa/foia/103108_order.pdf

EPIC's Complaint Against the Department of Justice: http://www.epic.org/privacy/nsa/complaint_doj.pdf

Senator Patrick Leahy's October 21, 2008 Letter to Attorney General Michael Mukasey: http://epic.org/redirect/110708_Leahy_letter_Mukasey_Wwiretap.html

Press Release, "Kennedy Calls for Oversight of Warrantless Wiretapping" January 24, 2008: http://epic.org/redirect/kennedy.html


[3] Federal Regulators Delay Implementation of Final Rules on ID Theft

On October 22, the Federal Trade Commission delayed enforcement of rules requiring financial institutions and creditors to implement identity theft prevention programs. The rules, originally slated to go into effect on November 1, 2008, are intended to spur better identification of patterns and activities that are "red flags" signaling identity theft. The Commission will begin enforcing the "red flags" rule on May 1, 2009, six months after the target date.

Regulators delayed the rules, a move that postpones badly needed identity theft protections for consumers, because many corporations reportedly "had not followed or even been aware of the rulemaking, and therefore learned of the Rule's requirements too late to be able to come into compliance by November 1, 2008." However, federal regulators previously provided several notices of the November deadline. Congress passed the law in 2003. The Commission, federal bank regulatory agencies, and the National Credit Union Administration publicly issued the final regulations on October 31, 2007. In June 2008, the Commission published a Business Alert detailing upcoming compliance obligations.

The "red flags" rules require financial institutions and creditors to maintain identity theft prevention programs that identify, detect, and respond to patterns, practices, or specific activities that could indicate identity theft. Such patterns and activities include: alerts, notifications, or warnings from a consumer reporting agency; suspicious documents; suspicious personally identifying information, such as a suspicious address; unusual use of - or suspicious activity relating to - a covered account; and notices from customers, victims of identity theft, law enforcement authorities, or other businesses about possible identity theft in connection with covered accounts. The rules are intended to curb identity theft, which consumers consistently cite as a top concern, and which results in billions of dollars in losses each year.

The federal rules were developed pursuant to the Fair and Accurate Credit Transactions (FACTA) Act of 2003, a federal law that amended the federal Fair Credit Reporting Act. The FACTA added significant remedial identity theft provisions to federal law. in 2003, EPIC testified before Congress regarding the FACTA, supporting the inclusion of stronger privacy and identity theft protections in the law. "Americans need greater protections to address problems with identity theft, privacy, and inaccuracy," EPIC argued.

FTC Grants Delay in Enforcement of "Red Flags" ID Theft Rules, October 22, 2008: http://www.ftc.gov/opa/2008/10/redflags.shtm

FTC Enforcement Policy Statement Regarding "Red Flags" ID Theft Rules, October 22, 2008: http://www.ftc.gov/os/2008/10/081022idtheftredflagsrule.pdf

EPIC's Testimony in Congress Regarding the Fair and Accurate Credit Transactions (FACTA) Act of 2003, July 9, 2003: http://epic.org/privacy/fcra/2622testimony.html

FTC Business Alert to Companies Covered by "Red Flags" ID Theft Rule, June 2008: http://www.ftc.gov/bcp/edu/pubs/business/alerts/alt050.shtm

Federal Register Notice Issuing "Red Flags" ID Theft Rules: http://ftc.gov/os/fedreg/2007/november/071109redflags.pdf

Agencies Issue Final Rules on Identity Theft Red Flags, October 31, 2007: http://ftc.gov/opa/2007/10/redflag.shtm


[4] United States Supreme Court Agrees to Hear DNA Case

The Supreme Court has agreed to hear a case on whether a prisoner has a post-conviction right of access to evidence for the purpose of DNA testing. Currently, 44 states have enacted laws allowing prisoners to demand access for post conviction testing. The Supreme Court will now decide if the state's affirmative duty to disclose exculpatory material requires providing access to evidence for fresh DNA testing.

In District Attorney's Office v. Osborne, the defense counsel did not seek the best DNA testing available at that time of trial. However, the Federal Appeals Court ordered prosecutors in Alaska to turn over DNA evidence that had been used to convict Osborne. The Appeals Court held that Osborne did not have access to the newly available DNA testing method at the time of trial. The new method allows Osborne to be identified or excluded as the source of the DNA to a virtual certainty.

In 1998, the Federal Bureau of Investigation (FBI) initiated a project, Combined DNA Index System (CODIS), that allowed the storing of genetic profiles by law enforcement agencies which could later be searched for possible suspects. The collection of genetic information for creating profiles and searchable databases have raised significant privacy concerns. EPIC has argued that the agency should limit access to material that must be preserved under law to government agencies that will use the material to further the legislative purpose of crime investigation.

Genetic data poses significant privacy risks because it can serve as an identifier conveying sensitive personal information about the individual and his or her family. In the criminal justice system, DNA is used to ascertain the identity of an individual and point towards his guilt. However, EPIC contends, genetic evidence, once collected, should also be allowed to exonerate an accused including post- conviction exonerations. According to The Innocence Project, there have been 223 post-conviction DNA exonerations in United States since 1989.

EPIC has argued on genetic privacy on numerous occasions and has filed a number of amicus briefs. EPIC recommended that limitations be imposed on the collection and use of genetic material. In a case involving DNA dragnets, where police requests members of a known group or community to provide DNA samples to be matched against that of the perpetrator, EPIC recommended that DNA dragnets should conform to best practices to ensure that Fourth Amendment guarantees are not violated and employ such practices only when all alternate investigative avenues have been exhausted. Such dragnets also raise substantial problems associated with racial profiling, coercion, and data retention. Another case EPIC argued that the compelled production of DNA samples from probationers unrelated to a particular criminal investigation violates the Fourth Amendment. EPIC has also argued that DNA contained more information than a fingerprint and that, in the absence of privacy safeguards, a DNA sample collected for one purpose could be used in the future for an unrelated purposes. EPIC also submitted comments to the United States Department of Justice for the preservation of biological evidence and urged a definition of privacy obligations affecting the implementation of a statute providing new avenues of post-conviction relief for defendants to be outside the recognized purpose of the statute.

EPIC's page on District Attorney's Office v. Osborne: http://epic.org/privacy/osborne

Osborne v. Dist. Attorney's Office, 521 F.3d 1118 (9th Cir. 2008): http://epic.org/redirect/110708_CA9_Osborne.html

United States Supreme Court Petition for certiorari: http://epic.org/redirect/110708_SCOTUS_Osborne-cert.html

United States Supreme Court Brief in opposition: http://epic.org/redirect/110708_SCOTUS_Osborne-Opp.html

United States Supreme Court Petitioner's reply: http://epic.org/redirect/110708_SCOTUS_Osborne-Rep.html

EPIC's page on Genetic Privacy: http://epic.org/privacy/genetic/

EPIC's page on Kohler v. Englade: http://epic.org/privacy/kohler/

EPIC's amicus brief in Kohler v. Englade: http://epic.org/privacy/kohler/amicus.pdf

EPIC's page on United States v. Kincade: http://epic.org/privacy/kincade/

EPIC's amicus brief in United States v. Kincade: http://www.epic.org/privacy/genetic/kincade_amicus.pdf

EPIC's page on Quander v. Johnson: http://epic.org/privacy/johnson/

EPIC's amicus brief in Quander v. Johnson: http://epic.org/privacy/johnson/johnson_cert_amicus.pdf

EPIC's comment to DOJ on Preservation of Biological Evidence: http://epic.org/privacy/genetic/062705dna_comments.html

Innocence Project: http://www.innocenceproject.org/


[5] Google, Yahoo Drop Deal After Antitrust Review

Following an antitrust review by the US Department of Justice, Google, the internet's largest search engine, abandoned its planned advertising arrangement with Yahoo, a Google competitor. In June, the two internet search companies announced plans to coordinate the sale of online advertisements. The agreement would have granted Yahoo! the option to use Google to sell ads for placement on Yahoo!'s search results pages and certain third-party syndication partner Web sites in place of ads sold through Yahoo!'s competing search advertising platform.

The US Department of Justice scrutinized the deal, and expressed concern that the arrangement would eliminate competition for Internet-based advertising. The Department's investigation revealed that Internet search advertising and Internet search syndication are each relevant antitrust markets and that Google is by far the largest provider of such services, with shares of more than 70 percent in both markets. Yahoo! is by far Google's most significant competitor in both markets, with combined market shares of 90 percent and 95 percent in the search advertising and search syndication markets, respectively. Yahoo! provides an alternative to Google for many advertisers and syndication partners, and Yahoo! recently had begun making significant investments in order to compete more effectively against Google, including the 2007 introduction of its Panama search advertising platform.

Government lawyers said that, "if implemented, the agreement between these two companies accounting for 90 percent or more of each relevant market would likely harm competition" and threatened to file a lawsuit to scuttle the deal. According to Thomas O. Barnett, Assistant Attorney General in charge of the Department's Antitrust Division, "The arrangement likely would have denied consumers the benefits of competition -lower prices, better service and greater innovation."

In 2007, EPIC urged the Federal Trade to impose conditions in a similar merger review, involving Google and Doubleclick. The FTC failed to do so, even after the Commission issued a "Second Request," which typically signals an intent to block or modify a deal.

The outcome in the FTC Google-Doubleclick merger review raised concerns about the independence of the Commission, following the revelation that the spouses of two Commissioners, including the Chairman, worked for the law firm that represented Doubleclick in the proceeding. Chairman Majoras resigned from the Commission shortly after the Doubleclick deal was finalized.

President-elect Barak Obama is expected to name several new members to the Federal Trade Commission, including a new Chairman.

Google, "Ending our agreement with Yahoo!": http://epic.org/redirect/110708_Google_Yahoo_goodbye.html

Google, "Our agreement to provide ad technology to Yahoo!": http://epic.org/redirect/110708_Google_Yahoo_AdAgreement.html

Department of Justice, "Yahoo! Inc. and Google Inc. Abandon Their Advertising Agreement Resolves Justice Department's Antitrust Concerns, Competition Is Preserved in Markets for Internet Search Advertising": http://www.usdoj.gov/opa/pr/2008/November/08-at-981.html

EPIC, "Privacy? Proposed Google/DoubleClick Deal": http://epic.org/privacy/ftc/google/

EPIC, "Regarding the Majority Opinion of the Federal Trade Commission in Proposed Acquisition of Doubleclick": http://epic.org/privacy/ftc/google/EPIC_statement122007.pdf


[6] News in Brief

EPIC supports privacy of Washington D.C. Metro passengers:

On October 29, 2008 EPIC staff joined the organizers at FlexYourRights.org who were handing out flyers at Dupont Circle Metro station against the searching of carry-on items of passengers for possible explosives, before entering the Metro stations. The EPIC staff also handed out the flyers and displayed the "Privacy '08" banner. The Washington Metropolitan Area Transit Authority recently announced a rule authorizing officers to randomly select passengers items for inspection. However, in the process, if an illegal item, unrelated to the reason for the search, is discovered, the item can be confiscated as evidence and the police will cite or arrest the individual. Also, if a "suspicious" person is not selected for inspection, even then the carry-on bag will still be subject to inspection if the officer has a reasonable suspicion about the person. The legality of these searches is based on a Circuit Court decision arising from New York holding such searches to be constitutional if, among other things, the passengers receive notice of such a search and that it is voluntary. Although a passenger may decline the search and leave the Metro, police may arrest anyone who refuses to be searched and later attempts to re-enter the Metro. The decision also dictates that officers conducting the search may not exercise any discretion in determining whom to search and may not conduct the inspection for longer that necessary to determine that the individual is not carrying an explosive device.

Washington Metropolitan Area Transit Authority Press Release: http://epic.org/redirect/110708_WMATA_PressRelease.html

Washington Metropolitan Area Transit Authority Search FAQs: http://www.wmata.com/faqs/preview.cfm?faqID=50

FlexYourRights.org flyer: http://epic.org/redirect/110708_FlexYourRights_flyer.html

MacWade v. Kelly (2nd Cir. 2006): http://www.aele.org/law/2006LRSEP/macwade-kelly.html

Facebook - Stop DC Metro Searches: http://www.facebook.com/event.php?eid=41115218932

Protesters Oppose Metro Bag Searches, ABC 7 News: http://www.wjla.com/news/stories/1008/565559_video.html

President's Task Force Reports on Identity Theft

The President's Identity Theft Task force submitted a Strategic Plan to the President in April 2007 outlining the nature and scope of identity theft and offered a 31 recommendations to the Federal Government. In a recent report, the Task Force documented efforts to implement the Strategic Plan. The Strategic Plan contained recommendations in four key areas: Data protection, avoiding data misuse, victim assistance and deterrence. The report states that the Task Force launched initiatives aimed at making the federal government a better custodian of personal information and leading the Office of Personnel Management to eliminate unnecessary uses of Social Security Numbers in aspects of work. Member agencies of the Task Force also held workshops and launched initiatives in assisting identity theft victims. The Task Force also worked on the betterment of law enforcement's ability to investigate, prosecute and punish identity thieves. EPIC has long advocated various ways and means to curbing the problem of identity theft. Earlier this year, EPIC filed comments with the Federal Regulators urging them to include civil penalties in settlements arising from data breaches by TJX, Reed Elsevier, and Seisint. These cases are also mentioned in the report.

President's Task Force Report on Identity Theft: http://www.ftc.gov/os/2008/10/081021taskforcereport.pdf

EPIC's page on Identity Theft: http://epic.org/privacy/idtheft/

EPIC's page on Identity Theft and Domestic Abuse: http://epic.org/privacy/dv/identity_theft.html

EPIC's comments to FTC for inclusion of civil penalties: http://epic.org/privacy/idtheft/042808_ftc.pdf

GAO Report Finds SSNs are Widely Available in Bulk

The United States Government Accountability Office (GAO) in a recent report to Senator Charles E. Schumer published details outlining the extent, purpose and to whom public records containing Social Security Numbers (SSNs) are made available for purchase and what measures had been taken to protect SSNs from in these records. The GAO report found that many county public records containing SSNs are available in bulk to both businesses and persons as a result of state open records laws and also because private companies request access to these records to support their businesses. Of the counties surveyed, only 16 percent actually placed restrictions on the types of entities that have access to these records. Although title companies usually received these records, the survey found that records are also obtained by mortgage companies as well as data resellers. The survey also revealed that 62 percent of the counties have not initiated redacting or truncating SSNs. The report concludes by leaving to the Congress the need of balancing the confidentiality of SSNs and the open access to public records.

GAO report on the wide availability of Social Security Numbers: http://www.gao.gov/new.items/d081009r.pdf

EPIC Social Security Number (SSN) Privacy page: http://epic.org/privacy/ssn/

UK government forces closure of tax website over security breach

The United Kingdom's Department for Work and Pensions shutdown key government computing systems after a 4-gigabyte memory stick, a thumb size digital memory device, containing data records on 12 million was found in a car park. The data found on the memory stick included passwords that would allow Web access to personal information of data subjects. The agency reacted by closing all Web access to the online data service portal provided to users. The services offered to e-government users included self-assessment tax returns, VAT returns, pension entitlements and child benefits. Government officials past response to reticence about the wisdom of concentrating so much data in one database was that it was secure. This is the most recent in a long line of government data breaches, which have risen to 277.

Daily Mail's article on memory stick containing personal data: http://epic.org/redirect/110708_DataBreach_DailyMail.html

EPIC's comments to FTC for inclusion of civil penalties: http://epic.org/privacy/idtheft/042808_ftc.pdf

Consumer Group Calls Attention to Google Chrome's Security Flaws

The security flaws contained within Google Chrome have been the subject of discussion since its launch in September 2008. Now, Consumer Group has called attention to Google's auto-suggest feature (built-in within Google Chrome). A video released on YouTube demonstrates how merely typing in letters of a word sends the information to Google which could be revealed by the use of packet sniffers in the network. Also, the letters are stored on Google's servers which could potentially be acquired through search warrants and may lead to drawing of unwarranted assumptions and conclusions. The video explains that these features are not transparent and no readily visible options exist for disabling them. Other groups such as Center for Digital Democracy, have described Chrome as a "digital Trojan horse to collect even more masses of consumer data". London based Privacy International has also lamented that it was impossible to track information acquired by Google.

Google's Growth Raises Privacy Concerns: http://edition.cnn.com/2008/TECH/11/04/google.privacy.ap/

Consumer Watchdog Exposes Google Privacy Problems: http://epic.org/redirect/110708_Google_probs_ConWatDog.html

Consumer Watchdog's YouTube video: http://www.consumerwatchdog.org/google

Mortgage Company Settles After Data Breach

Premier Capital Lending, Inc., routinely obtained credit reports from consumer reporting agencies that contained sensitive personal information about customers and potential customers. A hacker broke into Premier's computer by exploiting features and obtained Premier's username and password and used these credentials to get over 400 credit reports using Premier's account. The Federal Regulators stated that Premier failed to live up to its privacy policy of protecting the privacy and confidentiality of customer information. The Federal Regulators agreed to a proposed consent agreement that is open for public comment till December 5, 2008. EPIC had previously submitted comments to the FTC for inclusion of civil penalties in cases involving data breaches. EPIC argued that consent orders result in marginal improvements to security and privacy practices; companies must have strong practical incentives to vigorously implement obligations under consent orders which only civil penalties can provide.

Mortgage Company Settles Data Security Charges: http://ftc.gov/opa/2008/11/pcl.shtm

FTC Agreement in FTC File No. 0723004: http://ftc.gov/os/caselist/0723004/081106pclagree.pdf

EPIC's comments to FTC for inclusion of civil penalties: http://epic.org/privacy/idtheft/042808_ftc.pdf


[7] EPIC Bookstore: "The Supreme Court"

The Supreme Court, Personalities and Rivalries that Define America By Jeffrey Rosen

http://www.powells.com/biblio/1-9780805081824-3?&PID=24075

The Supreme Court remains the most obscure branch of the federal government. What would the glare of publicity do to the court - and more importantly the unquestioned acceptance of its decisions? We have seen in recent history when Supreme Court decisions attracted public partisan scrutiny, for example, in Bush v. Gore.

The Court's traditions, and methods of deliberation are not written about often enough outside of the glare of controversial decisions. Jeffery Rosen as a student of the Supreme Court is well positioned to accomplish a rare feat in his book - speak not just about the decisions of the court, but the personalities that ultimately shaped those decisions. Beginning with little power in the troika, which formed the branches of US federal government, Rosen asserts that the people skills of John Marshall shown light down the path that the court would follow to establishing its place in the Federal government.

Rosen reveals his core thesis in the book through the personalities of eight key figures: John Marshall and Thomas Jefferson, John Marshall Harlan and Oliver Wendell Holmes, Hugo Black and William O. Douglas, and William Rehnquist and Antonin Scalia. The mavericks and the drum majors: those who are unable or unwilling to lead and those who are Supreme Court leaders.

The book begins with the personality conflicts between distant cousins President Thomas Jefferson and John Marshall. This is an important time for the Supreme Court - as it moved from powerlessness to final say on the constitutionality of state and federal laws. Rosen looks at the post-Revolutionary war politics flavoring the tensions between the author of the court's role of judicial review and a President suspicious of the power of the federal courts. The power of life hanging experiences and personal perspective to shape the view of members of the court is best expressed in the chapter on the rivalry between John Marshall Harlan and Oliver Wendell Holmes, Jr. The Civil War shaped both men in dramatically different ways: Holmes was a committed abolitionist and Harlan was a southern slaveholder. Post-Civil War Holmes "became a radical skeptic of abolitionism..." while Harlan became a champion of "racial and economic equality."

The book breathes life into the history of the court in a surprising and entertaining way by exploring the role of judicial temperament on the deliberative process. Rosen, argues that the members of the court are people first. He explains that their personalities may best explain the deliberative process that governs court rulings.

The book closes with a view to the future of the court under the leadership of Chief Justice John G. Roberts, Jr., who took office in 2005. Roberts views John Marshall as his role model for how the Supreme Court ought to work. He points to "the personalization of judicial politics," that had damaged the court. Roberts also commented on the media's obsession with controversy evidenced in 5-4 decisions. Roberts expresses a desire to find consensus in the court. The task for nine individuals is much more difficult, but he does not shy away from the challenge.

This is an insightful book and for someone who appreciates history that explores personalities, this is a rare find. For students, observers, and fans of the Supreme Court this is a great book for exploring the importance of temperament in the deliberative process.

-- Lillie Coney


EPIC Publications:

"Litigation Under the Federal Open Government Laws 2008", edited by Harry A. Hammitt, Marc Rotenberg, John A. Verdi, and Mark S. Zaid (EPIC 2008). Price: $60.

http://epic.org/bookstore/foia2008/

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 the substantial FOIA amendments enacted on December 31, 2007. Many of the recent amendments are effective as of December 31, 2008. The standard reference work includes in-depth analysis of litigation under Freedom of Information Act, Privacy Act, Federal Advisory Committee Act, Government in the Sunshine Act. The fully updated 2008 volume is the 24th 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, crypto and governance can be ordered at:

EPIC Bookstore
http://www.epic.org/bookstore

"EPIC Bookshelf" at Powell's Books
http://www.powells.com/bookshelf/epicorg.html


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: https:/mailman.epic.org/mailman/listinfo/foia_notes


[8] Upcoming Conferences and Events

Privacy and Identity Theft Conference. November 24-25, 2008. Fairmont Hotel, Vancouver, Canada. For more information:
http://www.idconference2008.com/

Third Internet Governance Forum. December 3-6, 2008. Hyderabad, India. For more information: http://www.intgovforum.org

International Human Rights Day, December 10, 2008. For more information: http://www.un.org/events/humanrights/2008/

Tilting perspectives on regulating technologies, Tilburg Institute for Law and Technology, and Society, Tilburg University. December 10-11, Tilburg, Netherlands.
http://www.tilburguniversity.nl/tilt/conference

The American Conference Institute is hosting the 8th National Symposium on Privacy and Security of Consumer and Employee Information at the Four Points by Sheraton, Washington, DC. January 27-28, 2009, Washington, DC. http://www.americanconference.com/Privacy.htm


Subscription Information

Subscribe/unsubscribe via web interface: https://mailman.epic.org/mailman/listinfo/epic_news

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http://www.epic.org/alert

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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 regulation of encryption and expanding wiretapping powers.

Thank you for your support.


Support Privacy '08

If you would like more information on Privacy '08, go online and search for "Privacy 08." You'll find a Privacy08 Cause at Facebook, Privacy08 at Twitter, a Privacy08 Channel on YouTube to come soon, and much more. You can also order caps and t-shirts at CafePress Privacy08.

Start a discussion. Hold a meeting. Be creative. Spread the word. You can donate online at epic.org. Support the campaign.

Facebook Cause:
http://www.epic.org/redirect/fbprivacy08.html

Twitter:
http://twitter.com/privacy08

CafePress:
http://www.cafepress.com/epicorg


E P I C Job Announcement

EPIC is seeking a smart, energetic, creative individual
for the position of Staff Counsel
Deadline: Jan. 1, 2009
Click here for more details http://www.epic.org/epic/jobs/counsel_1108.html


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