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EPIC Alert 16.18 [2009] EPICAlert 18

Focusing public attention on emerging privacy and civil liberties issues

EPIC Alert 16.18

E P I C A l e r t

Volume 16.18 September 25, 2009
Published by the
Electronic Privacy Information Center (EPIC)
Washington, D.C.

"Defend Privacy. Support EPIC."

Table of Contents
[1] EPIC Renews Calls for Release of Bush Warrantless Wiretap Memos
[2] MA Supreme Court Requires Warrant for GPS Tracking
[3] EPIC Pursues Accountability at Homeland Security Office
[4] EPIC Urges Appeals Court to Protect Prescription Data
[5] Cloud Computing Initiative Lacks Privacy Umbrella
[6] News in Brief
[7] EPIC Bookstore: "The Test of Our Times"
[8] Upcoming Conferences and Events - Join EPIC on Facebook - Privacy Policy - About EPIC - Donate to EPIC - Subscription Information

[1] EPIC Renews Calls for Release of Bush Warrantless Wiretap Memos

On September 15, 2009, EPIC and the ACLU urged a federal court to order the government to release records and memoranda regarding the NSA's warrantless wiretapping program, arguing that the existence of the memoranda and significant portions of their content have already been revealed in separate reports.

EPIC and the ACLU originally sought disclosure of any records relating to the program in 2005, pursuant to the Freedom of Information Act (FOIA). However, the Department of Justice (DOJ) argued that the records, including memoranda from the Office of Legal Counsel, were exempt from FOIA's disclosure requirements. As "national security information," "information exempted by other statutes," and "inter- and intra-agency memoranda." Nonetheless, the United States District Court for the District of Columbia was unconvinced that the DOJ needed to withhold the documents completely and commenced an in camera examination of ten memoranda on November 17, 2008.

Despite the DOJ's claimed need for secrecy, on July 10, 2009, the government released an "Unclassified Report on the President's Surveillance Program," prepared by the Offices of Inspectors General of the Department of Defense, Department of Justice, Central Intelligence Agency, National Security Agency, and the Office of the Director of National Intelligence. The IG Report specifically identifies, extensively quotes from, and publicly describes several of the OLC memoranda that the DOJ continued to withhold from the FOIA request.

In light of the disclosures in the Inspector General's Report, EPIC and the ACLU filed a supplemental memorandum with the court conducting the in camera review, arguing that the disclosure of specific portions of the requested documents in the IG Report fatally undermines the DOJ's claim that the OLC memoranda at issue had to be withheld completely. Thus, EPIC and the ACLU renewed their argument that the memoranda or segregable portions of the memoranda should be released to the public. The court has yet to reach a decision.

EPIC v. DOJ Filing

Inspectors General Unclassified Report:

New York Times 2005 Report on the NSA Program:

EPIC "Freedom of Information Act Work on the National Security Agency's Warrantless Surveillance Program":

[2] MA Supreme Court Requires Warrant for GPS Tracking

On September 17, the Massachusetts Supreme Judicial Court handed down its decision in Commonwealth v. Connolly, ruling that using GPS devices to monitor vehicles constitutes a seizure under the Massachusetts Constitution and therefore may only be done under a valid warrant. The court also required that these warrants expire after fifteen days. EPIC had filed a "friend of the court" brief urging the justices to adopt this warrant requirement.

The case originated when the Massachusetts State Police began tracking Everett H. Connolly, a Cape Cod resident who they suspected of drug trafficking. After Connolly sold crack cocaine to an undercover office, State Police installed a GPS device in his minivan without his knowledge, but with a valid warrant. The device was designed to report the location of the vehicle to the police department at all times. Police computers stored this location information. By observing the data, officers determined that Connolly was on his way back to his home after a trip to New York, where police believed Connolly purchased cocaine. At that point, officers stopped the van, conducted a search, and arrested Connolly on the basis of cocaine found hidden in the vehicle.

Connolly appealed the validity of the search to the Supreme Judicial Court, the highest court in the state of Massachusetts. There, EPIC filed an amicus brief in favor of a warrant requirement for such tracking. EPIC's brief provided the court with considerable information about the history and function of GPS devices, as well as about the current use of GPS tracking technology for law enforcement and non-law enforcement purposes. EPIC's brief explained the risks inherent in allowing such tracking without court oversight by the government. It also explained the risks in such surveillance within the private sector. Finally, it urged the court to insist on a warrant requirement before allowing such tracking, a provision the Commonwealth did not acknowledge as a prerequisite in its case against Connolly.

The court's decision, while not perfect, did follow EPIC's recommendation. The primary opinion, signed by all seven justices of the court, found that the use of the device interfered with the defendant's property rights and classified GPS tracking as a "seizure" of that property for constitutional purposes. On this reasoning, the court held that a warrant was therefore a requirement. Three of the seven justices also participated in a concurring opinion, which argued for a result much closer to EPIC's position: that the invasion should also be characterized as a search, such that conducting GPS tracking without a warrant would constitute a violation of a defendant's reasonable expectation of privacy.

By requiring warrants for GPS tracking, the Supreme Judicial Court has placed Massachusetts firmly on one side of the state split on this issue. A Wisconson appeals court has ruled that GPS tracking does not require a warrant, while earlier this year New York's highest court ruled in favor of a warrant requirement.

EPIC: Commonwealth v. Connolly:

Slip Opinion - Commonwealth v. Connolly

EPIC "People, Not Places, A Policy Framework for Analyzing Location Privacy Issues":

Massachusetts Supreme Judicial Court:

[3] EPIC Pursues Accountability at Homeland Security Office

This week EPIC filed a Freedom of Information Act appeal with the Department of Homeland Security for the calendar of the Chief Privacy Officer, Mary Ellen Callahan. EPIC submitted the original request in June 2009 to find out why the DHS Privacy Officer could not meet with privacy groups in Washington, DC.

In August, the agency turned over many pages from Ms. Callahan's calendar, but most of the entries were blacked out as non responsive. Because EPIC possesses several documents also possessed by DHS, EPIC knows that DHS failed to disclose several responsive meetings. EPIC is challenging DHS failure to disclose, as well as its wrongful assertion of several FOIA exemptions.

In the appeal, EPIC said the agency has failed to comply with FOIA and also cited the President's commitment to government transparency concerning the activities of public officials. EPIC reminded Ms. Callahan's office that she is required to comply with the law and disclose the records.

In a related letter to the Chief Privacy Officer of the Department of Homeland Security, EPIC asked when the annual privacy report will be made available. The Department is required by law to provide an annual report "on activities of the Department that affect privacy, including complaints of privacy violations, implementation of the Privacy Act of 1974, internal controls, and other matters." The last privacy report was published in July 2008. EPIC has previously sent similar letters to the Department, reminding the agency of its legal obligation to inform the public about its activities.

EPIC's FOIA Appeal to the Department's Chief Privacy Officer:

EPIC's Original FOIA Request to the Chief Privacy Officer:

EPIC "Open Government":

EPIC's letter to Ms. Callahan regarding the Annual Report:

The 2008 Privacy Office Annual Report:

EPIC's Prior Request for Annual Reports:

[4] EPIC Urges Appeals Court to Protect Prescription Data

EPIC filed a friend of the court brief in the Court of Appeals for the Second Circuit, urging the judges in IMS v. Sorrell to uphold a Vermont law regulating companies that sell or use prescriber-identifiable data for marketing. The Vermont law is aimed at protecting public health, protecting the privacy of prescribers, and containing prescription drug costs. It prohibits access to prescriber-identifiable data unless physicians choose to opt in and allow the release of such information.

Although several other states have also adopted statutes aimed at protecting the privacy of prescribers and prescriber-identifiable data, Vermont is the first to adopt a model that requires physicians consent before outside parties can access information. The First Circuit recently upheld as constitutional a New Hampshire statute that blocks third parties' access to prescriber-identifiable data if physicians opt out of disclosure. EPIC also submitted a friend of the court brief in that case and supported the decision of the First Circuit.

Several data-mining companies challenged the Vermont law in district court. After the law was upheld, the datamining companies appealed the decision to the Second Circuit. The datamining companies argue that the law violates their First Amendment rights to free speech. The district court held that the commercial speech at issue could be limited, as the Vermont law's restrictions on data disclosure were "in reasonable proportion to the State's interests." The court did not reach the merits of the State's privacy claim.

EPIC's amicus brief supports the district court's conclusion that the law is valid. The EPIC brief argues that Vermont has a substantial state interest in privacy protection and that the data miners' de-identification practices do not protect patient privacy. The brief notes that in a method called "record linkage," prescription data can be re-linked to an individual's identity. Because this information can easily be re-identified, EPIC argues, the de-identification of data is no longer an adequate safeguard to ensuring patient and prescriber privacy.

The Second Circuit is scheduled to hear oral arguments during the week of October 12, 2009.

EPIC's "friend of the court" brief:

Vermont's Prescription Confidentiality Law:

First Circuit Decision in IMS v. Ayotte:

EPIC's "friend of the court" brief in IMS v. Ayotte:

District Court Opinion in IMS v. Sorrell:

EPIC "IMS v. Sorrell":

EPIC "IMS v. Ayotte":

[5] Cloud Computing Initiative Lacks Privacy Umbrella

Chief Information Officer Vivek Kundra announced the launch of "", a website where federal agencies can obtain cloud-based IT services. Cloud computing allows data and applications to be housed on centralized servers, so that they are accessible at any time from anywhere, so long as the user has access to the internet.

The initiative is aimed at "lowering the cost of government operations while driving innovation." Kundra notes that in the current economic climate, "the federal government must buy smarter," and cloud computing is a response to the President's charge to ensure "we are lowering the cost of govt operations, that we are finding the innovative path, and that we are deploying solutions that are going to be greener and better for the environment itself."

Currently, the administration's main goal is to increase the size and scale of cloud computing, but key concerns, such as security and privacy, have received little attention. In a speech given at NASA Ames Research Center, Kundra "challenge[d] industry to step up and address . . . security concerns [to] make sure that information and data [are protected and secured]. Still, Kundra recognizes that finding appropriate solutions to these concerns will not happen overnight, but will take months or even years.

In March, EPIC filed a complaint with the Federal Trade Commission urging the agency to open an investigation into Cloud Computing services, such as Google Docs, to determine "the adequacy of the privacy and security safeguards." Subsequently, thirty-eight computer security researchers and privacy academics sent a letter to Google's CEO, asking Google to uphold privacy promises made to users of Google Cloud Computing services. The Commission's investigation is ongoing; no response has been received from Google.

Vivek Kundra's Blog Announcement regarding

Vivek Kundra's Speech on Cloud Computing at NASA's Ames Research Center:

EPIC's Federal Trade Commission Complaint Urging an Investigation into Cloud Computing Services:

Letter to Google's CEO regarding Google Cloud Computing Services:

EPIC "Cloud Computing":

[6] News in Brief

Indiana Court Strikes Down Voter ID Law

The Indiana Court of Appeals ruled that the Indiana Voter ID law, which requires certain individuals to present government-issued photo identification before they could vote, violates the state Constitution. The law is unconstitutional, the court held, because it "regulates voters in a manner that is not uniform and impartial." The United States Supreme Court previously ruled that the law did not violate the federal Constitution, but did not address the law's validity under the Indiana Constitution. EPIC and ten legal scholars and technical experts filed a "friend-of-the-court" brief in that case, urging the Court to invalidate the law because of its disparate impact and its reliance on REAL-ID, a "flawed federal identification system."

Indiana Court of Appeals Decision:

Crawford v. Marion County Election Board Supreme Court Decision:

EPIC's friend of the court brief for Crawford v. Marion County Election Board:

EPIC "National ID and REAL ID Act":

California Moves to Strengthen Data Breach Laws

The California State Legislature passed Senate Bill 20, a bill that would improve California's current security breach notification law. Senator Joe Simitian said Senate Bill 20 "is designed to make a good law better." Under current California law, a company that loses unencrypted personal information must notify affected consumers of the security breach. If signed by Governor Schwarzenegger, Senate Bill 20 would require that notifications include information that helps consumers safeguard their privacy. The bill is one more example of the many state efforts to address the growing problem of security breaches. In May, EPIC testified in Congress on the need to improve security breach notification.

California Senate Bill 20:

California Senator Joe Simitian's Announcement:

Federal Trade Commission to Host Privacy Roundtables

Last week, the Federal Trade Commission held a meeting with privacy advocates to discuss their "omnibus project," which involves heightened efforts to implement new privacy initiatives and explore the challenges regarding consumer privacy. The FTC introduced their plan to host three roundtables focused on consumer privacy and technology, the first to be held on December 7, 2009. The roundtable discussions, which are open to the public, will focus on three initial questions: (1) what risks, concerns, and benefits arise from the collection, sharing, and use of consumer information; (2) are there commonly understood or recognized consumer expectations about how information concerning consumers is collected and used; and (3) do the existing legal requirements and self-regulatory regimes in the United States today adequately protect consumer privacy interests? Parties interested in participating as a panelist at the next privacy roundtable must submit a request to the Commission.

Federal Trade Commission's Exploring Privacy: A Roundtable Series:

Federal Trade Commission Press Release Announcing Privacy Roundtables:

Federal Trade Commission Privacy Initiatives Website:

Federal Trade Commission's Invitation to Comment:

EPIC's Page on the Federal Trade Commission:

Office of Legal Counsel Releases Memos on Einstein 2.0

On September 18, 2009, the Office of Legal Counsel released two opinions regarding Einstein 2.0, the federal cyber-security initiative that monitors network activity. The Bush administration opinion, signed January 9, 2009, concluded that Einstein 2.0 complied with the Constitution and applicable federal laws, provided that users are properly warned that it is operating. The Obama administration opinion, signed August 14, 2009, concurred with the earlier opinion, and also concluded that the system does not violate "state wiretapping or communications privacy laws," but EPIC has argued that Einstein should be subject to the Privacy Act. Also, documents previously obtained by EPIC under the Freedom of Information Act revealed that network monitoring tools often exceed their legal authority.

Wikipedia Page on the Einstein Program:

Bush Administration Opinion:

Obama Administration Opinion: EPIC's Prior

Objections on Einstein:

EPIC "Carnivore":

Proposed Settlement in California Facebook Case

Facebook has entered into a proposed agreement to end Beacon, the controversial advertising technique that broadcast user purchases in their public profile. Previously, EPIC and other privacy advocates objected to Beacon's privacy implications and successfully persuaded Facebook to adopt opt-in for the service. Now, under the terms of a class-action lawsuit in California, Facebook proposes to terminate Beacon and contribute $9.5 million towards the creation of a foundation dedicated to protecting online privacy. A class-action lawsuit concerning Beacon is also pending in Texas.

Proposed Agreement:

Prior Objections to Beacon: EPIC's Page on

Texas Lawsuit: "Harris v. Blockbuster":

EPIC "Facebook Privacy": EPIC

EPIC Testimony on the "Impact and Policy Implications of Spyware on Consumers and Businesses." (June 2008):

Internet Governance Forum - United States

The first Internet Governance Forum-USA will take place on October 2, 2009 at the Center for Strategic and International Studies. The forum is intended to raise awareness about Internet governance issues and to contribute to awareness about the Internet Governance Forum. The one-day forum will engage civil society, government, technologists/researchers, industry and academia in discussions about topics including management of critical Internet resources, privacy, cyber security, access, openness/freedom of expression, child online safety, capacity building and development. By identifying and discussing issues, participants help to broaden understanding and identify possible best practices that can inform global decisions that affect the Internet.

Internet Governance Forum-USA Website:

Agenda for Internet Governance Forum - USA, Oct. 2, 2009, Washington DC:

Internet Governance Forum Website:

[7] EPIC Bookstore: "The Test of Our Times"
The Test of Our Times: America Under Siege . . . And How We Can Be Safe Again" By Tom Ridge with Lary Bloom

"Do you remember the scene in the Batman movie The Dark Knight, where Morgan Freeman voices strong objection to eavesdropping on all of Gotham City in order to find and capture the Joker? He agrees to oversee the effort and vows to resign when he's finished. In Gotham, the end justifies the means. Not in the United States. The price is too high." (p.111)

Former Secretary of Homeland Security Tom Ridge remembers that scene from the 2008 summer blockbuster, and when he evokes it halfway through his new memoir, it is to convey why he felt some responses to President Bush's warrantless wiretap program from those who did not object to the government listening because they were doing no wrong themselves "troublesome." Yet much of Ridge's book suggests that he saw himself in that scene, a Morgan Freeman to the President's Bruce Wayne.

Secretary Ridge paints himself as a sympathetic figure, a principled public servant who did the best he could at a near-impossible task. As he tells the story of the origins of the Department of Homeland Security, he occasionally criticizes his former colleagues, but more often paints them with a similar brush. For instance, even while he clearly disapproved of the warrantless program, he is sure to object only to the fact that the Administration's decision to keep its legal analysis a secret "presented an appearance of employing unauthorized power."

In a much-reported chapter entitled "The Politics of Terrorism, Part 2," Ridge discusses two episodes in the run-up to the 2004 election. The first was when the team in charge of the scale agreed to temporarily raise the threat level from yellow to orange for New York City, Newark, and Washington, D.C. On August 1, just before Ridge was to announce the increased level, the White House called and asked him to add a few sentences, crediting the intelligence information to "the president's leadership in the war on terror." Ridge reports that agreeing to add the words is one of his few regrets. The second episode was when a new video of Osama Bin Laden appeared only days before the 2004 election. According to Ridge, Attorney General John Ashcroft and Secretary of Defense Donald Rumsfeld pushed hard to raise the level, while he and FBI Director Robert Mueller were strongly opposed. Eventually, the level was not raised. He never goes so far as to say the drive to raise the level was definitely political, but Ridge acknowledges the possibility. This was too much for the Bush Administration's Morgan Freeman, and he resigned soon after.

While much has been made of these passages, the rest of the book tracks a similar theme. Ridge shows the post-9/11 world inside DHS and the broader Administration as one in which the potential consequences of failure were so great that its leaders were driven not by power, or politics, but by fear.

--Jared Kaprove

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.

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.

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: https:/

[8] Upcoming Conferences and Events

"The Net will not forget," European conference on ICT and Privacy, Copenhagen, Denmark, September 23-24, 2009. For more information:

"Secure Telework and Remote Access", Ari Schwartz, Telework Exchange Town Hall Meeting, Washington, DC, September 24, 2009. For more information:

3rd International Conference "Keeping Children and Young People Safe Online," Warsaw, Poland, September 29-30, 2009. For more information:

"6th Communia Workshop: Memory Institutions and Public Domain" Barcelona, Spain, October 1-2, 2009. For more information:

Engaging Data Forum, MIT, October 12-13, 2009. For more information:

10th German Big Brother Awards, Bielefeld, Germany, October 16, 2009. For more information:

eChallenges 2009, Istanbul, Turkey, October 21-23, 2009. For more information:

Big Brother Awards Switzerland, Zurich, Switzerland, October 24, 2009. For more information:

3rd European Privacy Open Space, Vienna, Austria, October 24-25, 2009. For more information:

Austrian Big Brother Awards Vienna, Austria, October 25, 2009. Deadline for nominations: 21 September 2009. For more information:

Free Culture Forum: Organization and Action, Barcelona, Spain, October 29 - November 1, 2009. For more information:

Free Society Conference and Nordic Summit, Gothenburg, Sweden, November 13-15, 2009. For more information:

3rd European Privacy Open Space, Vienna, Austria, October 24-25, 2009. For more information:

Global Privacy Standards in a Global World, The Public Voice, Madrid, Spain, November 3, 2009. For more information:

31st International Conference of Data Protection and Privacy Commissioners, Madrid, Spain, November 4-6, 2009. For more information,

UN Internet Governance Forum, Sharm El Sheikh, Egypt, November 15-18, 2009. For more information:

Privacy 2010, Stanford, March 23 - 25, 2010. For more information:

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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).

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