EPIC Alert 18.15
E P I C A l e r t
Volume 18.15 August 2, 2011
Published by the
Electronic Privacy Information Center (EPIC)
"Defend Privacy. Support EPIC."
Table of Contents
 House Committee Approves Controversial Data Retention Measure
 EPIC Urges Seventh Circuit to Protect Student Privacy Rights
 House Subcommittee Approves Weak Data Breach Bill
 TSA Announces 'Stick Figure' Software for Some Body Scanners
 EPIC v.
NSA: Agency Can 'Neither Confirm Nor Deny' Google Ties
 News in Brief
 EPIC Book Review: 'In the Plex'
 Upcoming Conferences
TAKE ACTION: Facebook Privacy 2011!
- READ EPIC's complaint to FTC: http://epic.org/redirect/062011FB.html
- WATCH EPIC on ABC Nightline: http://epic.org/redirect/062011FB.html
- SUPPORT EPIC: http://www.epic.org/donate/
 House Committee Approves Controversial Data Retention
On July 28 the House of Representatives Judiciary
Committee voted 19-10
to approve HR-1981, a bill requiring Internet Service Providers (ISPs)
to retain personally identifiable data
on every customer, thereby
allowing the US government to identify and track their online activity
for one year. The bill is designed
to identify producers and consumers
of online child pornography.
EPIC Director Marc Rotenberg testified against the bill at the
Judiciary Committee hearing, arguing that if the bill is enacted it
should neither contain a data retention mandate nor immunity
for misuses of the data. EPIC's arguments were cited by committee
members including Rep. Jerrold Nadler (D-NY), who also
pointed out that
storing more customer data would lead to an increase in the already
high number of data breaches: "The more data
we keep, the more likely
we are to have such intrusions," said Nadler.
During two days of deliberation, several amendments that
removed or limited the bill's data retention requirements were all
defeated. The most significant amendment to pass was
introduced by the
bill's sponsor, Rep. Lamar Smith (R-TX). The initial bill would have
required ISPs to retain internet protocol
(IP) addresses for 18 months,
but the amendment lowers the duration to 12 months, a position
advocated by EPIC. However, the amendment
also requires ISPs to retain
not only IP addresses, but also customer names, physical addresses,
phone records, type and length of
service, and credit card numbers.
"This retention is a radical contradiction of the core American value
that we are innocent until
proven guilty," said Rep. Jason Chaffetz
Judiciary Chairman Rep. James Sensenbrenner (R-WI) was "not convinced
will contribute in any meaningful way to prosecuting child
pornography." Rep. Zoe Lofgren (D-CA) stated that it is an
power grab by the federal government - it goes way
beyond fighting child pornography." Rep. Scott said that the data would
for many other uses, including copyright prosecution and
divorce cases, while Rep. Darrell Issa (R-CA) stated that retained data
will be made available to law enforcement officers without a warrant or
judicial oversight. Rep. Lofgren went so far as to propose
to rename the bill the "Keep Every American's Digital Data for
Submission to the Federal Government Without a Warrant
US House Judiciary Committee: Text of HR-1981
US House Judiciary Committee: Amendment to HR-1981
EPIC: Testimony before Congress on HR-1981 (July 12, 2011)
EPIC: EPIC Urges Congress to Reject Data Retention Plan
EPIC: Data Retention
allmediaLP: House Judiciary Data Retention Bill Markup Coverage
 EPIC Urges Seventh Circuit to Protect Student Privacy
EPIC has filed a "friend of the court" brief in Chicago
University of Illinois Board of Trustees, a Seventh Circuit Court of
Appeals case involving student privacy rights protected
by the Family
Educational Rights and Privacy Act (FERPA). The Chicago Tribune sought
documents from the University of Illinois under
the Illinois Freedom of
Information Act, as part of its ongoing investigation of alleged
corruption in the University's admission practices. The University
refused to disclose
the applicants' records in response to the
Tribune's request, arguing that FERPA, a federal law, prohibited their
release, thus preempting
the Illinois FOIA request.
Congress enacted FERPA in 1974 via governmental Spending Clause power,
attaching certain requirements
to the receipt of federal education
funding. The lower federal court therefore stated that universities
have the option of turning
down federal funding in order to avoid
compliance with FERPA, and, as a result, the court found that the
University of Illinois was
not prohibited from disclosing student
records under FERPA, nor could it invoke that particular exemption
under the Illinois law.
The central issue of the University's appeal
is whether FERPA "prohibits" the release of university admission
records under Illinois'
Freedom of Information Act.
EPIC's brief argues that both Congress and the State of Illinois
intended to protect student records, including admissions files,
unauthorized release, and that Illinois' open government law must yield
to the federal privacy law. EPIC also contends that
since it is not
feasible for any public university to forswear federal funding in order
to disregard its FERPA obligations, FERPA's
effectively prohibits universities from disclosing student records.
The Department of Justice, the American
Council on Education, and other
Illinois public universities also filed briefs in support of student
privacy protections under FERPA.
EPIC: Amicus Brief in Chicago Tribune v. U. of Illinois (July 2011)
EPIC: Chicago Tribune v. University of Illinois
University of Illinois: Chicago Tribune v. University of Illinois
Chicago Tribune: "Clout Goes to College"
EPIC: Student Privacy
 House Subcommittee Approves Weak Data Breach Bill
A House of Representatives Commerce Subcommittee has voted in favor of
a data breach bill entitled the "Secure and Fortify Electronic
Data Act", sponsored by Rep. Mary Bono Mack (R-CA), Chair of the House
Energy and Commerce Subcommittee on Commerce, Manufacturing
The SAFE Data Act requires companies to respond in the event of a data
breach and encourages minimization of data collection
Companies must identify those individuals whose personal information is
affected and, within 48 hours of such identification,
must notify the
Federal Trade Commission. The deadline for commencing notification to
affected individuals is 45 days after the discovery
of the breach;
however, notification can be delayed beyond the 45-day deadline based
on law enforcement and national security exceptions.
notification is not required if the company determines that the breach
presents no reasonable risk of identity theft
or other unlawful
conduct. All companies subject to the legislation are required to
establish a plan that provides for the retention
information only as reasonably needed for business purposes or as
necessary to comply with a legal obligation.
all states already have robust security breach laws, which the
SAFE Data Act now would preempt. Many of these state laws are stronger
than the SAFE Data Act. For example, the Act only requires that consumers
be notified of their status via paper mail or email, rather
text messaging or social network sites. The Act does not require that
companies notify breach victims when the breached
already available to the public. The SAFE Data Act also defines
personal information narrowly; it suggests, for instance,
that a social
security number would not be personal information if it were not
immediately associated with an individual's name.
EPIC Executive Director Marc Rotenberg testified in July 2011 before
Rep. Bono Mack and her subcommittee, emphasizing the growing
of data breaches and the likelihood that breaches would increase as
more user data moves to cloud-based services. Rotenberg
large number of recent high profile data breaches, including the large-
scale breaches at Citigroup, Sony PlayStation
Network, and Epsilon.
EPIC maintains a webpage on Identity Theft and has testified before the
Senate Banking Committee on breach
US House of Representatives: Text of the SAFE Data Act (H.R. 2577)
House Dept. Energy and Commerce: SAFE Data Act Hearing (June 15, 2011)
EPIC: Testimony on SAFE Data Act (June 15, 2011)
EPIC: Identity Theft
 TSA Announces 'Stick Figure' Software for Some Body
The Transportation Security Administration (TSA)
has announced that it
will begin installing new software on some millimeter-wave airport body
scanners that will display a generic
human figure on a computer monitor
rather than the naked bodies of individual air travelers. The Agency
asserts that this software
can automatically detect "anomalies" on
passengers' bodies, and will highlight those areas on the displayed
image. If the machine
does not detect any threats, it will merely
display a green "OK." Passengers will be able to view the same images
as TSA employees.
If an anomaly is detected, TSA employees will further
screen the targeted areas via means like enhanced pat downs.
The TSA maintains
that this modification will mitigate travelers'
privacy concerns and provide a better customer experience at
checkpoints. The new
system will also cut Agency costs, as additional
TSA employees will no longer be needed to view the scanned images in a
room. No plan currently exists to install similar software on
the more widely used and more controversial "backscatter" x-ray
although the TSA plans to conduct tests in Fall 2011.
The system's effectiveness has been called into question, however;
obtained via EPIC's Freedom of Information Act lawsuit
against the Agency reveal that the scanners are not designed to detect
powdered explosives like PETN, the explosive used
in the failed 2009
Christmas Day "underwear bomb" plot.
EPIC has been unable to determine whether or not the new software
or transfers the underlying raw naked images captured before
filtering. Twice in 2010 EPIC requested documents from the TSA under
the Freedom of Information Act regarding the operations and
capabilities of automated target recognition (AIT) software in
airport body scanners. The Agency failed
to provide the documents or
give a legally adequate response to either request, and EPIC
subsequently filed suit. Previously obtained
documents indicate that,
despite the TSA's claims to the contrary, body scanners were designed
to store and transfer the naked images.
TSA: 'TSA Takes Next Steps to Further Enhance Passenger Privacy'
EPIC: FOIA Request to TSA Re: Body Scanner Capabilities (Oct. 2010)
EPIC: Complaint for Release of Improperly Withheld TSA Records
EPIC: TSA Procurement Specifications for Body Scanners
EPIC: Body Scanner Technology
EPIC: EPIC v. DHS (Suspension of Body Scanner Program)
 EPIC v. NSA: Agency Can 'Neither Confirm Nor Deny'
A federal judge has issued an opinion in EPIC
v. National Security
Agency, accepting the Agency's claim that it can "neither confirm
nor deny" a partnership with Google following
a January 2010 incident
in which Chinese hackers allegedly breached Google's corporate network.
EPIC submitted a Freedom of Information Act request in February 2010,
seeking documents pertaining to any agreement or communication between
Google and the NSA on cybersecurity.
Such documents could reveal that
the NSA was developing technical standards that would enable greater
surveillance of Internet users.
At the time, the Agency denied EPIC's FOIA request, refusing to confirm
or deny any relationship with Google. To "neither confirm
nor deny" the
existence of documents is known as a "Glomar response," a controversial
legal doctrine that allows agencies to conceal
records that might
otherwise be subject to public disclosure. EPIC appealed the Agency's
decision to deny its request. After the
Agency failed to respond to
EPIC's appeal within the statutory deadline, EPIC filed a complaint.
EPIC plans to appeal the judge's
Currently, EPIC is also litigating to obtain the National Security
Presidential Directive, which sets out the NSA's cybersecurity
authority. In January 2008, President George W. Bush issued National
Security Presidential Directive 54 (NSPD-54), which grants the
Security Administration broad authority over the security of American
computer networks. The Directive created the Comprehensive
Cybersecurity Initiative (CNCI), a "multi-agency, multi-year plan that
lays out twelve steps to securing the federal government's
networks." This Directive was not released to the public.
EPIC is additionally seeking from the NSA information about Internet
vulnerability assessments; the Director's classified opinions on how
the NSA's practices impact Internet privacy; and the NSA's "Perfect
Citizen" program - a formerly secret cybersecurity program to monitor
the Internet for impending cyber attacks.
EPIC v. NSA: D.C.
District Court Opinion (July 8, 2011)
EPIC v. NSA: Complaint (Feb. 2010)
EPIC: NSA FOIA Request (NSA and Google relationship) (Feb. 2010)
EPIC: NSA FOIA Request (Perfect Citizen Program) (July 2010)
EPIC: EPIC v. NSA
 News in Brief
EPIC Urges Court to Limit Pre-Trial DNA Collection from Defendants
EPIC has filed a "friend of the court" brief in US v. Pool.
Court of Appeals for the Ninth Circuit is hearing the case, which
challenges the constitutionality of a federal law requiring
felony defendant submit a DNA sample as a condition of bail, pending
trial. The DNA is used to create profiles in a national
system, otherwise known as CODIS. The FBI itself keeps the full DNA
sample indefinitely. In its brief, EPIC observed: "Today's
shows that DNA reveals vastly more personal information than a
fingerprint," including "genetic information that can reveal
traits such as race, ethnicity and gender, as well as medical risk for
conditions such as diabetes." A three-judge panel
of the Ninth Circuit
previously heard US v. Pool and handed down its opinion in September
2010. Pool's counsel then petitioned the
Ninth Circuit to rehear the
case with a full panel of judges, or "en banc".
EPIC: Amicus Brief in US v. Pool (July 2011)
EPIC: US v. Pool
EPIC: Genetic Privacy
EPIC, Liberty Coalition Submit Comments on Internet Identities
EPIC, joined by the nonpartisan Liberty Coalition, has submitted
comments to the National Institute for Standards and Technology (NIST)
on governance topics associated with the National Strategy
Identities in Cyberspace, or NSTIC. NSTIC proposes the creation of an
"identity ecosystem," which would allow individuals
validate their identities online during sensitive transactions while
remaining anonymous during general web browsing.
EPIC's comments call
for a structure that would "include protection of consumer information
and implementation of strong privacy
practices." EPIC has previously
pressed the Obama Administration for a clearer definition of issues
NSTIC was meant to address, and
has advocated for the maintenance of a
free and open Internet.
EPIC: Comments to NIST on NSTIC (July 2011)
EPIC: National Strategy for Trusted Identities in Cyberspace
NIST: National Strategy for Trusted Identities in Cyberspace
White House: Cyberspace Policy Review
Facebook Makes Changes to Facial Recognition; Still Relying on Opt-Out
In response to a letter from Connecticut Attorney General
Jepson, Facebook has agreed to run ads that link users to their privacy
settings and show them how to opt-out of Facebook's
recognition feature. The first run of the online "Tag Suggest" ads
resulted in over 400,000 impressions, according to
Jepson's office; a
second run will take place over a two-week period in July and August
2011. In June 2011, EPIC, along with several
filed a complaint with the Federal Trade Commission concerning
Facebook's "unfair and deceptive" biometric data
EPIC urged the Commission to require Facebook to suspend the program
pending a full investigation, as well
as implement stronger privacy
safeguards and a default opt-in for the facial recognition application.
Connecticut AG: Press Release
(July 26, 2011)
EPIC: EPIC: Facebook Facial Recognition Complaint (June 10, 2011)
EPIC: Facebook and the Facial Identification of Users
Google Suspends Thousands of Google+ Accounts, Cites Use of Pseudonyms
Some users of the social network site Google+ reported
in late July
that their accounts were deleted or suspended because the accounts were
being used under pseudonyms rather than legal
or "real" names.
Google+'s policy requires that users be publicly identified under the
name that they "commonly go by in daily life."
reported conflicting consequences; some users claimed that they lost
access to any GMail, Calendar, and Google Docs
accounts that were
linked to their Google+ accounts. Google responded that account
suspensions or deletions should only affect social
as Google+ and Buzz. Google now has modified its policy to provide a
warning to users and an opportunity to comply
with the policy before
suspending their accounts. EPIC opposes both commercial and government
practices that restrict anonymous Internet
Google: Your Name and Google Profiles
Google: Official Blog Post on Account Suspensions
EPIC: Internet Anonymity
EPIC: Social Networking Privacy
Google Buys Facial Recognition Software Company
Facial recognition software company Pittsburgh Pattern Recognition
announced on July 22 that it had been acquired by Google.
The terms of the deal were not disclosed, but Google already employs
"computer vision" technology in Google Image Search, YouTube,
and Picasa. Google's acquisition follows competitor Facebook's June
announcement that it had deployed "Tag Suggestions" facial recognition
technology over the last several months. On June 10, EPIC
complaint with the Federal Trade Commission, arguing that biometric
data collection for the purposes of facial recognition
identification presents privacy and safety concerns for consumers.
Pittsburgh Pattern Recognition: Google Acquisition
EPIC: Facebook Facial Recognition Complaint (June 10, 2011)
EPIC: Face Recognition
EPIC: Facebook and Facial Recognition
 EPIC Book Review: 'In the Plex'
"In the Plex: How Google Thinks, Works, and Shapes Our Lives,"
"In the Plex: How Google Thinks, Works, and Shapes Our Lives" is both
a digital-age tragedy and a love story about the genius, drive,
sheer audacity of Google's founders and engineers. While veteran tech
journalist Steven Levy dutifully recounts Google's gradual,
descent into censorship, anti-trust lawsuits and public privacy
outrages, he appears so infatuated with Google's astounding
inventiveness that he can't actually condemn founders Larry Page and
Sergey Brin. The result is a dizzyingly fast ride through the
years of technological development - an "entire generation" of the
Internet, as Levy himself puts it - in which Levy does
his best to
shield the company's beloved principals from blame.
Although most readers of "In the Plex" should be familiar with the
basic storyline of Google's skyrocket from radically new search engine
to aggressive, market-dominant promoter of "cloud computing,"
narrative is linear and suspenseful. Indeed, like a good detective
novelist, Levy casually mentions the seeds of Google's
in Chapter 1: Page and Brin's obsession with collecting and analyzing
vast amounts of user data in order to further
their own and their
company's ambitions. Even in 1999, says Levy, Google's engineering team
knew that it "had the capacity to capture
everything people did on the
site . . . a digital trail of activities whose retention could provide
a key to future innovations."
Levy's chronological litany of Google's acquisitions and product
releases - from Gmail to Google Maps to Android - is simultaneously
jolting and nostalgic. Perhaps just jolting is Google's seemingly
arithmetic expansion into larger and larger office complexes, constant
buy-outs of smaller start-ups, and the hardening of an ever more
cumbersome and "un-Googley" corporate bureaucracy. Concurrent with
Google's growth are the increasingly common lapses in user privacy,
beginning with the furor over Gmail's storage and targeted advertising,
and culminating with the disastrous privacy oversights of Google Buzz.
In both cases, privacy issues were vetted or perhaps disregarded
Google employees themselves, who successfully used Gmail and Buzz
in-house before the products' public release. But, as Levy reiterates,
Google and its employees see the world, and data, differently: "They
considered . . . privacy concerns illogical. They trusted machines,
their own intentions were pure - ergo, people should have trusted
them." Google's own motto was "Don't Be Evil."
Google's privacy missteps fairly but sympathetically. He
devotes an entire chapter to the google.cn debacle, and yet never says
that Google had been naive or self-serving in trying to court
the Chinese search market. He states the facts, then turns to quote
even legitimize the motivations of the Google "troika" - Page, Brin,
and CEO Eric Schmidt. Rather, Levy's ire seems directed at,
Brin, "'. . . the kinds of things privacy nuts take advantage of to
"In the Plex" was published in April
2011, days after the Google Books
settlement was overturned due to user privacy concerns. Nevertheless,
Levy uses the Google Books/Google
Library initiative as the project
most symbolic of the increasing disconnect between Google's belief that
it was creating a valuable,
lasting service to humankind, and the
public's perception that Google was trying to exploit and control access
to the informational
world. A melancholy epilogue entitled "Chasing
Taillights" chronicles Google's increasingly flailing attempts to enter
networking space, implicitly speculating that Google's
primacy in the online world is not only finite, but ending.
"In the Plex"
is a breathtaking read about how our hunger for data
shapes our society - a hybrid corporate biography and technological
At the same time, one can't help but wish that Levy himself
had been a little less drawn into the Google cult.
-- Beth Rosenberg
"Litigation Under the Federal Open Government Laws 2010," edited by
A. Hammitt, Marc Rotenberg, John A. Verdi, Ginger McCall, and Mark
S. Zaid (EPIC 2010). Price: $75
Litigation Under the Federal Open Government Laws is the most
comprehensive, authoritative discussion of the federal open access
This updated version includes new material regarding President Obama's
2009 memo on Open Government, Attorney General Holder's
March 2009 memo
on FOIA Guidance, and the new executive order on declassification. The
standard reference work includes in-depth
analysis of litigation under:
the Freedom of Information Act, the Privacy Act, the Federal Advisory
Committee Act, and the Government in the Sunshine Act. The fully updated
2010 volume is the
25th edition of the manual that lawyers, journalists
and researchers have relied on for more than 25 years.
"Information Privacy Law: Cases and Materials, Second Edition" Daniel
J. Solove, Marc Rotenberg, and Paul Schwartz. (Aspen 2005).
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
law, including: identity theft, government data mining and electronic
surveillance law, the Foreign Intelligence Surveillance
intelligence sharing, RFID tags, GPS, spyware, web bugs, and more.
Information Privacy Law, Second Edition, builds a cohesive
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
75 countries around the world. The report outlines legal protections,
new challenges, and important issues and events relating
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).
reference guide provides the official UN documents, regional and
issue-oriented perspectives, and recommendations and proposals
future action, as well as a useful list of resources and contacts for
individuals and organizations that wish to become more
involved in the
"The Privacy Law Sourcebook 2004: United States Law, International
and Recent Developments," Marc Rotenberg, editor (EPIC 2005). Price:
The Privacy Law Sourcebook, which has been called the "Physician's Desk
Reference" of the privacy world, is the leading resource
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 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:
 Upcoming Conferences and Events
Privacy Platform Meeting on The Transatlantic Dimension of Data
Protection. Brussels, Belgium, 7 September 2011. For More Information:
EPIC Public Voice Conference. Mexico City, Mexico, 31 October 2011. For
More Information: http://www.thepublicvoice.org/.
33rd International Conference of Data Protection and Privacy
Commissioners (ICDPPC 2011). Mexico City, Mexico, 2-3 November 2011.
For more information: http://www.privacyconference2011.org/.
8th Conference on Privacy and Public Access to Court Records.
Sponsored by the College of William and Mary School of Law.
VA, 3-4 November 2011. For More Information:
Computers, Privacy, & Data Protection 2012: European Data Protection:
Coming of Age. Brussels, Belgium, 25-27 January 2012, Call
Abstracts Deadline 1 June 2011. For More Information:
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