E P I C A l e r t
Volume 18.02 January 28, 2011
Published by the
Electronic Privacy Information Center (EPIC)
"Defend Privacy. Support EPIC."
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EPIC Body Scanner Incident Report
Table of Contents
 International Privacy Day Celebrated on January 28
 Champion of Freedom Awards given to Chester and In 't Veld
Rotenberg Speaks to Council of Europe
 European Union to Extend Protection in Cloud Computing in 2011
 Privacy Groups Release
Human Rights and European Union Report
 SCOTUS Affirms Informational Privacy Right, Upholds NASA Practices
 News in Brief
Upcoming Conferences and Events
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 International Privacy Day Celebrated on January 28
January 28 is International Privacy Day, celebrating the day that the
first international convention on privacy was signed in 1981.
Council of Europe and the European Commission initiated this
commemoration in 2007. This year marks its fifth edition, and a
variety of activities are being held in cities around the world to
underscore the importance of privacy protections.
of Europe has stated that their goal on this year's
International Privacy Day is to give "European citizens an opportunity
what kind of data about them is collected and processed,
why this is done, and what rights they have in respect of such
It is also an opportunity for them to become more aware of
the inherent risks associated with the unlawful use or clandestine
of their personal data."
Supporters of the Madrid Privacy Declaration are urging countries to
ratify the Council of Europe Convention
108 and the Protocol of 2001, to
establish a comprehensive framework for privacy protection and an
independent data authority, and
to ensure effective implementation and
enforcement of existing legal frameworks.
A "Pecha Kucha Night" to honor Data Protection
day is being held in
Brussels. The Pecha Kucha, which is Japanese for the sounds of
conversation, is a series of show-and-tell presentations
designers and advocates. The Pecha Kucha evening forms part of the
Fourth International Computer, Privacy, and Data Protection
EPIC Associate Director Lillie Coney is in attendance.
In the United States, Governors in North Carolina, Arkansas,
Maryland, Iowa, Maine, Ohio, West Virginia, and Wisconsin have declared
Data Privacy Day on January 28, and several events
will be held across
the U.S. and Canada. On January 27, the Center for Information Policy
Leadership in Washington, DC hosted "The
Role of the Individual in Data
Protection and Privacy," a breakfast program with panelists from the
Center for Democracy and Technology
and former Department of Homeland
Security staff. The Institute for Information Law and Policy at the New
York Law School will engage
students in a conversation on "Whose Data Is
For Civil Society Groups the key objective on January 28 is to motivate
people to action - not just by checking their privacy settings,
shredding old bank statements or installing a browser extension,
raising awareness about why meaningful regulation of privacy and
enforcement of privacy rights is key for the protection of
to control personal data.
Data Privacy Day 2011
The Public Voice
The Madrid Privacy Declaration
Council of Europe and the European Joint High Level Meeting
EPIC: Privacy and Human Rights
EPIC: Council of Europe Privacy Convention
 Champion of Freedom Awards given to Chester and In 't
EPIC has presented the annual Champion of Freedom Awards
to Sophie In 't
Veld, a Dutch Member of the European Parliament (MEP) and Jeff Chester,
Founder and Executive Director of the Center
for Digital Democracy.
MEP Sophie In 't Veld is serving her second term in the European
Parliament, representing the Dutch social-liberal
party, D66. MEP In't
Veld is the leading advocate in the European Parliament seeking to ensure
data protection for European citizens
and working to promote Internet
Freedom. She has worked to promote strong privacy safeguards in data
exchange agreements between
the European Union and the United States. Her
recent speeches in the European Parliament have addressed such concerns
relating to racial and ethnic origin in the EU," "Freedom
of expression and press freedom in the European Union," "Electronic
networks and services," "Freedom of Information," and
"Rules on the confidentiality of Europol information"
As the vice-chair of
European Parliament's Civil Liberties, Justice, and
Home Affairs Committee, MEP holds one of the most influential offices in
European Parliament. In December 2010 In 't Veld hosted a Privacy
Platform on the European Commission's proposal of "a comprehensive
approach on personal data protection in the European Union." The panel
is part of an effort to improve the scope of data protection.
In't Veld is also known for her work on human rights, women's rights,
and gender equality.
Jeff Chester, author of Digital
Destiny: New Media and the Future of
Democracy and a former investigative reporter and filmmaker, has been a
consistent voice advocating
in the area of telecommunications. Chester
founded The Center for Digital Democracy in 2001 in order to monitor new
developments. Chester provides frequent testimony
before Congress on numerous topics.
The Center for Digital Democracy has led the
way in the development of a
campaign for an open broadband Internet, helping educate the public
about the plans of the phone and
cable companies to operate a more
tightly-controlled broadband system, and efforts at the Federal Trade
Commission to promote new
policies governing online privacy and
responsible interactive marketing practices. The Center is also
advancing public knowledge
about risks to privacy in pharmaceutical drug
and health marketing.
Center for Digital Democracy
Profile of Jeff Chester
Sophie In 't Veld
Profile of Sophie In 't Veld
EuroParl: Committee on Civil Liberties, Justice and Home Affairs
Privacy Platform "A Comprehensive Data Protection Framework"
 EPIC's Rotenberg Speaks to Council of Europe
On January 28, 2011, Marc Rotenberg, President of EPIC, will speak to
the Council of Europe in Brussels, Belgium. The speech will
be given at
a joint high-level meeting with the Council of Europe and the European
Justice Commission, one of many meetings taking
place to raise awareness
of the importance of data protection for individuals. This event marks
the 30th anniversary of the Council
of Europe “Convention for the
Protection of Individuals with regard to Automatic Processing of
Personal Data,” known
as Convention 108, which was first opened for
signatures in 1981.
Rotenberg’s speech will focus on the Privacy Convention
and the efforts
underway in the United States ensure US ratification. Rotenberg said, in
prepared remarks that the Convention "builds
on Article 12 of the
Universal Declaration of Human Rights" and "sets out a framework that
allocates rights and responsibilities
in the collection and use of
personal data in the context of modern technology. The Convention also
makes clear that privacy rights
are protected in law through democratic
institutions." EPIC previously submitted comments supporting a proposed
appendix to the Convention
108 that would apply privacy safeguards
specifically to data profiling.
Last year, 100 civil society organizations and privacy experts
the Madrid Declaration of 2009. The Declaration specifically urged
countries that had not yet done so to ratify Convention
108 as soon as
possible. Following the Declaration last year, EPIC was joined by
leading technical experts and legal scholars in
a letter to Secretary
Clinton, urging her to begin the process of US ratification of
Convention 108. That statement noted that the
Secretary’s speech on
Internet Freedom reflected many of the same concerns that “animated the
frames of the Council of
Europe Convention who saw the promise of new
technology but also recognized the risk to fundamental human rights.”
recently wrote that "It is not too difficult for the data
protection laws of quite a few non-European countries to meet the
of Convention 108" and suggested "The opening up of
Convention 108 to non-European countries is one way of sidestepping the
process of developing a new UN convention on privacy" and
concluded that "this approach deserves serious consideration by
and other governments that already have privacy laws of
international standard, or are considering introducing them."
to objections to US ratification of the Council of Europe
Privacy Convention, Rotenberg pointed out that the United States had
ratified the Council of Europe Convention on Cybercrime and had
urged its allies to do so as well.
Forty-one countries have ratified
the Convention 108. Civil society
groups will continue their efforts to press for adoption of the
Convention among the countries
that have not yet ratified.
Data Protection Day, Brussels (January 28, 2011)
Rotenberg speech to Council of Europe
Council of Europe: Convention 108
EPIC: Letter to Senator Clinton (January 28, 2010)
Madrid Privacy Declaration
Statement of Senator Patrick Leahy on “International Privacy Day”
EPIC: Comments to the COE on the Protection of Individual Data (2010)
Council of Europe: Proposed Appendix to Convention 108
Universal Declaration of Human Rights: Article 12
 European Union to Extend Protection in Cloud Computing
The European Commission, the executive body of the
European Union (EU),
wishes to extend data protection to data clouds in order to safeguard
consumers and promote consumer confidence.
The Commission found that
unprotected clouds of data pose a threat to the privacy of millions of
European citizens. Data protection
rules already exist to ensure
consumer privacy on social networking sites, but the European Union's
data protection rules must be
updated to reflect the advancing
The intangible nature of data on the cloud makes it a global issue.
makers have the daunting task of determining who will police
these data protection efforts, since the clouds drift without borders.
Viviane Reding, the European Commissioner for Justice, contemplates
several methods to improve cloud security. One of these methods
"privacy by design," requiring privacy protection features to be
integrated in the product or service. Because of the intangible
of cloud computing, Reding acknowledges that it is vital that businesses
and service providers exercise transparency.
Commission believes that consumers must be able to trust cloud
computing to store their personal data. This includes the ability
able to delete their personal data at will, without the consequence that
it will remain engrained in the system indefinitely.
Reding wishes to
include this aspect in her data protection rules to guarantee the
protection of EU citizens.
Changes to the 1995
Data Protection Directive are anticipated later this
year. Implementation of the Data Protection Directive differs among
and the European Commission plans to investigate whether
these differences in implementation are due to unavoidable legal
or a failure to comply with the Directive.
EU Data Protection Directive 1995
European Commission Data Protection
European Commission for Justice
EPIC: Cloud Computing
 Privacy Groups Release Human Rights and European Union
Privacy International, EPIC, and the Center for Media
Studies (CMSC) released "European Privacy and Human Rights (EPHR) 2010,"
a report investigating the scope of privacy
and data protection laws and
regulations in Europe. The study is composed of 33 individual reports
covering issues from privacy
enforcement to ID cards and biometrics, to
data-sharing, to government access to visual surveillance, among others.
The study ranks
privacy sharing across the European Union (EU). An
interactive table and a map enable readers to visualize how European
rank on a continuum from endemic surveillance societies to
countries consistently upholding human rights standards.
The EPHR project
began in January 2010 with three goals: 1) to map
European privacy laws and recent developments as well as summarize the
the light of the right to privacy; 2) to disseminate
information and publish it on multiple online and offline platforms; and
to develop innovate awareness-raising campaigns to be launched at the
European Data Protection Day on January 28, 2011. The EPHR
the work in EPIC's publication, Privacy & Human Rights: An International
Survey of Privacy Laws and Developments.
in 1990 and based in London, England and Washington, D.C., human
rights organization Privacy International focuses on surveillance
privacy invasions by government and corporations. The Center for Media
and Communications Studies is a research center at the
University (CEU) in Budapest, Hungary. CMCS focuses on scholarship and
practice-oriented research on media and communications
in Central and
European Privacy and Human Rights (EPHR) 2010 report
Center for Media and Communication Studies
European Data Protection Day
Electronic Privacy Information Center
EPIC: Privacy & Human Rights
 SCOTUS Affirms Informational Privacy Right, Upholds
The Supreme Court has issued a decision in
NASA v. Nelson, a case
brought by NASA scientists who argued that the government's invasive
background checks violate the Constitution. The Court's seven-Justice
majority opinion, penned by Justice Alito, confirmed as good law the
multiple Supreme Court precedents
which recognize a privacy interest in
"avoiding disclosure" that "arguably ha[s] its roots in the
Alito hesitated to specify the limits of the constitutional right to
information privacy in this case, explaining that the Court
the "benefit of briefing by the parties and . . . potential amici." EPIC
served as an amicus, or "friend of the court,"
in the case, briefing the
Court on expert findings about the right to informational privacy with
the explicit backing of twenty seven
legal scholars and technologists.
The Court did uphold the specific background checks in this case, after
finding (1) that the requests
were reasonable, (2) that the information
would be protected under the Privacy Act, and (3) that any information
offered in response to the sensitive requests under
review would act "solely as a mitigate[ing] factor." Crucial to the
decision was the federal government's effort to
eliminate a "two-track approach to background investigations" which
traditional government employees from private contractors
who now constitute a "substantial majority" of the federal civil servant
At oral argument, Justice Ginsburg took pains to stress that the Ninth
Circuit order under review was limited to two
background check forms that all traditional government employees are
already required to fill out.
in concurrence, Justice Scalia said the Court's opinion "will
dramatically increase the number of lawsuits claiming violations of
right to informational privacy." Brandishing exclamation points, and
issuing an end-of-days warning about "recovering drug addicts"
helm of the Hubble Telescope, Justice Scalia urged the Court to roll
back earlier precedents which all parties had conceded
EPIC's amicus brief highlighted key risks associated with overreliance
on the Privacy Act as a legal safeguard,
including the "routine use"
exception, security breaches, and each agency's authority to carve out
its own exceptions. Justice Kagan
did not participate because of her
earlier involvement in the case as Solicitor General.
NASA v. Nelson: Supreme Court Opinion
NASA v. Nelson: Supreme Court Oral Argument
NASA v. Nelson: EPIC's "Friend of the Court" Brief
NASA v. Nelson: Ninth Circuit Opinion
EPIC: NASA v. Nelson
EPIC: Workplace Privacy
 News In Brief
Senate Commerce Committee to Key Privacy Issues in New Congress
Chairman Rockefeller's (D-WV) priorities for the Senate Commerce
Committee in the new Congress will include consumer privacy, oversight
of the Federal Trade Commission, airport screening, and cybersecurity,
according a recent statement. Senator Rockefeller has specifically
called for strong Internet privacy laws: "There are no baseline
protections for most consumer online activity," he stated. "Industry
self-regulation has largely failed, and I hope that
the Department of
Commerce . . .will reach the conclusion that legislation is necessary to
protect consumers." EPIC has testified
previously before the Committee
on the Childrens' Online Privacy Protection Act (COPPA), protecting
consumers' phone records, and
Chairman Rockefeller: Press Release
EPIC: Testimony on COPPA (April 29, 2010)
EPIC: Testimony on Phone Records (February 8, 2006)
EPIC: Testimony on Spam (May 21, 2003)
EPIC: Online Tracking and Behavioral Profiling
Senate Judiciary Committee to Focus on Privacy and Open Government
On January 11, 2011 the Newseum and the Freedom Forum hosted
Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee. Leahy
vowed to work alongside the new Chairman of the House
Committee on a variety of privacy and open government issues. Updates to
key legislation, including the Electronic Communications
are included in the Judiciary Committee's agenda with the goal of
strengthening cyber security and law enforcement while
citizens' privacy rights. Furthermore, the Committee will examine the
body scanners at airports and online activity tracking.
emphasized the importance of open government as an American value and
plans to reintroduce the Faster FOIA Act, a bill
that will create a
commission to analyze and improve FOIA implementation.
Senator Leahy: Agenda for the 112th Congress
Privacilla: The Electronic Communications Privacy Act
The Freedom Forum
EPIC: Body Scanners
EPIC: Faster FOIA Act
EPIC Files Brief in Supreme Court ID Case
EPIC filed an amicus brief in Tolentino v. New York, a Supreme Court
police access to government databases, enabled by patrol
cars with Mobile Device Terminals. EPIC urged the Court to uphold Fourth
Amendment protections for the Petitioner, who asserted that police had
no basis for pulling him over and running his license. EPIC's
states that "the risk is real that car stops will increasingly become
pretextual because of the opportunity to search a government
for data unrelated to the reason that gave rise to the original stop."
EPIC has filed briefs in related cases, including
Hiibel v. Sixth
Judicial District, in which the Supreme Court upheld, by a 5-4 margin, a
state identification law because the individual
did not have to produce
his drivers license. In that case, Justice Stevens wrote "a name can
provide the key to a broad array of
information about the person,
particularly in the hands of a police officer with access to a range of
law enforcement databases."
EPIC Amicus Brief in Tolentino v. New York
EPIC: Tolentino v. New York
EPIC: Hiibel v. Sixth Judicial District
EPIC: Drivers Privacy Protection Act
EPIC: Herring v. U.S.
TSA Faces Continued Scrutiny
Five days after a jury exonerated civil rights activist Phil Mocek for
refusing to show his identification
to the TSA at an airport checkpoint,
former Minnesota Governor Jesse Ventura filed a lawsuit against the TSA
for its controversial
security screening. Mocek has published footage of
the incident, stemming from his attempt to board a flight in Albuquerque
Ventura, who received a titanium hip implant in 2008, attracted
significant media attention for labeling the searches an "unlawful
sexual assault." EPIC has brought a lawsuit to suspend body scanner
program, calling the body scanners "invasive, ineffective, and
unlawful." Oral argument in EPIC's case is scheduled for March 10, 2011.
EPIC also hosted a "The Stripping of Freedom: A Careful
Scan of TSA
Security Procedures," a one day conference with CSPAN coverage at the
Carnegie Institute for Science in Washington, DC.
Among many prestigious
speakers were Representative Rush Holt, Ralph Nader, New York City
Councilman David Greenfield, and representatives
from the Libertarian
Party, the Council on American Islamic Relations, Flyer's Rights, and
the CATO Institute.
Phil Mocek's Footage
of TSA Interrogation
Former Minnesota Governor Jesse Ventura's Lawsuit Against the TSA
EPIC: EPIC v. DHS (Suspension of Body Scanners)
A Stripping of Freedom: A Careful Scan of TSA Security Procedures
EPIC Urges Commerce Department to Support Effective Privacy Standards
EPIC submitted comments on the Commerce Report, "Commercial
and Innovation in the Internet Economy: A Dynamic Policy Framework."
EPIC called for an independent privacy agency with
and a comprehensive federal privacy law based on robust Fair Information
Practices. EPIC also urged the Department
to push forward an
international framework for privacy protection and explained how
effective regulation will promote innovation
for privacy, as it has for
alternative energy. EPIC warned the Commerce Department not to "repeat
the dreadful mistake of P3P," a
privacy protocol widely viewed as one of
the failures of self-regulation.
EPIC Comments to Department of Commerce (January 25, 2011)
EPIC: Internet Privacy
EPIC: EU Data Protection Directive
EPIC: Privacy Act of 1974
FTC: Investigating Google Street View is a "waste of summer"
In documents obtained by EPIC through a Freedom of Information Act
request, a senior attorney with the Federal Trade Commission describes
the Google Wi-Fi investigation as a "wasted summer" and hopes
Hill briefing on Google Wi-Fi "won't be too much of a time suck." EPIC
sought these documents after the FTC dropped its investigation
Street View. Several countries, including the U.K., Germany, Spain, and
Canada, have conducted similar investigations and
determined that Google
violated their privacy laws. In the U.S., the Federal Communications
Commission opened an investigation after
EPIC filed a complaint, asking
the Commission to investigate violations of U.S. wiretap law and the
Federal Communications Act.
FTC: "Waste of Summer" E-mail
FTC: "Time Suck" E-mail
FTC Letter to Google (October 27, 2010)
The New York Times: FCC Investigation
EPIC: FCC Complaint (May 21, 2010)
EPIC: Google Street View
DHS Releases FOIA Report, But Questions Remain
The Department of Homeland Security (DHS) has released the Freedom of
Information Act (FOIA) Report for 2010. The report analyzes the
processing of FOIA requests made throughout the year by each DHS
the disposition of each request, response times,
and the remaining number of backlogged requests. DHS is under scrutiny
policy of referring FOIA requests to political appointees
before processing. The release of over 1,000 agency documents revealed
persistent agency practice of flagging FOIA requests from EPIC and other
watchdog organizations for referral. The FOIA does not
to select FOIA requests for political scrutiny and the Supreme Court has
stated that neither the identity of the
FOIA requester nor the reason
for the request is relevant to the processing of requests. EPIC has
recommended that the FOIA Ombudsman
investigate the Department's policy.
Department of Homeland Security FOIA Report
Freedom of Information Act
DHS Guidelines for Reporting Significant FOIA Activity
DHS Office of General Counsel Release to AP on FOIA Process (July 2010)
EPIC: Letter to OGIS (December 8, 2010)
EPIC: Open Government
EPIC: Litigation under the Federal Open Government Laws 2010
"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
"Computers, Privacy, and Data Protection Conference European Data
Protection: In Good Health?" Brussels, Belgium, 25-28 January
More Information: http://www.cpdpconferences.org/.
"Data Protection Day: Don't Let Them Know All About You," Screening,
Exhibition, and Discussion. Toldi Cinema, Budapest, Hungary,
2011. For More Information: http://www.pet-portal.eu/gallery.
Privacy Party. Brussels, Belgium, 28-29 January 2011. For More
"Data Protection Day: Joint High Level Meeting." Brussels, Belgium, 28
January 2011. For More Information:
"The Technology of Privacy: When Geeks Meet Wonks." Google, Washington,
D.C., 28 January 2011. For More Information:
"All Access Shred Day." Locations Across the United States, 28 January
2011. For More Information:
"Pressing Legal Issues in Aviation Security." Federal Bar Association,
Transportation Security Administration Headquarters - Town
Washington, D.C., 1 February 2011. For More Information: Adrienne
Woolley, FBA, firstname.lastname@example.org.
Smart Grid Summit: "Personal Privacy - Who Left the Fridge Door Open?"
Miami Beach Convention Center, Miami, FL, 2-3 February 2011.
"9/11 and the Legal Landscape: A Decade Later." Wayne Law School,
Detroit, MI, 4 February 2011. For More Information:
"Emerging Trends in Cyberprivacy." Political and Civil Rights Law
Review, Temple Law School, Philadelphia, PA, 5 February 2011.
"The Tenth Workshop on Economics of Information Security." The George
Mason University, 14-15 June 2011. For More Information:
"Computers, Freedom, and Privacy 2011." Georgetown Law Center,
Washington D.C., 14-16 June 2011. For More Information:
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