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EPIC Alert 18.04 [2011] EPICAlert 4

EPIC Alert 18.04

                            E P I C   A l e r t
Volume 18.04                                             March 03, 2011

                           Published by the
               Electronic Privacy Information Center (EPIC)
   Washington, D.C.


                    "Defend Privacy. Support EPIC."

                  Report All Screening Experiences at
                   EPIC Body Scanner Incident Report

Table of Contents
[1] Supreme Court Opinion Scores Major Win For Privacy Proponents
[2] EPIC Urges Federal Trade Commission to Actually Protect Consumers
[3] White House Budget Funds Surveillance, Ignores Public Concerns
[4] EPIC, Coalition Urge Congress to Pursue FOIA Oversight
California Supreme Court Rules Zip Code is Personal Information
[6] News In Brief
[7] EPIC Book Review: "The Net Delusion"
[8] Upcoming
Conferences and Events

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[1] Supreme Court Opinion Scores Major Win For Privacy Proponents

In FCC v. AT&T, the Supreme Court has held that federal
protections for
"personal privacy" do not permit corporations to prevent disclosure of
government records. The case hinged on the
Court's interpretation of the
"personal privacy" exemption in the Freedom of Information Act (FOIA).
AT&T had argued that the corporation's "personal privacy" prevented
release of records pertaining to the FCC's investigation
into AT&T's
government contract work. The Third Circuit Court of Appeals, whose
opinion the Supreme Court reviewed in this case,
agreed with AT&T,
explaining that "personal" derives from "person," a statutory term which
included corporations in other parts of
the FOIA statute.

EPIC filed a "friend of the court" brief for the FCC, urging the
Justices to reject AT&T's claim.  EPIC's brief
cited the commonly
understood meaning of "personal privacy" in the work of legal scholars
and technical experts, demonstrating that
the term applies only to
individuals, not corporations.  EPIC also provided the Court with an
extensive survey of U.S. privacy laws,
which similarly restrict the
term. The brief concluded that that if upheld, the lower court's
"interpretation of 'personal privacy'
would stand as an outlier,
untethered to common understanding, legal scholarship, technical
methods, or privacy law."  The Solicitor
General attacked the lower
court's opinion as well, calling it "a singular outlier in an otherwise
uniform body of more than 35 years
of decisional law and commentary."

The Court agreed with the FCC, writing, "the protection in FOIA against
disclosure of law enforcement
information on the ground that it would
constitute an unwarranted invasion of personal privacy does not extend
to corporations. We
trust that AT&T will not take it personally." In
another opinion that the Supreme Court released on the same week, the
Court also
held that "restricting speech on purely private matters does
not implicate the same constitutional concerns as limiting speech on
matters of public interest." Both opinions show that the Court's
approach to privacy stands in stark contrast to its previous extension
of First Amendment rights to corporate entities.

The Supreme Court's favorable treatment of EPIC's legal positions in
both of these
cases bodes well for the protection of prescriber data in
an upcoming case on EPIC's amicus docket, IMS Health v. Sorrell. Data
companies have challenged a Vermont prescription privacy law,
arguing that it violates their First Amendment interest in buying and
selling "de-identified" prescriber records. EPIC filed a brief in that
case on behalf of scholars, experts, and privacy and consumer
contending that the privacy interest in safeguarding medical records is
substantial and that the "de-identification" techniques
adopted by
data-mining firms do not protect patient privacy. Oral argument in
Sorrell takes place on April 26, 2011.

Supreme Court
Opinion: FCC v. AT&T


EPIC: IMS Health v. Sorrell

Supreme Court Opinion: Snyder v. Phelps

[2] EPIC Urges Federal Trade Commission to Actually Protect

In response to a request for comments on a Federal
Trade Commission
report, EPIC criticized the Commission for failing to act on numerous
privacy complaints currently pending before
the Commission, including
those involving Facebook privacy settings, Google Buzz, and Cloud
Computing Services. The Commission report,
"Protecting Consumer Privacy
in an Era of Rapid Change: a Proposed Framework for Business and Policy
Makers," recommended the creation
of a Do Not Track mechanism, the
adoption of "privacy by design" techniques, and the use of simplified
consumer privacy notices.

In its comments, EPIC urged the Commission to use its Section 5
enforcement authority to protect consumers, as it has done in the past
with its sanctions of Choicepoint and Microsoft Passport.
EPIC also
recommended a comprehensive federal privacy law based on Fair
Information Practices, support for Privacy Enhancing Technologies,
the establishment of an independent privacy agency.

EPIC has filed an administrative appeal with the Federal Trade
challenging the agency's failure to disclose information
about its decision to end the Google Spy-Fi investigation. EPIC is
seeking a slide presentation that the Commission provided
to Congress about the matter. The agency has claimed that the
to Congress is exempt from disclosure under the Freedom of
Information Act. In earlier documents obtained by EPIC through this
request, a senior attorney with the Federal Trade Commission describes
the Google
Wi-Fi investigation as a "wasted summer" and hoped that a
Hill briefing on Google Wi-Fi "won't be too much of a time suck."

pursued these requests after the Federal Trade Commission dropped
its investigation of Google 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 into Google’s potential violations of U.S. wiretap
law and
the Federal Communications Act after EPIC filed a formal complaint.
However, the documents obtained by EPIC under the Freedom
of Information
suggest that the Federal Trade Commission did not even examine the data
Google gathered from private residential Wi-Fi
routers in the US.

EPIC: Comments to FTC (February 18, 2011)
EPIC: FTC FOIA Appeal (February 11, 2011)

FTC: "Waste of Summer" E-mail

FTC: "Time Suck" E-mail

FTC: Letter to Google (October 27, 2010)

EPIC: FCC Complaint (May 21, 2010)

EPIC: Google Street View

EPIC: Federal Trade Commission
[3] White House Budget Funds Surveillance, Ignores
Public Concerns

The Office of Management and Budget has
released the federal budget for
fiscal year 2012. The budget provides the Department of Homeland
Security $43.2 billion, an increase
of $309 million above the 2010
figure. The increases will be used to strengthen border security through
new Customs and Border Protection
officers and updating Coast Guard
assets. Administrative costs, narrow and duplicative grant programs, and
professional contract
services were eliminated to reduce expenditure.

The new budget also includes an $82 million increase to deploy up to
1,275 Advanced
Imaging Technology (AIT) screening machines stationed at
airports across the country by 2012. The machines, which detect
on persons as they walk through, will not be able to store or
transmit the images obtained to ensure privacy. The budget includes
explosives detection systems to be installed at airports. The FY2011
Budget did not include these funds. Furthermore, it affords
$459 million
to the National Cybersecurity Division, which protects the country’s
networks under the Comprehensive National
Cybersecurity Initiative from
cyber attacks. The previous Budget awarded $364 million to the Division.

The budget prioritizes investments
in education reform, proper job
training, and research and development. The Administration proposes 211
reductions, terminations,
and savings that will result in saving $33
billion. Despite the public’s privacy concerns, the budget sets out the
of additional AIT machines. EPIC has filed a lawsuit to
suspend the deployment of body scanners at US airports, because the
is "unlawful, invasive, and ineffective." EPIC argued that the
Department of Homeland Security has violated the Administrative
Act, the Privacy Act, the Religious Freedom Restoration Act,
and the Fourth Amendment. The oral arguments are scheduled for March 10.

Last year, EPIC joined the Privacy Coalition in a letter
sent to the
House Committee on Homeland Security urging them to investigate the
Department of Homeland Security's (DHS) Chief Privacy
Officer. The
letter cited DHS use of Fusion Centers, Whole Body Imaging, funding of
CCTV Surveillance, and as examples of where the
agency is eroding
privacy protections. The House Homeland Committee Chairman stated that
the Committee would "continue to examine
the Department's programs and
policies and vigorously address privacy concerns and issues."

OMB Federal Budget

EPIC: DHS Privacy Office

EPIC: Information Fusion Centers and Privacy

EPIC: EPIC v. DHS (Suspension of Body Scanner Program)

[4] EPIC, Coalition Urge Congress to Pursue FOIA Oversight

EPIC and a coalition of over 30 organizations and open government
experts have sent a letter to Rep. Darrell E. Issa (R-CA), Chairman of
the House Committee on Oversight and Government Reform, urging
hearings on the Department of Homeland Security’s policy of vetting
Freedom of Information Act (FOIA) requests by political appointees. The
coalition letter urged Chairman Issa to expand the time period under
noting that the political vetting process has been in
place for several years.

Rep. Issa has undertaken an investigation of this
"political review"
policy. This policy drew his scrutiny when the release of over 1,000
agency documents revealed a persistent agency
practice of flagging FOIA
requests from EPIC and other watchdog organizations for referral. Rep.
Issa issued a letter to Secretary
Janet Napolitano demanding that the
Department release all documents regarding the agency’s policy of
vetting FOIA requests
through political appointees. He also asked that
the Department’s political appointees appear before the Committee for
regarding this policy.

The coalition also recommended that the Committee support the Office
Government Information Services, the
"FOIA Ombudsman," and encourage the
Government Accountability Office to conduct investigations of agency
FOIA practices. The FOIA
Ombudsman is authorized to recommend to the
President and Congress policy changes that would improve the
administration of FOIA.

The Government Accountability Office is the “congressional watchdog,”
and may conduct audits of agency operations, investigate
alleged illegal
or improper activities, as well as advise Congress and federal agencies
how to work more efficiently, responsively,
and ethically. The Office
published a report in 2009 of its audit of the Department of Homeland
Security’s FOIA policies and
practices. Among its recommendations was
for the Department to increase its internal oversight and monitoring and
to increase and
specialize the FOIA training.

EPIC previously requested an investigation into FOIA practices at the
Department of Homeland Security.
EPIC said that the FOIA does not permit
agencies to select requests for political scrutiny. The Supreme Court
has held repeatedly
that the identity of the requester and the reason
for the request are irrelevant to processing FOIA requests.

EPIC: Privacy Coalition
letter to Rep. Issa
Rep. Darrell E. Issa (R-CA)

House Committee on Oversight and Government Reform
Rep. Darrell E. Issa (R-CA), letter to DHS Secretary Janet Napolitano

Office of Government Information Services

Government Accountability Office

EPIC: Letter to OGIS regarding DHS Political Review Policy
Freedom of Information Act

EPIC: Open Government

EPIC: Litigation under the Federal Open Government Laws 2010

[5] California Supreme Court Rules Zip Code is Personal

In Pineda v. Williams-Sonoma, the California
Supreme Court has
determined that merchants may not require credit card customers to
provide ZIP codes. Plaintiff Jessica Pineda
sued merchant
Williams-Sonoma after that a cashier requested her ZIP code and the
company then used it to determine Pineda's home
address. Pineda believed
that providing her ZIP code was necessary to complete a credit card
transaction. Instead, the company used
it to match Pineda's purchase
information to a separate database, filled with millions of names,
e-mail addresses, telephone numbers,
and street addresses.

The California Supreme Court's decision dealt mostly with statutory
interpretation: The Court interpreted
the Credit Card Act of 1971, a
state law, to protect ZIP codes. "The Court of Appeal's interpretation,
by contrast, would permit
retailers to obtain indirectly what they are
clearly prohibited from obtaining directly, 'end-running' the statute's
clear purpose,"
the Court reasoned. A key factor to the Court's
unanimous decision was that the company's collection practices present
the opportunity
to "sell the information it has compiled to other

The Court emphasized that its decision was consistent with the state
law's plain language, the law's purpose, and the stated intent of the
legislature in passing it. The Court pointed to multiple mentions
consumer privacy in the legislative record. One particularly relevant
state senate report even labeled the accrual of "mailing
and telephone
lists" sold to "direct-mail or tele-marketing specialists" as "The

The Court concluded its opinion by "briefly"
rebutting Williams-Sonoma
constitutional arguments.  First, the company argued that this would
result in an unconstitutionally large
financial penalty.  The Supreme
Court noted that the lower court would have discretion to decrease the
penalty if there was good
reason to do so.  Second, the company argued
that it did not have a good reason to anticipate that ZIP codes were
protected under
the Credit Card Act of 1971, and therefore that the
Court's ruling should only apply to future violations. The Court held
that the
law provided "constitutionally adequate notice" to the company.

Supreme Court of California: Pineda v. Williams-Sonoma

Credit Card Act of 1971

EPIC: Re-Identification

EPIC: IMS Health, Inc. v. Sorrell

EPIC: IMS Health, Inc. v. Ayotte

EPIC: Social Security Numbers
[6] News In Brief

Senate, House Pass Limited Patriot Act Extensions

The Senate and the House have each passed short-term extensions of the
Act. The Senate passed a three-month extension, while the House
extended the provisions until Dec. 8. The extensions included the
wolf” provision, permitting surveillance of individuals and groups not
connected to identified terrorist groups,
the “library law” provision
granting access to “any tangible items” of individuals under
surveillance, and
the provision authorizing the FBI’s use of roving
wiretaps. A Judiciary Committee hearing on Senator Leahy’s proposal
extend the provisions until 2013 with increased oversight is expected
soon. Senator Patrick Leahy (D-VT) opposed efforts to extend
provisions that “undercut important oversight and government
accountability of these intelligence gathering tools.”
EPIC has in the
past urged the Senate Judiciary Committee to require the Attorney
General to report to Congress on potentially unlawful

U.S. Senate: Roll Call Vote
U.S. House of Representatives: Roll Call Vote

Sen. Patrick Leahy (D-VT), Press Release
EPIC: Letter to Judiciary Committee,

EPIC: USA Patriot Act


New Judiciary Subcommittee on Privacy, Tech. and Law Chaired by Franken

Sen. Patrick Leahy (D-VT) announced that as part
of his commitment to
protecting “Americans’ privacy in the digital age,” a new Judiciary
subcommittee would be
formed.  Sen. Al Franken (D-MN) will chair the
Privacy, Technology and the Law subcommittee.  Sen. Franken stated that
as chair he
would “try to make sure that we can reap the rewards of new
technology while also protecting American’s right to privacy.”
In its
oversight role, the subcommittee will cover laws pertaining, among other
things, to the collection, protection, use, and dissemination
commercial information by the private sector, privacy on social
networking sites, privacy standards, and the privacy implications
of new
or emerging technologies.

Press Release

Privacy, Technology and the Law Subcommittee
EPIC: Social Networking

EPIC: Cloud Computing

EPIC: Federal Trade Commission

Internet Policy Group Opposes GAC Veto  

The Internet Governance Project, a Syracuse-based group of academics
dedicated to the
research and publication of Internet policy issues, has
created a petition to persuade the Internet Corporation for Assigned
and Numbers to oppose a U.S. Commerce Department proposal. The
proposal would allow the Governmental Advisory Committee (GAC) of
to block the creation of new website addresses without justification.
Governments could exercise arbitrary power over websites,
which could
significantly hinder website content. The proposal will be discussed at
the upcoming ICANN meeting in Brussels on February

Internet Governance Project

Internet Corporation for Assigned Names and Numbers

U.S. Department of Commerce Proposal

GAC Veto Petition 

[7] EPIC Book Review: "The Net Delusion"

"The Net Delusion: The Dark Side of Internet Freedom," Evgeny Morozov

Last January, Secretary of State Hillary Clinton articulated a
universal, unconditional commitment to expanding Internet access
as a
tool to liberate oppressed people. A year later, Evgeny Morozov has
built a strong case for a more conditional commitment, premised
on the
ways new technologies are likely to meld with existing systems of
control. His new book, The Net Delusion, lambastes what
he calls the
"Internet Freedom Agenda," a political approach to Internet access that
foreign policy elites have borrowed from mainstream
internet experts. As
he puts it, "different contexts give rise to different problems, and are
thus in need of custom-made solutions
and strategies."

Internet Freedom Agenda advocates are the ones bound to find more than a
few key differences with Morozov. The
Net Delusion sparked a heated
debate throughout January, with heavyweights from the "digerati" raring
to step into the ring. Clay
Shirky and Jay Rosen helped to drive the
debate in the first few weeks, and by February, it became the box for
White House speechwriters
to check off.

In part, Morozov's message owes its meteoric rise to the uprisings
across the Middle East, North Africa, and beyond.
Still, the Net
Delusion does carry its own weight, a feat ever the more impressive
considering how heavy a lift it is to challenge
conventional wisdom on
this front. Morozov has a knack for knowing which questions to answer
and which answers to question. Most
notably, he takes pains to shift the
mainstream account of the Green Movement in Iran, now a textbook model
for failed revolution
broadcasted via social media. In tech circles, it
is well known that the State Department emailed Twitter sometime in July
of 2009
in order to keep Iranian dissidents tweeting.  The company
agreed to delay a scheduled maintenance session at Washington's request.

Morozov fills out the rest of the story to establish a direct connection
between American intervention and the Green Movement's
ultimate demise.
He explains how a hard-line Iranian newspaper caught wind of the State
Department email and used it to release a
torrent of conspiracy theories
about Western imperialism. As a result, paranoid delusions flooded
domestic airwaves and drowned out
the protester's message of political
reform. No doubt, recent events have Morozov hoping that Google will
develop a political risk
version of its popular "Mail Goggles" feature
-later.html). Until then, his aim is to convince policymakers to be more
realistic about optics: whoever clicked "Send" should have questioned
how locals in Tehran would perceive open collaboration between
Washington and Silicon Valley.

Morozov's second aim is to persuade
his readers that the Internet can
play into existing power dynamics. Governments enjoy many of the same
incumbency advantages in
the online world that they do offline,
including the ability to outsource Research & Development. Take for
example the Department
of Homeland Security's Social Media Monitoring
and Situational Awareness Initiative. DHS plans to scrape publically
available social
media accounts for personal data, and to compile and
analyze the results on an ongoing basis, with the goal of then
everything to federal, state, local, and foreign
governments (administrative comments due to DHS no later than March 3,
2011 -

Morozov delivers on both of these aims with a contrarian, "inside
baseball" style, unique to the field of popular Internet experts
he both
criticizes and occupies. Some portions of The Net Delusion read like a
trade rag, others will resonate with the more academically
inclined, as
Morozov engages literary giants such as Orwell, Huxley, and Kierkegaard
to add force to his conclusions. What ultimately
keeps the pages turning
is what connects these varied points of departure: the author's gift for
moving from one counterintuitive
flourish to the next. The take home is
clear: as the worlds of tech and global activism collide and intertwine,
received wisdom is
intellectual death.

-- Conor Kennedy

EPIC Publications:

"Litigation Under the Federal Open Government
Laws 2010," edited by
Harry 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).
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
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
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).
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
WSIS process.


"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
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:

[8] Upcoming Conferences and Events

"Secondary and Intermediary Liability on the Internet." Stanford
Technology Law Review, Stanford Law School, 3 March 2011. For More

"Privacy and the Supreme Court." Columbia Law School, New York, New
York, 4 March 2011.

"The Web: Wiring Our World." UNIS-UN,
New York, 4 March 2011. For More

"The Review of the EU Data Protection Framework: Latest State of Play."
European Parliament, Room JAN4Q2, Brussels, Belgium, 16
March 2011. For
More Information:

"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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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
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