EPIC Alert 19.02
E P I C A l e r t
Volume 19.02 February 2, 2012
Published by the
Electronic Privacy Information Center (EPIC)
"Defend Privacy. Support EPIC."
Table of Contents
 Supreme Court Upholds Fourth Amendment in GPS Tracking Case
 EPIC Files Suit for Surveillance Documents of WikiLeaks Supporters
 Google to Consolidate User Data; EPIC Launches 'Good to Really Know'
 EU Data Commission Announces Comprehensive Privacy Law
 EPIC Participates in International Data Privacy Conference
 News in Brief
 Book Review: 'Configuring the Networked
 Upcoming Conferences and Events
TAKE ACTION: Support EPIC's 'Good to Really Know' Education Campaign!
- WATCH the GtRK
- READ EPIC's Letter to the FTC: http://epic.org/redirect/020112-f.html
- SUPPORT EPIC: http://www.epic.org/donate/
 Supreme Court Upholds Fourth Amendment in GPS Tracking
The US Supreme Court unanimously voted to uphold a
lower court decision
in US v. Jones, holding that the attachment and use of a GPS car-
tracking device constitutes a "search" under
the Fourth Amendment.
Justice Antonin Scalia delivered the opinion of the Court, joined by
Chief Justice John Roberts and Justices
Anthony Kennedy, Sonia
Sotomayor, and Clarence Thomas. Justice Sotomayor wrote a separate
opinion in concurrence. Justice Samuel
Alito, joined by Justices
Stephen Breyer, Ruth Bader Ginsburg, and Elena Kagan, wrote a separate
opinion concurring in the judgment
without joining Scalia's majority.
Justice Scalia's majority opinion stressed that the government's
physical occupation of "private
property for the purpose of obtaining
information" would have been considered a search "within the meaning of
the Fourth Amendment
when it was adopted." Scalia emphasized that the
holding, while narrow, made clear that the Fourth Amendment, at a
from trespassory government searches. Scalia also
noted that the property-based Fourth Amendment analysis does not
more expansive analysis based on the "reasonable
expectation of privacy."
Justice Alito's concurring opinion argued that the majority's
on "18th-century tort law" is ill-suited to the current legal and
technological landscape, and concluded that "the use
of longer term GPS
monitoring in investigations of most offenses impinges on expectations
Justice Sotomayor's concurring
opinion agreed with the majority's
conclusion that the property-based analysis represents an "irreducible
minimum" of Fourth Amendment
protection, but also agreed with Alito's
conclusion that "at the very least, 'longer term GPS monitoring in
investigations of most
offenses impinges on expectations of privacy.'"
Sotomayor further noted that "cases involving even short-term
monitoring ... require
particular attention" because the "government
can store such records and efficiently mine them for information years
into the future
..." but concluded that the most pressing issue
threatening Fourth Amendment protections is the "third party doctrine",
that "an individual has no reasonable expectation of
privacy in information voluntarily disclosed to third parties."
a "friend of the court" brief in US v. Jones, urging the
Court to limit the scope of pervasive GPS surveillance by upholding
Fourth Amendment protections. Along with 30 legal and technical
experts, EPIC argued that 24-hour GPS surveillance by law enforcement
constitutes a "search" under the Fourth Amendment. EPIC argued, "it is
critical that police access to GPS tracking [information]
to a warrant requirement."
EPIC submitted a similar amicus brief in an earlier GPS tracking before
Supreme Judicial Court. In that case, Commonwealth
v. Connolly, the Massachusetts high court ruled that police must obtain
before using GPS devices to monitor vehicles. The court also
imposed time limits on GPS monitoring, ruling that warrants will expire
15 days after they are issued.
US Supreme Court: Opinion in US v. Jones (Jan. 23, 2012)
EPIC: US v. Jones
EPIC: US v. Jones, "Friend of the Court" Brief
EPIC: Commonwealth v. Connolly
Jeffrey Rosen: Article in New Republic on Samuel Alito (Jan. 24, 2012)
 EPIC Files Suit for Surveillance Documents of WikiLeaks
EPIC has filed suit against the Department of
Justice and the Federal
Bureau of Investigation under the Freedom of Information Act for
documents detailing surveillance of WikiLeaks supporters. EPIC is
seeking documents that expose government requests for information
users of Facebook, Twitter, PayPal and Visa.
After WikiLeaks' November 2010 publication of diplomatic cables, the
opened investigations of WikiLeaks supporters and
pressured many online donation systems, including Amazon and PayPal, to
processing donations to WikiLeaks. In some cases, the US
government attempted to identify users who accessed WikiLeaks documents
and to restrict access to the documents.
In June 2011, EPIC filed Freedom of Information Act requests with the
Department of Justice and the Federal Bureau of Investigation. EPIC
sought documents that detailed surveillance
of WikiLeaks supporters as
well as evidence of law enforcement access to the financial or social
networking data of those supporters.
EPIC filed suit on January 25, 2012, after the agencies failed to
comply with the Freedom of Information Act deadlines.
EPIC: EPIC v. DOJ Complaint (Jan. 25, 2011)
EPIC: In re: Twitter (re: WikiLeaks Supporters)
EPIC: EPIC v. DHS FOIA Request re: WikiLeaks Supporters (June 2011)
EPIC: Open Government
 Google to Consolidate User Data; EPIC Launches 'Good
to Really Know'
Following Google's launch of the "Good
to Know" advertising campaign,
EPIC has posted "Good to Really Know," a short YouTube video offering
viewers practical advice about
The "Good to Really Know" video discusses the basics of Internet
tracking and profiling, explaining that search
companies track users'
IP addresses every time they conduct a search, and that advertisers
employ persistent identifiers, or "cookies,"
to track users on the
Internet. EPIC's video also reminds viewers that "It's Your Data" and
provides information on how to improve
online privacy - for example by
avoiding creating user accounts wherever possible. The video also
encourages users to protest corporate
misuse of their data and press
advertisers to ask users' permission before profiling them.
The EPIC campaign is a response to Google's
advertising blitz called "Good to Know."
EPIC: "Good to Really Know" Video
Google: "Good to Know"
 EU Data Commission Announces Comprehensive Privacy
The European Union has announced modernized
data protection regulations
that will create new privacy rights for EU citizens and raise privacy
standards around the world. The
previous EU regulations were
implemented in 1995, and the new laws will address the technological
advancements that have occurred
in the intervening 17 years. The
updated regulations also will replace the existing patchy data-
protection framework, the result
of a single legal instrument
attempting to address privacy rights for all EU member states.
EU Justice Commissioner Viviane Reding
explained, "[the] proposal will
help build trust in online services because people will be better
informed about their rights and
in more control of their information."
A "mini website," New data protection rules for the digital age,"
created by the European
Commission to explain the new regulations,
asserts that 82% of Europeans feel "uneasy about transmitting their
data over the Internet."
In 2009, EPIC joined 110 other civil society groups and 106 technical
and legal experts in endorsing the Madrid Privacy Declaration,
called for the establishment of "a new international framework for
privacy protection . . . based on the rule of law, respect
fundamental human rights, and support for democratic institutions."
The Declaration also supports Convention 108 of the Council
which itself seeks to "secure . . . respect for [individual] rights
and fundamental freedoms," particularly with respect
EPIC: EU Data Protection Directive
European Commission: Web Site on New Data Protection Rules
European Commission: Press Release on New Rules (Jan. 25, 2012)
European Commission: Draft Data Protection Regulation (Jan. 25, 2012)
European Commission: Study on EU Data Privacy (Feb. 2008)
The Public Voice: Madrid Privacy Declaration (Nov. 2009)
Council of Europe: Convention 108 (Aug. 2005)
 EPIC Participates in International Data Privacy Conference
In conjunction with January 28's International Privacy Day,
participated in the Fifth Annual International Computers, Privacy and
Data Protection (CPDP) Conference in Brussels, which
privacy stakeholders in academia, civil society, government, and
industry to discuss the future of international
2012's CDCP Conference focused heavily on the new proposed European
data protection regulations. EPIC Executive
Director Marc Rotenberg
participated in a panel discussion on the proposed modernization of
the so-called Convention 108, or the
"Convention for the Protection
of Individuals with Regard to Automatic Processing of Personal Data,"
in the face of the IT revolution.
Rotenberg reiterated EPIC's support
for Convention 108 and also called attention to recent changes that
modernize and update the
international privacy framework. In 2010,
EPIC advisory board members sent a letter to US Secretary of State
Hillary Clinton urging
the US ratification of the Council of Europe
Convention on Privacy.
Other panels at CPDP covered topics that included drone surveillance,
risk profiling, e-discovery, and breach notification. The conference
also featured the presentation of EPIC's 2012 International
Champion Awards, presented to Canadian Privacy Commissioner Jennifer
Stoddart and American privacy technologist and activist
Computers, Privacy, and Data Protection Conference 2012
CPDP Conference Program Guide
European Privacy Day 2012
EPIC: Press Release on 2012 Int'l Privacy Awards (Jan. 26, 2012)
EPIC: EU Data Protection Directive
 News in Brief
EPIC Presents 2012 International Privacy Champion Awards
EPIC has awarded the 2012 International Privacy Champion Awards to
Privacy Commissioner Jennifer Stoddart and privacy
technologist Christopher Soghoian. EPIC praised Stoddart as a
of privacy" and cited her work to strengthen
international collaboration amongst privacy officials. EPIC
as "an expert technologist dedicated to privacy,"
and cited his ability to combine technical know-how, legal expertise,
campaign tactics. Previous award recipients include MEP
Sophie in't Veld and digital civil liberties activist Jeff Chester
Australian justice Michael Kirby and Privacy Rights
Clearinghouse founder Beth Givens (2010), and Italian jurist and
Stefano Rodota (2009).
EPIC: Champion of Freedom Press Release (Jan. 26, 2012)
Jennifer Stoddart: Video of Award Acceptance Speech (Jan. 26, 2012)
Senator Leahy Expresses Support for International Privacy Day
Senator Patrick Leahy (D-VT), Chair of the Senate Judiciary Committee,
offered a statement commemorating International Privacy Day, which took
place January 28. Leahy urged Congress to adopt comprehensive
privacy legislation to "better protect Americans' sensitive personal
data and reduce the risk of data security breaches."
recommended changes to the Electronic Privacy Communications Act, or
EPCA, to "reflect the realities of our time" and
to "keep us safe
from cyber threats." EPIC Executive Director Marc Rotenberg recommended
similar updates to EPICA at a January
31 hearing before the Senate
Sen. Patrick Leahy: Remarks re: Data Privacy Day (Jan. 24, 2012)
International Computers, Privacy, and Data Protection 2012 Conference
International Privacy Day
EPIC: Testimony before Judiciary Committee on ECPA (Jan. 31, 2012)
EPIC: Electronic Privacy Communications Act
Supreme Court to Hear 'Dog Sniff' Case on Enhanced Search Techniques
The US Supreme Court has decided to review a recent Florida
Court decision, Jardines v. State, which held that law-enforcement's
use of a drug-sniffing dog around a suspect's home
cause under the Fourth Amendment. The Court must consider in this case
whether previous "dog-sniff" decisions
apply equally in the context of
the home, which has traditionally enjoyed heightened Fourth Amendment
protections. EPIC has argued,
particularly in the recent Supreme Court
case US v. Jones, that the Fourth Amendment "probable cause" standard
should apply in
cases where the government uses "enhanced"
investigative techniques designed to detect contraband, but are
and likely to lead to the exposure of non-
contraband and legal conduct.
Florida Supreme Court: Decision in Jardines v. State
(Apr. 14, 2011)
US Supreme Court: Certiorari for Jardines v. State (Jan. 6, 2012)
volokh.com: Article on 'Dog Sniff' Legality (Dec. 27, 2011)
EPIC: US v. Jones
EPIC: US v. Pool
EPIC: Doe v. Luzerne County
 Book Review: 'Configuring the Networked Self'
"Configuring the Networked Self: Law, Code, and the Play of Everyday
Practice," Julie E. Cohen
"Configuring The Networked Self" is a dense, complex, sometimes
intellectually frustrating, and highly original book. Georgetown
School professor Julie Cohen employs the vocabulary and rhetoric of
postmodern theory to discuss identity, interpersonal relations,
consciousness - the building blocks of the "self" referred to in the
title - in the bodiless space of the online world. The
particularly around the issue of copyright, are sometimes bewilderingly
academic for an audience not well-versed on both
legal and social
theory; her insights are also frequently refreshing and unexpected.
Regardless, readers will come away with a new
vantage point on how
information is perceived, constructed, and legally codified.
Cohen's premise is twofold. First, she asserts,
Internet-based dualities (copyright vs. free information, surveillance
and data collection vs. privacy rights)
are artificially constructed
and outdated. Second, in order to move beyond these constructs we must
break down the very essence
of what it means to have an identity, or
"self", in a society where the boundaries of on-and offline existence
blurred. Only then can policy makers and scholars
provide a solid and rational basis for laws on pressing issues like
identity theft, and privacy.
Legally oriented readers skeptical of cultural theoreticians like
Michel Foucault and Gilles DeLouze
may not be amused by Cohen's
liberal usage of postmodern and deconstructionist theories and
terminology. Those with little patience
for terms like
"semantic discontinuity" and "deontological political philosophy"
should nevertheless barrel through the rhetoric
to get to Cohen's
important and original contributions to more accessible theories like
the social construct of online privacy
and the effect of the
"creative commons" on individual productivity.
The book is divided into five parts. Part I, "Locating the
Self" establishes the basic concept of self, society, and what Cohen
calls "play" inside the "networked information society."
according to Cohen, "investigate . . . legal theory's failure to
generate convincing accounts of the relationships
and culture (Part II), privacy and subjectivity (Part III), and network
architecture and social ordering (Part
IV)." Part V, "Human Flourishing
in a Networked World," attempts to draw together these sometimes overly
abstract and intellectual
concepts into a useable framework that will
actually produce policy and legislation. Cohen calls this framework
and saving the networked world's ecosystem
from the devastation of monetized identity and creativity won't be easy
rather, it will require "sweeping changes in the theory
and practice of valuing information so that market logics will not push
quite as inexorably towards commodification, transparency, and
exposure." While this great transformation" currently "seems
she concludes, "it is within our reach."
-- EC Rosenberg
the Federal Open Government Laws 2010," edited by
Harry A. Hammitt, Marc Rotenberg, John A. Verdi, Ginger McCall, and Mark
(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, and constitutional values 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
Platts Smart Grid Data Privacy Symposium. Las Vegas, NV, 16-17 February
2012. For More Information: http://www.platts.com/ConferenceDetail/
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The Electronic Privacy Information Center is
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attention on emerging privacy issues
such as the Clipper Chip, the
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