EPIC Alert 19.05
E P I C A l e r t
Volume 19.05 March 16, 2012
Published by the
Electronic Privacy Information Center (EPIC)
"Defend Privacy. Support EPIC."
Table of Contents
 EPIC Launches 2012 FOIA Gallery, Promotes Open Government
 EPIC v. NSA: Cybersecurity Secrecy Argument Goes to Appeals Court
 EPIC Presses Senate on FOIA and Critical Infrastructure
 EPIC Urges Court to Uphold Location Privacy in Mobile Tracking Case
 Controversial New Voter ID Laws Passed, Struck Down, Scrutinized
 News in Brief
 EPIC in the News
 Book Review: 'The
 Upcoming Conferences and Events
TAKE ACTION: March 13-17 Is Sunshine Week!
- ATTEND a Sunshine Week Event:
- KNOW Your FOIA Rights: http://www.sunshineweek.org/FOIResources.aspx
- READ EPIC's 2012 FOIA Gallery: http://epic.org/redirect/031412-f.html
- SUPPORT EPIC: http://www.epic.org/donate/
 EPIC Launches 2012 FOIA Gallery, Promotes Open Government
EPIC has published the 2012 EPIC FOIA Gallery in recognition
Government Sunshine Week. The Gallery showcases key documents obtained
by EPIC in the past year, including records detailing
the FBI's Watch
List Guidelines and federal government monitoring of social media. The
Gallery also highlights the National Security
Agency's attempts to
avoid legal obligations under the Freedom of Information Act, or FOIA.
EPIC's 2011 FOIA work uncovered details about the FBI's 2010 Watch List
Guidelines, as well as hundreds of pages of ongoing
the Department of Homeland Security's body scanner program, including
scanner use at US borders, the operation
of "mobile" body scanner
devices, and the radiation risks associated with body scanners. DHS
also disclosed documents in response
to EPIC's FOIA request about the
agency's "pre-crime" detection program known as "Future Attribute
Screening Technology," or FAST.
More recently, documents obtained by
EPIC demonstrate how DHS has employed private contractors to monitor
public opinion and political
dissent via Twitter and other social media.
EPIC continues to pursue open government and transparency through FOIA
litigation. As part of extensive work on FOIA matters,
EPIC publishes "Litigation Under the Federal Open Government Laws,"
serves as a comprehensive, authoritative discussion of FOIA,
the Privacy Act, the Federal Advisory Committee Act, and the Government
in the Sunshine Act.
EPIC: FOIA Gallery 2012
US Justice Department: Freedom of Information Act (FOIA)
EPIC: Open Government
EPIC Bookstore: 'FOIA 2010'
Open Government "Sunshine Week"
 EPIC v. NSA: Cybersecurity Secrecy Argument Goes to
The US Court of Appeals for the District of
Columbia is set to hear
oral argument in EPIC v. NSA on March 20, 2012. EPIC Executive Director
and Georgetown law school professor
Marc Rotenberg will argue the case
EPIC is challenging the National Security Agency's response to
EPIC's Freedom of Information Act request. EPIC is seeking
information about the widely publicized cybersecurity agreement
between the NSA and Google that followed
the January 2010 China
hack. The NSA claimed it "could neither confirm nor deny" the
existence of any information about its relations
with Google. After
the attack, Google's implemented encryption technology for Gmail by
default, a privacy safeguard EPIC and technical
experts had urged in
EPIC is seeking these documents because such an agreement
could reveal that the NSA is developing technical
would enable greater surveillance of Internet users. The "Glomar
response," to neither confirm nor deny, is a controversial
doctrine that allows agencies to conceal the existence of records
that might otherwise be subject to public disclosure.
the original FOIA request, EPIC asked for
All records concerning an agreement or similar basis for
collaboration, final or draft,
between the NSA and Google
regarding cyber security;
All records of communication between NSA and Google concerning
but not limited to Google's decision to fail to
routinely encrypt Gmail messages prior to January 13, 2010; and
All records of
communications regarding NSA's role in Google's
decision regarding the failure to routinely deploy encryption
for cloud-based computing
service, such as Google Docs.
The case is EPIC v. NSA, No. 11-5233 (D.C. Cir. filed Sept. 9, 2011)
EPIC: EPIC v. NSA (Google/NSA
EPIC: Opening Brief in EPIC v. NSA (Jan. 3, 2012)
Joint Appendix (Jan. 3, 2012)
NSA's Opening Brief (Jan. 26, 2012)
EPIC's Reply Brief (Feb. 16, 2012)
EPIC: Brief Submitted in EPIC v. NSA (July 8, 2011)
EPIC: In re: Google, Inc. and Cloud Computing Services (Mar. 17, 2009)
Washington Post: Article on Google and Cyber Attacks (Feb. 4, 2010)
Wall Street Journal: Article on Google and Cyber Attacks (Feb. 4, 2010)
 EPIC Presses Senate on FOIA and Critical Infrastructure
The US Senate Judiciary Committee held a hearing March 13
Freedom of Information Act: Safeguarding Critical Infrastructure
Information and the Public's Right to Know." Two major cybersecurity
bills dealing with critical
infrastructure information have recently
been introduced in the Senate, both of which contain provisions to
exempt certain information
from disclosure under the Freedom of
Information Act (FOIA). One of the Senate bills, The SECURE IT Act,
also proposes an unprecedented attempt at government secrecy by
text of the Freedom of Information Act itself. Both
amendments would create exemptions for items including "cyber threat
information" and all information shared with
a cybersecurity center.
In advance of the hearing, EPIC submitted a statement explaining how
safeguarding FOIA is critical to ensuring
government oversight and
accountability. EPIC's statement detailed how FOIA provides the public
with important information about
safety and security, and also warned
that the National Security Agency has become a "black hole" for public
information about cybersecurity.
The statement drew attention to
several NSA programs, including "Perfect Citizen," Internet
wiretapping, and even the NSA's own
legal authority, which the agency
has refused to release to the public.
EPIC's statement maintains that "Transparency and accountability
cybersecurity operations will promote security and encourage companies
to implement meaningful data practices that reduce the
cybersecurity incidents," and that "The NSA's practices in response to
requests for information under the Freedom of Information Act paint a
picture of an Agency shrouded in secrecy that refuses to disclose even
documents that are demonstrably vital to facilitating
The Senate hearing featured testimony from Melanie Ann Pustay, US
Justice Department Director
of Information Policy, and Miriam Nisbet,
Director of the Office of Government Information Services (OGIS). OGIS
is a public resource
for assistance with FOIA requests and is tasked
with improving the FOIA process.
EPIC: Statement on FOIA and Critical Infrastructure
(Mar. 12, 2012)
US Senate: Hearing on FOIA and Critical Infrastructure (Mar. 13, 2012)
Office of Government Information Services (OGIS)
Freedom of Information Act
US Senate: Cybersecurity Act of 2012
US Senate: SECURE IT Act
EPIC: FOIA Cases
 EPIC Urges Court to Uphold Location Privacy in Mobile
EPIC has filed a "friend of the court" brief
with the New Jersey
Supreme Court, urging the court to uphold Fourth Amendment protections
for cell phone users.
The issue presented
in New Jersey v. Earls is whether the government
can constitutionally obtain and use locational information from a
phone provider without a warrant under the Fourth
Amendment. The appellate court denied the defendant's motion and
ruled that the
locational tracking was constitutional because the
police monitoring took place on public highways. However, the New
Court may overturn the appellate court's decision in
light of the January 2012 US Supreme Court's decision in US v. Jones,
a majority of the Court concluded that some types of
locational tracking, even when done entirely on public highways, can
upon a reasonable expectation of privacy.
EPIC's brief argues that the lower court opinion should be overturned.
The cell phone
tracking techniques in New Jersey v. Earls, EPIC
maintains, are "more invasive than the GPS tracking in Jones."
brief states, "cell phone tracking occurs on an
enormous scale throughout the United States . . . Without robust
protections, the use of location tracking
techniques will allow suspicionless tracking, monitoring, and
profiling of Americans
without judicial review."
A decision is expected later this year.
EPIC: "Friend of the Court" Brief in State v. Earls (Feb. 28,
NJ Appellate Court: Decision in State v. Earls (July 11, 2011)
US Supreme Court: Decision in US v. Jones (Jan. 23, 2012)
EPIC: State v. Earls
EPIC: U.S. v. Jones
EPIC: Locational Privacy
 Controversial New Voter ID Laws Passed, Struck Down,
With the 2012 US presidential election less
than eight months away,
controversial voter registration and controversial voter ID laws are
increasingly coming under scrutiny.
A group of US senators recently asked the Government Accountability
Office to study the "alarming number" of new state laws that
make it "significantly harder" for millions of eligible voters to cast ballots this November. In their request to the GAO,
Leahy (D-VT), Bernie Sanders (I-VT), Dick Durbin (D-IL), and Bill
Nelson (D-FL.) stated that by one estimate,
"the enactment of strict
voter identification laws directly impacts the 21 million citizens who
do not have access to a government-issued
ID, the majority of whom are young voters, African-Americans, Hispanics, those earning $35,000 per
year or less, and the elderly."
The senators also warned that the
voter ID laws amount to "de facto poll taxes for many low-income individuals," and requested that
the GAO conduct an in-depth
On March 12, the Department of Justice determined that a Texas voter ID
photo identification violates the Voting Rights Act of
1965. The agency found that the Texas voter ID law disproportionately
Hispanic voters; according to a study, Hispanic voters are
between 47% and 120% more likely than non-Hispanic voters to lack
photo identification. The DOJ found that the State of Texas
"has not met its burden of proving that . . . the proposed [voter ID
law] will not have a retrogressive effect, or that any specific
features of the proposed law will prevent or mitigate that
Even as the DOJ struck down the Texas law, a similarly controversial
voter ID law narrowly passed the Virginia legislature. The
requires a voter to present a valid photo ID or a Social Security card
before voting, or else cast a provisional ballot
until proper ID is
procured. The Virginia law is slated to go into effect later in 2012.
EPIC has a long advocated for voter privacy
and the unfettered right
to vote. In 2010, EPIC filed a "friend of the court" brief in Doe v.
Reed, urging the Supreme Court to
protect the privacy of those who
sign petitions for ballot initiatives. In 2009, then- House Speaker
Nancy Pelosi (D-CA) appointed
EPIC Associate Director Lillie Coney to
the Election Assistance Commission (EAC) Board of Advisors. In a 2007
statement to the
US House Committee on the Judiciary, EPIC cautioned
against new photo ID and proof-of-citizenship requirements in federal
warning that the requirements could discourage legal voters.
Also in 2007, EPIC, along with several legal scholars and technical
experts, submitted a "friend of the court" brief to the US Supreme
Court in the voting rights case Crawford v. Marion County. EPIC's
urged the Court to invalidate an Indiana law requiring individuals to
show a government-issued photo ID card before voting.
Sen. Patrick Leahy: Letter to GAO (Feb. 21, 2012)
US DOJ: Voter ID Determination Letter (March 12, 2012)
Texas Secretary of State: Explanation of Texas Voting Procedures
US Department of Justice: Voting Rights Act of 1965
Virginia General Assembly: Voter ID Bill (Jan. 11, 2012)
EPIC: Voter Photo ID and Privacy
EPIC: Voting Privacy
EPIC: Doe v. Reed
United States Election Assistance Commission
EPIC: Statement to House Committee on Voter ID (Mar. 7, 2007)
EPIC: Crawford v. Marion County Election Board
 News in Brief
EPIC Urges DHS to Uphold Privacy Laws in Conducting Technology Research
EPIC has submitted comments to the Department of Homeland
on the agency's document, "The Menlo Report: Ethical Principles
Guiding Information and Communication Technology Research."
Report, as it is commonly known, covers the privacy implications of
ethical human subject research in information and
technologies. EPIC's comments, submitted as part of an agency request
for public input, stated that many federal
privacy laws, such as the
Privacy Act of 1974, already set legal standards for how government
agencies should protect personal
data. EPIC also strongly urged DHS
to abide by federal privacy laws rather than adopt non-binding
principles, which are not enforceable
and provide few rights for
individuals. "Contrary to the Menlo Report's argument," EPIC maintains,
"any conflict between Menlo
Report principles and applicable law should
be resolved in favor of upholding the law."
EPIC: Comments to DHS on Menlo Report
(Feb. 27, 2012)
DHS: The Menlo Report (Sept. 15, 2011)
EPIC: DHS Privacy Office
EPIC: Privacy Act of 1974
EPIC: Privacy and the Common Rule
DHS Privacy Office Releases 2011 Data Mining Report
The Department of Homeland Security recently released the DHS "2011
Data Mining Report." The report is required under the Federal
Agency Data Mining Report Act of 2007, and must include all of the
Agency's current activities that fall within the legislative
definition of "data mining." The 2011 DHS report provides information
on Secure Flight and Air Cargo Advanced Screening, as well as other
developments in and new uses of Automated Targeting Systems
airports. The report also references the agency's programs to profile
individuals entering or leaving the country to determine
who should be
subject to "additional screening." An EPIC FOIA request in 2011
revealed that the FBI's standard for inclusion on
the flight watch list
is "particularized derogatory information," the definition of which has
never been recognized by a court
DHS: 2011 Data Mining Report to Congress (Feb. 2012)
EPIC: DHS Privacy Office
EPIC: FBI Watch List
Twitter to Sell Two Years' Worth of Old Tweets
Twitter recently announced a deal with Web analytics firm DataSift,
DataSift to sell the content of public tweets posted over
the last two years. Companies buying the data from DataSift will be
to market to users based on the topic or location of the tweets;
however, DataSift will be required to regularly remove tweets that
users delete. Previously, Twitter gave the Library of Congress access
to every public tweet since the company's inception in 2006.
the Federal Trade Commission reached a settlement with Twitter over
charges that inadequate security measures allowed
to gain administrative access to the company.
DataSift: "2+ years of Twitter Data" (Feb. 28, 2012)
Library of Congress: Blog Post on Tweet Acquisition (Apr. 14, 2010)
FTC: Settlement with Twitter (Mar. 11, 2011)
EPIC: Social Networking Privacy
EPIC: Federal Trade Commission
Pew Study Reveals Public's View on Search Engine Data Collection
A 2012 study from the Pew Internet & American Life Project has
that search engine users are pleased with the quality of online search,
oppose targeted advertising and search results, and
anxious about the collection of personal information by search engines.
Specifically, 73% of the 2,253 US adults
surveyed were opposed to
search engines tracking their searches, and 68% opposed behavioral
advertising. 83% of respondents reported
using Google to conduct
searches. In February, EPIC filed a lawsuit to compel the Federal
Trade Commission to block Google's consolidation
of user data, gathered
from more than sixty Google products and services - including Google
search - to create a single, comprehensive
profile for each user.
Pew Research Center: "Search Engine Use 2012" (Mar. 9, 2012)
EPIC: Search Engine Privacy
EPIC: EPIC v. FTC
YouTube Video, Blog Post Raise New Questions About Airport Body Scanners
A popular new video called "How To Get Anything Through
TSA Nude Body
Scanners" demonstrates that travelers can easily bypass airport body
scanners by hiding materials perpendicular to
the plane of the scanning
devices. The video, released by privacy blog "TSA Out of Our Pants,"
also notes that traditional metal
detectors, now being removed from US
airports, would routinely alert security personnel to the presence of
metallic objects. Another
recent blog post, this time by a 25-year
veteran of the FBI and expert in aviation security, claims that the
"TSA has never foiled
a terrorist plot or stopped an attack on an
airliner" and that "the entire TSA paradigm is flawed." EPIC has
challenged the TSA
airport scanner program in a federal lawsuit,
calling the scanners "invasive, unlawful, and ineffective."
YouTube: "How to Get
Anything Through TSA Nude Body Scanners"
Gman Case File Blog: "TSA Fail" (Jan. 24, 2012)
EPIC: EPIC v. DHS (Suspension of Body Scanner Program)
HHS Settles Health Privacy Case for $1.5 Million
The Department of Health and Human Services Office for Civil Rights
announced a settlement with Blue Cross/Blue Shield of
Tennessee after the company's inadequate security measures allowed 57
hard drives containing private health information to be
stolen from a facility in Tennessee. OCR cannot issue a fine greater
$1.5 million under the rule in question. The agency also could
have, but did not, file criminal charges or require Blue Cross/Blue
Shield to mitigate future patient harms.
HHS: Press Release on HIPAA Settlement (Mar. 13, 2012)
EPIC: Medical Privacy
Privacy Journal Publishes 2012 Privacy Law Compilation Update
Privacy Journal has published the 2012 Supplement to the long-time
newsletter's "Compilation of State and Federal Privacy Laws." The 2012
supplement lists US and Canadian laws enacted in the past
that affect credit, identity theft, financial records, and tracking
technologies. The Supplement costs $29 for a hard
copy by paper mail
within the US, and $25 for a PDF sent by email. The original book with
the supplement included is $39 (hard
copy) and $24.50 (PDF). Please
order by email or PayPal at email@example.com.
 EPIC in the News
"EPIC Returns to Court Over NSA/Google Relationship." Infosecurity,
Mar. 13, 2012.
"At CNET's SXSW 'big data' panel, sparks fly over privacy." CNET.com,
Mar. 12, 2012.
"Pew: Google Dominates Search, Despite Privacy Concerns." PC Magazine,
Mar. 9, 2012.
"The government is reading your tweets." CNN.com, Mar. 9, 2012.
"Drones, Dogs and the Future of Privacy." Wired.com, Mar. 8, 2012.
"Homeland Security Is Tracking 100s Of Keywords On Twitter. Are You
Being Targeted?" Mediabistro.com, Mar. 5, 2012.
"Bono Mack plans privacy hearing." USA Today, Feb. 28, 2012.
"France Says Google Privacy Plan Likely Violates European Law." The New
York Times, Feb. 28, 2012.
For More EPIC in the News:
 Book Review: 'The Emergency State'
"The Emergency State: America's Pursuit of Absolute Security at All
Costs," David C. Unger
David Unger wants to remind you that the US government's war on civil
liberties did not begin with George W. Bush and his terrorism-crazed
executive branch. Nor did it begin with Richard Nixon's Enemies List
and domestic surveillance programs, nor even during the Communist
hysteria of the Eisenhower years. In fact, Unger contends, overreaching
"executive privilege" in the name of national security
has been part of
the US political landscape for most of the last century. Presidents as
far back as FDR and even Woodrow Wilson
have used perceived security
threats to bolster US national defense at the expense of both the US
economy and the US Constitution - leading to what Unger calls a
permanent "emergency state."
Unger has been a New York Times international affairs editorial writer
for more than three decades. His thesis, while grim, is sound: The
toxic mix of security state and what was once quaintly called
military-industrial complex" is now hopelessly bloated and outdated
for 21st-century global and technological challenges.
In other words,
American foreign policy has "tended to undermine America's own
prosperity, living standards, and trade balances
It's great to see all this bleak history packed into one book and
smoothly rolled into chronological order - but take
any given set of
facts Unger presents and most readers will find them awfully familiar:
Richard Nixon spied on people. Bill Clinton
was lackadaisical in
promoting civil liberties. The G.W. Bush Administration eviscerated the
First and Fourth Amendments. Barack
Obama came into office promising to
bring change and openness to the American political process and to date
has been unwilling
or unable to do so. "To date" is an important
phrase here, because some of the material feels, in fact, dated (the
strikes are over; the economy is actually improving).
Furthermore, most readers will already know plenty about the privacy-
antics of Tricky Dick, Clinton the Compromiser, Reagan the Cold
Warrior, JFK the Playboy, LBJ the Deceiver, and the rest of the
Presidents, who Unger reduces to simplistic, if accurate, political
A book like "The Emergency State" should
end with a platform for
reform, so that readers don't close the book in despair. Unger's
suggestions are as good, if as unworkable
in the short-term, as
anyone's: Scrap the professional military for universal military
training. Increase Congressional oversight
departments. Improve government transparency, particularly for
intelligence and classified information. Unger admits
this is not an
easy task: "We will have to bring it into being ourselves, reviving
the spirit and the institutions of American
democracy and recharging
them with grassroots energy."
"The Emergency State"'s page-flipping ride through the history of the
security state sometimes reads like a left-leaning high school
history textbook. But even as a textbook overview, it's more satisfying
and entertaining than most.
-- EC Rosenberg
"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).
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
Open Government 'Sunshine Week' is March 11-17:
DC Open Government Summit, Presented by the DC Open Government
Coalition and the
The National Press Club. 13 March 2012, Washington,
DC. For More Information: http://www.dcogc.org/contact.
Fifth Annual Freedom of Information Day Celebration, Presented by WCL's
Collaboration on Government Secrecy. 16 March, Washington,
DC. For More
Fourteenth Annual National Freedom of Information Day Conference. 16
March, Washington, DC. For More Information: Contact Ashlie
at firstname.lastname@example.org, or 202-292-6288.
DHS Privacy Office, "Privacy Information for Advocates." 16 March 2012,
Arlington, VA. For More Information:
Email PrivacyNews@HQ.dhs.gov, or
call Steve Richards at 703-235-0352.
Symposium on "Internet Privacy: A Culture of Privacy and Trust on the
Internet." 26 March
2012, Berlin. For More Information:
NYU/Princeton Conference: "Mobile and Location Privacy: A Technology
and Policy Dialog." 13 April 2012, New York, NY. For More
We Robot 2012: "Setting the Agenda." 21-22 April 2012, Miami, FL. For
More Information: http://robots.law.miami.edu/.
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