E P I C A l e r t
Volume 20.22 November 15, 2013
Published by the
Electronic Privacy Information Center (EPIC)
"Defend Privacy. Support EPIC."
Table of Contents
 Supreme Court to Consider EPIC Challenge to NSA Program
 Oversight Board Adopts EPIC's Recommendations in New FOIA Rule
 EPIC FOIA Suit Uncovers Student Loan Debt Collector Practices
 Supreme Court Lets Stand Contested Facebook Settlement
Privacy Groups to FTC: Investigate US Firms in NSA Surveillance
 News in Brief
 EPIC in the News
 EPIC Book Review: 'The
 Upcoming Conferences and Events
TAKE ACTION: Tell Facebook: "Stop Changing Our Privacy Settings!"
- READ about the
- LEARN More about Facebook Privacy: http://epic.org/privacy/facebook/
- SUPPORT EPIC: http://www.epic.org/donate/
 Supreme Court to Consider EPIC Challenge to NSA
The US Supreme Court is scheduled to consider
EPIC's challenge to the
NSA telephone record collection program at the Court's November 15
conference. EPIC has asked the Court
to overturn a Foreign
Intelligence Surveillance Court order compelling Verizon to produce all
customer telephone records, including
domestic and local calls, to the
NSA. EPIC's petition argues that this order clearly exceeded the
authority granted by the Foreign
Intelligence Surveillance Act. The
petition was distributed to the Justices October 30, along with "friend
of the court" briefs
by former Church Committee members and prominent
scholars in information law, federal jurisdiction, and constitutional
of whom urged the Supreme Court to grant EPIC's petition.
EPIC's petition argues that it is "simply not possible that every
record in the possession of a telecommunications firm could be
relevant to an authorized investigation." According to EPIC, such
interpretation would "render meaningless" the "relevance" limitation
Congress added to Section 215 of the USA PATRIOT Act in
members of Congress, including the original authors of the USA PATRIOT
Act, agree that the government's interpretation
is contrary to
legislative intent. The "friend of the court" briefs in support of
EPIC's case similarly argue that the government's
the purposes of the Foreign Intelligence Surveillance Act and threatens
Fourth Amendment rights.
The US Solicitor
General's Office filed a brief in opposition to EPIC's
petition on October 11, arguing that the Supreme Court lacks
to hear the case. EPIC's ensuing Reply brief maintained
that the government "simply cannot be correct" that the order of the
Intelligence Surveillance Court, an inferior court, is not
reviewable by the Supreme Court. EPIC also stated that the order is
clearly unlawful. "No court has ever determined that 'relevance'
permits the compelled production of such vast quantities of irrelevant
personal information," EPIC said, noting that Representative James
Sensenbrenner (R-WI), co-author of the USA PATRIOT Act, has
"This expansive characterization of relevance makes a mockery of the
The Supreme Court will make an
initial decision on EPIC's petition on
November 18. The Justices can vote to hear oral argument in the case,
briefing from the parties, or relist the case for
consideration at a future conference.
US Supreme Court: Docket Page for In
EPIC: In re EPIC Petition to US Supreme Court (Jul. 8, 2013)
EPIC: FISA Court Order to Verizon re: Telephone Records (Apr. 23, 2013)
EPIC: In re EPIC - NSA Telephone Records Surveillance
EPIC: Reply Brief in In re EPIC (Oct. 28, 2013)
US Gov't: Brief in Opposition to In re EPIC (Oct. 2013)
Rep. Sensenbrenner (R-WI): Letter to DoJ on Patriot Act (Sep. 6, 2013)
EPIC: "Friend of the Court Brief" I in In re: EPIC (Aug. 9, 2013)
EPIC: "Friend of the Court Brief" II in In re: EPIC (Aug. 12, 2013)
EPIC: "Friend of the Court Brief" III in In re: EPIC (Aug. 12, 2013)
EPIC: "Friend of the Court Brief" IV in In re: EPIC (Aug. 2013)
 Oversight Board Adopts EPIC's Recommendations in
New FOIA Rule
In response to extensive comments submitted
by EPIC, the President's
Privacy and Civil Liberties Oversight Board (PCLOB) has issued a final
rule that will govern the Board's
Freedom of Information Act, Privacy
Act, and Sunshine Act practices. PCLOB is an independent agency created
to analyze and review executive branch counter-terrorism
their impact on privacy and civil liberties. PCLOB was established by
the Intelligence Reform and Terrorism Prevention
Act of 2004 at the
recommendation of the 9/11 Commission Report.
The initial draft of the Board's rule allowed PCLOB to encourage
agencies to classify information, reserved the Board's right to
terminate public participation in Board meetings "at any
time for any
reason," and contained vague, broad definitions that would permit the
oversight agency to withhold information and
delay document production.
EPIC's comments to the Board provided a number of recommendations for
achieving better transparency.
These recommendations included narrowing
the Board's definition of "confidential business information" and
limiting the Board's broad language describing
FOIA exemption (b)(5) to make it consistent with the (b)(5) exemption
the Freedom of Information Act; and employing more explicit
language explaining the administrative appeals process. The Board
adopted nearly all of EPIC's proposed
changes. EPIC's comments also
encouraged PCLOB to set a better example for other government agencies
involved in government information
practices. Overall, EPIC concluded,
"EPIC recommends that the Privacy and Civil Liberties Oversight Board
revise the proposed regulations,
remove the new barriers to access to
government information, and incorporate new procedures that ease, not
burden, the public's
efforts to learn about the activities of its
EPIC routinely comments on agency proposals that impact the rights of
FOIA requesters. For example, EPIC has submitted extensive comments to
the Defense Logistics Agency of the Department of Defense,
agency not to erect new obstacles for to those seeking DIA documents
via the Freedom of Information Act.
PCLOB: Notice of Proposed Rulemaking (May 15, 2013)
PCLOB: Final Rule (Nov. 8, 2013)
EPIC: Comments on PCLOB on Transparency (Jul. 15, 2013)
Privacy and Civil Liberties Oversight Board (PCLOB)
EPIC: EPIC Administrative Procedure Act (APA) Comments
EPIC: Open Government
 EPIC FOIA Suit Uncovers Student Loan Debt Collector
Pursuant to a Freedom of Information Act lawsuit against the US
Education Department, EPIC has obtained documents revealing that many
private debt-collection agencies maintain
incomplete and insufficient
quality control reports on delinquent student loans. As government
contractors, debt collectors are
required by federal law to abide by
the Privacy Act of 1974, a federal law that protects personal
information. The Education Department
also requires student-debt
collectors to submit quality control reports indicating whether the
companies maintain accurate student
According to EPIC's lawsuit, the Education Department contracts with at
least 23 private debt-collection agencies
that obtain sensitive
personal information from students, including contact information, loan
status, income, Social Security number,
and credit history. EPIC's
complaint states that in 2011, the Education Department held $355
million worth of contracts with private
debt collectors. That same
year, "the Department received 1,406 complaints about private debt
collectors, a 41% increase from the
previous year," and that many of
those complaints "concern[ed] invasive and harassing communications."
The FOIA documents obtained
by EPIC reveal that many companies conceal
possible Privacy Act violations by providing small sample sizes in
their quality control
reports. The documents also show that many
companies do not submit required information about Privacy Act
compliance to the Education
Department. EPIC has recently settled the
case and obtained attorneys fees for making this information available
to the public.
EPIC maintains one of the leading student privacy projects in the
country. Earlier in 2013, in a letter to the US Senate and House
Committees on Education, EPIC asked Congress to restore privacy
protections for student data. "Students and families are losing
control over sensitive information," EPIC wrote, "and private companies
are becoming the repositories of student data and even
maintained by the schools is far more extensive than ever before."
EPIC has also testified before the Colorado State Board
on privacy issues concerning inBloom and other companies that acquire
EPIC: EPIC v. ED - Private
Debt Collector Privacy Act Compliance
EPIC: Windham Professionals Quality Control Reports (2010-2013)
EPIC: ConServe Quality Control Reports (Apr. 2010 - Mar. 2013)
EPIC: Coast Quality Control Reports (Apr. 2010 - July 2011)
EPIC: Initial FOIA Request to ED re: Debt Collection (Sept. 20, 2012)
EPIC: Letter to Senate and House Ed. Committees on (Oct. 9, 2013)
EPIC: Testimony and Statement for the Record Re: inBloom (May 16, 2013)
EPIC: Student Privacy
 Supreme Court Lets Stand Contested Facebook Settlement
The US Supreme Court has declined to hear the case Marek
v. Lane, a
9th Circuit decision on Facebook's "Beacon" settlement. Facebook's
Beacon advertising system, first launched in 2007,
broadcast a Facebook
user's interaction with third-party web sites to the user's friend list
without affirmative consent.
class action lawsuit was settled with Facebook for $9.5
million, but other than modest payments to the named class members,
were no payments to the members of the class. Rather, under the
doctrine of cy pres ("as near as possible") Facebook proposed funding
new charitable organization that would support organizations supporting
online privacy, but have a Facebook representative be
one of the three
controlling Board members. The plaintiffs in the case appealed to the
9th circuit, and then to the Supreme Court.
Chief Justice John Roberts, focusing on the "unusual" allocation of
funds in the Beacon case, suggested that the Supreme Court
eventually need to address "fundamental concerns surrounding the use of
such remedies in class action litigation" including
"how to assess its
fairness as a general matter . . . [and] how closely the goals of any
enlisted organization must correspond
to the interests of the class."
Chief Justice Roberts also noted, "In a suitable case, this Court may
need to clarify the limits
on the use of such remedies."
EPIC expressed similar concerns about the Facebook Beacon settlement in
2010. In a letter to the
presiding judge, EPIC argued that the proposed
"Digital Trust Foundation" would not have been "sufficiently independent
to serve as an effective tool for consumer privacy
protection." EPIC argued that cy pres settlements should provide funds
to non-profit organizations working directly on behalf of the
class or a "neutral, third-party trustee" should distribute the funds.
US Supreme Court: Decision Not to Hear Marek v. Lane (Nov. 4, 2013)
EPIC: Letter to 9th Circuit re: Beacon Settlement (Jan. 15, 2010)
Facebook: Beacon Program
EPIC: Letter to 9th Circuit in Fraley v. Facebook (Jul. 12, 2013)
EPIC: Letter to Court re: In re Google Referrer Header (Aug. 22, 2013)
EPIC: In re Google Buzz
EPIC: Facebook Privacy
 Privacy Groups to FTC: Investigate US Firms in NSA
Consumer privacy organizations in the US,
including EPIC, have asked
the Federal Trade Commission to determine whether US companies have
turned over private customer data
to the National Security Agency.
"We urge you to open an investigation to determine whether any
failure by these companies to comply
with the Commission's orders
may have contributed to the improper disclosure of customer data,"
the groups wrote.
which have brought numerous privacy complaints to
the FTC, stated that the disclosure of user data "directly implicates
of the Federal Trade Commission." The letter
references recent disclosures showing that the NSA attacked servers at
Yahoo and obtained the personal information of millions of
Many of the companies involved in disclosing data to the
NSA are also
bound by the terms of previous consent orders with the Commission
requiring "comprehensive privacy programs." Similarly,
most of these
companies are subject to Section 5 of the Federal Trade Commission Act,
which prohibits "unfair and deceptive" trade
practices and which has
been used to protect consumer privacy. According to the organizations,
"it is inconceivable that when faced
with the most significant breach
of consumer data in U.S. history, the Commission could ignore the
consequences for consumer privacy."
EPIC previously wrote to the Federal Communications Commission
regarding the unlawful provision of call detail records to the NSA.
EPIC urged the agency to determine whether Verizon violated the
Communications Act when it released the call metadata. "Verizon's
disclosure of [call metadata] to the NSA was not authorized under the
Telecommunications Act because it did not fall under any
of the Act's
permissible disclosures. Verizon customers did not authorize these
disclosures," EPIC's letter stated. The letter
also referred the FCC to
EPIC's June 2013 letter to Congress, detailing the illegality of the
Foreign Intelligence Surveillance
Court order that presumably formed
the basis for Verizon's disclosures.
EPIC has filed a petition with the US Supreme Court, asking
to vacate an unlawful order by the Foreign Intelligence Surveillance
Court that enables the NSA's collection of all domestic
The government has argued that the Supreme Court lacks the power to
hear the case. EPIC has responded to the US
government's brief, arguing
that it "simply cannot be correct" that the order of the Foreign
Intelligence Surveillance Court, an
inferior court, is not reviewable
by the Supreme Court. The Supreme Court is scheduled to consider
EPIC's challenge to the NSA
telephone record collection program at
conference November 15.
EPIC et al.: Letter to FTC re: NSA (Nov. 13, 2013)
FTC: Facebook Settlement (Nov. 29, 2013)
FTC: Google Buzz Settlement (Mar. 30, 2011)
EPIC: Letter to FCC re: Verizon Order (Jun. 11, 2013)
EPIC: Petition to US Supreme Court re: Verizon Order (Jul. 8, 2013)
EPIC: In re EPIC
 News in Brief
EPIC Prevails in "Internet Kill Switch" FOIA Case
In a Freedom of Information Act case brought by EPIC against the
Department of Homeland Security, a federal court has ruled that DHS
may not withhold the agency's
plan to deactivate wireless
communications networks in a crisis. EPIC had sought "Standard
Operating Procedure 303," also known
as the "Internet Kill Switch,"
to determine whether the agency's plan could adversely impact free
speech or public safety. EPIC
filed the FOIA lawsuit in 2012 after
the the technique was used by police in San Francisco to shut down
cell service for protesters
at a BART station, who had gathered
peacefully to object to police practices. The federal court
determined that DHS wrongly claimed
that it could withhold SOP 303
as a "technique for law enforcement investigations or prosecutions."
The phrase, the court explained,
"refers only to acts by law
enforcement after or during the prevention of a crime, not crime
prevention techniques." The court
repeatedly emphasized that FOIA
exemptions are to be read narrowly.
US District Court, DC: Opinion in EPIC v. DHS (Nov. 12,
EPIC: EPIC v. DHS - SOP 303
EPIC Obtains Information on Government-Corporate Cyber Practices
As a result of a Freedom of Information Act lawsuit against the
Department of Homeland Security, EPIC has obtained documents revealing
that the Department of Defense required
companies to disclose
information about Internet traffic on private networks. These documents
contradict Homeland Security's assertions
that companies participating
in a DOD pilot project would not be compelled to transmit information
to federal agencies. The documents
obtained by EPIC under the FOIA also
indicate that the National Security Agency, a branch of the Department
of Defense, is engaging
in offensive cybersecurity measures. In a 2012
statement to the US Senate Judiciary Committee, EPIC warned that the
Agency has become a "black box" for public
information about cybersecurity.
EPIC: EPIC v. DHS - Defense Contractor Monitoring
EPIC: List of FOIA Documents in Defense Contractor Monitoring Case
EPIC: FOIA Document on Defense Contractor Monitoring (2007)
DHS: Privacy Impact Assessment on JCSP (Jan. 13, 2012)
EPIC: Statement to US Senate Judiciary Committee re: NSA (Mar. 12, 2012)
Leahy, Sensenbrenner Introduce USA FREEDOM Act
Senator Patrick Leahy (D-VT), Chair of the US Senate Judiciary
Representative Jim Sensenbrenner (R-WI), an author of
the USA PATRIOT Act, have introduced the USA FREEDOM Act, which would
the Foreign Intelligence Surveillance Act and limit NSA
surveillance activities. A bi-partisan coalition, including 17 US
and 70 members of Congress, have joined as original co-
sponsors. Key provisions of the FREEDOM Act increase transparency of
activities, prevent end-runs around the FISA Court, and
improve public reporting. In 2012 EPIC testified before the House
Committee about the need to reform FISA and to improve
oversight of the FISA court. The FREEDOM Act also ends the NSA's
bulk phone records collection program. EPIC has brought a
challenge in the US Supreme Court to the phone records program,
that it is unlawful under current law.
Rep. Jim Sensenbrenner (R-WI): Text of USA FREEDOM Act (Oct. 29, 2013)
US House: Judiciary Committee Hearing on FISA (May 31, 2012)
EPIC: NSA Order to Verizon re: Telephone Metadata (Apr. 23, 2013)
EPIC: Petition to US Supreme Court re: NSA Verizon Order (Jul. 8, 2013)
EPIC: In re EPIC - NSA Telephone Records Surveillance
EPIC: Foreign Intelligence Surveillance Act (FISA)
FAA Releases Drone Roadmap; Privacy Not Required for Test Sites
The Federal Aviation Administration has announced a "roadmap"
the integration of drones into domestic airspace. After considering
numerous public comments on the privacy impact of aerial
FAA proposed a regulation that requires test site operators to develop
privacy policies but does not require any specific
protections. The FAA rulemaking came about in response to an extensive
petition submitted by EPIC, broadly supported
by civil liberties
organizations and the general public. In comments to the FAA, EPIC also
urged the agency to require adherence
to the Fair Information
Practices, disclosure of data collection and minimization practices,
and independent audits.
Release on Drone "Integration Roadmap" (Nov. 7, 2013)
FAA: Text of Drone "Integration Roadmap" (Nov. 7, 2013)
FAA: Drone Privacy Regulation (Nov. 7, 2013)
EPIC: Petition to FAA re: Drone Privacy (Mar. 8, 2012)
EPIC: Comments to FAA re: Drone Privacy (Apr. 23, 2013)
EPIC: Domestic Unmanned Aerial Vehicles (UAVs) and Drones
 EPIC in the News
"Meet the Punk Rocker Who Can Liberate Your FBI File." Mother Jones,
Nov. 13, 2013.
"The private information Facebook now makes public." CNET, Nov. 12,
"San Diego quietly slips facial recognition into the hands of law
enforcers." Naked Security, Nov. 12, 2013.
"Judge: Show me Obama foreign aid order." Politico, Nov. 11, 2013.
"White House considers civilian for NSA chief." The Hill, Nov. 9, 2013.
"FAA to Map Out Drone Rules." The Wall Street Journal, Nov. 6, 2013.
"Senator Pushes for Protection From Drones' Prying Eyes." NextGov,
Nov. 6, 2013.
Letter to the Editor: "Protecting Data Privacy" by EPIC President Marc
Rotenberg. The New York Times, Nov. 5, 2013.
"NSA Files: Decoded." The Guardian, Nov. 1, 2013.
For More EPIC in the News: http://epic.org/news/epic_in_news.html
 EPIC Book Review: 'The Circle'
"The Circle," Dave Eggers
Author Dave Eggers' new novel, "The Circle," raises a host of issues
about privacy, transparency, and human interaction that parallels
own current and growing struggle between the promise of technology,
big data, and greater transparency, and the importance
of privacy and
personal human interaction.
The novel takes place at "the Circle," now the world's leading Internet
to the Circle, all Internet users now have a single,
verified login called TruYou by which all Internet activity is
in your own name.
Protagonist Mae Holland is hired to work at the Circle after her friend
and Circle all-star employee, Annie,
refers her for a job. The novel
opens with Mae's first day at the Circle, including her tour of the
Circle campus, replete with
the many perks so often associated with
Silicon Valley companies. Somehow the tour guide seems to already know
about Mae, foreshadowing Mae's trajectory within the
company and the ambitions of the Circle itself.
Mae completely embraces the
culture of the Circle--one of "passion,
participation and transparency" as it is described by a Circle
employee - and not unlike
today's Silicon Valley companies. As the
leading social networking company, the Circle expects employees to
fully incorporate constant
online social interaction, seemingly to the
detriment of genuine human interaction.
The novel's rapid scene changes move the narrative
at an ever-
quickening pace. The fast pacing is paralleled by Mae's quick ascent
within the company, culminating in her position
as an ambassador for
the Circle's new "transparency" venture. Mae must wear a small device
around her neck that provides a live
video and sound feed of every
waking moment, to be followed by anyone in the world. "Going
transparent," as it called, is the next
big thing the Circle expects
everyone to eventually adopt.
With the focus on the amazing positives of "going transparent" and
other Circle ventures, very few people within the novel to stop to
think if society should do this. Only a mysterious Circle employee
named Kalden and Mae's boyfriend, Mercer, provide any warnings about
the ramifications of the Circle's path for society.
are few dissenters against the Circle's creation of a surveillance
society in the name of doing good. Of course, that may be the
the allure of technology and its promises of a better world cause us to
unwittingly trade away our privacy.
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
"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 Bookstore: http://www.epic.org/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:
 Upcoming Conferences and Events
"Drones Around the Globe: Proliferation and Resistance." Speaker: EPIC
Domestic Surveillance Counsel Amie Stepanovich. Washington,
November 2013. For More Information:
Georgetown University Law Center Presents "Surveillance and Foreign
Intelligence Gathering in the United States: The Current State
Play." Speaker: Marc Rotenberg, EPIC Executive Director. Washington,
DC, 19 November 2013. For More Information:
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The Electronic Privacy Information Center is
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