EPIC Alert 20.06
E P I C A l e r t
Volume 20.06 March 31, 2013
Published by the
Electronic Privacy Information Center (EPIC)
"Defend Privacy. Support EPIC."
Table of Contents
 US Supreme Court: Dog Sniff at Doorway is 'Search'
 TSA Begins Court-Ordered Rulemaking on 'Nude' Body Scanners
Testifies at Senate Drones Hearing, Submits Drone Petition
 EPIC Sues Ed. Dept., Seeks Docs on Debt Collectors, Student Privacy
 EPIC Highlights Need for Broad Reform of Federal Privacy Law
 News in Brief
 EPIC in the News
 EPIC Bookstore
Upcoming Conferences and Events
TAKE ACTION: Comment on the TSA's 'Nude' Airport Body Scanners!
- COMMENT to the TSA: http://epic.org/redirect/032913-TSA.html
- READ the TSA's Rulemaking: http://epic.org/redirect/032913-TSA2.html
- READ EPIC's Recommendations: http://epic.org/TSAcomment/EPIC-TSA-NBS-
- LEARN More: http://epic.org/TSAcomment/
- SUPPORT EPIC: http://www.epic.org/donate/
 US Supreme Court: Dog Sniff at Doorway is 'Search'
The US Supreme Court has ruled in the case Florida v. Jardines
use of a drug-sniffing dog to investigate the front door of a home is a
"search" within the meaning of the Fourth Amendment.
In a 5-4 decision,
the Court determined that law enforcement officials require a warrant in
order to trespass onto the area just
outside, or the "curtilage" of, an
individual's home to investigate potential criminal conduct.
In Jardines, police officers walked
up to the front door of a house with
a drug-sniffing dog. The dog smelled marijuana emanating from the front
door and signaled the
officers. Based on this information, the police
obtained a warrant, searched the house, found drugs, and arrested the
Jardines, who challenged the dog-sniff of his front door as
an illegal search.
"That the officers learned what they learned only
intruding on Jardines' property to gather evidence is enough to
establish that a search occurred," Justice Antonin
Scalia concluded in
his majority opinion. "When 'the Government obtains information by
physically intruding' on persons, houses,
papers, or effects, 'a
"search" within the original meaning of the Fourth Amendment' has
undoubtedly occurred." Justices Clarence
Thomas, Ruth Bader Ginsburg,
Sonia Sotomayor, and Elena Kagan joined the majority opinion.
Justice Kagan, joined by Justices Ginsburg
and Sotomayor, wrote a
concurring opinion explaining that the case could have also been
resolved by examining Jardines' privacy interests.
In Justice Kagan's
view, the use of a device (such as a specially trained dog) "not in
general public use" to "explore the details
of the home" violates a
homeowner's reasonable expectation of privacy and is therefore a search.
Justice Samuel Alito, joined by
Chief Justice John Roberts and Justices
Anthony Kennedy and Stephen Breyer, dissented from the majority opinion.
Justice Alito wrote
that the police did not violate the Constitution and
Jardines did not have a reasonable expectation of privacy in smells
emanating from his home. The right to approach the front
door of a house
"even extends to police officers who wish to gather evidence against an
EPIC filed a "friend of the court"
brief in a related Supreme Court
police dog case, Florida v. Harris, asking the Court to "consider the
reliability of the [dog-sniff]
technique, the impact upon privacy, and
the purpose of the Fourth Amendment." The Court decided against
respondent Harris earlier
US Supreme Court: Decision in Florida v. Jardines (Mar. 26, 2013)
EPIC: Florida v. Jardines
EPIC: Florida v. Harris
EPIC: "Friend of the Court" Brief in Florida v. Harris (Aug. 31, 2012)
 TSA Begins Court-Ordered Rulemaking on 'Nude' Body
The Transportation Security Administration announced
March 26 that it
will begin a public comment process on airport screening procedures.
The rulemaking is a result of EPIC's long
campaign advocating for
public comments on the TSA's use of airport body scanners, particularly
the backscatter, or "nude," scanner
machines. EPIC twice petitioned the
Department of Homeland Security for a public rulemaking on body
scanners. After the agency
failed to heed the petitions, EPIC filed
suit. In EPIC v. DHS, the Federal Appeals Court for the DC Circuit
found in 2011 that
the agency unlawfully deployed body scanners in US
airports. The DC Circuit Court ordered DHS and thus the TSA to
the proper rulemaking procedures and allow the
public to comment on the body scanner program.
More than a year and a half after
the court order, the TSA has
proposed a two-sentence change to the agency's extensive regulations:
"(d) The screening and inspection
described in (a) may include the use
of advanced imaging technology. For purposes of this section, advanced
is defined as screening technology used to detect
concealed anomalies without requiring physical contact with the
screened." The TSA seeks to grant itself authority to
continue to deploy the body scanners without the establishment of
safeguards. EPIC is urging public comment on the agency
proposal, recommending that the TSA adopt more effective screening
If the TSA continues with the current body scanner program,
EPIC says, the agency should make clear the right of individuals to
opt-out as well as clarify the TSA's obligation to add software filters
to all screening devices.
Congress had mandated that the
TSA add privacy software to all body
scanners by June 2012 — a deadline TSA extended to June 2013. Last
year, TSA indicated
that it would no longer purchase backscatter x-ray
devices for deployment in US airports and was moving the backscatter
to smaller airports for "efficiency" - continuing, however,
to use the less intrusive but still controversial millimeter-wave
scanners. At a subsequent House oversight hearing in November 2012,
Congress learned that the TSA had shipped millions of dollars
backscatter x-ray machines to warehouses because of issues around
adding privacy software to the machines. During that
oversight hearing, DHS claimed that it did not "underestimate the
privacy concerns of the public."
EPIC is urging the
public to use the online system to submit comments
on the agency proposal, which will be available until June 24, 2013:
EPIC: Comment on the TSA Nude Body Scanner Proposal
EPIC: TSA Body Scanners, Submit Comments
EPIC: TSA Body Scanners, Docket Folder
EPIC: TSA Body Scanners, Recommendations for Commenters
EPIC: TSA Body Scanners, Preliminary Analysis of Issues
EPIC v. DHS, 653 F.3d 1 (D.C. Cir 2011)
 EPIC Testifies at Senate Drones Hearing, Submits Drone
At a March 20 US Senate Judiciary Committee hearing
on "The Future of
Drones in America," EPIC Domestic Surveillance Project Director Amie
Stepanovich testified in support of new US
drone privacy safeguards.
Also testifying at the hearing were drone expert Ryan Calo of the
University of Washington and representatives
of law enforcement and the
Senators from both parties expressed support for the development of new
In their respective opening statements, both
Committee Chair Patrick Leahy (D-VT) and Ranking Member Chuck Grassley
domestic drones' potential impact on Americans'
privacy rights. In her testimony, EPIC's Stepanovich emphasized drones'
to privacy and the inadequacy of current law. Stepanovich
further recommended that drone legislation should include limitations on
use and data retention, as well as provide transparency and public
accountability, including "any use of drones to collect information
would not otherwise be retrievable without a physical trespass."
Documents recently obtained by EPIC under the Freedom of Information Act
indicate that the US Bureau of Customs and Border Protection has
deployed domestic drones with the ability to intercept electronic
communication and to identify human targets, and that the drones'
specifications do not "require strict adherence to. . . FAA . .
regulations or military specifications governing hardware, testing,
technical data, handbooks or other practices associated with
equipment design." The documents also raise questions about the Bureau's
compliance with federal privacy laws and the scope
surveillance. CBP drones have been made available to other federal,
state, and local agencies.
In response to information
in the documents, EPIC has petitioned the
Bureau of Customs and Border Protection, demanding the suspension of the
pending the development of privacy regulations. Thirty
organizations and more than a thousand individuals have signed EPIC's
In early 2012, EPIC petitioned the Federal Aviation Administration over
the agency's use of domestic drones. The FAA responded directly
in early 2013 and announced a public rulemaking on the privacy impact of
aerial drones. At EPIC's urging, the agency stated
it will consider
privacy in addition to safety as it moves forward with the integration
of domestic drones in US airspace.
Hearing: "The Future of Drones in America" (Mar. 20, 2013)
EPIC: Testimony Before Senate Judiciary Committee (Mar. 20, 2013)
EPIC: FOIA Docs re: CBP Drone Performance Specs (Mar. 2010)
EPIC: Domestic Drones Petition
EPIC: Petition to FAA re: Drones (Feb. 24, 2012)
EPIC: FAA Letter to EPIC re: Drones (Feb. 14, 2013)
EPIC: Drones and UAVs
 EPIC Sues Ed. Dept., Seeks Docs on Debt Collectors,
EPIC has filed a Freedom of Information Act complaint against the US
Department of Education following the agency's failure to release
documents about private student debt
collection and compliance with
federal privacy law. EPIC's lawsuit alleges that the Education
Department "has failed to comply
with its statutory deadlines and has
failed to disclose a single record."
According to EPIC's lawsuit, The Department of Education
at least 23 private debt collection agencies that obtain sensitive
personal information from students, including
loan status, income, Social Security number, and credit history.
Federal law requires that these debt collectors,
contractors, adhere to certain privacy practices and safeguards
under the Privacy Act of 1974.
EPIC's complaint states
that in 2011, the Education Department held
$355 million worth of contracts with private debt collectors. That same
Department received 1,406 complaints about private debt
collectors, a 41% increase from the previous year," and that many of
complaints "concern[ed] invasive and harassing communications."
The Department is expected to publish an update to a procedural
that instructs debt collectors on privacy safeguards. The "PCA
Procedures Manual," last published in 2009, describes debt
compliance under the Privacy Act. The Department is similarly supposed
to require debt collectors to submit compliance
reports to the agency.
Because the Education Department has not released updated documents
since 2009, EPIC sought release of
the procedures manual and compliance
reports for the last three years. After the Department failed to
disclose any records in response
to the FOIA request, EPIC sued in the
federal district court for the District of Columbia.
EPIC: Complaint against ED re: Private
Debt Collection (Mar. 15, 2013)
Education Department: 2009 "PCA Procedures Manual"
EPIC: Initial FOIA Request to ED re: Debt Collection (Sept. 20, 2012)
EPIC: Student Privacy
 EPIC Highlights Need for Broad Reform of Federal Privacy
The US House Committee on the Judiciary is set to
begin hearings to
determine if, and how, the Electronic Communications Protection Act
should be modified. The Judiciary Committee
describes ECPA as a law
that "was designed to provide rules for government surveillance in the
modern age." It governs, for example,
when law enforcement may search
a person's email messages without a warrant, or without meeting the
legal standard of "probable
cause," which is required for the police to
perform physical, non-electronic searches.
The House Subcommittee on Crime, Terrorism,
Homeland Security and
Investigations is considering updates to this nearly 30-year-old
law to keep pace with the evolution of modern
technology and "to
reflect our current digital economy while preserving constitutional
protections." The Subcommittee's statement
of intention to modernize
ECPA stated, "In updating a law passed before the creation of the
Internet, the modernization of ECPA
needs to provide electronic
communications with protection comparable to their more traditional
counterparts and take into account
the recent boom in new technologies
like cloud computing, social networking sites and video streaming."
EPIC, which was invited
to submit a statement for the record, has
recommended a comprehensive ECPA review. EPIC's statement describes
Google's Wi-Fi interceptions
as an example of why ECPA should be
updated to address technological phenomena that didn't exist at the
time of its drafting. The
statement also explains how ECPA's language
has become incoherent, particularly with respect to the Act's use of
the term "electronic
storage": In the years following ECPA's passage,
"electronic storage" has become a complicated and multi-faceted concept,
is no longer useful to describe specific privacy protections.
EPIC also noted the lower courts' growing confusion about the
of ECPA, particularly with respect to user location
privacy. EPIC pointed out that, "[e]ven though many courts agree that
Amendment protections apply to location data, they do not agree
on what legal process is necessary to satisfy the standard."
according to EPIC, the courts' disagreement on the nature
of the legal problem is compounded by the lack of federal legislation
interpreting the accompanying technical problem. Thus, "Courts are ill
equipped to establish clear standards due to the technically
factually complex nature of the problem."
EPIC's statement concludes, "By pursuing a broad legislative overhaul
electronic privacy laws, Congress can establish important
new privacy safeguards for personal information. This is especially
given the growing dependence of consumers on cloud-based
services that routinely store user data on remote servers." EPIC also
has encouraged the Committee to address the recent settlement between
states' Attorneys General and Google over Google's Street
collection, as well as federal officials' reluctance to pursue a
similar investigation; an updated, modernized ECPA would
timed to resolve the Google Street View issue.
US House of Representatives: Committee on the Judiciary
EPIC: Letter to House Judiciary Committee on ECPA (Mar. 18, 2013)
House Judiciary Committee: Hearings on ECPA (Mar. 19, 2013)
CT AG Office: Press Release on Street View Settlement (Mar. 12, 2013)
EPIC: Jennings v. Broome
EPIC: Electronic Communications Privacy Act
EPIC: Locational Privacy
 News in Brief
Court Rules for EPIC, Denies FBI Request for Delay in StingRay Case
A federal judge in Washington, DC has issued an opinion denying
FBI's motion to delay the release of records sought by EPIC under the
Freedom of Information Act. The decision follows from EPIC's lawsuit
against the FBI for records about the agency's use of cell-site
commonly referred to as "StingRay," which track
cell phones and collect a vast amount of data from telephone customers.
found that the FBI was not facing the "exceptional
circumstances" necessary to justify the proposed two-year delay, and
the agency to produce all records, except those subject to
classification review, by Aug. 1, 2013.
Washington, DC District Court:
Opinion on EPIC v. FBI (Mar. 28, 2013)
EPIC: Complaint Against FBI in StingRay Case (Apr. 26, 2012)
EPIC v. FBI - Stingray / Cell Site Simulator
EPIC, Privacy Groups Ask FTC Chair to Appoint Consumer Advocate
EPIC and over 30 other privacy and consumer groups have written
Chair Edith Ramirez, urging her to appoint a Director of the Bureau of
Consumer Protection who is "independent of industry"
and has a "well-
established consumer rights and public interest background." The letter
follows the departure of CPB director David
Vladeck. EPIC also has
urged the Commission to require compliance with the Consumer Privacy
Bill of Rights for companies that violate
EPIC et al.: Letter to FTC's Ramirez re: BCP Director (Mar. 19, 2013)
FTC: Press Release re: Resignation of CPB Head Vladeck (Dec. 17, 2012)
EPIC: Letter to US Senate Commerce Committee re: CPBR (Dec. 4, 2012)
EPIC: Federal Trade Commission
Federal Aviation Administration to Hold Public Meeting on Drone Privacy
The Federal Aviation Administration will hold
a public meeting on a
seeks comments from the public on
proposed privacy requirements; these
include drone operators creating privacy policies based on Fair
Information Practices. EPIC
previously submitted an extensive petition
to the FAA encouraging the agency to address privacy issues associated
drone use. Earlier in 2013, the FAA announced it would
begin a public rulemaking on the privacy impact of drones. In a letter
EPIC Executive Director Marc Rotenberg, the FAA Chief Counsel stated,
“The FAA recognizes that increasing the use of [drones]
concerns. The agency intends to address these issues through engagement
and collaboration with the public."
Register: Notice of FAA Public Meeting on US Drones (Mar. 28, 2013)
Fed. Register: Request for Public Comment on US Drones (Mar. 28, 2013)
EPIC: Petition to FAA re: US Drones (Mar. 8, 2012)
FAA: Announcement of Public Rulemaking on Drones (Feb. 14, 2013)
EPIC: Letter from FAA re: Drone Privacy (Feb. 14, 2013)
EPIC: Domestic Unmanned Aerial Vehicles (UAVs) and Drones
Rep. Markey Introduces Drone Privacy Legislation
Representative Ed Markey (D-MA) has introduced the "Drone Aircraft
Transparency Act of 2013." The bill sets out comprehensive
transparency requirements for drone operators to protect personal
from unregulated drone surveillance. Under the terms of the
bill, drone operators would be required to submit a detailed data
and data minimization statement prior to obtaining a license
to operate drones within the US. The bill also states that surveillance
by law enforcement agencies will require a warrant or extreme exigent
circumstances. Congressman Markey stated that privacy legislation
necessary to "prevent flying robots from becoming spying robots."
Rep. Ed Markey: Press Release on Drone Privacy Bill (Mar.
Rep. Ed Markey: Text of Drone Privacy Bill (Mar. 19, 2013)
EPIC: Domestic Unmanned Aerial Vehicles (UAVs) and Drones
Fed Appeals Court Rejects "Neither Confirm Nor Deny" Secrecy Defense
The Court of Appeals for the DC Circuit has ruled that
the CIA must
respond to an ACLU open government request for records pertaining to
drone strikes. The CIA had said it could “neither
confirm nor deny that
it had responsive documents." The appeals court found that the CIA
itself had acknowledged it had such documents.
In EPIC v. NSA, a
similar challenge to the so-called "Glomar" response, the federal
appeals court found that the agency had not
acknowledged existence of
documents responsive to a FOIA request even though there were
widespread news reports of a partnership
between Google and the NSA.
DC Appeals Court: Opinion in ACLU v. CIA (Mar. 15, 2013)
EPIC: EPIC v. NSA: Google / NSA Relationship
WSJ: "Google Working With NSA to Investigate Cyber Attack" (Feb. 2010)
Social Security Admin. Considers Stronger Privacy Safety for Kids' SSNs
The Social Security Administration is seeking public
comment on a
proposal to assign new Social Security numbers to children age 13 and
under. Currently, the agency may assign new
SSNs only if it has
evidence that "a third party has improperly used an adult's or child's
SSN, the number holder was not at fault,
and the number holders was
recently disadvantaged by the misuse." Under the proposed policy, the
agency would issue a new SSN to
a child if: (1) the child's Social
Security card is stolen in transit from the agency to the child's
address; (2) the SSA erroneously
discloses a child's SSN through the
SSA's Death Master File; or (3) a third party misuses the child's SSN.
The agency would no
longer require evidence that the child was
disadvantaged due to misuse in any of these situations. EPIC favors the
change. Public comments on the proposal are due April 12,
2013. EPIC has previously warned Congress about SSN fraud and the
problem of identity theft.
Fed. Register: SSA Request for Comment on SSN Changes (Mar. 4, 2013)
EPIC: Testimony Before US House on SSNs and ID Fraud (Jun. 21, 2007)
EPIC: Social Security Numbers
 EPIC in the News
"Civilian Drones Come With Both Risk And Reward." The Huffington Post,
Mar. 30, 2013.
"Ex-White House Official Joins Group Fighting 'Excessive' Online
Privacy Laws." Mother Jones, Mar. 29, 2013.
"Drone Industry Worries About Privacy Backlash." NPR, Mar. 29, 2013.
"In Public Records Suit, No Extra Time for the FBI." Blog of Legal
Times, Mar. 28, 2013.
"Feds Accused of Hiding Information From Judges About Covert Cellphone
Tracking Tool." Slate, Mar. 28, 2013.
"FBI prepares to defend 'Stingray' cell phone tracking." CNet, Mar.
"TSA to Heed Formal Gripes over Body Scans." NextGov, Mar. 25, 2013.
"Your car may be invading your privacy." USA Today, Mar. 25, 2013.
"Anti-Drone Revolt Prompts Push For New Federal, State Laws." CNET,
Mar. 22, 2013.
"Who is Stockpiling and Sharing Private Information About New York
Students?" The Village Voice, Mar. 22, 2013.
"Drone use in U.S. may require new laws, Senate panel told." CNN, Mar.
"Aerial Drone Use in the US [Video]." C-SPAN, Mar. 20, 2013.
"Drones will require new privacy laws, Senate told." US News & World
Report, Mar. 20, 2013.
"Is Your Cloud Drive Really Private? Not According to Fine Print."
NBC News, Mar. 15, 2013.
For More EPIC in the News: http://epic.org/news/epic_in_news.html
 EPIC Bookstore
"Litigation Under the Federal Open Government Laws 2010," edited by
Harry A. Hammitt, Marc Rotenberg, John A. Verdi, Ginger McCall,
S. Zaid (EPIC 2010). Price: $75
Litigation Under the Federal Open Government Laws is the most
comprehensive, authoritative discussion of the federal open access
This updated version includes new material regarding President Obama's
2009 memo on Open Government, Attorney General Holder's
March 2009 memo
on FOIA Guidance, and the new executive order on declassification. The
standard reference work includes in-depth
analysis of litigation under:
the Freedom of Information Act, the Privacy Act, the Federal Advisory
Committee Act, and the Government in the Sunshine Act. The fully updated
2010 volume is the
25th edition of the manual that lawyers, journalists
and researchers have relied on for more than 25 years.
"Information Privacy Law: Cases and Materials, Second Edition" Daniel J.
Solove, Marc Rotenberg, and Paul Schwartz. (Aspen 2005).
This clear, comprehensive introduction to the field of information
privacy law allows instructors to enliven their teaching of fundamental
concepts by addressing both enduring and emerging controversies. The
Second Edition addresses numerous rapidly developing areas of
law, including: identity theft, government data mining and electronic
surveillance law, the Foreign Intelligence Surveillance
intelligence sharing, RFID tags, GPS, spyware, web bugs, and more.
Information Privacy Law, Second Edition, builds a cohesive
for an exciting course in this rapidly evolving area of law.
"Privacy & Human Rights
2006: An International Survey of Privacy Laws
and Developments" (EPIC 2007). Price: $75.
This annual report by EPIC and Privacy International provides an
overview of key privacy topics and reviews the state of privacy
75 countries around the world. The report outlines legal protections,
new challenges, and important issues and events relating
Privacy & Human Rights 2006 is the most comprehensive report on privacy
and data protection ever published.
"The Public Voice WSIS Sourcebook: Perspectives on the World Summit on
the Information Society" (EPIC 2004). Price: $40.
This resource promotes a dialogue on the issues, the outcomes, and the
process of the World Summit on the Information Society (WSIS).
reference guide provides the official UN documents, regional and
issue-oriented perspectives, and recommendations and proposals
future action, as well as a useful list of resources and contacts for
individuals and organizations that wish to become more
involved in the
"The Privacy Law Sourcebook 2004: United States Law, International
and Recent Developments," Marc Rotenberg, editor (EPIC 2005). Price:
The Privacy Law Sourcebook, which has been called the "Physician's Desk
Reference" of the privacy world, is the leading resource
attorneys, researchers, and journalists interested in pursuing privacy
law in the United States and around the world.
It includes the full
texts of major privacy laws and directives such as the Fair Credit
Reporting Act, the Privacy Act, and the OECD
Privacy Guidelines, as well
as an up-to-date section on recent developments. New materials include
the APEC Privacy Framework, the
Video Voyeurism Prevention Act, and the
"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
"Travel Surveillance, Traveler Intrusion," sponsored by the Cato
Institute. Speaker: Ginger McCall, Director, EPIC Open Government
Project. Washington, DC, 2 April 2013. For More Information:
"Data Collection, Data Mining, Data Brokers and Consumer Privacy,"
National Association of Attorneys General Annual conference.
EPIC Executive Director Marc Rotenberg. 14 April 2013, National Harbor,
MD. For More Information: http://www.naag.org/md-ag-pi-summit-
"ASAP 6th Annual National Training Conference." Speaker: Ginger McCall,
Director, EPIC Open Government Project. 15 May 2013, Arlington,
More Information: http://www.accesspro.org/programs/trainingconf/
EPIC Champion of Freedom Awards Dinner. 3 June 2013, Washington, DC. For
More Information: http://epic.org/june3.
2013 Health Privacy Summit, 5-6 June 2013, Washington, DC. For More
22nd Annual Computers, Freedom, & Privacy Conference. 25-26 June 2013,
Washington, DC. For More Information: Contact Chris Calabrese at
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