EPIC Alert 21.13
E P I C A l e r t
Volume 21.13 July 16, 2014
Published by the
Electronic Privacy Information Center (EPIC)
"Defend Privacy. Support EPIC."
Table of Contents
 EPIC Challenges Facebook's Manipulation of Users, Files Complaint
 EPIC Defends FOIA Victory in Federal Appeals Court
Privacy Panel Backs PRISM Program
 FTC Releases 2014 Data Security Update, Enforcement Issues Remain
 Attorney General Supports
Privacy Act Protections for EU Citizens
 News in Brief
 EPIC in the News
 EPIC Editorial: 'Invitation to a Dialogue:
 Upcoming Conferenceso and Events
 EPIC Challenges Facebook's Manipulation of Users, Files Complaint
EPIC has filed a formal complaint to the Federal Trade Commission over
Facebook's manipulation of users' News Feeds for psychological
The complaint concerns Facebook's 2012 "secretive and non-consensual use
of personal information to conduct an ongoing
on 700,000 Facebook users, i.e. the company purposefully messed with
people's minds." EPIC said that Facebook's
misuse of data is a
deceptive practice subject to FTC enforcement.
Early in 2012, Facebook altered 700,000 Facebook users' News
elicit positive and negative emotional responses. Facebook conducted
the psychological experiment with researchers at
and the University of California, San Francisco, both of whom failed to
follow standard ethical protocols for
human subject research. At the
time of the experiment, Facebook's Data Use Policy did not state that
user data would be used for
research purposes. Facebook also failed to
inform users that their personal information would be shared with
complaint charges Facebook with engaging in deceptive business
practices in violation of Section 5 of the Federal Trade Commission
Act. According to the complaint, Facebook's misrepresentations were
likely to mislead reasonable users; and that Facebook represented
consumers that the company shared user data with users' Facebook
"friends," third-party advertisers, and developers, but actually
shared user data with third-party researchers at multiple universities.
Furthermore, the complaint maintains, "Facebook subjected
to ongoing behavioral testing by collecting user data and feeding it
into a separate algorithm," and "Users could
not reasonably have
guessed that use of their Facebook account might subject them to
EPIC also charged Facebook
with violating a 2012 FTC Consent Order. In
July 2012, following a complaint by EPIC and other consumer privacy
the Commission entered into a consent order with
Facebook, establishing new privacy safeguards for Facebook users and
Facebook from misrepresenting the extent to which it
maintains the privacy or security of covered information.
I of the Consent Order prohibits Facebook from
misrepresenting "its collection or disclosure of any covered
information," and "the
extent to which Respondent makes or has made
covered information accessible to third parties." In the
Psychological Study complaint,
EPIC charged Facebook with
misrepresenting the extent to which it made covered information
accessible to third parties. EPIC has
asked the FTC to require that
Facebook make public the News Feed algorithm.
EPIC: Facebook Psychological Study Complaint (Jul.
EPIC: Facebook Psychological Study Page
The New York Times: "Lack of Transparency in the Facebook Study" (Jul.
FTC: 2012 Facebook Consent Decree
EPIC: Facebook Privacy
 EPIC Defends FOIA Victory in Federal Appeals Court
EPIC has filed a brief in response to US Justice Department's
the DC Circuit Court of Appeals in the case EPIC v. DHS.
The Department of Justice appealed to the DC Circuit Court
after a federal district court ruled that DHS must turn over to EPIC
"SOP 303," a government procedure to shut down cell
EPIC sought the document after a peaceful protest over the killing of
a homeless man by BART police was cut short
after public officials cut
off all cellular service inside four transit stations. This prevented
cell phone users from sending
or receiving phone calls, messages, or
other data, including for emergency services, and raised significant
First Amendment and
public safety concerns.
In finding for EPIC, the district court judge found that the government
could not withhold the policy as
an "investigative technique" or
because,as the government claimed, release would cause harm to an
individual.The court's ruling
also emphasized FOIA's basic principle of
promoting disclosure over secrecy.
The government appealed this ruling, arguing that
the lower court was
wrong about the law. EPIC's response brief explained, "The government
procedure at issue in this case is used
to 'disrupt' cellular networks
operated by private carriers. These communications networks are the
backbone of our society. Hundreds
of millions of Americans rely upon
cell phone service every day to conduct business, communicate with
family, organize politically,
and obtain emergency services. . . . The
decision to shut down one of these networks, even temporarily, would
have a significant
impact on the surrounding population, and could
itself threaten public safety. Furthermore, shutdowns have been used to
lawful protest activities, both in the United States and
abroad. The protocol governing the shutdown decision is therefore a
of significant public interest and should be released."
EPIC: EPIC v. DHS - SOP 303
DHS: SOP 303 (Redacted) (Sep. 23, 2009)
EPIC: SOP 303 Appellee Brief (Jul. 7, 2014)
EPIC: EPIC v. DHS: Opinion, DC District Court (Nov. 12, 2013)
 Privacy Panel Backs PRISM Program
In a surprising report, the US Privacy and Civil Liberties Oversight
Board has endorsed the US government's routine collection
Internet activities of non-US persons via the use of section 702 of the
Foreign Intelligence Surveillance Act. Section 702
includes the PRISM
Program, first disclosed by Edward Snowden in 2013, in which the NSA
obtains information directly from Internet
companies located within the
US. Section 702 also includes "Upstream" collection in which the NSA
amasses communications directly
from the Internet "backbone." The Board
cited the program's value and compliance with the law, but said little
about the impact
on non-US persons.
The search terms, or "selectors," used for the upstream collection of
Internet communications incidentally collect
large amounts of US Person
communications that the NSA can subsequently query using US Person
identifiers. For these queries, according
to the report, "[n]o showing
of suspicion that the U.S. person is engaged in any form of wrongdoing
is required . . . ." The upstream
collection also gathers large amounts
of communications of non-US Persons who are not NSA targets.
The Board did not assess the
level of communications of non-targets
collected under Section 702, but a Washington Post analysis of huge
quantities of NSA-intercepted
communications revealed that upwards of
90% of the account holders were not NSA targets. The Post also found
that the within the
NSA-intercepted communications it received, the NSA
marked nearly 50% of the surveillance files as containing information
The Post points out that many of these files are "described as useless
by the analysts but nonetheless retained, have
a startlingly intimate,
even voyeuristic quality. They tell stories of love and heartbreak,
illicit sexual liaisons, mental-health
crises, political and religious
conversions, financial anxieties and disappointed hopes."
In 2013, EPIC petitioned the US Supreme
Court to end a similar
government program involving the bulk collection of domestic telephone
records. In early 2014, the President
committed to ending the NSA's
current bulk collection of domestic telephone records, but since has
twice renewed the 90-day order
EPIC has also argued that the US government's collection of
communications should be subject to international privacy law, such
the International Covenant on Civil and Political Rights. It is
anticipated that foreign countries will continue to transfer
based services away from US firms because of the lax privacy
safeguards in the US.
PCLOB: Report on Section 702 of FISA
(Jul. 2, 2014)
Privacy and Civil Liberties Oversight Board (PCLOB)
The Washington Post: "In NSA-intercepted data, those not targeted far
outnumber the foreigners who are" (Jul. 5, 2014)
EPIC: In re EPIC - NSA Telephone Records Surveillance
EPIC: International Privacy Standards
 FTC Releases 2014 Data Security Update, Enforcement
The Federal Trade Commission has released
the 2014 Privacy and Data
Security Update." The report is "an overview of the FTC's enforcement,
policy initiatives, and consumer
outreach and business guidance in the
areas of privacy and data security," and outlines recent FTC activities
in such areas as
consumer privacy, data security, credit reporting,
children's privacy, Do Not Call, and the US-EU Safe Harbor framework.
also lists recent FTC workshops on emerging consumer issues,
such as the Internet of Things and Senior identity theft.
"If a company
violates an FTC order, the FTC can seek civil monetary
penalties for the violations," the report states. The report also
that the agency has brought "more than 40 general privacy
lawsuits" in the last 12 months. These actions often result in
orders that require the development of comprehensive privacy
programs or privacy assessments. 'However, the FTC has consistently
failed to enforce these consent orders. As a consequence, companies
routinely engage in business practices that undermine consumer
and violate the terms of the consent orders.
The Commission has also failed to modify proposed settlement agreements
seeking public comment. The Commission has been unwilling to
require publication of compliance reports or to enforce the Consumer
Privacy Bill of Rights against companies subject to FTC authority.
EPIC has filed complaints with the FTC over the agency's own
Google and Facebook settlements, arguing that the FTC has not prevented
those companies from changing their Terms
of Service, in violation of
existing consent orders. In response to the FTC's requests for public
comments on proposed settlement,
EPIC has also urged the Commission to
enforce the Consumer Privacy Bill of Rights and to publish compliance
Privacy and Data Security Update (July 2014)
EPIC: EPIC v. FTC (Enforcement of the Google Consent Order)
FTC: In the Matter of Google, Inc. (Oct. 24, 2011)
FTC: Facebook Consent Order (Aug. 10, 2012)
EPIC: Comments to FTC on Facebook Settlement (Dec. 27, 2011)
EPIC: Federal Trade Commission
EPIC: Facebook Privacy
EPIC: In re: Google Buzz
 Attorney General Supports Privacy Act Protections
for EU Citizens
Speaking in Athens at a meeting between
US and EU officials, US
Attorney General Eric Holder announced that the Obama Administration
will work with Congress to extend
Privacy Act protections to EU
"The Obama Administration is committed to seeking legislation that
would ensure that
. . . EU citizens would have the same right to seek
judicial redress for intentional or willful disclosures of protected
and for refusal to grant access or to rectify any errors
in that information, as would a U.S. citizen under the Privacy Act,"
EU Justice Commissioner Viviane Reding welcomed the announcement but
noted that "words only matter if put into law. We
are waiting for the
legislative step." Holder's announcement comes after a year of
increased tensions between the EU and the US
over the Snowden
revelations of US spying on top European officials.
EPIC has previously recommended that Privacy Act safeguards
to non-US persons. In 2012, EPIC urged Congress to update the Privacy
Act. In 2011, EPIC filed a "friend of the court"
brief in the US
Supreme Court, arguing that the Privacy Act provides damages for
mental and emotional harm. EPIC routinely submits
comments to federal
agencies, urging enforcement of Privacy Act protections.
US DOJ: Press Release on Atty. General Speech (Jun.
EPIC: Letter to Sen. Akaka re: Privacy Act Comments (Mar. 27, 2012)
US Senate: Text of "Privacy Act Modernization of 2011" (Oct. 18, 2011)
EPIC: "Friend of the Court" Brief in FAA v. Cooper (Oct. 4, 2011)
EPIC: Comments to DHS re: Automated Targeting System (Jun. 21, 2012)
EPIC et al.: Comments to DHS re: Proposed Rulemaking (Aug. 5, 2011)
EPIC et al.: Comments to DoD re: Proposed Rulemaking (Oct. 21, 2013)
EPIC: Comments to DOJ re: Traveler Screening System (Sep. 2005)
EPIC: The Privacy Act of 1974
EPIC: FAA v. Cooper
 News in Brief
Congress May Cut Funding for Surveillance Blimps over DC
The Department of the Army is seeking $54 million to fund the Joint
Attack Cruise Missile Defense Elevated Netted Sensor System, or
JLENS. The request is part of the Fiscal Year 2015 Defense Budget
currently being considered by Congress. The JLENS system consists of a
combination of long-range surveillance technologies and
capabilities including HELLFIRE missiles, and was originally deployed
in war zones in Iraq and Afghanistan. The Army
wants to test the system
over the metro Washington, DC area, but the program has come under
Congressional scrutiny because of cost
overruns. EPIC recently filed a
Freedom of Information lawsuit against the Army, seeking more
information about the JLENS program.
US Army: FY 2015 Budget Estimates (Mar. 2014)
US Defense Dept.: Press Release on JLENS Cost Overruns (Mar. 30, 2012)
EPIC: FOIA Lawsuit Against US Army re: JLENS (May 6, 2014)
EPIC: EPIC v. Army - Surveillance Blimps
FAA, Park Service Ground Drones, Cite Safety Concerns
The Federal Aviation Administration has released a proposed Special
for Model Aircraft, which will prohibit the use of drones for the
delivery of packages and other commercial services. The agency
requested comments on the proposal. At the end of 2013, Amazon had
raised the prospect of delivering packages via drones.
Washington Post series highlighted numerous close encounters between
commercial aircraft and small drones, as well as
many incidents where
drones fell from the sky. The National Park Service has prohibited the
use of drones in national parks, citing
safety concerns. In 2013, EPIC
urged the Federal Aviation Administration to mandate minimum privacy
standards for drone operators.
FAA: "Special Rule for Model Aircraft" (Jun. 18, 2014)
FAA: RFC on Special Rule for Model Aircraft (Jun. 25, 2014)
The Washington Post: "Close encounters on rise as small drones gain in
popularity" (Jun. 23, 2014)
National Park Service: Press Release on Drones (Jun. 20, 2014)
EPIC: Comments to FAA re: Drone Privacy (Apr. 23, 2013)
EPIC: Domestic Unmanned Aerial Vehicles (UAVs) and Drones
FTC Sues Amazon Over Billing for Children's In-App Purchases
The FTC has filed a lawsuit alleging that "Amazon.com, Inc. has
parents and other account holders for millions of dollars in
unauthorized in-app charges incurred by children." FTC Chairwoman
Edith Ramirez stated, "Amazon's in-app system allowed children to incur
unlimited charges on their parents' accounts without permission.
Amazon's own employees recognized the serious problem its process
created." The FTC recently settled similar charges with
Apple, in which
the FTC charged Apple with "billing consumers for millions of dollars
of charges incurred by children in kids'
mobile apps without their
parents' consent." Under the terms of the settlement, Apple must
provide a refund for affected consumers
and must change billing
practices to ensure that it has obtained express, informed consent from
consumers before charging them
for items sold in mobile apps. In 2003,
EPIC filed a complaint with the FTC over Amazon's collection of
children's data. EPIC explained
that Amazon was violating the
Children's Online Privacy Protection Act by allowing children under 13
to post content, including
personally identifiable information, without
their parents' permission.
FTC: Blog Post re: Amazon Lawsuit (Jul. 10, 2014)
FTC: Press Release re: Amazon Lawsuit (Jul. 10, 2014)
FTC: Press Release on Apple Lawsuit (Jan. 15, 2014)
FTC: Settlement with Apple (Jan. 15, 2014)
EPIC: Complaint to FTC re: Amazon and COPPA (2003)
Global Survey: Widespread Opposition to US Communications Spying, Drones
A new survey from Pew Research finds overwhelming
opposition to US
monitoring of emails and phone calls. There appears to be little
variation by region or culture, with high levels
of opposition found in
countries in Europe, South America, Asia, and the Middle East.
According to the survey "Global Opinions
of U.S. Surveillance," the
four countries that believe US surveillance is acceptable are the
United States, the Philippines, India,
and Nigeria. A related Pew
Survey found widespread opposition to drone strikes.
Pew Research: "Global Opinions of U.S. Surveillance"
(Jul. 14, 2014)
Pew Research: International Survey on Drones (Jul. 14, 2014)
EPIC: Public Opinion on Privacy
Pew Research Publishes 'Net Threats' Report
The Pew Research Internet Project has released a "Canvassing of
that finds growing concerns about the future of the
Internet. According to the report, current trends could "sharply
way the Internet works for many users." Among the threats
identified: state censorship, surveillance, diminished user trust, and
commercialization and centralization. EPIC President Marc Rotenberg
pointed to the growing concentration of the Internet industry,
"There should be many information sources, more distributed, and with
less concentration of control. . . . We need many
more small and mid-
size firms that are stable and enduring."
Pew Research Internet Project: "Net Threats" (Jul. 3, 2014)
Pew Research Internet Project: "The Gurus Speak" (Jul. 3, 2014)
EPIC: Public Opinion on Privacy
 EPIC in the News
"Invitation to a Dialogue: Internet Behemoths." The New York Times,
Letter to the Editor by EPIC President Marc Rotenberg. July
"Nielsen and Facebook team up to track shows watched on users' mobile
devices." The Washington Post, July 15, 2014.
"Facebook to track users' TV habits." Los Angeles Times, July 15, 2014.
"Future of floating surveillance system in doubt." FCW, July 10, 2014.
"Facebook Mood Experiment Draws FTC Complaint." Information Week, July
"Facebook COO: Sorry you got so upset when we deliberately upset you."
NASDAQ, July 7, 2014.
"Facebook deceives its users by manipulating feeds, FTC told." The
Columbus Dispatch, July 7, 2014.
"How Far Will US Supreme Court Go to Protect Digital Privacy?" Voice
of America News, July 6, 2014.
"EPIC files complaints against Facebook. Here are its allegations."
Tech Times, July 6, 2014.
"Privacy Group Complains to F.T.C. About Facebook Emotion Study."
The New York Times, July 3, 2014.
"EPIC says Facebook 'messed with people's minds,' seeks FTC sanctions."
Computer World, July 3, 2014.
"Privacy Watchdog Files Complaint to FTC Over Facebook News-Feed Study."
The Wall Street Journal, July 3, 2014.
"Facebook Experiment Draws Complaint From Privacy Group." Bloomberg
News, July 3, 2014.
"Privacy group to FTC: Facebook 'purposefully messed with people's
minds." BoingBoing, July 3, 2014.
"Privacy watchdog files complaint over Facebook study." USA Today, July
"Supreme Court refuses to drag Google out of its Street View privacy
wreckage." Naked Security, July 2, 2014.
"Supreme Court denies appeal in Google Street View case." Tech Times,
June 30, 2014.
"Supreme Court Rejects Google's Street View Appeal." The New York
Times, June 30, 2014.
"High court rejects Google appeal in snooping case." USA Today, June
"NSA queried phone records of just 248 people despite massive data
sweep." The Guardian, June 27, 2014.
"Google removes search results under 'right to be forgotten' rules."
Financial Times, June 26, 2014.
For More EPIC in the News: http://epic.org/news/epic_in_news.html
 EPIC Editorial: 'Invitation to a Dialogue: Internet
Readers of the EPIC Alert are encouraged to
respond to The New York
Times about this commentary on the future of the Internet economy.
"Invitation to a Dialogue: Internet
Behemoths." The New York Times,
Letter to the Editor by EPIC President Marc Rotenberg. July 15, 2014.
"To the Editor:
Your recent article about the reluctance of consumers to turn away from
the Internet titans suggests that most
users are largely satisfied with
the current choices ("Principles Are No Match for Europe's Love of U.S.
Web Titans," Business
Day, July 7). A better reading could be that they
have no real choices. A small group of companies today controls much of
Internet companies have grown in part because of the same network
effects — the benefits that arise with many participants
in the same
communications environment — that enabled the growth of the Internet.
Large Internet companies have also benefited
from powerful economic
incentives, a lax regulatory environment, rapid technological changes
and business practices that are designed
to deprive users of meaningful
choices. The practical consequence is increasing consolidation of
Internet-based services and little
real choice for consumers.
Consider Facebook's recent acquisition of WhatsApp, the popular
messaging service, or Google's purchase
of Nest, the smart home
thermostat company. Both of the target companies had offered strong
privacy safeguards to consumers. Now
they — and the data of their users
— will simply be subsumed in the larger companies.
Companies are also doing more
through the political realm to extend
their power. Witness Google's proxy war against the recent privacy
decision of the top court
in Europe, waged through media organizations
that are themselves losing readers and revenue to Google. Or consider
to remove Facebook groups critical of the company.
Much is said about the use of these platforms to promote democracy and
rights in the Middle East, China and Russia. But hardly a word is
spoken when these companies prevent their own users from expressing
Political institutions today are not well equipped to deal with the
realities of the modern Internet economy. Change
is happening quickly.
The benefits are oftentimes dazzling, and to many policy leaders
disorienting. But there is a real need for
a more thoughtful, critical
examination of current business practices.
Washington, July 11, 2014
The writer is
president of the Electronic Privacy Information Center
and has been active in Internet governance issues for more than 20
Editors' Note: We invite readers to respond briefly by Thursday for the
Sunday Dialogue. We plan to publish responses and a rejoinder
Sunday Review. Email: email@example.com"
EPIC Book Store
"Litigation Under the Federal
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Litigation Under the Federal Open Government Laws is the most
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This updated version includes new material regarding President Obama's
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"Information Privacy Law: Cases and Materials, Second Edition" Daniel J.
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This clear, comprehensive introduction to the field of information
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"Privacy & Human Rights
2006: An International Survey of Privacy Laws
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This annual report by EPIC and Privacy International provides an
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Privacy & Human Rights 2006 is the most comprehensive report on privacy
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"The Public Voice WSIS Sourcebook: Perspectives on the World Summit on
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This resource promotes a dialogue on the issues, the outcomes, and the
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reference guide provides the official UN documents, regional and
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"The Privacy Law Sourcebook 2004: United States Law, International
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The Privacy Law Sourcebook, which has been called the "Physician's Desk
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"Filters and Freedom 2.0: Free Speech Perspectives
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A collection of essays, studies, and critiques of Internet content
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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
Chautauqua Institution Presents "The Digital Self - Current Issues in
Privacy Law," featuring EPIC Appellate Advocacy Counsel Alan
Chautauqua, NY: July 7-9, 2014. For More Information:
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