E P I C A l e r t
Volume 21.02 January 28, 2014
Published by the
Electronic Privacy Information Center (EPIC)
"Defend Privacy. Support EPIC."
Table of Contents
 Obama Announces End of NSA Telephone Record Collection Program
 Markey Outlines New Student Privacy Legislation at EPIC Event
 Review Group to Senate: NSA Program Has Not Prevented Threats
 EPIC Files Appeal, Challenging Secrecy of Presidential Directive
 EPIC Gives 2014 International Award to EU Parliament Member Albrecht
 News in Brief
 EPIC in the News
 EPIC Bookstore
 Upcoming Conferences and Events
 Obama Announces
End of NSA Telephone Record Collection Program
In a widely
anticipated January 17 speech on NSA reform, President
Obama announced that he would cease the agency's telephone record
program, first by requiring a court order for all queries
and then by ending the NSA massive record request prior to the next
EPIC, legal scholars, the President's Review Group, the
Privacy and Civil Liberties Oversight Board, and sponsors of the USA
Act, including Senators Patrick Leahy (D-VT) and Ron Wyden
(D-OR), had urged the President to take this step.
The President announced
that the White House would move to implement "a
majority of the recommendations" made by the Review Group, including:
a public advocate for the Foreign Intelligence
* New privacy rights for non-US citizens
* More transparency
for data collection
* A narrowed focus on foreign data collection
* Greater oversight of signals intelligence
* A new Privacy
Coordinator at the White House
* A new panel to look closely at privacy and "Big Data."
President Obama also announced Presidential
Policy Directive 28, which
governs domestic and foreign signals intelligence activity. The
Directive specifies the purposes for
which signals intelligence can be
used, and explicitly bans the use of signals intelligence to suppress
dissent; discriminate against
people based on their ethnicity, race,
gender, sexual orientation, or religion; or provide competitive
advantage to US companies.
The President added that the Directive
requires all elements of the intelligence community to develop policies
and procedures to
safeguard personal information collected from signals
Still, the President may not have gone far enough to address
of NSA programs, the privacy rights of those outside the US, and the
need to ensure stronger technical safeguards for
and reliability. The President also did not indicate whether the US
would move to ratify the Council of Europe
Privacy Convention or seek
legislation to enact the Consumer Privacy Bill of Rights.
The White House: President's Speech on NSA
reform (Jan. 17, 2014)
The White House: "Liberty and Security in a Changing World" (Dec. 2013)
The White House: Presidential Policy Directive 28 (Jan. 17, 2014)
The White House: "Consumer Privacy Bill of Rights" (Feb. 2012)
EPIC: Council of Europe Privacy Convention
 Markey Outlines New Student Privacy Legislation at
At a January 14 briefing on Capitol Hill hosted
by EPIC, Senator Ed
Markey (D-MA) announced plans to introduce legislation to protect
student data. Senator Markey set out four
principles his bill would
cover: (1) Student information may never be used to market products to
children; (2) Parents must have
the right to access and amend student
information held by private companies; (3) Schools and private
companies must safeguard student
information; and (4) Companies must
delete student information after it is no longer needed for educational
Markey made his remarks at the EPIC event "Failing Grade:
Education Records and Student Privacy," which included a panel of
experts in technology, student privacy, and the Chief Privacy
Officer at the US Education Department.
In 2013, Senator Markey
sent a letter to the US Education Department,
requesting information on the privacy "impact of increased collection
of student data." Markey's questions included why the
federal agency made changes to the Family Educational Rights and
Act, a federal student privacy law; whether the agency
"performed an assessment of the types of information" that schools
to third party vendors; and whether students and their
families can obtain their information held by private companies. "By
detailed personal information about students' test results
and learning abilities, educators may find better ways to educate
students," Markey wrote. "However, putting the sensitive
information of students in private hands raises a number of important
questions about the privacy rights of parents and their children." The
Education Department's response suggested that when schools
to private companies, those schools should ensure the companies protect
Also in 2013, EPIC sent a letter
to the US Senate and House Committees
on Education, urging them to restore privacy protections for student
data. EPIC also filed
an extensive complaint with the Federal Trade
Commission over the business practices of scholarships.com, a website
students to divulge sensitive medical, sexual, and
religious data in order to obtain financial aid information.
claims that this information is used to locate
scholarships and financial aid; the company, however, transfers student
a business affiliate, American Student Marketing, which in turn
sells the data for general marketing purposes. EPIC's complaint
that this is an unfair and deceptive trade practice, as is
scholarships.com's failure to employ reasonable security measures.
Following EPIC's complaint, the company improved website security.
EPIC has a strong interest in student privacy. In 2013, EPIC
Freedom of Information Act lawsuit against the Education Department to
uncover information about student loan debt-collection practices. As
debt collectors are required to follow the
Privacy Act, a federal law that protects personal information. The
also requires student-debt collectors to submit
quality-control reports indicating whether the companies maintain
loan information. Pursuant to the lawsuit, EPIC
obtained documents revealing that many private debt collection agencies
incomplete and insufficient quality control reports. EPIC has
also testified before the Colorado State Board of Education on privacy
issues concerning companies that acquire student information.
EPIC: "Failing Grade" (Symposium on Student Privacy) (Jan. 14,
Sen. Ed Markey: Press Release on Student Privacy (Jan. 14, 2014)
Sen. Ed Markey: Letter to ED re: FERPA Rule Changes (Oct. 22, 2013)
Education Department: Response to Sen. Ed Markey (Jan. 13, 2014)
EPIC: EPIC v. US Department of Education
EPIC: Letter to Education Committees re: Student Privacy (Oct. 9, 2013)
EPIC: FTC Complaint re: Scholarships.com (Dec. 12, 2013)
EPIC: EPIC v. ED - Private Debt Collector Privacy Act Compliance
EPIC: Conserve Quality Control Reports
EPIC: FOIA Docs Coast Professional Inc. Quality Control Reports (2010)
EPIC: Testimony and Statement regarding inBloom, Inc. (May 16, 2013)
EPIC: Student Privacy
 Review Group to Senate: NSA Program Has Not Prevented
Members of the President's Review Group presented
for NSA reform at a recent Senate Judiciary Committee hearing. The
expert panel set out 46 recommendations
on a range of issues from
reforming intelligence surveillance directed at US persons to promoting
prosperity, security, and openness
in the networked world. Review Group
members stated the NSA's bulk collection of metadata had not prevented
threats against the
United States and recommended that the program be
Prior to release of the Review Group's report, EPIC met with the panel
and subsequently submitted extensive comments, specifically urging the
end of the NSA's bulk record collection program. EPIC also
the publication of declassified versions of Foreign Intelligence
Surveillance Court opinions, the creation of a special
argue before the FISA Court in opposition of the government, and annual
Inspector General reports that include a declassified
summary of FISA
In his January 17 speech on NSA reform, President Obama committed to
implementing the "majority
of the recommendations" made by the Review
Group. The President spoke specifically of periodically reviewing FISA
for declassification and creating a panel of advocates
to argue against the government in significant cases before the Court.
significantly, President Obama announced the end of the NSA
telephone record collection program.
The Privacy and Civil Liberties
Oversight Board, an independent
government agency, recently released a comprehensive analysis of the
NSA's Section 215 telephone
record collection program. The Oversight
Board also called for the end of the NSA's telephone record collection
program. A majority
of the Oversight Board concluded that the program
"lacks a viable legal foundation under Section 215."
In 2013, EPIC filed a petition
in the US Supreme Court challenging the
legality of the NSA's telephone record collection program. Legal
scholars and former members
of the Church Committee supported the
US Senate: Hearing on President's Review Group Report (Jan. 14, 2014)
The White House: "Liberty and Security in a Changing World" (Dec. 2013)
EPIC: Comments to President's Review Group (Aug. 29, 2013)
The White House: President's Speech on NSA reform (Jan. 17, 2014)
PCLOB: Telephone Metadata Report (Jan. 23, 2014)
EPIC: In re EPIC - NSA Telephone Records Surveillance
 EPIC Files Appeal, Challenging Secrecy of Presidential
EPIC has filed an appeal with the DC Circuit
Court of Appeals on a
lower court's ruling in EPIC v. NSA - NSPD 54. NSPD 54 is a secret
Presidential Directive that sets out the
scope of the NSA's authority
over computer networks inside the US. The lower court had determined
that NSPD 54 is not subject to
disclosure under the Freedom of
EPIC sought the Directive, signed by President George W. Bush in
January 2008, from the National Security Agency after the White
disclosed the existence of the Directive but not the substance. After
the agency failed to respond to EPIC's FOIA request,
EPIC filed an
administrative appeal, then a lawsuit. The Washington, DC District
Court ruled in October 2013 that a Presidential
Directive is not "an
agency record" subject to the FOIA.
To determine whether a document qualifies as an "agency record," a
will balance a set of factors describing the agency's "control"
over the document. These factors include the extent to which the
agency relies on the document, the extent to which the document is
integrated into the functioning of the agency, the agency's
use the records as it sees fit, and the document writer's "intent to
control" the document when it was created. The
lower court in EPIC v.
NSA only looked to the fourth factor - the President's "intent to
control" the document when it was created.
This was the first time a
federal court had ruled that a Presidential Directive is not subject
to the Freedom of Information Act.
EPIC believes that the court misapplied the "control" test, and has
asked the DC Appeals Court to determine "whether the district
erred in holding that a Presidential Directive in the possession of a
federal agency is not an agency record subject to the
EPIC: Statement of the Issue Presented in EPIC v. NSA (Jan. 22, 2014)
EPIC: Notice of Appeal in EPIC v. NSA - NSPD 54 (Dec. 17, 2013)
DC District Court: Ruling in EPIC v. NSA - NSPD 54 (Oct. 21, 2013)
EPIC: FOIA Request to NSA and NSD (Jun. 25, 2009)
The White House: Summary of NSPD 54
EPIC: EPIC v. NSA - Cybersecurity Authority
 EPIC Gives 2014 International Award to EU Parliament
EPIC has given the 2014 International
Champion of Freedom Award to
European Parliament Member Jan Philipp Albrecht for "modernizing and
defending the law of data protection."
Albrecht is a member of the
German delegation to the European Parliament, a member of the German
Green Party, and, at age 31, the
As a "rapporteur" for the Committee on Civil Liberties, Justice and
Home Affairs (LIBE), Albrecht has led efforts
in the European
Parliament to update European privacy law, including the EU-US Data
Protection Directive. He is also an outspoken
defender of privacy
rights and has promoted the investigation of the NSA program of mass
surveillance, including PRISM and TEMPORA.
Albrecht received the award from EPIC at the 7th Annual Computers,
Privacy & Data Protection conference in Brussels. Previous award
recipients include privacy activist Max Schrems, Canadian Privacy
Commissioner Jennifer Stoddart, European Parliamentarian Sophie
Veld, Australian Jurist Michael Kirby, and Constitutional Law Scholar
Stefano Rodotà. The award is given by EPIC annually
in recognition of
International Privacy Day, held every January 28.
EU Parliament: Jan Philipp Albrecht
EU: Committee on Civil Liberties, Justice and Home Affairs (LIBE)
European Parliament: LIBE Committee Inquiry (Sep. 5, 2013)
EPIC: 2014 International Champion of Freedom Award
Intl. Computers, Privacy & Data Protection Conference (Jan. 2014)
EPIC: EU Data Protection Directive
The Public Voice: Madrid Privacy Declaration (Nov. 2009)
 News in Brief
Oversight Board Calls for End of NSA Telephone Records Program
The Privacy and Civil Liberties Oversight Board has called for the
of the so-called "Section 215" program, which allows the NSA to collect
the telephone records of all Americans. In a comprehensive
Oversight Board unanimously found that the program "has not proven
useful in identifying unknown terrorists or terrorist
plots" and that
"telephone calling records, when collected in bulk and subjected to
powerful analytic tools, can reveal highly
information." A majority of the Board also concluded that Section 215
did not permit the routine collection
of all telephone records on all
Americans. The report set out 12 recommendations discussing additional
privacy safeguards, greater
transparency, and improvements to the
Foreign Intelligence Surveillance Court. Oversight Board members
unanimously supported almost
all of the recommendations. EPIC urged the
Board at a 2013 public workshop to (1) find that Section 215 does not
permit the collection
of all telephone records by the NSA; (2) improve
reporting of FISA activities; (3) establish new safeguards for
accountability; and (4) reconsider the Constitutional
basis of metadata collection in light of the scope of the government's
and recent Supreme Court opinions. Also in 2013, EPIC
petitioned the US Supreme Court to find the 215 Program unlawful.
members of the Church Committee and dozens of legal scholars
supported the EPIC petition.
PCLOB: Report on Section 215 Program
(Jan. 23, 2014)
Privacy and Civil Liberties Oversight Board
EPIC: Statement Before PCLOB re: FISA (Jul. 9, 2013)
EPIC: Petition to US Supreme Court re: NSA Metadata (Jul. 8, 2013)
EPIC: In re EPIC - NSA Telephone Record Surveillance
EPIC, Amnesty Urge Obama to Support Privacy in State of the Union Speech
EPIC President Marc Rotenberg, Amnesty International
Salil Shetty, and members of the EPIC Advisory Board have asked
President Obama to support privacy and the International
Convention in his January 28 State of the Union speech, which this
year falls on International Privacy Day. EPIC and Amnesty
the President to express support for privacy as a fundamental human
right and to begin the process of ratification of
Privacy Convention, supported by more than 40 countries around the
world. In 2013, many members of the US Congress,
Patrick Leahy (D-VT), expressed support for International Privacy Day.
Members of the EPIC Advisory Board also
wrote to then-Secretary of
State Hillary Clinton about the Privacy Convention, urging US support.
EPIC et al.: Letter to President
Obama re: 2014 Speech (Jan. 22, 2014)
EPIC: International Privacy Day
Sen. Leahy (D-VT): Statement on Intl. Privacy Day 2013 (Jan. 28, 2013)
EPIC: Council of Europe Privacy Convention
EPIC et al.: Letter to Sec. Clinton on Convention 108 (Jan. 28, 2010)
DHS Appeals Ruling in EPIC's 'Internet Kill Switch' Case
The Department of Homeland Security has appealed a court ruling for
EPIC in a Freedom of Information Act case involving Standard
Operating Procedure 303, a protocol describing the government's plan
for deactivating wireless communications
networks, otherwise known as
the "Internet Kill Switch." In 2012, EPIC filed a FOIA lawsuit against
the agency, seeking information
about the First Amendment and public
safety implications of the protocol. A federal court ruled in late 2013
that the protocol
could not be withheld under the FOIA because it was
not an investigative technique and DHS had not established that
document would cause harm to any individual. The
Department of Justice has now appealed that decision to the DC Circuit
DHS: Notice of Appeal in EPIC v. DHS (SOP 303) (Jan. 13, 2014)
DC US District Court: Ruling in EPIC v. DHS (Nov. 12, 2013)
EPIC: EPIC v. DHS - SOP 303
EPIC: EPIC FOIA Cases
White House Announces Review of 'Big Data and the Future of Privacy'
Following President Obama's Jan. 17 speech on reform of
collection programs, White House Counselor John Podesta has announced
"a comprehensive review of the way that big
data will affect the way we
live and work; the relationship between government and citizens; and
how public and private sectors
can spur innovation and maximize the
opportunities and free flow of this information while minimizing the
risks to privacy." This
is the first major privacy initiative announced
by the White House since the 2012 release of the "Consumer Privacy Bill
and will involve key officials across the federal
government, including the President's Science Advisor and the President's
of Advisors on Science and Technology. EPIC has participated in
several workshops and studies on the intersection of privacy and
The White House: President's Speech on Intel. Reform (Jan. 17, 2014)
The White House: "Big Data and the Future of Privacy" (Jan. 23, 2014)
The White House: "Consumer Privacy Bill of Rights" (Feb. 2012)
The White House: Council of Advisors on Science and Technology
Aspen Institute: "The Promise and Peril of Big Data" (2010)
Supreme Court Lets Stand Fourth Amendment Protections at the Border
The US Supreme Court has declined to review the Ninth Circuit's
decision in the case United States v. Cotterman, thus leaving in place
expanded Fourth Amendment protections for searches occurring
at the US
border. In Cotterman, the federal appeals court held that the Fourth
Amendment requires a border agent to have reasonable
using forensic tools to search laptops, cameras, and other digital
devices. The court emphasized that the "comprehensive
nature of the forensic examination" is the key factor in triggering
greater Fourth Amendment scrutiny. EPIC has argued
advanced traveler screening methods should only be employed subject
to privacy protections.
9th Circuit Court:
Decision in US v. Cotterman (Mar. 8, 2013)
SCOTUSBlog: Cotterman v. US
EPIC: Air Travel Privacy
EPIC: Florida v. Jardines
EPIC: Amicus Curiae Briefs
 EPIC in the News
"U.S. to allow companies to disclose more details on government
requests for data." The Washington Post, Jan. 27, 2014.
"Obama vows to review big data privacy impact." Politico, Jan. 27,
"Change Agents: William Li's robot wants to police you." USA Today,
Jan. 26, 2014.
"Massive blimps over Maryland to conduct 24/7 domestic aerial
surveillance." ComputerWorld, Jan. 22, 2014.
"Danger Posed by Student-Data Breaches Prompts Action." Education Week,
Jan. 22, 2014.
"Make Legal Memos Public." Letter to the Editor by EPIC President Marc
Rotenberg and Coordinator of EPIC's Open Government Project
Horwitz. The New York Times, Jan. 8, 2014.
"Obama sets good course on privacy debate," by EPIC President Marc
Rotenberg. CNN, Jan. 17, 2014.
"Supreme Court will decide if warrantless cellphone searches are
constitutional." The Verge, Jan. 17, 2014.
"Top 5 Goals for Open Government in 2014," by EPIC Board Member
Charlie Firestone. The Huffington Post, Jan. 16, 2014.
"Target's data breach highlights state role in privacy." USA Today,
Jan. 16, 2014.
"Senators: Police Should Get Warrants to Use Drones in the U.S."
Mashable, Jan. 15, 2014.
"Some say they'll return Nest thermostat because of Google acquisition."
LA Times, Jan. 14, 2014.
"Forum on Privacy Examines Districts' Role in Protecting Data."
Education Week, Jan. 14, 2014.
"Student Data Not a 'Product' To Be 'Sold to the Highest Bidder'."
The Journal, Jan. 14, 2014.
"PreCheck unchecked: why the TSA is putting more people in the fast
lane." The Verge, Jan. 14, 2014.
"Google, let users opt in on privacy setting," by EPIC President Marc
Rotenberg. CNN, Jan. 11, 2014.
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
"Assessing the Impact of PPD 28 on NSA Oversight," featuring EPIC
National Security Counsel Jeramie Scott. Georgetown University
Center for Security Studies, Washington, DC, Jan. 30, 2014.
For More Information:
"The Future of Information Privacy Protection." Speaker: EPIC President
Marc Rotenberg. Georgetown University Law Center, Washington,
Feb. 4, 2014. For More Information:
Contact Kiana Graham at email@example.com.
"Freedom of Speech and Privacy," featuring EPIC President Marc
Rotenberg. University of Texas at Austin, Feb. 6, 2014.
"Civil Liberties Dead Zone: US Border Searches," featuring EPIC
President Marc Rotenberg and former DHS Secretary Michael Chertoff.
National Press Club, Washington, DC, Feb. 13, 2014. For More
Fourth Annual International Summit on the Future of Health Privacy.
Washington, DC, June 4-5, 2014. For More Information:
IEEE Presents "Reintroducing Norbert Wiener in the 21st Century."
Boston, 24-26 June 2014. For More Information:
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