EPIC Alert 21.09
E P I C A l e r t
Volume 21.09 May 16, 2014
Published by the
Electronic Privacy Information Center (EPIC)
"Defend Privacy. Support EPIC."
Table of Contents
 EU Court Rules Google Must Respect Right to Delete Links
 White House Publishes Report on 'Big Data and Future of Privacy'
 EPIC Snapchat Complaint Results in 20-Year FTC Consent Order
 EPIC Sues Army for Information About DC Surveillance Blimps
 House Bill Would End Bulk Surveillance, Improve NSA Oversight
 News in Brief
 EPIC in the News
 EPIC Book Review:
 Upcoming Conferences and Events
SAVE THE DATE: June 2, 2014.
EPIC's 2014 Champions of Freedom Dinner, hosted
by Bruce Schneier.
TAKE ACTION: Reset the Net!
SIGN the Pledge Against Net Surveillance: https://www.resetthenet.org/
WATCH the Video: https://www.youtube.com/watch?v=qKk8MHFLNNE
LEARN about Privacy Tools: http://epic.org/privacy/tools.html
SUPPORT EPIC: http://epic.org/support
 EU Court Rules Google Must Respect Right to Delete
The European Court of Justice has upheld the "right
to be forgotten"
and ruled that search engines may be required to delete links about
individuals upon that individual's request.
The case was filed by Mario Costeja González against Google Spain in
2010. Costeja González argued that Google should no longer
name to an auction notice for a 1998 foreclosure sale of his home,
originally published in a Spanish newspaper, and contended
he had resolved his finances in the intervening years, the evidence of
the repossession should be expunged.
ruled in favor of Costeja González, finding that a search
engine, "by searching automatically, constantly and systematically for
information published on the internet" is a collection of data within
the definition of the EU Data Protection Directive of 1995.
Furthermore, the Court determined, because a search engine "is liable
to affect significantly the fundamental rights to privacy
protection of personal data," search-engine operators must comply with
the Directive's requirements.
The Court found the
newspaper that published the information was
not subject to the ruling because it was news organization. Similarly,
the Spanish data
protection agency that directed Google to remove
the link did not impose any privacy obligations on the newspaper.
The Court concluded
that because Google Inc. had a subsidiary (Google
Spain) operating within the territory of Spain (a Member State) even
itself is based within a non-member state (the US), that
Google operated as "an 'establishment' within the meaning of the
Google's attorneys asserted that the data was not processed within
Spain, but the Court determined that because of Google's intention
"promote and sell, in the Member State in question, advertising space
offered by the search engine in order to make the service
the engine profitable," the company has an obligation in certain cases
to remove page links displayed by third parties,
even if the
information published by those third parties is itself lawful.
The Court further ruled that since privacy is a fundamental
"right to be forgotten" overrules the economic interests of the company
and the public interest in access to the private
This decision of the European Court follows another important privacy
decision in which the Court struck down the
EU Data Retention Directive,
holding that its was particularly serious interference with private life.
Both opinions rely on Article
7 and Article 8 of the European Charter
of Fundamental Rights, which establish privacy as a constitutional
right within the European
EPIC has maintained broad support for the privacy rights of Internet
users and the specific right to "expunge" information
EPIC: EU Court's Decision ("Right to Be Forgotten") (May 13, 2014)
EU Court: Google Opinion (May 13, 2014)
EU Court: Data Retention Opinion (April 9, 2014)
EPIC: In re Facebook
Marc Rotenberg: USA Today, “EU Strikes Blow for Privacy” (May 14, 2014)
 White House Publishes Report on 'Big Data and
Future of Privacy'
The White House has released a report
on big data and the future of
privacy. The report, "Big Data: Seizing Opportunities, Preserving
Values," offers several recommendations
to the President, including
"(1) advance the Consumer Privacy Bill of Rights; (2) pass national
data breach legislation; (3) extend
privacy protections to non-U.S.
persons; (4) ensure data collected on students in schools is used for
educational purposes; (5)
expand technical expertise to stop
discrimination; and (6) amend the Electronic Communications Privacy
The report identifies
discrimination as a key privacy consequence when
big data is used improperly. "[B]ig data analytics have the potential
longstanding civil rights protections in how personal
information is used in housing, credit, employment, health, education,
the marketplace," the report states, adding that big data "could
enable new forms of discrimination and predatory practices."
after the White House announced the big data and privacy review in
January 2014, EPIC, joined by 24 consumer privacy, public interest,
scientific, and educational organizations, petitioned the Office of
Science and Technology Policy to accept public comments. "The
should be given the opportunity to contribute to the OSTP's review of
'Big Data and the Future of Privacy' since it is their
is being collected and their privacy and their future that is at
stake," the petition stated.
The White House
subsequently requested public comments. EPIC's
extensive comments warned the White House about the enormous risk to
current "big data" practices but also made clear that
problems are not new, citing the Privacy Act of 1974, which responded
the challenges of "data banks." EPIC's comments noted recent
dramatic increases in identity theft and security breaches, highlighted
the vulnerability of student data, and called for the swift enactment
of the Consumer Privacy Bill of Rights and the end of opaque
profiling. "It is vitally important to update current privacy laws to
minimize collection, secure the information that
is collected, and
prevent abuses of predictive analytics," EPIC wrote.
The White House report incorporates several recommendations
and other privacy organizations.
Separately, a report from the President’s Council of Advisors on Science
published “Big Data: A Technological Perspective,” which
found that the so-called “notice and consent” model
does not protect
privacy. (Remarkable that it took the top scientists in the country to
figure that out.)
The White House: Report
on Big Data (May 1, 2014)
PCAST: Big Data: A Technological Perspective (May 1, 2014)
EPIC: Petition to OSTP re: Big Data Public Comments (Feb. 10, 2014)
EPIC: Comments on Big Data and the Future of Privacy (Apr. 4, 2014)
EPIC: Big Data and the Future of Privacy
 EPIC Snapchat Complaint Results in 20-Year FTC Consent
Following a 2013 EPIC complaint, the FTC has signed
a consent order
with Snapchat, the maker of a mobile app that encourages users to
share intimate photos and videos. Snapchat advertised
the app as a
way for users to send photos, videos, and message without having those
messages stored on the recipient's mobile device.
Snapchat stated that
the app allowed users to "Snap an ugly selfie or a video, add a
caption, and send it to a friend (or maybe
a few). They'll receive it,
laugh, and then the snap disappears" - presumably forever, according to
Snapchat's marketing materials.
In fact the images are not deleted entirely, and can be accessed by
those with the right knowledge and software. "Snapchat photos
remain available to others even after users are informed that the photos
and videos have been deleted," EPIC's complaint
states. According to the
complaint, rather than deleting the images, Snapchat simply changes the
file extension to .NOMEDIA, cloaking
the file from the user. But by
removing the .NOMEDIA extension, the pictures become viewable again.
In announcing the settlement,
FTC Chairwoman Edith Ramirez said, "If a
company markets privacy and security as key selling points in pitching
its service to
consumers, it is critical that it keep those promises.
Any company that makes misrepresentations to consumers about its
and security practices risks FTC action." Under the settlement,
Snapchat will be subject to 20 years of privacy audits, and will
prohibited from making false claims about company privacy policies.
EPIC: Snapchat Complaint to FTC (May 16, 2013)
FTC: Snapchat Order (May 8, 2014)
FTC: Press Release on Snapchat Order (May 8, 2014)
EPIC: Federal Trade Commission
 EPIC Sues Army for Information About DC Surveillance
EPIC has filed a Freedom of Information Act lawsuit against the
Department of the Army for documents about the Joint Land Attack Cruise
Missile Defense Elevated Netted Sensor
Systems, or JLENS, a
sophisticated surveillance system to be deployed over Washington, DC
during the next three years. The JLENS
was originally deployed in Iraq.
JLENS is comprised of two 250-foot blimps. One blimp conducts aerial
and ground surveillance over
a 340-mile range, while the other has
precision tracking and targeting capability. A military test determined
that "JLENS' sophisticated
radars were able to follow [swarming boat]
targets while simultaneously tracking aircrafts, cars and trucks."
can observe surface moving targets in real time using a
"long-range surveillance, target acquisition, tracking, range-finding
laser designation for the HELLFIRE missile and all tri-service and
NATO laser-guided munitions."
EPIC's initial FOIA request asked
the Army for JLENS technical
specifications as well as any policies limiting domestic surveillance.
EPIC's goal in the FOIA request
and subsequent FOIA lawsuit is to
determine what surveillance data the Army plans to collect during the
three-year JLENS test,
as well as how the Army plans to process, store,
redact, or delete that data.
EPIC has previously urged Congress to establish privacy
aerial drones. EPIC also recommended requiring notice of all drone
surveillance policies through the Administrative
EPIC: EPIC v Army Complaint re: JLENS (May 6, 2014)
EPIC: EPIC FOIA Request to US Army (Nov. 1, 2013)
EPIC: Testimony before Congress re: Drone Privacy (Jul. 12, 2012)
EPIC: EPIC v. Army - Surveillance Blimps
EPIC: Drone Privacy
EPIC: Spotlight on Surveillance: Drone Privacy
 House Bill Would End Bulk Surveillance, Improve
The US House Judiciary Committee has unanimously
passed the USA
Freedom Act, 32-0. The bill, sponsored by Rep. James Sensenbrenner
(R-WI), prevents bulk collection of phone records
and other business
records and limits the scope of phone record searches. The House
Intelligence Committee also passed the bill
via a voice vote, but has
yet to consider the Intelligence Committee's own NSA Reform bill. The
bill still needs to be considered
by the House as a whole.
The USA Freedom Act explicitly prohibits bulk collection, adds a "two
hop" call detail requirement to
Section 215, improves transparency and
oversight, and establishes an "amicus" position appointed by the
Foreign Intelligence Surveillance
Court in order to provide outside
perspectives. Senator Patrick Leahy (D-VT), Chairman of the Senate
Judiciary Committee and the
original co-sponsor of the bill in the
Senate, issued a statement supporting the vote but voicing his
concerns that the newly amended
bill does not include adequate National
Security Letter protections, transparency reforms, or a strong special
advocate at the
In 2012, EPIC testified before the House Judiciary Committee on the
need for public reports and the declassification
of significant FISA
Court opinions prior to renewal of the FISA Amendments Act. In 2013,
EPIC filed a petition with the US Supreme
Court, alleging that the bulk
collection of telephone record was unlawful. The EPIC petition was
supported by dozens of legal scholars
and former members of the Church
Rep. Jim Sensenbrenner (R-WI): Text of USA Freedom Act (May 2014)
Sen. Leahy (D-VT): Press Release on USA Freedom Act (May 7, 2014)
EPIC: Testimony on FISA Amendments Act of 2008 (May 31, 2012)
EPIC: Petition to Supreme Court on Metadata Collection (Jul. 8, 2013)
EPIC: Foreign Intelligence Surveillance Act Reform
EPIC: In re EPIC - NSA Telephone Records Surveillance
 News in Brief
EPIC Obtains Letter re: DOJ Non-Investigation of Google Street View
Via a Freedom of Information Act request, EPIC has obtained the closing
letter from the Department of Justice to Google attorneys in the "Street
View" matter, which
centered around Google's capture and collection of
private US Wi-Fi data over several years. The disclosure of Google's
occurred after a European data protection authority discovered
that Google's Street View vehicles also captured private Wi-Fi data.
More than 12 countries subsequently investigated Google's programs, and
at least nine found Google guilty of violating their laws.
from the DOJ states that US officials were aware that Google's
"equipment collected 'payload' data, including contents
of e-mail and
Internet addresses typed by users," but the Department "decided not to
seek charges" against Google for violating
the Wiretap Act. The Ninth
Circuit Court of Appeals recently affirmed a federal court's decision
to allow a class action lawsuit
against Google to move forward for
wiretap violations stemming from the Street View program.
EPIC: FOIA Documents from DOJ re:
Street View (May 6, 2014)
EU: Press Release on Google Street View Discovery (Apr. 23, 2010)
9th Circuit Court: Decision in Joffe v. Google (Dec. 27, 2013)
EPIC: Investigations of Google Street View
EPIC: Joffe v. Google
2014 FISA Report: Surveillance Orders Down; Questions on Scope Remain
The US Department of Justice has published the 2013 FISA
brief report provides summary information about the government's use of
the Foreign Intelligence Surveillance Act,
or FISA. In 2012 the Foreign
Intelligence Surveillance Court granted 1,789 FISA orders and 212
"Section 215" orders. In 2013, there
were 1,588 requests to conduct
FISA surveillance, with 34 modifications. The Surveillance Court also
granted 178 business record
orders under Section 215, with 141 modified
by the court. The significant number of modified orders indicates that
initial applications are too broad; for example, the
Surveillance Court authorized the NSA's controversial phone "metadata"
program under a modified order. It is possible that in 2013
the court authorized other bulk collection programs.
US Justice Dept.:
2013 FISA Report (Apr. 30, 2014)
FISC: Modified Order Authorizing Metadata Program (Aug. 29, 2013)
EPIC: Foreign Intelligence Surveillance Act Court Orders 1979-2014
Facebook Introduces New Privacy Features
Amidst growing concern about Facebook's disclosure of user
information to third parties,
the company has announced two new
privacy options. Users now may decide how much personal information
to disclose to Facebook apps
before signing up. Users may also test
apps anonymously without transmitting their Facebook User IDs to the
developer. The changes
appear to be a response to the FTC's 2011
Consent Order, pursued by EPIC and a coalition of privacy
organizations, that requires
Facebook to obtain express affirmative
consent from users before disclosing personal information to third
parties. In the first
report on Internet privacy, "Surfer Beware:
Personal Privacy and the Internet" (1997), EPIC said web sites should
while developing policies and practices to protect
Facebook: Anonymous and Updated Facebook Logins (Apr.
FTC: Consent Order Against Facebook (Nov. 29, 2011)
EPIC: 'Surfer Beware' (1997)
EPIC: Facebook Privacy
EPIC: Internet Anonymity
Court Denies Hulu's Motion to Dismiss Privacy Case
A federal court in California has ruled that a privacy class-action
against Hulu, the video streaming service, may continue. Hulu
users allege that the company violated the Video Privacy Protection
by transferring personally identifiable information to both Facebook and
the advertising company comScore. The presiding judge
ruled that Hulu's
transfer to Facebook of unique IDs, including the user IP addresses,
Facebook IDs, and video titles, would violate
the video privacy law.
However, the judge also determined that Hulu transmitted only
anonymized user IDs to comScore and therefore
there could be no legal
violation - even though, according to the ruling, "[A] unique
anonymized ID alone is not [Personally Identifiable
context could render it not anonymous and the equivalent of the
identification of a specific person." In 2009,
EPIC filed a "friend of
the court" brief in Harris v. Blockbuster, a similar case in which a
company disclosed consumers' identities
and video rental histories to
US District Court (No. CA): Ruling in Hulu Privacy Case (Apr. 28, 2014)
EPIC: Video Privacy Protection Act
EPIC: "Friend of the Court" Brief in Harris v. Blockbuster (Nov. 3, 2009)
EPIC: Harris v. Blockbuster
Privacy Case Moves Forward Against Facebook and Zynga
The Ninth Circuit Court has found that Facebook and Zynga may have
violated Facebook's privacy policies when the companies disclosed user
information for advertising purposes. Separately, the court
there was no violation of the Electronic Communications Privacy Act
because the disclosed data (including Facebook IDs
and HTTP referers)
are not "contents" of a communication. Congress is set to consider
several ECPA reforms, and could amend the
court's ruling by clarifying
that the law prevents the disclosure of personally identifiable
9th Circuit Court:
Ruling in Zynga Privacy Case (May 8, 2014)
9th Circuit Court: Ruling in Zynga ECPA Case (May 8, 2014)
EPIC: Electronic Communications Privacy Act
EPIC: Facebook Privacy
 EPIC in the News
Podcast: "Explaining Europe's historic online privacy ruling."
Constitution Daily, May 15, 2014.
"EU strikes a blow for privacy: Opposing view." Op-Ed by EPIC President
Marc Rotenberg, USA Today, May 14, 2014.
"Americans Will Never Have the Right to Be Forgotten." Time, May 14,
"New European ruling game-changing for U.S. companies." USA Today,
Domestic Drones to Protect Privacy and Public Safety."
NPR's "The Diane Rehm Show," with EPIC President Marc Rotenberg,
May 13, 2014.
"Off the Record
in a Chat App? Don't Be Sure." The New York Times, May
"Snapchat Settles With FTC After Being Dishonest With Users About
TechCrunch, May 8, 2014.
"FTC: Snapchat misled users about disappearing messages." UPI, May 8,
"Snapchat Settles FTC Charges." The Wall Street Journal, May 8, 2014.
"Privacy groups mull
action after Facebook deal with fitness app."
The Hill, May 6, 2014.
"Privacy Coalition Calls For Net Reset in June." ThreatPost, May 6,
"Students and Data Privacy." Letter to the
Editor by EPIC President
Marc Rotenberg and EPIC Student Privacy Project Director Khaliah
Barnes. The New York Times, May 3, 2014.
"Student Privacy Laws Need Updating, White House
Education Week, May 1, 2014.
"Privacy Fears Over Student Data Tracking Lead to InBloom's Shutdown."
Bloomberg Business Week, May 1, 2014.
"White House seeks privacy balance in a 'Big Data' world." Reuters,
"White House asks Congress
to update consumer electronic privacy laws."
Al Jazeera America, May 1, 2014.
"W.H. 'big data' review spotlights privacy debate." Politico, May 1,
"Call for Limits on Web Data of Customers." The New York Times, May 1,
For More EPIC in the News:http://epic.org/news/epic_in_news.html
 EPIC Book Review: 'Dragnet Nation'
A Quest for Privacy, Security, and Freedom in a World
of Relentless Surveillance," Julia Angwin
Investigative journalist Julia Angwin takes us along for the ride as
she tries to opt-out
of the seemingly inescapable mass surveillance in
today's society. Her efforts reveal just how much our world has become
"Dragnet Nation" begins with a "lay of the land" with respect to
surveillance. Angwin notes that "the modern era of dragnets
marks a new
type of surveillance: suspicionless, computerized, impersonal, and vast
in scope." In fact, Angwin observes, the technology
of our conveniences
is the same technology that facilitates 24/7 mass surveillance. Angwin
enumerates the means by which our information
collected into massive data sets held by both the government and private
sector - cell phone location tracking,
online ad tracking, license plate
readers, and social networks, just to name a few.
The book's central action is Angwin's attempts
to avoid the dragnet
nation while maintaining a life in the modern world. First, she
determines who holds her personal data: Social
government agencies, and hundreds of data brokers. Her next step -
obtaining or removing her data from the clutches
of these entities - is
met with varying degrees of success. Data brokers, she says, are opaque
and secretive, lack straightforward
methods to opt-out, and ironically
require even more personal information in order for her to disentangle
herself. Angwin describes
the trust she has in data brokers to remove
her data as "the kind of trust you place in a mob enforcer. You hand
over a bribe,
but you're never quite sure if it will get results."
The latter part of "Dragnet Nation" follows Angwin's attempts to use
privacy-enhancing technologies and services including encryption,
ad-blockers, search engines that did not track her searches, and
"faraday bags" that blocked her cell phone signal when not in use. Her
endeavors towards greater privacy are mixed, but her overall
clear: The dragnet nation is with us, perhaps to stay, and privacy means
moving along as stealthily as possible within
"Dragnet Nation" is a lucid and compelling story about the importance
of privacy and how hard it is to opt-out of
our current surveillance
society. The book also provides guidance for a new way forward. And is
Angwin herself optimistic or pessimistic
about the future or privacy
and anonymity? A little of both, but as we journey with her she
provides humorous anecdotes, helpful
advice, and experience that
constantly reminds us how we are perpetually swept up in the dragnet
of big data.
--Jeramie D. Scott
"Litigation Under the Federal Open Government
Laws 2010," edited by
Harry A. Hammitt, Marc Rotenberg, John A. Verdi, Ginger McCall, and Mark
S. Zaid (EPIC 2010). Price: $75.
Litigation Under the Federal Open Government Laws is the most
comprehensive, authoritative discussion
of the federal open access laws.
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
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.
Second Edition addresses numerous rapidly developing areas of privacy
law, including: identity theft, government data mining
surveillance law, the Foreign Intelligence Surveillance Act,
intelligence sharing, RFID tags, GPS, spyware, web bugs,
Information Privacy Law, Second Edition, builds a cohesive foundation
for an exciting course in this rapidly evolving area
"Privacy & Human Rights 2006: An International Survey of Privacy Laws
(EPIC 2007). Price: $75.
This annual report by EPIC and Privacy International provides an
key privacy topics and reviews the state of privacy in over
75 countries around the world. The report outlines legal protections,
new challenges, and important issues and events relating to privacy.
Privacy & Human Rights 2006 is the most comprehensive report
and data protection ever published.
"The Public Voice WSIS Sourcebook: Perspectives
on the World Summit on
the Information Society" (EPIC 2004). Price: $40.
promotes a dialogue on the issues, the outcomes, and the
process of the World Summit on the Information Society (WSIS). This
guide provides the official UN documents, regional and
issue-oriented perspectives, and recommendations and proposals for
action, as well as a useful list of resources and contacts for
individuals and organizations that wish to become more involved in
"The Privacy Law Sourcebook 2004: United States Law, International Law,
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 for students,
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
up-to-date section on recent developments. New materials include
the APEC Privacy Framework, the Video Voyeurism Prevention Act,
"Filters and Freedom 2.0: Free Speech Perspectives on Internet Content
(EPIC 2001). Price: $20.
A collection of essays, studies, and critiques of Internet content
filtering. These papers are instrumental in explaining why filtering
threatens free expression.
EPIC publications and other books on privacy, open government, free
expression, and constitutional values can be ordered at:
EPIC also publishes EPIC FOIA Notes, which provides
brief summaries of
interesting documents obtained from government agencies under the
Freedom of Information Act.
Subscribe to EPIC FOIA Notes at:
 Upcoming Conferences and Events
Education Writers Association
Presents "Student Data Privacy: Politics
and Practicalities." Featured Speaker: Director of EPIC's Student
Privacy Project Khaliah
Barnes. Nashville, TN, May 19, 2014.
For More Information: http://www.ewa.org/agenda/agenda-67th-
Freedom & Privacy. Warrenton, VA, June 8-10, 2014.
For More Information: http://cfp.org/2014.
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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