Tag: Electronic Privacy Information Center

NSA Spying in the Courts

The National Security Agency’s collection of every American’s telephone dialing information is hotly contested in the court of public opinion and in Congress. It is now seeing its first test in the courts since its existence was revealed.

The Electronic Privacy Information Center, arguing that it has no other recourse, has filed an extraordinary appeal to the Supreme Court of the order requiring Verizon to turn over telephone calling information en masse to the government. EPIC is a Verizon customer that communicates by telephone with confidential sources, government officials, and its legal counsel.

Cato senior fellow and Georgetown University law professor Randy Barnett joined me this week on a brief to the Court urging it to accept the case so it can resolve statutory and constitutional issues that have “precipitated a juridical privacy crisis.”

The brief first argues that the Foreign Intelligence Surveillance Act does not authorize a sweeping warrant for all communications data. The law requires such a warrant to show relevance to an existing investigation, which is impossible when the data is gathered in support of future, entirely speculative investigations. Not only the text of the statute, but Congress’s intent and the structure of the statute support this interpretation.

Silicon Valley Doesn’t Care About Privacy, Security

That’s the buzz in the face of the revelation that a mobile social network called Path was copying address book information from users’ iPhones without notifying them. Path’s voluble CEO David Morin dismissed this as a problem until, as Nick Bilton put it on the New York TimesBits blog, he “became uncharacteristically quiet as the Internet disagreed and erupted in outrage.”

After Morin belatedly apologized and promised to destroy the wrongly gotten data, some of Silicon Valley’s heavyweights closed ranks around him. This raises the question whether “the management philosophy of ‘ask for forgiveness, not permission’ is becoming the ‘industry best practice’ ” in Silicon Valley.

Since the first big privacy firestorm (which I put in 1999, with DoubleClick/Abacus), cultural differences have been at the core of these controversies. The people inside the offending companies are utterly focused on the amazing things they plan to do with consumer data. In relation to their astoundingly (ahem) path-breaking plans, they can’t see how anyone could object. They’re wrong, of course, and when they meet sufficient resistance, they and their peers have to adjust to the reality that people don’t see the value they believe they’ll provide nor do people consent to the uses of data they’re making.

This conversation—the push and pull between innovative-excessive companies and a more reticent public made up of engineers, advocates, and ordinary people—is where the privacy policies of the future are being set. When we see legislation proposed in Congress and enforcement action from the FTC, these things are whitecaps on much more substantial waves of societal development.

An interesting contrast is the (ahem) innovative lawsuit that the Electronic Privacy Information Center filed against the Federal Trade Commission last week. EPIC is asking the court to compel the FTC to act against Google, which recently changed and streamlined its privacy policies. EPIC is unlikely to prevail—the court will be loathe to deprive the agency of discretion this way—but EPIC is working very hard to make Washington, D.C. the center of society when it comes to privacy and related values.

Washington, D.C. has no capacity to tune the balances between privacy and other values. And Silicon Valley is not a sentient being. (Heck, it’s not even a valley!) If a certain disregard for privacy and data security has developed among innovators over-excited about their plans for the digital world, that’s wrong. If a company misusing data has harmed consumers, it should pay to make those consumers whole. Path is, of course, paying various reputation costs for getting it crosswise to consumer sentiment.

And that’s the right thing. The company should answer to the community (and no other authority). This conversation is the corrective.

EPIC: Suspend Airport Body Scanners

Last week, the Electronic Privacy Information Center released a petition from a group it spearheaded, asking the Department of Homeland Security to suspend deployment of whole-body imaging (aka “strip-search machines”) at airports.

The petition is a thorough attack on the utility of the machines, the process (or lack of process) by which DHS has moved forward on deployment, and the suitability of the privacy protections the agency has claimed for the machines and computers that display denuded images of air travelers.

The petition sets up a variety of legal challenges to the use of the machines and the process DHS has used in deploying them.

Whole-body imaging was in retreat in the latter part of last year when an amendment to severely limit their use passed the House of Representatives. The December 25 terror attempt, in which a quantity of explosives was smuggled aboard a U.S.-bound airplane in a passenger’s underpants, gave the upper hand to the strip-search machines. But the DHS has moved forward precipitously with detection technology before, wasting millions of dollars. It may be doing so again.

My current assessment remains that strip-search machines provide a small margin of security at a very high risk to privacy. TSA efforts to control privacy risks have been welcome, though they may not be enough. The public may rationally judge that the security gained is not worth the privacy lost.

Wouldn’t it be nice if decisions about security were handled in a voluntary rather than a coercive environment? With airlines providing choice to consumers about security and privacy trade-offs? As it is, with government-run airline security, all will have to abide by the choices of the group that “wins” the debate.

A Bizarre Privacy Indictment

Page one of today’s Washington Times—above the fold—has a fascinating story indicting the White House for failing to disclose that it will collect and retain material posted by visitors to its pages on social networking sites like Facebook and YouTube. The story is fascinating because so much attention is being paid to it. (It was first reported, as an aside at least, by Major Garrett on Fox News a month ago.)

The question here is not over the niceties of the Presidential Records Act, which may or may not require collection and storage of the data. It’s over people’s expectations when they use the Internet.

Marc Rotenberg, president of the Electronic Privacy Information Center, said the White House signaled that it would insist on open dealings with Internet users and, in fact, should feel obliged to disclose that it is collecting such information.

Of course, the White House is free to disclose or announce anything it wants. It might be nice to disclose this particular data practice. But is it really a breach of privacy—and, through failure to notify, transparency—if there isn’t a distinct disclosure about this particular data collection?

Let’s talk about what people expect when they use the Internet and social networking sites. Though the Internet is a gigantic copying machine, some may not know that data is collected online. They may imagine that, in the absence of notice, the data they post will not be warehoused and redistributed, even though that’s exactly what the Internet does.

There can be special problems when it is the government collecting the information. The White House’s “flag [at] whitehouse [dot] gov” tip line was concerning because it asked Americans to submit information about others. There is a history of presidents amassing “enemies” lists. But this is not the complaint with White House tracking of data posted on its social networking sites.

People typically post things online because they want publicity for those things—often they want publicity for the fact that they are the ones posting, too. When they write letters, they give publicity to the information in the letter and the fact of having sent it. When they hold up signs, they seek publicity for the information on the signs, and their own role in publicizing it.

How strange that taking note of the things people publicize is taken as a violation of their privacy. And failing to notify them of the fact they will be observed and recorded is a failure of transparency.

America, for most of what you do, you do not get “notice” of the consequences. Instead, in the real world and online, you grown-ups are “on notice” that information you put online can be copied, stored, retransmitted, and reused in countless ways. Aside from uses that harm you, you have little recourse against that after you have made the decision to release information about yourself.

The White House is not in the wrong here. If there’s a lesson, it’s that people are responsible for their own privacy and need to be aware of how information moves in the online environment.

EPIC on PASS ID: a National ID Card

The Electronic Privacy Information Center has produced a very thorough analysis of the PASS ID Act, which would revive the REAL ID national ID program.

The EPIC analysis states flatly, “The bill would establish a national ID card,” and, “The intent of this legislation is to facilitate a National ID system.”

That’s quite a contrast to Ari Schwartz at the Center for Democracy and Technology, who alone believes that PASS ID “prevents the creation of a National ID system.”