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                    E P I C   A l e r t
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Volume 20.17                                          September 3, 2013
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                   Published by the
       Electronic Privacy Information Center (EPIC)
                   Washington, D.C.

  
   http://www.epic.org/alert/epic_alert_20.17.html

            "Defend Privacy. Support EPIC."
                 http://epic.org/donate


=========================================================================
Table of Contents
=========================================================================

[1] EPIC to Host International Privacy Conference in Warsaw
[2] NSA Violated Law Thousands of Times, Intercepted US Communications
[3] FISA Court:  NSA Violated Both Fourth Amendment and FISA
[4] EPIC, Privacy Groups Urge Court to Reject Proposed Google Settlement
[5] EPIC FOIA:  DHS Facial Recognition System Lacks Privacy Safeguards
[6] News in Brief 
[7] EPIC in the News 
[8] EPIC Book Review:
 'The Great Dissent'
[9] Upcoming Conferences and Events


TAKE ACTION:  Tell Facebook: "Stop Changing Our Privacy Settings!"
- READ
about the Changes:  http://epic.org/redirect/090313-facebook.html
- LEARN More about Facebook Privacy:  http://epic.org/privacy/facebook/
- SUPPORT EPIC:  http://www.epic.org/donate/



========================================================================
[1] EPIC
to Host International Privacy Conference in Warsaw 
========================================================================

EPIC,
in collaboration with many of the world's leading privacy 
organizations, will host the 2013 Public Voice conference in Warsaw, 
Poland on September 24, 2013. The conference, "Our Data, Our Lives," 
will feature civil society groups, privacy advocates, tech
experts, 
and other data privacy professionals, and is being held in 
conjunction with the annual meeting of the International Conference

of Data Protection and Privacy Commissioners. 

This year's Public Voice conference will cover five major topics: 
measuring the
impact of the Madrid Declaration of 2009; civil 
society's response to the NSA's surveillance programs; data-protection 
responsibilities
of Internet intermediaries; US-EU trade agreement 
discussions; and NGO strategies for a data-protection agenda. Keynote 
speaker
will be Jacob Kohnstam, Chairman of the Article 29 Working 
Party. Panelists include high-level privacy officials and advocates 
from countries including France, Poland, Belgium, Japan, Peru, India, 
and Canada, as well as representatives from the European Union.

Public Voice conference participants will be able to attend 
presentations and discussions at the 35th Annual Data Protection and

Privacy Commissioners' Conference, the world's largest annual privacy 
forum, which runs from September 23-26. The Privacy Commissioners'

Conference brings together governmental data-protection and privacy 
authorities and institutions, and academics, NGOs and other
experts. 
The 2013 conference explores "Privacy: A Compass in Turbulent World."

EPIC established The Public Voice coalition 1996
to promote public 
participation in decisions concerning the future of the Internet. 
The Public Voice has pursued issues ranging
from privacy and freedom 
of expression to consumer protection and Internet governance. Through 
international conferences, reports
and funding for travel The Public 
Voice seeks to increase the presence of NGOs at meetings across the 
globe. In cooperation with
the OECD, UNESCO, and other international 
organizations, The Public Voice project brings civil society leaders 
face-to-face with
government officials for constructive engagement 
about current policy issues. Public Voice events have been held in 
Buenos Aires,
Cape Town, Dubai, Hong Kong, Honolulu, Kuala Lumpur, 
Madrid, Mexico City, Ottawa, Paris, Punta del Este, Seoul, Tel Aviv, 
Washington, and Wroclaw.


The Public Voice
   http://thepublicvoice.org

The Public Voice: "Our Data, Our Lives"
   http://thepublicvoice.org/events/warsaw13/
   
35th Annual Conference of Data Protection
and Privacy Commissioners
  https://privacyconference2013.org/

The Public Voice:  The 2009 Madrid Declaration
   http://thepublicvoice.org/madrid-declaration/


========================================================================
[2] NSA Violated Law Thousands of Times, Intercepted US
Communications
========================================================================

A 2012 NSA internal audit has revealed that
the agency violated both 
legal rules and privacy restrictions thousands of times each year since 
2008, leading to unauthorized
surveillance of American communications, 
including 2,776 violations in the last 12 months alone. During that 
time, the number of
violations rose each quarter.

The audit attributed violations to a number of different factors, 
including a lack of training, human
error, and a failure to follow 
standard operating procedures. The incidents included the interception 
of a "large number" of calls
placed from Washington, DC to Egypt when 
an NSA algorithm confused the DC area code (202) with the Egyptian 
country code (20).
Another incident involved the unauthorized use of 
the data of more than 3,000 American citizens and green-card holders.

A document
called "Targeting Rationale (TAR)" reveals how NSA analysts 
are trained to avoid giving "extraneous information" to their "FAA 
overseers" when they want to target an individual. The document 
emphasizes that NSA analysts are not to give additional information

including "probable cause-like information (i.e. proof of your analytic 
judgment), how you came to your analytic conclusions .
. . or selector 
information."

In 2006, EPIC wrote to the US Senate Judiciary Committee about 
instances of FBI intelligence gathering
misconduct uncovered through 
EPIC's Freedom of Information Act requests. The incidents included 
possible violations of the Foreign Intelligence Surveillance Act. One 
incident involved the collection
of the content of 181 phone calls 
instead of just billing and toll records. EPIC urged the Committee to 
investigate the FBI's use
of expanded authority to undertake 
intelligence investigations in the US.

EPIC recently petitioned the NSA to suspend domestic
surveillance 
programs pending a public comment period. The petition was signed by a 
number of leading privacy experts and thousands
of individuals. The NSA 
has now responded, arguing that "any NSA activities involving the 
collection of communications that may
meet the description set forth in 
your letter, if any, would not constitute Agency actions that are 
subject to notice-and-comment
requirements . . ." EPIC also has filed a 
petition with the US Supreme Court challenging the legal authority of 
the FISA Court
to authorize the NSA's program. The government has 
requested an extension to reply to EPIC's filing.


NSA:  Intelligence Oversight
Quarterly Report (May 3, 2012)
    http://s3.documentcloud.org/documents/758651/1qcy12-violations.pdf

NSA:  Targeting Rationale
(TAR)
    http://epic.org/redirect/090313-NSA-TAR.html

EPIC:  Letter to Senate re: FBI Surveillance (Jun. 16, 2006)
    http://epic.org/privacy/surveillance/sen_iob_letter.pdf

EPIC:  Response to Petition from NSA (Aug. 31, 2013)
    http://epic.org/privacy/nsa/NSA-Petition-Reply-8-30-13.pdf

EPIC: Petition
to the NSA (June 17, 2013)
    http://epic.org/NSApetition/

EPIC: In re EPIC - NSA Telephone Records Surveillance
    http://epic.org/privacy/nsa/in-re-epic/


=========================================================================
[3] FISA Court:  NSA Violated Both Fourth Amendment and
FISA
=========================================================================

A newly released opinion by the Foreign Intelligence
Surveillance Court 
has revealed that the NSA violated the Fourth Amendment and the Foreign 
Intelligence Surveillance Act when the
agency acquired tens of 
thousands of wholly domestic Internet communications. 

In the fall of 2011, the FISA Court found that the
NSA's targeting and 
minimization procedures, as applied to collection directly from 
Internet fiber optic cables (i.e. "upstream
collection"), violated the 
Fourth Amendment because they were "unreasonable." Upstream collection 
involves acquiring "Internet
transactions" that can contain multiple 
communications. According to the opinion of the former presiding judge 
of the FISA Court,
the NSA has acquired more than 250 million Internet 
communications per year. Roughly 9% of these communications are 
obtained via
upstream collection and more than 50,000 each year contain 
domestic communications.

Because of the large number of wholly domestic
communications obtained 
by the NSA, the FISA Court found that NSA's targeting and minimization 
procedures were not reasonable under
the Fourth Amendment. The Court 
also found that NSA's minimization procedures violated the FISA, and 
required that the agency adopt
additional protections to ensure privacy.

The FISA Court opinion further stated that the US government had 
repeatedly misrepresented
the scope of the collection programs, and 
suggested that the "volume and nature" of Internet communications 
acquired under Section
702 of the USA PATRIOT Act was not what the 
government originally represented to the FISA Court. According to the 
opinion, the
US government also misrepresented the program to collect 
domestic telephone records. The Court noted that the NSA, for at least

three years, routinely ran queries of the agency's telephone metadata 
database that did not meet the standards set by FISA Court.

In June, EPIC petitioned the NSA to suspend domestic surveillance 
programs pending a public comment period. The petition has been
signed 
by a number of leading privacy experts and thousands of individuals. 
The NSA has responded, arguing that ""any NSA activities involving the 
collection of communications that may meet the description set forth 
in your letter,
if any, would not constitute Agency actions that are 
subject to notice-and-comment requirements . . ." EPIC also has filed a 
petition
with the US Supreme Court challenging the FISA Court's legal 
authority to authorize the NSA's domestic surveillance program.


ODNI:
 Press Release on Declassified FISA Court Opinions (Aug. 21, 2013)
    http://epic.org/redirect/090313-ODNI-FISA-docs.html

EPIC:
 Foreign Intelligence Surveillance Court (FISC)
    http://epic.org/privacy/terrorism/fisa/fisc.html

EPIC:  Foreign Intelligence
Surveillance Act (FISA)
    http://epic.org/privacy/terrorism/fisa/

EPIC:  Petition to the NSA re: Domestic Surveillance (Jun. 17,
2013)
    http://epic.org/NSApetition/

EPIC:  Mandamus Petition to the Supreme Court (Jul. 8, 2013)
    http://epic.org/EPIC-FISC-Mandamus-Petition.pdf

EPIC:  USA Patriot Act
    http://epic.org/privacy/terrorism/usapatriot/


=========================================================================
[4] EPIC, Privacy Groups Urge Court to Reject Proposed Google Settlement
=========================================================================

EPIC, joined by several leading privacy and consumer protection 
organizations, has submitted a letter to the Court of the Northern

District of California over a proposed settlement in a class-action 
lawsuit against Google. 

The settlement was proposed by class
action lawyers in a case centered 
on Google's unlawful disclosure of search terms to third parties; 
however, under the terms of
the proposed settlement, Google would not 
be required to change any business practices. EPIC's letter states, 
"It is absurd to
argue that a benefit is provided to the Class where 
the company makes no material change in its business practices and is 
allowed
to continue the practice that provides the basis for the 
putative class action." EPIC explained that under the terms of the 
proposed
settlement, "a company that manufactures a faulty toaster 
that catches fire because of poor wiring is permitted post-settlement

to continue to manufacture the toaster as before with no change to the 
wiring that created the risk to the customers, as long as
it notifies 
customers of the risk arising from its ongoing negligence." 

EPIC's letter also objects to the proposed settlement's
failure to 
address the needs of the Class members. In addition to providing "no
benefit to Class members" because the settlement
does not require 
Google to change its business practices, EPIC argues, "the proposed 
cy pres allocation is not aligned with the
interests of the purported 
Class members." "Cy pres" (a term which roughly translates to "as near 
as possible") is a legal doctrine
that allows courts to allocate funds 
to protect the interests of individuals when there is a class action 
settlement. Under Ninth
Circuit Court precedent, cy pres funds must be 
used to advance the interests of the class members. However, under the 
proposed
Google settlement, only one of the seven organizations that 
would receive the cy pres funds has the protection of privacy as a 
mission and is aligned with the interests of class members.

Privacy class action cases have become very contentious, with privacy

organizations arguing that the settlements provide little actual 
benefit to Internet users, though attorneys receive substantial
fees and companies are permitted to continue the privacy-invading 
practice that provided the basis for the lawsuit.

A petition
to review the fairness of class action settlements in
privacy cases in currently pending before the US Supreme Court.


EPIC:  Letter
to Judge Davila re: Google Settlement (Aug. 22, 2013)
    http://epic.org/redirect/090313-epic-letter-davila.html

EPIC:  Letter
to Judge Seeborg re: Facebook Settlement (Jul. 11, 2012)
    http://epic.org/redirect/090313-epic-letter-seeborg.html

EPIC:  Search Engine Privacy
    http://epic.org/privacy/search_engine/

EPIC:  Google Buzz
    http://epic.org/privacy/ftc/googlebuzz/default.html

EPIC:  Facebook Privacy
    http://epic.org/privacy/facebook/
    
US Supreme Court:  Marek v. Lane (Jul. 26, 2013)
    http://epic.org/redirect/090313-scotus-marek-lane.html


========================================================================
[5] EPIC FOIA:  DHS Facial Recognition System Lacks Privacy
Safeguards
========================================================================

In response to an EPIC Freedom of Information Act request, the 
Department of Homeland Security has produced documents revealing that 
the agency has failed to establish privacy safeguards
for "BOSS" (the 
Biometric Optical Surveillance System), an elaborate system for facial 
recognition and identification of individuals.


The documents obtained by EPIC indicate that none of the agency's 
contracts or statements of work require any data privacy or
security 
protections for BOSS' design, production, or test implementations. In 
one of the records produced, DHS stated, "DHS components
require the 
ability to positively identify/screen people in a secure, efficient, 
accurate, and timely manner. This ability encompasses
the collection, 
storage, transmission, and receipt of biometric and biographic data to 
support the component missions." However,
in over 100 pages of 
responsive documents, DHS does not describe any system of checks or 
safeguards for the "collection, storage,
transmission, and receipt" of 
the personally identifiable biometric and biographic data.

The New York Times reported August 21
on EPIC's acquisition of these 
documents, drawing attention to high failure rates for these systems. 
The article noted, "Several
independent biometric specialists, given a 
description of the project's test results, agreed that the system was 
not yet ready.
They said 30 seconds was far too long to process an 
image for security purposes, and that its accuracy numbers would 
result in
the police going out to question too many innocent people." 
EPIC staff interviewed for the article emphasized that now is the time

to build in privacy protections for technologies that are still in 
development, rather than allowing privacy safeguards to become
an 
afterthought.

EPIC is also pursuing a FOIA lawsuit against the FBI over the agency's 
development of "Next Generation ID," which,
when complete, will be the 
largest biometric identification database program in the world. The NGI 
biometric identifiers will include
fingerprints, iris scans, DNA 
profiles, voice identification profiles, palm prints, and photographs. 
The system will include facial
recognition capabilities to analyze 
collected images. Millions of individuals who are neither convicted nor 
suspected criminals
will be included in the database. Using facial 
recognition on images of crowds, NGI will enable the identification of 
individuals
in public settings, whether or not the police have made 
the necessary legal showing to compel the disclosure of identification 
documents. 


EPIC: FOIA Request to DHS re: BOSS (Feb. 13, 2013)
    http://epic.org/open_gov/foia/BOSSRequest.pdf

EPIC:  BOSS Documents
(#1 of 2) (Apr. 5, 2013)
    http://epic.org/open_gov/foia/BOSS1.pdf

EPIC:  BOSS Documents (#2 of 2) (Jun. 3, 2013)
    http://epic.org/open_gov/foia/BOSS2.pdf

The New York Times: Article on BOSS (Aug. 21, 2013)
    http://www.nytimes.com/2013/08/21/us/facial-scanning-is-making-
    gains-in-surveillance.html3

EPIC:  Face Recognition
    http://epic.org/privacy/facerecognition/

 EPIC:  EPIC Opposes DHS Biometric Collection
    http://epic.org/2013/06/epic-opposes-dhs-biometric-col.html

EPIC:  Biometric Identifiers
    http://epic.org/privacy/biometrics/

EPIC:  EPIC v. FBI (Next Generation ID)
    http://epic.org/foia/fbi/ngi/

========================================================================
[6] News in Brief
========================================================================

President Announces Intelligence Review Group; EPIC Presses for Reform

President Obama recently met with the members of a newly
formed group 
of experts to review intelligence and communications technologies. The 
group consists of computer security advisor
Richard Clark, former CIA 
Director Michael Morell, and legal scholars Geoffrey Stone, Cass 
Sunstein, and Peter Swire. The White
House said the group would 
advise the President on how "the United States can employ its 
technical collection capabilities in a
way that optimally protects 
our national security and advances our foreign policy while respecting 
our commitment to privacy and civil liberties,
recognizing our need to 
maintain the public trust, and reducing the risk of unauthorized 
disclosure." After the President's announcement,
EPIC contacted each 
of the review group members to provide materials on the protection of 
privacy and civil liberties. Documents
included copies of EPIC's 
petition to the US Supreme Court, arguing that the current domestic 
surveillance program is unlawful;
EPIC's 2012 Congressional testimony 
on the FISA Amendments Act; and EPIC's 2010 letter to the Foreign 
Intelligence Surveillance
Court on reform of FISA procedures. 


The White House:  Statement on Review Group (Aug. 27, 2013)
    http://epic.org/redirect/090313-whitehouse-committee.html

EPIC:  Petition to the Supreme Court re: Surveillance (Jul. 8, 2013)
    http://epic.org/EPIC-FISC-Mandamus-Petition.pdf
    
EPIC:
 Congressional Testimony on FISA Amendments Act (May 31, 2012)
    http://epic.org/privacy/testimony/EPIC-FISA-Amd-Act-Testimony-HJC.pdf
    
EPIC:  Comments to FISA Court on Amended Rules (Oct. 4, 2010)
    http://epic.org/redirect/090313-EPIC-FISA-comments.html

EPIC:
 FISA Reform
    http://epic.org/privacy/terrorism/fisa/reform/


US Supreme Court May Consider Cell Phone Privacy

The US Supreme
Court is likely to address two mobile phone privacy 
cases during the 2013 term, both centering on whether law enforcement 
has the
right to warrantlessly search the emails, texts, and address 
book on an arrestee's cell phone. In Riley v. California, the defendant

challenged a police officer's search of his smartphone. In United 
States v. Wurie, the Department of Justice seeks review of an
appeals 
court's decision that warrants are necessary to search a cell phone. 
Earlier in 2013, EPIC successfully argued to the New
Jersey Supreme 
Court that a warrant is required to track a cell phone's location. In 
2012, the US Supreme Court held in United
States v. Jones that 
warrants are required to use GPS tracking devices. 


EPIC:  Riley v. California
    http://epic.org/amicus/cell-phone/riley/
    
US Supreme Court:  Petition to Hear US v. Wurie (Aug. 2013)
    http://epic.org/redirect/090313-wurie-petition.html
    
EPIC:
 US v. Jones
    http://epic.org/amicus/jones/
    
EPIC:  Mobile Privacy    
    http://epic.org/privacy/location_privacy/apple.html


FTC Chairwoman Calls for Transparency in Big Data

In an August 19 keynote speech at the Technology Policy Institute 
Aspen Forum,
Federal Trade Commission Chairwoman Edith Ramirez 
called upon companies to "move their data collection and use practices 
out of
the shadow and into the sunlight." Chairwoman Ramirez's speech 
highlighted the risks of big data, including indiscriminate collection,

data breaches, and behind-the-scenes profiling. She also stressed the 
importance of protecting consumers' privacy and stated, "[W]ith
big 
data comes big responsibility." EPIC has testified before Congress on 
data collection and called for the regulation of data
brokers because 
"[t]here is too much secrecy, too little accountability, and too much 
risk of far-reaching economic damage" in
data-broker business practices. 
EPIC has recommended that the FTC enforce Fair Information Practices, 
such as those contained in
the Obama Administration's Consumer Privacy 
Bill of Rights, against commercial actors. 


FTC Chair Ramirez:  Speech to Aspen Forum
(Aug. 19, 2013)    
    http://ftc.gov/speeches/ramirez/130819bigdataaspen.pdf
    
EPIC:  Testimony before Congress on Data Brokers
(Mar. 15, 2005)    
    http://epic.org/privacy/choicepoint/testimony3.15.05.pdf
    
EPIC:  Recommendation to FTC on Appointing
FTC Chair (Dec. 4, 2012)
    http://epic.org/privacy/ftc/EPIC-Ltr-SenComm-FTC-12-12.pdf
    
EPIC:  Choicepoint
    http://epic.org/privacy/choicepoint/
    
EPIC:  Privacy and Consumer Profiling    
    http://epic.org/privacy/profiling/
    
    
Pew Survey Finds Most Teens Seek Advice on Privacy Management

A new survey by the Pew Internet and American Life Project and
Harvard 
University's Berkman Center for Internet and Society finds that while 
many teens report a high level of comfort with online
privacy settings, 
"at some point, 70% of them have sought advice from someone else about 
how to manage their privacy online." According
to the survey, teens 
generally turned to friends, parents, or other close family members for 
online privacy advice. Other Pew surveys
have found that most teens 
were taking steps to protect their online privacy; that a majority of 
parents were concerned about their
children's online privacy; and that 
social media users were becoming more active in managing the privacy of 
their accounts. 


Pew Internet:  "Where Teens Seek Privacy Advice" (Aug. 15, 2013)    
    http://epic.org/redirect/090313-pew-teens-privacy-advice.html
    
Pew Internet:  "Teens, Social Media, and Privacy" (May 21, 2013)    
    http://epic.org/redirect/090313-pew-teens-privacy-media.html
    
Pew Internet:  "Parents, Teens, and Online Privacy" (Nov. 20,2012)
    http://pewinternet.org/Reports/2012/Teens-and-Privacy.aspx
    
Pew Internet:  "Privacy management on social media sites" (Feb. 24, 2012)    
    http://epic.org/redirect/090313-pew-privacy-management.html
    
EPIC:  Public Opinion on Privacy    
    http://epic.org/privacy/survey
    
    
========================================================================
[7] EPIC in the News
========================================================================

"The Face Scan Arrives." Op-Ed by
former EPIC Open Government Counsel 
Ginger McCall. The New York Times, Aug. 30, 2013.
    http://www.nytimes.com/2013/08/30/opinion/the-face-scan-arrives.
    html?_r=0

"NSA paying U.S. companies for access to communications networks."
The Washington Post, Aug. 29, 2013.
    http://www.washingtonpost.com/world/national-security/nsa-paying-
    us-companies-for-access-to-communications-networks/2013/08/29/
    5641a4b6-10c2-11e3-bdf6-e4fc677d94a1_story.html
    
"DNI
to release surveillance-request data." Politico, Aug. 29, 2013.
    http://www.politico.com/story/2013/08/dni-surveillance-data-
    request-96063.html?hp=l2

"U.S. plans reports on secret court orders to telecom providers."
Reuters, Aug. 29, 2013.
    http://www.reuters.com/article/2013/08/30/us-usa-security-
    transparency-idUSBRE97T03A20130830

"Uncle Sam Wants Your Facebook Data." Tech News World, Aug. 28, 2013.
    http://www.technewsworld.com/story/Uncle-Sam-Wants-Your-Facebook-
    Data-78827.html

"Hey Ohio Drivers, Welcome to the Police Lineup!" Reason, Aug. 27, 
2013.
    http://reason.com/blog/2013/08/27/hey-ohio-drivers-welcome-to-
    the-police-l

"DeWine backs use of facial-recognition software." The Columbus
Dispatch, Aug. 27, 2013.
    http://www.dispatch.com/content/stories/public/2013/08/26/DeWine-
    Ohio-facial-recognition.html

"N.S.A. Phone Data Collection Is Illegal, A.C.L.U. Says." The New York
Times, Aug. 26, 2013.
 
  http://www.nytimes.com/2013/08/27/us/nsa-phone-data-collection-is-
    illegal-aclu-says.html?_r=0

"inBloom debate blossoms."
Our Colorado News, Aug. 26, 2013.
    http://www.ourcoloradonews.com/arvada/news/inbloom-debate-blossoms/
    article_599f3cb5-fc3e-5144-9dd9-ad2ba6da7d3a.html

"Google's $8.5M Privacy Deal Cracks Puzzling Injury Issues." Law 360,
Aug. 26, 2013.
    http://www.law360.com/m/articles/467370/google-s-8-5m-privacy-deal-
    cracks-puzzling-injury-issues
    
"FAA approves drone use over Alaskan oil fields." The Daily Caller, 
Aug. 23, 2013.
    http://dailycaller.com/2013/08/26/faa-approves-drone-use-over-
    alaskan-oil-fields/

"Privacy groups hit $8.5M Google settlement plan." ComputerWorld, Aug.
23, 2013.
    http://www.computerworld.com/s/article/9241854/Privacy_groups_hit_
    8.5M_Google_settlement_plan

"Privacy Groups Want Judge To Reject Google's $8.5 Million Settlement 
Over Search Privacy Lawsuit." Search Engine Land, Aug. 23, 2013.
   http://searchengineland.com/privacy-groups-want-judge-to-reject-
   google-settlement-for-search-privacy-lawsuit-170520

"New Details On The Scope Of NSA Surveillance." NPR's "The Diane Rehm
Show,"
Aug. 22, 2013.
    http://thedianerehmshow.org/shows/2013-08-22/new-details-scope-
    nsa-surveillance
    
"Former U.S. officials
to be named to surveillance panel." The 
Washington Post, Aug. 22, 2013.
    http://www.washingtonpost.com/politics/former-us-officials-to-be-
    named-to-surveillance-panel/2013/08/22/41ce4dae-0b5e-11e3-b87c-
    476db8ac34cd_story.html
    
"Cell phone data latest threat
to privacy." Fox News, Aug. 22, 2013.
    http://www.foxnews.com/politics/2013/08/22/cell-phone-data-latest-
    threat-to-privacy/?test=latestnews

"Attempts to Protect Privacy Have a Long History." TruthDig, Aug. 22,
2013.
    http://www.truthdig.com/eartotheground/item/privacy_defenses_on_
    the_rise_but_theyve_been_around_20130822/

"Privacy Groups Seek To Scuttle Google's $8.5 Million Data-Leakage 
Settlement." MediaPost,
Aug. 22, 2013.
    http://www.mediapost.com/publications/article/207420/

"Facial Scanning Is Making Gains in Surveillance." The
New York Times,
Aug. 21, 2013.
    http://www.nytimes.com/2013/08/21/us/facial-scanning-is-making-
    gains-in-surveillance.html?_r=1&

"Petition seeks end to NSA's domestic spying." Consumer Affairs, Aug.
19, 2013.
    http://www.consumeraffairs.com/news/petition-seeks-end-to-nsas-
    domestic-spying-081913.html
    
"Government surveillance spurs Americans to fight back." The Washington
Post, Aug. 14, 2013.
    http://www.washingtonpost.com/lifestyle/style/government-
    surveillance-spurs-americans-to-fight-back/2013/08/14/edea430a-
    0522-11e3-a07f-49ddc7417125_story.html
    
"In re: Electronic Privacy Information Center." CATO Blog, Aug. 12,
2013.
    http://www.cato.org/publications/legal-briefs/re-electronic-
    privacy-information-center
    
For More EPIC in the News: http://epic.org/news/epic_in_news.html

========================================================================
[8] EPIC Book Review:  'The Great Dissent'
======================================================================== 

"The Great
Dissent: How Oliver Wendell Holmes Changed His Mind -- 
and Changed the History of Free Speech in America," Thomas Healey 

http://epic.org/redirect/090313-great-dissent-healy.html

Not long after the end of the first World War, two Supreme Court 
justices put in place the foundation of the modern rights of privacy

and free expression. One was an architect of Progressive-era reforms 
and a student of Athenian democracy; the other found no moral
purpose 
in law, stating once that "if my fellow citizens wish to travel to 
hell, I shall be happy to oblige." So it is all the
more remarkable 
that the stirring dissent in Abrams v. US, the cornerstone of modern 
First Amendment law, was penned by Justice
Oliver Wendell Holmes. 

As a Civil War veteran, Holmes' defense of the speech of Russian 
anarchists is at once improbable and the
predestined outcome of the 
esteemed jurist's career. For it was Holmes who instructed that "The 
life of the law has not been logic;
it has been experience," and in 
this remarkable telling of the events that led up to the Abrams 
dissent, Seton Hall Law professor
Thomas Healey has proven Holmes' 
famous adage with rich detail, brisk prose, and a sense of humanity 
befitting both the actors
and the outcome.

Abrams v. US was a challenge to the Espionage and Sedition Acts that 
reached the Supreme Court after the end of
World War I. The Court 
recently had upheld convictions of war protesters, including the 
popular socialist leader Eugene Debs. Holmes,
who disfavored such 
prosecutions, nonetheless found no legal objection to the laws of 
Congress; in fact, he remarked bluntly on
"the right to kill those with 
whom we disagree."

In one of the early protest cases, Holmes wrote an opinion relying on 
Blackstone's narrow view of free speech. According to the British 
jurist, government could not prohibit
speech prior to publication, but 
once the words were spoken, criminal prosecution could follow. For a 
country at war, speech in
opposition could well be viewed as seditious. 
The question the Supreme Court faced was whether the First Amendment to 
the US Constitution could permit prosecution.

Judge Learned Hand, the admired and influential lower court jurist, had 
set out a "clear and present
danger" test to allow prosecution for only 
the most dangerous speech in an opinion that was later overturned. It 
was a phrase Holmes
would adopt casually in an early case before he 
considered Abrams. ("Casually" because if Holmes had fully embraced the 
standard,
he likely would have voted to overturn the conviction.)

But even more than Hand, Harold Laski, the brilliant young Harvard 
scholar
who had become like a son to Holmes, helped change the old 
man's views. Laski provided Holmes with books, argument, and the 
timely
flow of articles and opinion from colleagues who Holmes knew 
and respected. 

As the reading material made its way to Holmes and
the exchange of 
letters continued, the US was experiencing the upheaval of the post-War 
era. Anarchist bombs were sent to the homes
of prominent politicians 
and business leaders (one was addressed to Holmes). The labor movement 
was gaining force. Racism and anti-Semitism
were on the rise. The 
Attorney General and a young agent named J. Edgar Hoover were stepping 
up their investigations of political
dissidents. When Holmes first 
circulated his unexpected dissent, three of his fellow Justices visited 
him at home and urged him
to withdraw his opinion so that the Court 
could stand united. Holmes declined.

Holmes' powerful and purposeful dissent in Abrams
would become one of 
the most famous documents in American legal history. Recasting the 
earlier American experience with sedition
laws and sidestepping his 
own prior opinion, Holmes argued for a view of the First Amendment that 
reflected both the value of free
expression and the limitations of 
human knowledge:
 
	". . . that the ultimate good desired is better reached by free 
	trade in
ideas -- that the best test of truth is the power of the 
	thought to get itself accepted in the competition of the market, 
	and
that truth is the only ground upon which their wishes safely 
	can be carried out. That, at any rate, is the theory of our 
	Constitution. It is an experiment, as all life is an experiment. 
	Every year, if not every day, we have to wager our salvation upon 
	some prophecy
based upon imperfect knowledge. While that 
	experiment is part of our system, I think that we should be 
	eternally vigilant against
attempts to check the expression of 
	opinions that we loathe and believe to be fraught with death, 
	unless they so imminently threaten
immediate interference with the 
	lawful and pressing purposes of the law that an immediate check is 
	required to save the country."
 
Holmes would go on to write several more dissents in the First 
Amendment cases that followed. Along with Justice Louis Brandeis,
he 
helped build support for a view of the First Amendment that reflected a 
country strong enough to fight for its beliefs, but
also wise enough to 
know that ideas worth defending could always withstand criticism. It is 
a view that has transformed governments,
established democracies, and 
helped place freedom of expression among the core human rights of the 
modern age. 

Not all those
who contributed to the Abrams moment faired as well in 
the years that followed. Laski found himself on the receiving end of 
free
speech with a sharp satire in the Harvard Lampoon. He left for 
England, and joined the London School of Economics. Though he later

rose in the ranks of the British Labor Party, his separation from 
Holmes must have hurt both men. Judge Hand, perhaps embittered
that 
he had not been named to the highest court, wrote the unfortunate 
1950 opinion in Dennis v. US, which gave support to Joe
McCarthy and 
those who sought to prosecute dissent. Justice Frankfurter, the great 
liberal reformer of the Progressive era, had
embraced judicial 
restraint once on the Supreme Court. He affirmed Dennis. It would be 
more than a decade before the Court restored
the "clear and present 
danger" test, though slightly revised as "imminent lawless" acts.

And what of Abrams today? The First Amendment
remains a complex field 
of law. Though the text says simply "Congress shall make no law . . . 
abridging the freedom of speech,
or of the press", the definition of 
"speech" or the standard by which the Court should review such laws 
remains in dispute. Still,
people in the US remain free to criticize 
their government, to oppose military intervention even in times of 
war. A century ago
this was not at all obvious. We have Holmes, the 
Civil War veteran, to thank for our modern-day freedom.

-- Marc Rotenberg
 
======================================
EPIC Bookstore:

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================================

"Information Privacy Law: Cases and Materials, Second Edition" Daniel J.
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The
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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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================================

"The Public Voice WSIS Sourcebook: Perspectives
on the World Summit on
the Information Society" (EPIC 2004). Price: $40.

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This resource
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================================

"The Privacy Law Sourcebook 2004: United States Law, International Law,
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================================

"Filters and Freedom 2.0: Free Speech Perspectives on Internet Content
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================================

EPIC publications and other books on privacy, open government, free
expression, and constitutional values can be ordered at:

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================================

EPIC also publishes EPIC FOIA Notes, which provides
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Subscribe to EPIC FOIA Notes at:
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=======================================================================
[9] Upcoming Conferences and Events
=======================================================================

"The Snitch in Your
Pocket," with EPIC Appellate Advocacy Counsel Alan
Butler. Chautauqua, NY, 17 July 2013. For More Information:
http://www.ciweb.org/storage/downloads/SpecialStudies.pdf.

The Public Voice Conference, Warsaw, Poland, September 2013. For More 
Information:  http://thepublicvoice.org.

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