Month: March 2015

March 9th, 2015

Behind the Times: Playing Catch-Up with Privacy Law

By: Otis Comorau

Article: Law Firm Founds Project to Fight ‘Revenge Porn,’ The New York Times, Jan. 29, 2015

http://dealbook.nytimes.com/2015/01/29/law-firm-founds-project-to-fight-revenge-porn/

While it is no secret that technological advancement often outpaces legal development, the problem is especially severe in the information privacy context. As a recent New York Times article points out, victims of ‘revenge porn’ – pornography uploaded to the internet (frequently by ex-partners) with the intent to shame and humiliate – have resorted to filing copyright claims against websites displaying the embarrassing photographs or videos.

Indeed, despite the near-universal consensus that uploading this kind of information should, without the consent of those pictured, be strictly prohibited, the law is remarkably unclear and outdated. While some states have recently passed statutes criminalizing revenge porn, the majority have failed to address the issue at all. Moreover, under existing tort doctrine, claims for “intentional infliction of emotional distress” are notoriously difficult to win.

Similarly, at the national level, the Federal Trade Commission is just now beginning to recognize the importance of the issue. It is finally taking a more aggressive stance against the practice. Federal prosecutors are following suit as best they can, as they attempt to charge perpetrators under existing “online stalking” and “unauthorized computer access” laws. Such prosecutions are, however, fairly uncommon.

While these changes are laudable, they are grossly insufficient. Modern, technology-based disputes regarding informational privacy are simply poor fits for traditional civil and criminal laws. In the linked article above, for example, the New York Times points out that victims of revenge porn can only file copyright complaints if 1) they took the photographs and/or videos themselves, and 2) they register the photos and/or videos with the United States Copyright Office. Obviously, these requirements present a huge (and wildly unnecessary) constraint upon information privacy enforcement.

But that is exactly the problem, isn’t it? Copyright laws were never designed to meet the needs of revenge-porn victims. Similarly, charging perpetrators with “online stalking” or “unauthorized computer access” is merely a bait and switch. The issue, as everyone knows, is not really “stalking,” or whether an ex-partner “downloaded a file without permission.” The issue is that, through whatever means, extremely personal information ended up on the internet for everyone to see. This is unacceptable. Everyone has, or should have, a right to keep such information private. Unauthorized publication of that information should be prohibited, end of story.

In short, the status quo is unacceptable. Revenge porn disputes cannot be adequately addressed through the existing tort system, the copyright office, or federal “stalking” charges. On the contrary, they present new, technology-based concerns that do not fit well into existing legal doctrine. The country should therefore follow the lead of the 12 states that criminalized revenge porn last year. It is time to pass a national law outlawing the practice.

March 9th, 2015

Federal Judge Dismisses Challenge of NSA’s Internet Surveillance

By: Nicholas Morales

https://www.eff.org/deeplinks/2015/02/jewel-v-nsa-making-sense-disappointing-decision-over-mass-surveillance

https://www.eff.org/cases/jewel

Last month marked a blow for plaintiffs in Electronic Frontier Foundation’s (EFF) lawsuit against mass surveillance, Jewel v. NSA. EFF filed the class action suit on behalf of AT&T customers whose Internet history is being recorded by the National Security Agency.

The case was filed on September 18, 2008 after various documents were made public by whistleblower and former AT&T employee Mark Klein. Klein’s documents along with testimony by NSA whistleblower William Binney revealed a tap on AT&T’s fiber optic Internet backbone. As details began to emerge, many began to suspect that the NSA was engaging in Upstream collection, a surveillance technique that stores Internet users’ traffic history as it traverses the backbone. In their filing, EFF’s clients alleged that the Upstream collection, as well as the collection of telephone call detail records, violated the First and Fourth Amendments to the Constitution, as well as several other laws related to electronic surveillance.

On February 10, 2015 Judge Jeffrey White of the U.S. District Court for the Northern District of California dismissed the challenge of the constitutionality of the Internet data collection program. In his ruling, Judge White stated that the challenge would require an impermissible disclosure of secret information that could jeopardize national security and also ruled that the plaintiffs did not have standing to pursue the claims. The court also found that the plaintiffs lacked proper standing. Judge White stated that because plaintiffs could not prove that the surveillance occurred as they alleged, they did not have the standing to challenge the program’s constitutionality.

EFF criticized the ruling for allowing state secrets to “trump the judicial process” and vowed to continue its case against the NSA. It should be noted that Judge White’s ruling did not decide the legality of the NSA’s Internet surveillance practices, nor does the ruling apply to the challenge of the constitutionality of the NSA’s surveillance of telephone records.

March 5th, 2015

Future of NSA Phone Surveillance Program Remains Unclear

By: Matt Daly-Grafstein

http://www.newsmax.com/US/nsa-megadata-phone-records/2015/03/03/id/627966/

http://www.defenseone.com/politics/2015/03/clock-ticking-congress-produce-nsa-surveillance-reform/106653/

Last week the Foreign Intelligence Surveillance Court (FISC) extended a mandate for the operation of the NSA’s phone surveillance program until June 1st after receiving a specific request from the Obama administration. At issue remains certain provisions of the Patriot Act, including section 215 which grants the NSA extremely broad access to a variety of civilian records under the Foreign Intelligence Surveillance Act (FISA). If the June 1st deadline passes and Congress takes no further action, then the NSA will ostensibly lose the legal authority to continue mining American phone records.

Currently it appears that Congress has no plans in place to allow the continuation of the NSA’s operations. Several bills have been previously introduced to the previous Congress in an attempt to reform how the NSA goes about its collection of American phone records but none were ultimately passed. The USA Freedom Act, introduced this past November, by Dem. Sen. Patrick Leahy, came the closest but fell a mere two votes shorts of advancing. There are no bills that have been introduced in the current Congress that address the issue.

Critics are worried that the lack of action by Congress may be evidence that a last-minute bill will be rushed through that will grant the same broad powers that were given under the much maligned Patriot Act. The same type of debate surrounding the failed USA Freedom Act that led many to believe that it reflected a true bipartisan effort may not be possible given the less than 100 days until the expiration of the current laws. This past year Obama had proposed that data should remain with telephone companies and that the government should only be able to access data through specific individual court orders, a proposal that may have more favorable support from critics of the current government surveillance programs. No legislation to date however has incorporated this suggestion.

The short window remaining to pass new legislation may also mean that Congress simply lets Section 215 and its related provisions expire. This would legally end the ability for the NSA to continue its current efforts in gathering bulk phone data. While it’s unclear the true efficacy of the program given the unwillingness of the NSA to share detailed data about its operations it’s enough for some in Congress and the intelligence community to worry that the vacuum created may mean that the USA will be less effective in preventing future terrorist operations within the country. In any case, we should know for certain the future of the NSA surveillance program within the next few months.

 March 5th, 2015

To Beep or Not to Beep: The Ups and Downs of Smartphone Privacy

 By Eliza Cohen

 http://www.economist.com/news/leaders/21645180-smartphone-ubiquitous-addictive-and-transformative-planet-phones

http://www.economist.com/news/briefing/21645130-watch-out-hackersand-spooks-spy-your-pocket

On February 19, the Intercept revealed that spies at GCHQ (Britain’s equivalent to the NSA) had stolen hundreds of thousands of encryption keys coded into Gemalto SIM cards in order to access conversations and data. The story was based on documents that were leaked by Edward Snowden, the government contractor who began to publicly disclose classified NSA documents in June 2013.

On the heels of this latest report, The Economist has published a two-story briefing in its issue of February 28. In “Smartphone Security: The Spy in Your Pocket,” the magazine paints a harrowing picture of cellular security, described as “mostly an afterthought in a booming industry that has always seen market share as the priority.” Organizations such as the NSA have entire departments whose job it is to breach cell phone encryptions and other protective mechanisms. Criminal malware is described as an ever-growing industry, and an alarming number of apps are guilty of transmitting unencrypted data that may be read at will. Though industry players and consumers are cognizant of data protection issues, The Economist writes that “there is still a lot for the industry and its users to learn.”

In its second briefing, “Planet of the Smartphones,” The Economist plays its own devil’s advocate. The magazine enumerates three benefits that militate against the threat to privacy posed by smartphones. First, “the same phones that allow governments to spy on their citizens also record the brutality of officials and spread information and dissenting opinions.” Thus, the magazine writes that smartphones empower the ordinary individual to challenge government authoritarianism. Second, the same personal data that companies may seek to exploit can also used to advance the public good. Smartphones are described as “digital census-takers” that create an unprecedentedly detailed view of society in real time. This data may be used for a variety of social purposes, including crime prevention and the monitoring of global epidemics. Third, The Economist holds that smartphones provide immense economic benefit. Smartphones have the potential to remake entire industries at lightning speed. The phone itself is the platform, which is conducive to the development of cheap startups (like WhatsApp and Uber) that may one day be valued in the millions or billions. Though cell phones present important privacy considerations, The Economist opines that society must adapt to these new realities, and develop norms and methods of accountability for smartphone use.

The Economist is right about one thing: the smartphone has changed the world, and is an invaluable source of economic and social good. However, by focusing on the benefits that accrue from smartphone usage, the magazine is adopting an oversimplified approach to information privacy. The mere fact that cellular data may be used to advance the public good is not a justification for the breach of privacy on a universal scale. In Riley v. California, the court states: “the fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of protection.” Smartphones may be used to combat authoritarian regimes, to aggregate useful data, and to remake entire industries — but not at the expense of global privacy. Widespread government spying and corporate data-mining are not necessary corollaries of cell phone usage. Though data monitoring may be necessary in certain instances for the purposes of national security, these usages should be circumscribed, and governments must be held accountable for their actions to the greatest extent possible. In United States v. Warshak, the court held that “the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will whither and perish.” Since the NSA wiretapping scandal first came to light, it has become glaringly apparent that the age of “reasonable” privacy is over, and that we are more in need of Fourth Amendment protections now than ever before. Yes, The Economist is correct in stating that cell phones are “ubiquitous, addictive and transformative” — but ultimately, at what cost?