Oct 172009
 

Richard Esguerra of EFF updates us as to developments over the past 48 hours:

This evening (October 15), the Director of National Intelligence and the Department of Justice filed yet another emergency motion with the Ninth Circuit, asking for a stay of the deadline to release telecom immunity lobbying documents, less than 24 hours before the documents are due to be released to the public.

Almost simultaneously, a report appeared on Politico.com, claiming that the government will be releasing some documents, while fighting in court to hide the remainder. Despite this report, the government’s motion seeks to delay disclosure of all the documents, and no new documents have been released just yet.

For those following this saga, this is deja vu all over again. Last week, when the documents were due to be turned over by Friday, October 9, the government asked the Court of Appeals for a stay, a motion that was denied by the Ninth Circuit in short order. Later that same afternoon, the government asked Federal District Court Judge Jeffrey White for an additional delay, a request that Judge White ultimately denied, giving the government a new deadline of Friday, October 16, by 4 p.m. Pacific time.

This has been a long fight — since 2007, EFF has been working towards the release of these records after media reports revealed an extensive lobbying campaign seeking immunity for telecoms that participated in the government’s unlawful surveillance program. As we’ve said before, we look forward to receiving the documents and making them public so that they can play a much-needed role in the active congressional debate over repealing telecom immunity.

UPDATED October 16, 3:15pm: Friday morning, EFF filed opposition to the government’s motion. The government then filed a reply.

3:50pm: In order to give itself more time to decide whether to grant the requested stay, the Ninth Circuit Court has extended the deadline for disclosure of documents another week, until 5pm PT on Friday October 23.

Read more on EFF, Related Cases: FOIA: Telecom Lobbying Records

To which I say: Enough already! The role of the telecoms and any deals cut is a matter of public concern. This administration, despite its rhetoric on transparency, is following in its predecessors footsteps by trying to keep the public in the dark on vital issues such as the telecoms and torture of detainees. It’s time for the courts to end the secrecy. And shame on Congress for approving legislation that would pre-empt the Freedom of Information Act.

Oct 072009
 

Cindy Cohn of EFF writes:

Today EFF along with the ACLU and the privacy authors and publishers they represent, the American Library Association, the Association of Research Libraries and the Association of College and Research Libraries, CDT, EPIC, SFLC, Professor James Grimmelman sent a joint letter to Google urging it to include privacy protections along with its reconsidered Google Book Search Settlement.

The Court considering the Google Book Search case granted the parties more time to renegotiate the settlement. The Court had received approximately 435 submissions about the settlement by both class members and amici. The American Library Association did a helpful analysis that estimates that 390 of the submissions object to the settlement and another 8 submissions support the settlement but with significant reservations. Shortly thereafter, the Department of Justice weighed in with serious reservations as well, leading the plaintiffs to seek the extension. The Court will still meet with the parties for a status conference on October 7.

Read more on EFF.

Sep 242009
 

In a clear victory for transparency, U.S. District Judge Jeffrey S. White today ordered the government to release more records about the lobbying campaign to provide immunity to the telecommunications firms that participated in the National Security Agency (NSA)’s warrantless surveillance program. The government has been ordered to provide the records to the Electronic Frontier Foundation (EFF) by October 9, 2009.

EFF’s freedom of information request is part of their long-running battle to gather information about telecommunications lobbying conducted as Congress considered granting immunity to companies that participated in illegal government electronic surveillance. Immunity was eventually passed as part of the FISA Amendments Act (FAA) of 2008, but a bill that would repeal the immunity — called the JUSTICE Act — was introduced in the Senate last week.

“Today’s ruling is a major victory for government transparency,” said EFF Staff Attorney Marica Hofmann. “As
the court recognized, it was unlawful for the government to deny Americans access to this information in the midst of the debate over telecom immunity last year. We’re pleased these records will now be available to the public as Congress considers the JUSTICE Act.”

Officials in the Bush Administration’s Department of Justice (DOJ) and Office of the Director of National Intelligence (ODNI) were vocal supporters of the immunity proposals, and had denied EFF’s request for records, claiming that the records were protected by FOIA exemptions covering agency deliberations and other privileged communications. But in today’s order, the judge ruled that because the communications were with Congress and lobbyists, the exemptions did not apply. The judge also found that the identities of telecom representatives who lobbied for immunity could not be kept from the public on privacy grounds.

“Today’s ruling shows that aggressive use of the Freedom of Information Act is necessary to challenge government secrecy,” said EFF Senior Staff Attorney Kurt Opsahl. “We cannot allow the government to drag its feet in making relevant information available to the American public.”

EFF also represents the plaintiffs in Hepting v. AT&T, a class-action lawsuit brought by AT&T customers accusing the telecom of violating their rights by illegally assisting in widespread domestic surveillance. In June of 2009, a federal judge dismissed Hepting and dozens of other lawsuits against telecoms, ruling that the companies had immunity from liability under the FAA. EFF is appealing the decision to the 9th U.S. Circuit Court of Appeals, primarily arguing that the FAA’s immunity provision is unconstitutional in granting the president broad discretion to block the courts from considering the core constitutional privacy claims of millions of Americans.

For the full order:
http://www.eff.org/files/filenode/foia_C0705278/OrderGrantSJ-Sep09.pdf

For more on the litigation:
http://www.eff.org/issues/foia/cases/C-07-05278

Sep 052009
 

Cindy Cohn of EFF has a commentary on Google’s new privacy policy for Google Books that suggests that the new policy is better, but not sufficient. Cohen writes:

Late yesterday afternoon, September 3, 2009, Google finally issued a privacy policy for Google Books, both the current service and the extensive new book-related services they hope to have a federal court approve in October.

While there are some good things in the policy — many that EFF and its coalition partners the ACLU of Northern California and the Samuelson Clinic at Berkeley Law School have long been urging Google to do — it is still falls well short of the privacy protections that readers need, both substantively and in whether it will be permanent and readily enforceable by readers. Our coalition on behalf of authors and publishers seeking to protect reader privacy will still be filing an Objection to the Settlement in Court on Tuesday, September 8.

First, and most importantly, the privacy policy fails to address our core concerns about the standards for disclosure of reading habits to the government and private litigants.

[…]

Second, the privacy policy is procedurally insufficient to protect readers and authors who depend on reader privacy. While a privacy policy could be written to create enforceable promises, Google has issued a “website business as usual” privacy policy. Those policies can be changed at any time and may be unenforceable by readers whose privacy has been violated.

[…]

Third, Google also failed to include many other items in the list of privacy demands we published in July…

[…]

Read the full EFF analysis and commentary  here.

In related developments, Ryan Singel of Epicenter reports that:

A key privacy group is seeking to intervene in the ongoing copyright lawsuit over Google’s plan to build the library and bookstore of the future, arguing that reader privacy is at risk no matter how much Google promises to have a good privacy policy.

EPIC, or the Electronic Privacy Information Center, asked federal court judge Denny Chin on Friday to allow it to formally intervene on behalf of readers’ privacy interests in the suit pitting Google against the Authors Guild and the Association of American Publishers.

For a European privacy-centric perspective, see the commentary by Open Rights Group.

And Michael Zimmer has more on the objections of academic authors to the proposed court settlement.

Aug 192009
 

The central question in the privacy debate that EFF and our partners at the ACLU of Northern California and the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley have been having with Google about Google Book Search is whether this exciting new digital library/bookstore is going to maintain the strong protections for reader privacy that traditional libraries and bookstores have fought for and largely won.

That’s it. All we want is for Google to promise to fight for the protections you already have when you walk into a bookstore or library.

[…]

[Google] is insisting on keeping broad discretion to decide when and where it will actually stand up for user privacy, and saying that we should just trust the company to do so. So, if Bob looks like a good guy, maybe they’ll stand up for him. But if standing up for Alice could make Google look bad, complicate things for the company, or seem ill-advised for some other reason, then Google insists on having the leeway to simply hand over her reading list after a subpoena or some lesser legal process. As Google Book Search grows, the pressure on Google to compromise readers’ privacy will likely grow too, whether from government entities that have to approve mergers or investigate antitrust complaints, or subpoenas from companies where Google has a business relationship, or for some other reason that emerges over time.

We need more than “just trust us” here.

Read more on The Electronic Frontier Foundation (EFF)

Aug 112009
 

Today, EFF and the Center for Democracy and Technology submitted comments to the Office of Management and Budget in response to the agency’s review of the policies governing the federal government’s use of cookies and other web technologies.

The comments are an extension of recommendations we made in May, in which we suggested that the OMB permit cookie-based web analytics so long as the process was carefully overseen and met with specific strict safeguards. Today, we’ve expanded our recommendations to include the use of cookies for creating individualized web account logins and other common web practices that we understand government webmasters would like to be able to use. Overall, we continue to urge the government to limit the use of any data collected, to eliminate this data as soon as possible, and to seek third-party oversight.

Read more on EFF (The Electronic Frontier Foundation).

Related: EPIC submitted comments to the Office of Management and Budget recommending that the existing ban on the use of cookies at federal government websites be maintained.

Aug 112009
 

The Obama administration is proposing to scale back a long-standing ban on tracking how people use government Internet sites with “cookies” and other technologies, raising alarms among privacy groups.

A two-week public comment period ended Monday on a proposal by the White House Office of Management and Budget to end a ban on federal Internet sites using such technologies and replace it with other privacy safeguards. The current prohibition, in place since 2000, can be waived if an agency head cites a “compelling need.”

[…]

Two prominent technology policy advocacy groups, the Electronic Privacy Information Center and Electronic Frontier Foundation, cited the terms of a Feb. 19 contract with Google, in which a unnamed federal agency explicitly carved out an exemption from the ban so that the agency could use Google’s YouTube video player.

The terms of the contract, negotiated through the General Services Administration, “expressly waives those rules or guidelines as they may apply to Google.” The contract was obtained by EPIC through a Freedom of Information Act request.

“Our primary concern is that the GSA has failed to protect the privacy rights of U.S. citizens,” EPIC Executive Director Marc Rotenberg said. “The expectation is they should be complying with the government regulations, not that the government should change its regulations to accommodate these companies.”

Read more in The Washington Post.