Privacy Digest

Online Privacy Group Seeks Role in Mapping Out Policy: Via

A group of privacy scholars, lawyers and corporate officials are launching an advocacy group today designed to help shape standards around how companies collect, store and use consumer data for business and advertising.

The group, the Future of Privacy Forum, will be led by Jules Polonetsky, who until this month was in charge of AOL's privacy policy, and Chris Wolf, a privacy lawyer for law firm Proskauer Rose. They say the organization, which is sponsored by AT&T, aims to develop ways to give consumers more control over how personal information is used for behavioral-targeted advertising.

Internet companies have come under fire for tracking consumers' online habits in order to tailor ads relevant to their interests. Lawmakers have held several hearings this year to examine online privacy protections.  read more »

Editorial Observer - Democratic Pressure on Obama to Restore the Rule of Law - NYTimes.com: Via NYTimes.com

In a Senate hearing room in September, weeks before Barack Obama won the election, a series of law professors, lawyers and civil libertarians outlined one of the biggest challenges that will be facing the next president: bringing the United States government back under the rule of law.

Over the past eight years, they testified, American legal traditions have been degraded in areas ranging from domestic spying to government secrecy. The damage that has been done by President Bush, Vice President Dick Cheney, former Attorney General Alberto Gonzales and others is so grave that just assessing it will be an enormous task. Repairing it will be even more enormous.

This was not a new complaint. Civil liberties advocates have been sounding the alarm for years. The difference now is that a Democrat is about to assume the presidency, and one of the most ardent defenders of civil liberties in his party — Senator Russ Feingold of Wisconsin — is dedicated to putting the restoration of the rule of law on the agenda of the incoming government, with the support of the American Civil Liberties Union and other groups.  read more »

Post-partisan harmony vs. the rule of law: Via Salon: Glenn Greenwald

(updated below - Update II)

A Washington Post article today on the need to restore confidence in the Justice Department quotes former high-level Clinton DOJ official Robert Litt urging the new Obama administration to avoid any investigations or prosecutions of Bush lawbreaking:

Obama will have to do a careful balancing act. At a conference in Washington this week, former department criminal division chief Robert S. Litt asked that the new administration avoid fighting old battles that could be perceived as vindictive, such as seeking to prosecute government officials involved in decisions about interrogation and the gathering of domestic intelligence. Human rights groups have called for such investigations, as has House Judiciary Committee Chairman John Conyers Jr. (D-Mich.).
"It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries," Litt said. "It would really spend a lot of the bipartisan capital Obama managed to build up."

There is a coherent way to argue against investigations and prosecutions of actions by Bush officials:  one could argue that they weren't illegal.  Obviously, if one believes that, then that is conclusive on the question. 

But that's not what Litt is arguing here.  Instead, his belief is that Bush officials should be protected from DOJ proceedings even if they committed crimes.  And his reason for that is as petty and vapid as it is corrupt:  namely, it is more important to have post-partisan harmony in our political class than it is to hold Presidents and other high officials accountable when they break the law.  read more »

Data privacy, security laws have far-reaching impact: Via IT World

nd data security regulations that will make it eke out California for the most wide ranging state privacy and security laws -- laws that are likely to impact the policies, practices, procedures, contracts and training used by companies nationwide. The Massachusetts Office of Consumer Affairs and Business Regulation determined that there was a significant need for set of comprehensive standards that ensure businesses are taking practical steps to safeguard personal information. While many of these practices are probably adopted by most companies in some way, shape or form --now a laundry list of minimum standards will be required. And, since it may be impractical for a company to treat information collected from Massachusetts residents differently than others--many companies across the country will need to look holistically at their data privacy and security programs across the country to make sure that they meet the requirements of Massachusetts standards.

Beginning on January 1, 2009, all businesses that collect personal data from or about Massachusetts residents will need to adopt a comprehensive written security program, conduct internal and external security reviews and complete employee training regarding their programs. While the efficacy of a security program will be determined based on the relative size of a company and the type and amount of data a company maintains, the standards clearly state that a security program needs to contain, at a minimum:  read more »

The WIPO Broadcasting Treaty: Back from the Dead?: Via EFF.org Updates

Last year, we reported that WIPO Member States had decided to postpone holding an intergovernmental diplomatic conference to adopt the controversial Broadcasting Treaty. For us, and the many others who had expressed concern about the proposed treaty, this was welcome news. But it was short-lived. In 2008, the Broadcasting Treaty is being pushed by its supporters with a vengeance. Surprisingly, the US seems to have reversed its most recent position, and expressed support for continuing treaty negotiations so long as it includes webcasting.

Despite the fact that there has been no agreement on fundamental elements of the treaty after over 10 years of negotiations, in March there was a concerted move to resurrect negotiations, led by the European Community and Japan, with support from a set of other countries. At the September 2008 WIPO General Assembly meeting, a number of WIPO national delegates expressed support for finalizing treaty negotiations. Then in October, the long-standing WIPO Copyright Committee Chair, Mr. Jukka Liedes of Finland, produced an "informal paper" describing the process of negotiations so far, and proffered several options which would result in continuing discussions and finalization of the treaty.  read more »

Judge to Examine Warrantless Spying Docs in Chambers - Via Threat Level:

The government's legal rationales for warrantless spying on Americans must be given to a federal judge to examine in his chambers in order to decide whether parts of the documents should be released under government sunshine requests, a federal judge ruled last Friday.

The ruling(.pdf) by Washington D.C. Circuit Court judge Henry Kennedy, Jr. marks a partial win for the Electronic Privacy Information Center and the ACLU which sued for the documents' release under the Freedom of Information Act. Kennedy will decide what portions of the ten documents at issue will be released to the groups.

The government has refused to release the documents, which were mostly created by the Justice Department's Office of Legal Counsel. That office is responsible for deciding what policies are legal for government employees to follow. John Yoo, then a little known conservative lawyer, worked in that office and crafted opinions that legalized the warrantless surveillance program and the government's torture policy.  read more »

Colorado Judge Angered Over Secretary of State's Continued Purging of Voter Names - Via Threat Level:

Just days after Colorado Secretary of State Mike Coffman reached an agreement in a lawsuit filed against him for allegedly illegally purging voters from the state's voter roll, Coffman purged an additional 146 voter records from the list.

According to the Denver Post a federal judge angrily ordered Coffman Friday afternoon to stop purging names from the statewide voter registration list. U.S. District Court Judge John Kane said if Coffman didn't stop the purges "he'll be listening to me personally."

Coffman was sued by Common Cause of Colorado and two other groups who claimed the state violated the National Voter Registration Act by illegally purging some 20,000 voters from its registration list within 90 days of the general election. The plaintiffs wanted a preliminary injunction that would reinstate the purged voters and prevent the state from purging anyone else before the election.  read more »

DMCA Week: Predictions Are Hard, Especially about the Future - Via Freedom to Tinker:

My previous post on DVD jukeboxes has prompted an interesting discussion among our commenters. There seems to be a lively difference of opinion about how useful a DVD jukebox would be, what it would look like, and who would use it. Personally, I had envisioned a high-end video device that DVD collectors would buy to help them organize their libraries. But some commenters pointed out something I hadn't thought of: a DVD jukebox—either a set-top device or a portable one—would be a godsend to parents with small children. Children not only like to watch the same video repeatedly, but they're also far more likely to damage a DVD. Having a sealed, rugged hard drive on which to store a few dozen of junior's favorite movies seems like it would be extremely convenient.  read more »

Laptop Search Hit Rate: Only 1.4% - Via CDT - PolicyBeta:

The overwhelming majority of laptop searches at the border turn up no evidence of crime, according data presented by Deputy Commissioner of Customs and Border Protection, Jayson P. Ahern.

At a panel discussion on October 20, Ahern revealed that of the 169 laptops searched at the border in August 2008, only two were seized – a mere 1.4% “hit rate.” Another 10 computers were “detained” for further analysis, such as language translation and decryption, to determine whether they contain evidence of crime.

Under Customs’ laptop search policy– first revealed on July 16, 2008–computers, other digital media, and documents can be searched at the border with no individualized suspicion at all, and can be seized as evidence only when a Customs agent determines that there is probable cause. The policy permits agents to conduct the search without having either evidence of wrongdoing or even approval of a supervisor. It authorizes Customs agents to copy the contents of a laptop or other digital medium and send it to a distant location where persons unseen and unknown to the traveler decrypt and translate data in the laptop, and it permits Customs to “detain” the computer for weeks or for months while this occurs.  read more »

Federal Circuit Reins in Business Method Patents - Via Freedom to Tinker:

This has been a big year for patent law in the technology industry. A few weeks ago I wrote about the Supreme Court's Quanta v. LG decision. Now the United States Court of Appeals for the Federal Circuit, which has jurisdiction over all patent appeals, has handed down a landmark ruling in the case of In Re Bilski. The case dealt with the validity of patents on business methods, and a number of public interest organizations had filed amicus briefs. I offer my take on the decision in a story for Ars Technica. In a nutshell, the Federal Circuit rejected the patent application at issue in the case and signaled a newfound skepticism of "business method" patents.

The decision is surprising because the Federal Circuit has until recently been strongly in favor of expanding patent rights.  read more »

Google Book Search Settlement: A Reader's Guide - Via EFF.org Updates:

As we reported earlier this week, Google has settled the lawsuit brought in 2005 by authors and book publishers regarding its massive book scanning and indexing project. Although the settlement must still be approved by the court and is unlikely to go into effect until sometime late in 2009, commentary has already been flooding the blogosphere. Generally, opinions are split between excitement for users ("better access to zillions of out-of-print books") and suspicion of Google ("one library to rule them all, and in the darkness bind them").

We are still digesting the ~300-page proposed settlement agreement (for those seeking a good overview, the 39-page notice to class members is a good place to start).

So far, two things are plain.  read more »

Federal Circuit Reins In Business Method Patents - Via EFF.org Updates:

The Court of Appeals for the Federal Circuit yesterday issued a decision that imposes firm limits on business method patents. The ruling effectively overturns a key part of the court’s decision in State Street Bank and Trust v. Signature Financial Group, which opened the door to an explosion of patents on "methods" of doing business so long as the methods involved use of a computer and produced a "useful, concrete, and tangible result."  read more »

CIA Can Hide Torture Allegations, Court Rules - Via Threat Level:

The CIA can hide statements from imprisoned suspected terrorists that the agency tortured them in its set of secret prisons, a federal judge ruled Wednesday,

Chief Judge Royce Lamberth of the Washington D.C. Circuit Court declined to review the government's assertions that the allegations of torture from men held in the CIA's black site prisons -- whether truthful or not -- would put the nation at risk of grave danger if allowed to be made public. 

"The Court, giving deference to the agency’s detailed, good-faith declaration, is disinclined to second-guess the agency in its area of expertise through in camera review," Lamberth wrote (.pdf), referring to a procedure where a judge looks at evidence in his chamber without showing it to the opposing side.  read more »

Next President Has “Open” Opportunity - Via CDT - PolicyBeta:

The next president has the chance to make his administration the most transparent in history. In our agenda for the next president, we have urged the next administration to reach for this goal. The public has the right to know much of the information collected, disseminated and maintained by the government, but currently there is a presumption to withhold that information. In order to increase accountability, public awareness, and citizen participation the next administration must reverse the trend to withhold information.

The Internet is an ideal tool to increase access to information. Citizens can use it to interact with government agencies, find important documents, and keep tabs on their elected officials. The E-Government Act of 2002 made key government information available on the Internet, and encouraged federal agencies to continue making information available as they maintained a presence on the Internet. Unfortunately, some agencies are not as adept at using these digital tools; that circumstance actually means a great deal of progress that can be made by the next president to encourage the openness and transparency of the federal government.  read more »

DMCA Week: A second orphan works problem? - Via Freedom to Tinker:

The orphan works problem in copyright is real and serious. Several congressional hearings and a Copyright Office inquiry that drew hundreds of thoughtful comments---not to mention countless articles and blog posts---attest to that fact. This attention is heartening, and while orphan works legislation seems to have died this year, I'm optimistic that the next Congress will address the issue. As is often the case in Washington, however, such a victory might only mark the beginning of the next battle. The way I see it, the DMCA might create a second orphan works problem.  read more »

The Two Best Books About the DMCA - Via EFF.org Updates:

The blogosphere is doing a great job examining the legacy of the Digital Millennium Copyright Act (DMCA), which was enacted into law ten years ago this week. But people frequently ask me where they can turn for a more in-depth analysis of the DMCA, DRM, and their impact on digital culture. For them, there are two books I recommend first and foremost.

First, there is Jessica Litman's Digital Copyright, which does a masterful job explaining how the DMCA (and much of the rest of our copyright law) came to be. Tracing the law from its beginnings in the internal bureaucracy of the Clinton administration in 1992, over to the international treaty realm of the World Intellectual Property Organization (WIPO), and back to Congress, her account lays bare the political realities that produced a law that put corporate interests before the public interest.  read more »