Groups And Prominent Authors Say Settlement Doesn't Protect Free Speech Or User Privacy
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NEW YORK – The American Civil Liberties Union, Electronic Frontier Foundation (EFF) and Samuelson Law, Technology, and Public Policy Clinic at the University of California, Berkeley, School of Law are in federal court today urging a judge to reject the proposed settlement in a lawsuit over Google Book Search because it does not include critical privacy protections for users of the online book materials. The groups filed an objection to the settlement in September 2009 on behalf of a coalition of more than two dozen authors and publishers, including ACLU Executive Director Anthony D. Romero and best-selling novelists Michael Chabon and Jonathan Lethem.
"As digital book programs like Google Book Search advance, more and more people will turn to the Internet for their reading needs. Readers should be able to expect as much privacy when they're reading a book on a Web site as they do in a library or bookstore," said Aden Fine, staff attorney with the ACLU First Amendment Working Group. "People should feel that they are free to read on the Internet without being monitored by private companies or the government."
The objection arose over the proposed settlement of a 2005 class action lawsuit, The Authors Guild, Inc., et al. v. Google Inc., currently pending approval in the U.S. District Court for the Southern District of New York. The settlement would allow Google to scan and digitize millions of books and make them available to readers online, ending the legal challenges brought by the Authors' Guild and others over the Google Book Search project. The coalition of authors and publishers who object to the settlement charge that it fails to include critical privacy and speech protections concerning the collection and potential disclosure of personally identifying information about Google Book Search users, and that this failure to protect privacy will chill their readership. They are urging Judge Denny Chin of the Southern District to reject the settlement.
Because the settlement does not contain any privacy protections for users, Google's system will be able to monitor which books users search for, which pages of the books they read and how long they spend on each page. Google could then combine information about readers' habits and interests with additional information it collects from other Google services, creating a massive "digital dossier" that would be highly tempting and possibly vulnerable to fishing expeditions by law enforcement or civil litigants.
"Advancements in technology should not come at the expense of Americans' privacy," said Fine. "The court should ensure that the same privacy and speech protections available to readers in libraries and bookstores are part of this settlement, to ensure that readers in the digital age continue to have the same rights they've always had."
The objection filed in September includes a list of privacy protections that would improve the settlement, including requiring a court order or judge-approved warrant before disclosure of any information collected and limiting the amount of time that the information can be retained.
Attorneys who filed the objection are Fine of the ACLU, Cindy Cohn of EFF and Jennifer Lynch and Jason Schultz of the Samuelson Clinic.
The filing is available online at: www.aclu.org/freespeech/gen/40934lgl20090908.html
More information about the case is available at: www.aclunc.org/googlebooks and www.eff.org/cases/authors-guild-v-google
Testifies in Support of LD 1561
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Today, the Maine Civil Liberties Union will lend its backing to an effort to protect the privacy of all the people of Maine. The MCLU will testify in support of LD 1561: An Act to Regulate the Use of Traffic Surveillance Cameras, in a public hearing before the Maine Legislature's Joint Committee on Transportation. The hearing is scheduled for 1:00 pm, in Room 126 at the State House.
The following can be attributed to Shenna Bellows, Executive Director of the Maine Civil Liberties Union (MCLU):
"Surveillance cameras have a chilling effect on freedom of movement, because people behave differently when they are under surveillance. In a free society, we have a right to be left alone unless we are hurting someone or breaking the law. All people in America are presumed innocent and law-abiding, but these surveillance cameras turns that presumption of innocence on its head – into a presumption that we are all guilty.
"The Automatic License Plate Reader (ALPR) creates and feeds a database that, very quickly will contain a virtual map of the movement of ordinary citizens about the community. If we hastily adopt this new technology we will find ourselves grappling with significant embarrassments and harms in the future. Just because we can do something doesn't always mean we should. ALPRs place too much datamining power in the hands of the police and those who breach their system.
"Last year, Maine passed a law banning surveillance cameras at stoplights. We hope that the same principles—that we have the right to be left alone and that the government should not put ordinary citizens under surveillance—will once again guide the legislature's deliberations."
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HARRISBURG - The Pennsylvania Senate Game and Fisheries Committee passed legislation today to protect the privacy rights of Pennsylvania's outdoor sportsmen. The American Civil Liberties Union of Pennsylvania applauded the unanimous committee vote on House Bill 181.
Introduced by Rep. Bryan Cutler (R-Lancaster County), HB 181 conforms the power of officers of the Pennsylvania Game Commission to conduct stops and searches with the commonwealth's police officers.
"Pennsylvania's sportsmen do not give up their constitutional rights simply because they hunt and fish," said Andy Hoover, legislative director of the ACLU of Pennsylvania. "Outdoorsmen have a right to be free of unreasonable searches and seizures."
Under current law, Game Commission officers can conduct a stop and a search "at any time." HB 181 would require a finding of reasonable suspicion that a crime has occurred before a commission officer could stop any means of transportation. The bill also requires a finding of probable cause that a crime has occurred before conducting a search of a vehicle or a person.
"The law today assumes that sportsmen are criminals and grants powers to Game Commission officers under that assumption," Hoover said. "HB 181 fixes a major hole in Pennsylvania law and does so through legislation, not a lawsuit."
HB 181 now heads to the Senate floor for consideration. The bill passed the state House of Representatives in June.
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Government Should Protect Civil Liberties While Protecting Safety, Says ACLU
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NEW YORK – President Obama today addressed airport security in remarks responding to the Christmas Day attack on a plane headed for Detroit.
The following can be attributed to Anthony D. Romero, Executive Director of the American Civil Liberties Union:
"We welcome President Obama's emphasis on better information and intelligence sharing between government agencies. Our limited security resources should be invested where they will do the most good and have the best chance of thwarting attacks, and that means developing competent intelligence and law enforcement agencies that will stop terrorists before they get to the airport.
"However, we take issue with the president's assertion that the terror watch list system isn't broken. The current watch lists, which contain over a million names, are a mess, keeping innocent travelers from flying while failing to identify true terrorist threats. To be effective, no-fly lists must focus on true terrorists who pose a genuine threat to flight safety.
"We are also deeply troubled by the administration's decision to subject the citizens of 14 nations who are flying to the United States to intensified screening. Using national origin or religion as proxies for suspicion is nothing less than racial profiling. Such profiling is ineffective, unconstitutional and counter to American values. Instead of profiling, we should be focusing on evidence-based, targeted investigations based on individualized suspicion, which would be both more consistent with our values and more effective at making us safer.
"The president spoke of using smarter screening technology at airports. We hope the administration recognizes that full body screening machines pose serious threats to privacy with uncertain benefits to our safety. The machines should only be used when individualized suspicion suggests they are the best method for screening specific passengers, not as an automatic procedure for all passengers.
"The government must indeed work zealously to make us as safe as possible and to take every reasonable step to make sure security breaches do not happen. But we need to act wisely, and that means not trading away our rights and liberties for ineffective policies."
Racial Profiling And Body Scanners Target Civil Liberties But Not Necessarily Terrorists
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NEW YORK – The Obama administration announced Sunday it will subject the citizens of 14 nations who are flying to the United States to intensified screening at airports, including being subjected to full-body pat downs or body scanners. According to the American Civil Liberties Union, the government should adhere to longstanding standards of individualized suspicion and enact security measures that are the least threatening to civil liberties and are proven to be effective. Racial profiling and untargeted body scanning do not meet those criteria.
"We should be focusing on evidence-based, targeted and narrowly tailored investigations based on individualized suspicion, which would be both more consistent with our values and more effective than diverting resources to a system of mass suspicion," said Michael German, national security policy counsel with the ACLU Washington Legislative Office and a former FBI agent. "Overbroad policies such as racial profiling and invasive body scanning for all travelers not only violate our rights and values, they also waste valuable resources and divert attention from real threats."
According to the ACLU, the government's plan to subject citizens of certain countries to enhanced screenings is bad policy, because there is no way to predict the national origin of a terrorist and many terrorists have come from countries not on the list. For instance, the "shoe bomber" Richard Reid is a British citizen, as were four of the London subway bombers, and in 2005 a Belgian woman launched a suicide attack in Iraq.
"Singling out travelers from a few specified countries for enhanced screening is essentially a pretext for racial profiling, which is ineffective, unconstitutional and violates American values. Empirical studies of terrorists show there is no terrorist profile, and using a profile that doesn't reflect this reality will only divert resources by having government agents target innocent people," said German. "Profiling can also be counterproductive by undermining community support for government counterterrorism efforts and creating an injustice that terrorists can exploit to justify further acts of terrorism."
In addition to racial profiling, some have called for the across-the-board implementation of full body scanners, which present serious threats to personal privacy and are of unclear effectiveness. According to a UK Independent report on Sunday, British officials have already tested the scanners and were not persuaded that they would be effective for stopping terrorist threats to planes. And according to security experts, the explosive device used in the attempted attack on a Detroit-bound plane on Christmas Day would not have been detected by the body scanners.
"We shouldn't complacently surrender our rights for a false sense of security, and we should be very leery of being sold a device presented as a cure-all, especially when the evidence shows just the opposite," added German. "If scanners and other intrusive procedures are used, it should be with their limitations in mind and only when there is reason to believe that an individual poses an increased risk to flight safety, not as blanket measures applied to millions of innocent travelers."
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WASHINGTON – In the aftermath of the attempted terrorist attack on a Northwest plane on Christmas Day, there has been controversy over what kind of security measures, such as body scanners and watch lists, are advisable. The American Civil Liberties Union calls for the implementation of effective security policies that pose the most minimal threat possible to Americans' privacy.
"The attempted attack on Christmas Day could easily have ended tragically, and we're all grateful it didn't. The government must find out what went wrong and what more can be done to protect our nation against terrorism," said Michael German, ACLU Washington Legislative Office policy counsel and former FBI agent. "But while it's important to react quickly, it's also important to react wisely and to adopt procedures that will be both truly effective and the least invasive to Americans' privacy. Electronic strip-searching of innocent people, racial profiling and bloated, poorly managed terrorist watch lists do not stop terrorist attacks, but they do infringe upon Americans' rights and waste valuable resources."
Full body scanners present serious threats to personal privacy and are of unclear effectiveness. Plastic explosives can be hidden from them as can explosives hidden in body cavities, which Al Qaeda has already used to launch attacks. Body scanners produce strikingly graphic images, creating pictures of virtually naked bodies that reveal not only sexual organs but also intimate medical details such as colostomy bags and mastectomy scars. That degree of examination amounts to a significant – and for some people humiliating – assault on personal privacy to which travelers in a free country should not automatically be subjected. If these machines are used, it must only be when the facts suggest it is absolutely necessary and not on all travelers; in a non-discriminatory fashion assuring the strongest degree of privacy possible; and when subject to strict oversight to prevent against the misuse of the images.
The current terror watch lists, which are bloated and keep innocent travelers from flying, must be seriously revamped. Their unmanageability distracts from and fails to identify true terrorist threats, as the recent event demonstrates. To be effective, no-fly lists must focus on true terrorists who pose a genuine threat to flight safety.
"We must invest our security resources in investigations based upon reasonable suspicion of wrongdoing so we can more effectively identify and stop attackers before they get to any airport. We must also hold our law enforcement and intelligence agencies accountable to ensure that the vast powers they've been given over the past nine years are being used effectively and responsibly," said German. "While we must work fervently to provide the best security possible, Americans can't afford to be complacent about giving up civil liberties, especially to ineffective policies that don't make us safer. Providing for security and liberty is not a zero-sum game. In America we should strive to be both safe and free."
Rules Police Must Have Warrant to Search Cell Phones
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COLUMBUS - The American Civil Liberties Union of Ohio says the ruling issued today by the Ohio Supreme Court in the case of State v. Smith has enhanced the privacy rights of Ohioans. In a first of its kind ruling, the Court said that law enforcement officials must have a warrant in order to search the contents of someone's cell phone when seized during arrest. In addition, the Court recognized that modern cell phones contain a great deal of personal information and users have a high expectation of privacy.
ACLU of Ohio Staff Counsel Carrie Davis said, "Today's decision by the Ohio Supreme Court has affirmed that even with changes in technology, we do not sacrifice our core civil liberties. Oftentimes, the law fails to keep up with the fast pace of technology, but this decision lays the groundwork for greater privacy protections as the digital age advances."
"The modern cell phone is often not used simply to make and receive calls — many people use them to access the internet, manage finances, house personal photos, catalogue personal contact information and a host of other functions. The Court clearly holds that law enforcement cannot go on "fishing expeditions" and search this information without a warrant," added Davis.
The Court affirmed that police may conduct warrantless searches upon arrest in two narrow exceptions: if the search was necessary to protect the immediate safety of officers or others, and if they believed the individual may delete evidence. However, in the second circumstance, the Court said the officers may only seize a cell phone to prevent the destruction of evidence. They did not give officers permission to search the phone prior to receiving a search warrant.
Today's decision by the Ohio Supreme Court marks the first time a state supreme court has ruled on whether a warrant is required to search a cell phone. Previously, there were only a few scattered rulings in federal courts and the U.S. Supreme Court has not ruled on the issue. The ACLU of Ohio filed a friend-of-the-court brief on behalf of Mr. Smith.
"As technology continues to advance, we must ensure that our laws protect the rights on which our country was founded. Today, the Ohio Supreme Court took a step in the right direction toward protecting our privacy today, and in the future," Davis concluded.
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NEW YORK – In a split vote, 7-4, New York State's Commission on Forensic Sciences approved a policy authorizing law-enforcement to investigate the family members of an individual whose DNA does not precisely match crime scene evidence.
The scientific rationale is that a "partial match" between a sample of DNA from a crime scene and the DNA of someone in the state's DNA databank may implicate a blood relative of that individual.
The New York Civil Liberties Union strongly opposes the policy, charging that the new procedure all but invites an abuse of privacy and due process rights by relaxing technical standards for the use of DNA without adequate protection against error and abuse by law enforcement.
"The Commission has opened a Pandora's Box," said NYCLU Legislative Director Robert Perry. "The familial search policy raises provocative questions: Will innocent family members become criminal suspects because a relative's DNA is a near match with crime scene evidence? Will the police ask, or compel, those family members to submit a DNA sample? And on the basis of an individual's 'partial' DNA match, will other, innocent family members be included in a local suspect watch list or have their own DNA stored in a local police databank?"
The commission members also split, 7-4, on the question of whether the proposed partial-match DNA policy required authorization by the state legislature. The NYCLU contends there are fundamental questions as to whether the policy adopted by the Commission today is authorized under existing law.
FOR IMMEDIATE RELEASE CONTACT: (202) 675-2312 or media@dcaclu.org WASHINGTON – In a move to create stricter privacy guidelines, the Department of Homeland Security (DHS) released the latest version of its grant application today that includes new requirements for video surveillance. It will now be recommended that applicants for DHS grant money perform privacy assessments if grant money is to be used to purchase, install or support cameras. The American Civil Liberties Union praised the new requirement as the first step in pushing back on the proliferation of unchecked video surveillance. The following can be attributed to Christopher Calabrese, ACLU Legislative Counsel: “Pervasive video surveillance is, by definition, a threat to privacy. Government-run video surveillance has the potential to radically alter the relationship between the government and the public, and DHS grant money is behind many camera installations across the country. Privacy assessments have never been part of the grant process. With this change, DHS has begun to set a new standard and hold applicants accountable for their use of video surveillance. This is an encouraging step and we urge DHS to make this requirement mandatory in next year’s grant guidance.” To learn more about the ACLU’s work on curbing the use of surveillance cameras, go to: www.youarebeingwatched.us
FOR IMMEDIATE RELEASE CONTACT: (202) 675-2312 or media@dcaclu.org WASHINGTON – In a move to create stricter privacy guidelines, the Department of Homeland Security (DHS) released the latest version of its grant application today that includes new requirements for video surveillance. It will now be recommended that applicants for DHS grant money perform privacy assessments if grant money is to be used to purchase, install or support cameras. The American Civil Liberties Union praised the new requirement as the first step in pushing back on the proliferation of unchecked video surveillance. The following can be attributed to Christopher Calabrese, ACLU Legislative Counsel: “Pervasive video surveillance is, by definition, a threat to privacy. Government-run video surveillance has the potential to radically alter the relationship between the government and the public, and DHS grant money is behind many camera installations across the country. Privacy assessments have never been part of the grant process. With this change, DHS has begun to set a new standard and hold applicants accountable for their use of video surveillance. This is an encouraging step and we urge DHS to make this requirement mandatory in next year’s grant guidance.” To learn more about the ACLU’s work on curbing the use of surveillance cameras, go to: www.youarebeingwatched.us
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The Rhode Island ACLU has asked the state Department of Health to reconsider an order it issued against Rhode Island Hospital on November 2nd, requiring video and audiotaping of surgeries at the facility.
The requirement was part of a more comprehensive order directed at the Hospital after its fifth wrong-site surgery in three years. In a letter sent last week to DOH director David Gifford, the ACLU expressed support for the agency's goal of protecting patients, but also raised concerns that implementation of this particular aspect of the order would "lead to a serious and disturbing invasion" of patients' privacy in many instances.
Among the concerns raised in the RI ACLU's letter:
The ACLU letter noted that the DOH order was ambiguous as to whether all or just selected surgeries would need to be taped. Even if the latter, though, the ACLU pointed out that the hospital would be required to tape numerous surgeries of any particular doctor in order to randomly examine a few of his or her surgeries.
The ACLU raised similar concerns about audiotaping surgeries, arguing that "in an operating room – as in most other non-public settings – a recognition by hospital employees that they are being audiotaped can have a potentially chilling effect on their speech and conduct." To the extent the audiotaping is designed to evaluate the group dynamics taking place among the staff in operating rooms, the ACLU argued that "knowledge among the staff that they are being audiotaped will inevitably change the dynamics among the group," and that the change will not necessarily benefit either the patients or employees.
For all these reasons, the ACLU letter urged the Department to revise its November 2nd compliance order and eliminate the taping provisions. The Affiliate is awaiting a response.
UPDATE: The ACLU has since received a response from the Department of Health, and will be monitoring implementation of the requirement.
SAN FRANCISCO — The ACLU of Northern California (ACLU-NC) today launched "Demand Your dotRights," an innovative online privacy initiative designed to spotlight the need to upgrade laws protecting consumer data. An interactive web hub for the campaign, www.dotrights.org, features a two-minute Flash video that explains the digital information trail and illustrates what happens to our personal information after we log off. (Watch the video: www.dotrights.org/education)
When consumers learn, shop, connect and share online, their information is collected behind the scenes in ways they often do not realize. Web sites can collect detailed information about an individual—their politics, hobbies, relationships and more. Outdated privacy laws often fail to keep this personal information from being shared or sold, or from being handed over to the government with little to no judicial oversight.
The Electronic Communications Privacy Act, the federal law that is supposed to safeguard the privacy of digital communications, was written in 1986, long before the Internet as it is used today even existed.
"The more we do online, the more digital footprints we leave behind. Once our personal information is collected, we don't know how it will be used or abused," said Nicole Ozer, Technology and Civil Liberties Policy Director at the ACLU of Northern California. "Privacy law doesn't auto-update, so we have to work together on an upgrade."
The government regularly demands that companies turn over Americans' personal data that they collect online. In one instance in 2006 a U.S. Attorney demanded book purchase records of 24,000 Amazon.com customers. (In a show of loyalty to users, the company successfully opposed the subpoena.) Facebook reportedly receives up to 100 demands each week seeking information about its users. Other companies, like Google, don't make public how often information about their users is demanded or disclosed.
This sweeping digital surveillance is increasingly wreaking havoc on the lives of innocent people. For example, in July of this year, a Maryland woman lost her accounting job after a background check performed through the FBI's criminal database indicated, erroneously, that she was unsuitable for the job. Additionally, children have been added to the "No Fly" list, peaceful political protestors have been improperly placed on watch lists, and applications for drivers' licenses have been denied due to mistakes in databases.
The ACLU-NC sees the need for consumers, policymakers, and businesses to work together to define a clear legal and policy framework that fits our modern online world and keeps personal information from being misused. Public opinion is clearly in favor of reestablishing control over personal information. A September 2009 report from UC Berkeley and University of Pennsylvania reveals that 69% of American adults feel there should be a law that gives people the right to know everything a website knows about them and that 92% believe there should be a law giving individuals the right to delete their information from a site. (Link to report available at www.dotrights.org/businesses)
"Many of these seemingly free online services come with a hidden fee–control over information about our private lives," said Ozer. "No one should be forced to choose between using the Internet and keeping personal information from being misused."
ACLU-NC experts and partners have highlighted privacy issues related to Google Book Search and third party applications like quizzes on Facebook. More than 115,000 people have taken ACLU-NC's Facebook privacy quiz since its release in August. Additionally, a primer produced by ACLU-NC, "Privacy and Free Speech: It's Good for Business," offers hands-on tips for how businesses can build their reputations—while saving time and money—by properly protecting customers' privacy and free speech.
Press Release online, with links to additional, related information: www.aclunc.org/news/press_releases/online_privacy_has_a_new_ally_aclu_of_northern_california%27s_demand_your_dotrights_campaign_to_protect_digital_data.shtml
ACLU-NC Blog Post "It's time to demand our dotRights": www.aclunc.org/issues/technology/blog/it%27s_time_to_demand_our_dotrights.shtml
