Author Archive | Natasha Duarte

My EPIC Summer

In a humble office above a Dupont Circle bagel shop in Washington, D.C., a very small army of dedicated attorneys fights to protect your digital privacy. They vigilantly watch the watchers, among them the actual U.S. Army with its “surveillance blimps.” They comb through public records to expose secret surveillance. They use their expertise to champion privacy at every level of the courts. They educate the public and government officials about the many threats to privacy and civil liberties created by government and private data collection. They are EPIC. In its twenty years of existence, the Electronic Privacy Information Center (EPIC) has been privacy’s best advocate since Justices Warren and Brandeis defined the right to privacy in 1890. During the summer of 2014, I got to join EPIC as an Internet Public Interest Opportunities Program (IPIOP) Clerk.

During my first week at EPIC, I met Edward Snowden’s parents. They were accepting EPIC’s annual Champions of Freedom award on Snowden’s behalf. During a celebratory dinner, some of the foremost privacy scholars spoke about EPIC’s vital contributions to privacy and civil liberties. I knew I had come to a special place.

IPIOP is designed to educate and train law students in the practice of public interest privacy law. Aside from working on exciting cases, we had weekly training sessions on aspects of privacy advocacy: amicus briefs, comments on agency rulemakings, the Freedom of Information Act (FOIA), etc. This combination of work and training not only deepened my knowledge of privacy law but also gave me insight into how to use litigation, FOIA, administrative remedies, and other tools to protect privacy and civil liberties in the digital world. Different privacy problems call for different remedies, and throughout the summer I learned to identify those channels for relief. For example, the Federal Trade Commission’s authority to prevent unfair and deceptive trade practices has become a relatively promising (if sometimes disappointing) avenue for protecting consumers’ privacy against commercial data collection. When we learned that Facebook had disclosed users’ data for psychological research, I helped EPIC file an FTC complaint claiming that the practice was unfair and deceptive.

I also learned how to use FOIA to uncover hidden details about government surveillance and data collection. I filed (and appealed) a FOIA request to find out more information about the FBI’s Next Generation Identification (NGI) program, which is currently being implemented by state and local law enforcement agencies. The program outfits law enforcement with facial recognition, iris scanning, and other technologies to identify individuals using a large biometric database compiled by the FBI. I asked for information about the use of mobile biometric applications—cell phone apps that officers can use in the field to identify individuals based on their faces, irises, fingerprints, etc.—in connection with NGI.

Of course, the courts are an important forum for privacy law. EPIC uses its privacy expertise to file amicus briefs in cases that can use its help. I was able to propose and help draft EPIC’s amicus brief in Smith v. Obama, a Ninth Circuit appeal challenging the NSA’s collection of phone records. This was a fun extension of my work at the Electronic Frontier Foundation, where I also worked on a phone records collection case.

When it comes to digital data, individuals cannot fully protect their own privacy, in part because data collection practices are not transparent. Advocacy organizations like EPIC perform the necessary functions of uncovering and pushing back against these surreptitious, overreaching, and often illegal practices. My IPIOP clerkship was a unique opportunity to learn not only the substantive law of privacy but also the processes through which public interest groups accomplish their goals.

Natasha Duarte is a dual-degree student and Roy H. Park Fellow in the J.D./M.A. program in the Schools of Law and Journalism. Her areas of interest are technology law and digital civil liberties, particularly privacy and free speech issues.

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Appeals court (mostly) strikes down net neutrality rules

The D.C. Circuit today held that the Federal Communications Commission’s network neutrality nondiscrimination rules were invalid because the FCC lacked the authority to regulate how Internet providers treat content. The “Open Internet” rules, passed in 2010, required ISPs to treat all Internet content equally. Under the rules, a provider such as Verizon could not block or slow down certain Internet content or allow companies to pay for their content to be delivered faster. The Court said that the FCC can only impose such regulations on common carriers, such as telephone companies, and that ISPs are not common carriers. Read the opinion here.

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Supreme Court won’t hear challenge to NSA surveillance

The Supreme Court Friday declined to consider the legality of the National Security Agency’s collection of Verizon customers’ phone call records.

The Court declined without comment to decide whether the Foreign Intelligence Surveillance Court exceeded its jurisdiction when it issued orders to Verizon to turn over the records of all phone calls made wholly within the United States or between the United States and abroad.

The challenge came from the Electronic Privacy Information Center, which asked the Court for a “writ of mandamus,” a process by which the Supreme Court directly reviews a case that has not been appealed through lower courts. A writ of mandamus is only proper when the plaintiff has no other adequate means of obtaining relief. In this case, EPIC argued that it could not pursue relief in lower district and appellate courts because those courts have no jurisdiction over the FISC, and that only the government or the recipient of a FISC order can appeal that order to the Foreign Intelligence Surveillance Court of Review.

In its response, the Justice Department argued that EPIC must file its challenge in federal district court as other plaintiffs have done. However, the government didn’t concede that EPIC would be a proper party to challenge the FISC order in district court — only that EPIC could not seek relief from the Supreme Court that it could not obtain in district court. SCOTUSblog reported that “the government has attempted to thwart court review of challenges…already filed [in lower court].”

The Justice Department also argued that EPIC did not show that the NSA had reviewed phone records relating to EPIC’s members, “particularly given the stringent, FISC-imposed restrictions that limit access to the database to counterterrorism purposes.” No court has ruled on this issue, and it could come up again in the district court challenges to the NSA’s phone records collection program.

A federal court has yet to rule on the legality of the NSA’s domestic surveillance program since a series of leaks in June revealed that the NSA had been collecting Americans’ phone call records for at least seven years.

Natasha Duarte is a 2L at the University of North Carolina School of Law and a first-year master’s student at the UNC School of Journalism and Mass Communication.

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New York AG wants Airbnb to turn over user information

airbnb

Short-term rental website Airbnb provides an alternative to hotels and makes it easier for people to sublet their homes while they’re out of town, but its New York users could be in legal trouble.

The state of New York has subpoenaed Airbnb in an attempt to prove that some users renting out rooms on the site have violated state rental and tax laws. The site, which allows users to rent or sublet their homes on a short-term basis, is fighting the state’s request for the names, email addresses, physical addresses, gross revenue, and tax-related communications of its New York users.

The state of New York is attempting to prove that Airbnb users have violated occupancy tax laws and a state law against subletting a dwelling for fewer than 30 days. Its subpoena applies to all “hosts” who rent New York accommodations on Airbnb and do not stay in the accommodations during the rental period.

Airbnb has filed a motion to quash the subpoena, calling it an overly broad “fishing expedition.”

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C-SPAN, UNC-TV to televise inaugural Hargrove Colloquium

C-SPAN and UNC-TV will televise today’s inaugural Wade H. Hargrove Communications Law and Policy Colloquium, hosted by the Center for Media Law and Policy. Hearst TV CEO David Barrett and ABC News President Ben Sherwood will discuss the future of TV news and the challenges and opportunities media companies face in this age of digital convergence.

The colloquium begins at 5:30 p.m. in the George Watts Hill Alumni Center on UNC’s campus and is free and open to the public. For more information, see the event page and a full description of the event and speakers by the Center’s co-director, David Ardia.

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