Archive | Transparency

What’s the deal with fast-track authority?

By on February 7, 2014 in Copyright, Internet, Transparency

Text Definition of Fast Track Authority

Back in November, The New York Times editorial board endorsed the Trans-Pacific Partnership (TPP), a trade agreement involving 12 countries in the Americas and the Pacific Rim that is being negotiated by the Obama Administration. The agreement contains sections covering a broad number of policy topics, including a chapter on intellectual property. At that time, I put together a brief post about the agreement and potential bipartisan opposition to it in Congress. Since then, Senators Max Baucus (D-MT) and Orrin Hatch (R-UT), along with Rep. Dave Camp (D-MI), have proposed the Bipartisan Congressional Trade Priorities Act of 2014 to grant the Obama Administration “fast-track” trade authority. This legislation would allow the administration to negotiate the TPP and other agreements (although negotiations are already in progress) and place them before Congress for blanket approval or disapproval without amendments or filibusters. This has ignited a debate about the roles played by Congress and the White House in negotiating trade agreements. Senate Majority Leader Harry Reid (D-NV) publicly announced his opposition to fast-track, putting him at odds with President Obama, Secretary of State John Kerry, and Secretary of Defense Chuck Hagel. But what exactly is fast-track trade authority?

The Commerce Clause of the United States Constitution gives Congress the exclusive power to “regulate commerce with foreign nations.” Under fast-track trade authority, also known as trade promotion authority, Congress maintains its constitutional oversight of foreign trade, but cedes the nuts and bolts of crafting trade agreements to the executive branch. The Nixon administration was the first to pursue fast-track, though it was not enacted until Congress passed the Trade Act of 1974 under President Ford. Originally, fast-track was only approved through 1980, but it was repeatedly extended until the signing of the North American Free Trade Agreement in 1994. Congress denied President Clinton fast-track Authority in 1998, but granted it to President George W. Bush from 2002 to 2007. Despite the expiration of fast-track trade authority just prior to Obama’s first term, he was also able to utilize it in trade agreements with Colombia, South Korea, and Panama because those deals had been penned by the previous administration prior to the authority’s expiration.

Currently, fast-track is regularly mentioned alongside the TPP, as if the Bipartisan Congressional Trade Priorities Act of 2014 would apply only to that particular treaty. In fact, the Act authorizes fast-track for four years with a potential three-year extension for the next presidential administration. According to the official website for the United State Trade Representative, the TPP is not the only trade agreement in the works. U.S. representatives are working on a similar agreement with Europe, the Transatlantic Trade and Investment Partnership (TTIP). If granted, fast-track would be applicable to this and other forthcoming trade agreements.

0

Supreme Court won’t hear challenge to NSA surveillance

By on November 18, 2013 in Internet, Privacy, Transparency

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.

0

A Not-So-Secret Pacific Trade Deal

By on November 14, 2013 in Copyright, Internet, Transparency
Over the last week, opposition to the Trans-Pacific Partnership has gone from a quiet rumble amongst policy wonks to a major struggle over free trade, intellectual property rights, and executive power. Here is a timeline of featured news stories and blog posts. Scroll to the bottom of the timeline for updates as they become available.
0

Government Shutdown Affects FOIA Requests

By on October 2, 2013 in Internet, Journalism, Privacy, Transparency

nsaThe government shutdown is having an impact on every “nonessential” federal service, including Freedom of Information Act (FOIA) and Privacy Act (PA) requests under the NSA.

According to the NSA’s website, all FOIA and PA requests or inquiries submitted to the FOIA/PA office “will not be addressed until the office reopens.” The NSA’s homepage also cites the government shutdown as responsible for its inability to update the NSA website.

Many of the NSA’s other programs will continue to operate during the government shutdown. In a memo released last Friday from the Department of Defense,  the Deputy Secretary said that while a “large number of [] civilian employees [will] be temporarily furloughed[,]” the shutdown will not affect military personnel who will “continue in a normal duty status.”

Samantha Scheller is a 2L at the University of North Carolina School of Law.

0

Judge: Google may have illegally wiretapped its users’ email

By on September 27, 2013 in Internet, Privacy, Transparency

Google may have violated the federal Wiretap Act when it routinely scanned the content of emails for purposes of providing targeted advertising and creating user profiles, a federal judge ruled yesterday.

The Northern District of California denied Google’s motion to dismiss the Wiretap Act claims against it, allowing the case to go forward. The court found that Google’s practices were not “instrumental” to providing email services through Gmail and that email users may not have consented to having their emails read for advertising and user profile purposes.

The outcome of this case could have ramifications for all email services that intercept and “read” or “scan” users’ emails for key words which are used to attach targeted ads to emails.

The Wiretap Act and the “ordinary course of business” exception

The federal Wiretap Act prohibits the interception of wire, oral, or electronic communications. The Act contains an exception for communications intercepted by a provider of electronic communication service in the “ordinary course of its business.” The court held that Google’s interception of emails to and from Gmail users for advertising and user profile building purposes did not fall under this exception.

The court narrowly defined the “ordinary course of business” exception as applying to email providers only when the interception “facilitates or is incidental to” providing email services. Since Google’s interception of email for advertising and profile building purposes is separate from its spam filtering, antivirus protections, spell checking, and other scanning functions, the Court held that the interception was not “instrumental” to providing email services.

Did Gmail users consent to Google reading their emails?

Google argued that Gmail users, by agreeing to Google’s Terms of Service and Privacy Policies, consented to any interception of emails by Google. But after reviewing the policies, the court could not “conclude that any party…consented to Google’s reading of email for purposes of creating user profiles or providing targeted advertising.”

The judge found that no version of Google’s Terms of Service or Privacy Policies explicitly said that Google would intercept and read the content of users’ emails.

Google’s Terms of Service from April 2007 to March 2012 stated that “Google reserves the right…to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service.” A separate section stated that “advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.” Google’s Privacy Policies from August 2008 to March 2012 stated that Google may collect “information you provide, cookies, log information, user communications to Google, affiliated sites, links, and other sites.”

The district judge found that none of these terms specifically mentioned the content of users’ emails to each other or gave users notice that their emails were intercepted to create user profiles. Moreover, the assertion that Google “could” target advertisements based on content stored in Gmail did not provide notice that it “would,” and intercepting information in transit — the specific prohibition of the Wiretap Act — is not the same as collecting “stored” content, the Judge wrote.

What’s next?

Google can ask the district court judge to grant it permission to appeal the decision to the Ninth Circuit. In the mean time, it remains uncertain whether email services can legally scan the content of users’ emails to provide targeted advertising and what constitutes consent for doing so.

In 2012, Google introduced a new privacy policy across all of its services, including Gmail. Although it lists multiple types of information that Google may collect and use, it still does not explicitly list email content. No court has ruled on whether agreeing to this policy constitutes consent or notice for Google to intercept users’ emails for purposes of providing targeted advertising and building user profiles.

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.

0