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.
Archive | Transparency
Government Shutdown Affects FOIA Requests
The 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.
Judge: Google may have illegally wiretapped its users’ email
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.
This First Amendment Day, fight for the free flow of information
UNC will hold its fifth annual First Amendment Day Sept. 24, a celebration of our rights to speak, publish, worship, assemble and protest without government intervention. It’s easy to celebrate free expression. It’s sometimes harder to notice when that freedom is being eroded by the government.
In the year since First Amendment Day 2012, we’ve learned that our First Amendment rights — particularly the freedom of the press — have been compromised in the name of security. In May, the Associated Press and Fox News revealed that the Justice Department had secretly seized phone records and searched emails between reporters and sources in an effort to investigate leaks. In July, New York Times reporter James Risen lost an appeal in federal court challenging a Justice Department subpoena ordering him to testify and reveal his confidential sources in a criminal prosecution. In the July trial of Private First Class Bradley Manning, the government argued that publishing leaks to the general public could constitute “aiding and abetting the enemy” under the Espionage Act. And some reporters say that their ability to promise their sources confidentiality has been jeopardized by the mass surveillance of Americans’ phone call and email data.
This year, First Amendment Day is more than a celebration. It’s a reminder that we have to constantly fight for the free flow of information — in the courts, in newsrooms, in Congress, in our state and at our school.
This year’s keynote address by Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, will explore the Obama Administration’s relationship with the media. “If there was ever any doubt that a war on leaks could not be conducted without a war on the press and the public’s interest in the free flow of information, the government seems to have answered that question for us,” Brown said in a statement in May, following revelations that the Justice Department had executed a search warrant for a Fox News reporter’s emails.
A panel discussion at the UNC School of Law will focus on one possible protection for press freedom: a federal shield law that would protect reporters from having to reveal their confidential sources in a federal investigation or trial. Panelists will discuss the “Free Flow of Information Act” introduced in Congress this year, the definition of a “journalist,” and whether a federal shield law should cover bloggers, citizen journalists, and student reporters.
These are just two of many events addressing the need for education and action around First Amendment rights. For more information, check out the full schedule of events. All events are free and open to the public.
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.
Twitter Round-Up Week of: September 2
As part of a new weekly feature on our blog, I’ll post the highlights from the Center’s and my Twitter feeds.
Here is what had my attention on Twitter this week: