Archive | Transparency

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.

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This First Amendment Day, fight for the free flow of information

By on September 23, 2013 in Center for Media Law and Policy, First Amendment, Journalism, Transparency

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.

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Unintended Targets: The NSA’s bulk email collection and Obama’s use of the word “targeting”

By on August 23, 2013 in Internet, Privacy, Transparency

A Foreign Intelligence Surveillance Court opinion released yesterday shed more light on how the National Security Agency collects Americans’ email data, highlighting the disconnect between the NSA’s collection practices and the Obama Administration’s characterization of email surveillance under the PRISM program.

The FISA Court opinion held that methods used by the NSA from 2007 to 2011 of collecting email data — including the content of email subject lines, senders, and times of transmission — violated the Fourth Amendment and Federal statutes. While the NSA can collect emails involving foreign senders and recipients under the Foreign Intelligence Surveillance Act, it cannot collect purely domestic emails.

Until 2011, the NSA’s collection of emails involved collecting “bundles” of emails from individuals’ inboxes, failing to separate the purely domestic emails bundled with the “targeted” emails involving non-U.S. persons. Basically, the NSA was collecting screenshots of individuals’ inboxes when only one of many emails in the screenshot was the subject of the investigation.

Since details of the PRISM email surveillance program were leaked in June, President Obama has repeatedly told Americans not to worry because “the NSA cannot target your emails.” While the President has never clarified what “targeting” means, this opinion makes it clear that, at least before 2011, the fact that Americans’ emails were not “targeted” doesn’t mean they were not collected.

Several proposed amendments to key sections of the Foreign Intelligence Surveillance Act, including a bill that failed in a close House vote last month, would prohibit the “bulk” collection of data. These amendments would require the NSA to show that someone is the subject of an investigation before it collects that person’s data.

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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UNC Grad to Head Open Government Coalition

By on August 12, 2013 in Transparency

A recent graduate of UNC’s dual-degree program in media law, Jonathan Jones (M.A., J.D. 2011), has been named director of the North Carolina Open Government Coalition and Sunshine Center at Elon University.  He also will teach courses in Elon’s School of Communications.

Currently an assistant district attorney for Durham County in North Carolina, Jones will begin his new job in mid-August.  In his new job, Jones will work with the coalition’s board to organize the state’s annual Sunshine Day, advise citizens about open government issues, produce webinars or workshops around the state, handle communication for the coalition, and find new ways to inform North Carolina citizens of the value and processes of open government in the state.

Jones previously worked for the NCOGC as a legal intern in summer 2010.  He researched business models for a regional nonprofit investigative reporting center.

In a press release, Jones said: “I’m ecstatic to pick up on the tremendous work coalition members have already been doing to educate record holders and record seekers about our state’s open government laws.  Transparency in government is the cornerstone of democracy. It instills public trust and gives citizens faith in their government. I look forward to helping sunshine find its way into communities across our state.”

At UNC Jones served as editor-in-chief of the First Amendment Law Review and worked on UNC’s Innocence Project.  He has published in the First Amendment Law Review, News Media & The Law, and “Sunshine, Inc.: The Basics of Covering Business Organizations” produced by the Reporters Committee for Freedom of the Press.

He earned an undergraduate degree in journalism from UNC and worked for six years as a reporter at newspapers in Maryland and Virginia and at the News & Record in Greensboro.

The North Carolina Open Government Coalition unites organizations interested in ensuring and enhancing the public’s access to government activity, records, and meetings. The nonpartisan coalition educates people about their rights, supports their efforts to gain access, and advocates the principles and benefits of open government. The Sunshine Center is the educational arm of the NCOGC and focuses on outreach efforts to inform citizens about the importance of government openness.

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