Privacy & New Media

EPIC

Nov. 10, 2020

EPIC and a coalition of privacy, civil rights, and consumer organizations have released a policy framework for the Biden Administration to protect privacy and digital rights for all Americans. “Without laws that limit how companies can collect, use, and share personal data, we end up with an information and power asymmetry that harms consumers and society at large,” the groups said. “Individual, group and societal interests are diminished, and our privacy and other basic rights and freedoms are at risk.” The ten recommendations include: 1) recognizing privacy and surveillance as racial justice issues; 2) establishing algorithmic governance and accountability to advance fair and just data practices; 3) encourage enactment of a baseline comprehensive federal privacy law; 4) the establishment of a U.S. Data Protection Agency; and 5) bringing consumer, privacy, and civil rights experts into key government positions.

The content in this post was found at:
<https://epic.org/2020/11/epic-coalition-release-data-pr.html>

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EPIC

Sept. 29, 2020

Individuals alleging that a landlord discriminated against them by using a tenant-screening algorithm will face a higher burden of proof under a new rule that went into effect last Thursday. The rule creates a defense to a discrimination claim under the Fair Housing Act where the “predictive analysis” tools used were not “overly restrictive on a protected class” or where they “accurately assessed risk.” Last October, EPIC and several others warned the federal housing agency that providing such a safe-harbor for the use of algorithms in housing without imposing transparency, accountability, or data protection regulations would exacerbate harms to individuals subject to discrimination. The agency did modify its rule following comments from EPIC and others, removing a complete defense based on use of an “industry standard” algorithm or where the algorithm was not the “actual cause” of the disparate impact. But the final rule simply replaces the word “algorithm” with “predictive analysis” and includes vague “overly restrictive” and “accurate assessment” standards. The Alliance for Housing Justice called the rule “a vague, ambiguous exemption for predictive models that appears to confuse the concepts of disparate impact and intentional discrimination.”

The content in this post was found at:

<https://epic.org/2020/09/new-housing-regulation-limits-.html>

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EPIC

March 19, 2020

The Department of Justice has released the 2019 FOIA Litigation and Compliance Report which details the DOJ’s efforts to encourage agency compliance with the FOIA across federal agencies. DOJ updated the Guide to the Freedom of Information Act, with recent court decisions. The DOJ report also summarizes agency guidance, including the application of Exemption 4 after the Supreme Court expanded the definition of “confidential” information. On that issue, EPIC filed an amicus brief in Food Marketing Institute v. Argus Leader Media telling the Supreme Court that access to commercial records is critical for government oversight. EPIC celebrated Sunshine Week with the 2020 EPIC FOIA Gallery, highlighting important EPIC FOIA work from the past year, including EPIC’s case for the release of the Mueller Report, EPIC v. Department of Justice.

The content in this post was found at:

<https://epic.org/2020/03/doj-releases-2019-foia-litigat.html>

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EPIC

EPIC
March 9, 2020

The Department of Health and Human Services finalized rules that require insurance and healthcare companies to provide patient access to their medical data in a format suitable for cellphones and other electronic devices. However, federal privacy protections under HIPAA no longer apply once patients transfer their data to consumer apps, creating serious risks to medical privacy. The CEO of the American Medical Association warned regulators that “These practices jeopardize patient privacy, commoditize an individual’s most sensitive information, and threaten patient willingness to utilize technology to manage their health.” Tech firms pushed for these changes. Last year, the Wall Street Journal reported that Google’s ‘Project Nightingale’ intends to amass health data on millions of Americans. There will be a six-month period before the rule goes into effect.

The content in this post was found at:

<https://epic.org/2020/03/new-rule-promotes-patient-acce.html>

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EPIC
September 2, 2020

The Ninth Circuit U.S. Court of Appeals ruled today that the NSA’s bulk collection of phone call metadata violated the Foreign Intelligence Surveillance Act and was likely unconstitutional. EPIC and a coalition of groups filed an amicus brief in the case, United States v. Moalin, arguing that call metadata is protected under the Fourth Amendment. “We hold that the telephony metadata collection program exceeded the scope of Congress’s [FISA] authorization,” the Ninth Circuit wrote. The court rejected the argument that individuals lack a Fourth Amendment expectation of privacy in call metadata simply because the data is held by phone companies. The public is “likely to perceive as private several years’ worth of telephony metadata collected on an ongoing, daily basis—as demonstrated by the public outcry following the revelation of the metadata collection program,” the court explained. The court cited to the coalition amicus brief and to the work of EPIC advisory board member Laura K. Donohue. However, the court declined in this particular case to exclude the unlawfully collected metadata as evidence. In In re EPIC, EPIC petitioned the Supreme Court to end the NSA’s bulk phone record collection program, which occurred with the 2015 passage of the USA Freedom Act.

Proskauer
New Media and Technology Law  Blog
Jeffrey Neuburger
July 30, 2020

The currents around the Communications Decency Act just got a little more turbulent as the White House and executive branch try to reel in the big fish of CDA reform.

On July 27, 2020, the Commerce Department submitted a petition requesting the FCC initiate a rulemaking to clarify the provisions of Section 230 of the Communications Decency Act (CDA). . .

While a deep dive in the 57-page Commerce Department petition (or whether the FCC even has the legal authority to issue such rules in this area) is beyond the scope of this post, its reform proposals can be broken down into several areas. In brief, the Commerce Dept. has asked to FCC to:

• Clarify the relationship between the more well-known §230(c)(1) “publisher” immunity for hosting third-party content and the lesser-utilized §230(c)(2) “Good Samaritan” immunity for filtering of objectionable content, lest they be read and applied in a manner that renders §230(c)(2) superfluous.
• Amend the statute to specify that §230(c)(1) has no application to any provider`s decision to restrict access to content or terminate user accounts.
• Provide clearer guidance on what content would be deemed “objectionable content” within §230(c)(2) and when removals are done in “good faith” (including proposing that filtering decision taken contrary to terms of service or without an adequate notice or process should fall outside the CDA).
• Modify the language that defines under what circumstances a provider becomes an “information content provider” as per 47 U.S.C. § 230(f)(3) (“responsible, in whole or in part, for the creation or development of information”), and clarify when a provider`s content moderation practices take it outside of the protections of the CDA. The proposal requests that such providers should lose CDA protection when, for example, they make editorial decision that modify or alter content, “including but not limited to substantively contributing to, commenting upon, editorializing about, or presenting with a discernible viewpoint content provided by another information content provider.”
• Mandate disclosure for internet transparency similar to that required of other internet companies, such as ISPs.

The content in this post was found at:
https://newmedialaw.proskauer.com/2020/07/30/commerce-dept-petitions-fcc-to-issue-rules-clarifying-cda-section-230/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+NewMediaAndTechnologyLaw+%28New+Media+and+Technology+Law%29

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Epic
August 13, 2020

The U.S. Government Accountability Office has released a key report about privacy and discrimination risks posed by the commercial use of facial recognition. The GAO completed the report in response to research showing the disparate impact the technology has on minorities, including a National institute of Science and Technology study which found that facial recognition systems misidentify Black women at disproportionately high rates. The GAO report finds that, despite improvements in facial recognition technology, “differences in performance exist for certain demographic groups.” The GAO report reiterates the office’s 2013 recommendation urging Congress to update the federal consumer privacy framework to reflect changes in technology. EPIC advocates for a comprehensive federal privacy law and has called for a moratorium on face surveillance.