Privacy and Civil Liberties Oversight Board Criticizes NSA Program

“Watchdog Report Says N.S.A. Program Is Illegal and Should End.” New York Times

Privacy and Civil Liberties Oversight Board’s “Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court” (pdf; 238 pages). Also separate statements of Board members Elisebeth Collins Cook (pdf; 6 pages) and Rachel Brand (pdf; 8 pages)

Some additional background:

Liberty and Security in a Changing World – December 12, 2013 Report and Recommendations of The President’s Review Group on Intelligence and Communications Technologies” (pdf; 308 pages)

Supplemental Chapter on NSA from Professor James Grimmelmann’s “Internet Law: Cases and Problems” (downloadable pdf; 37 pages) offered on freemium basis.


California Lawmaker Introduces Personal Data Disclosure Bill: ‘Right to Know Act of 2013’ Would Force Companies to Tell Californians What They Know


Facebook “Home” Initial Reaction

The consensus early reaction, the day after the Facebook Home announcement, appears to be:

  • Facebook Home is well-designed, with some clever elements such as the messaging bubbles;
  • Google and Android app developers will dislike Facebook’s lock/home-screen and launcher approach which makes Google services and 3rd party apps less visible;
  • Facebook home might appeal to certain Android users in the United States (i.e., Facebook power users and mobile phone newbies), but Facebook Home might be more of a play for new users internationally, particularly in emerging markets;
  • So what’s new: Facebook Home poses additional privacy concerns through enhanced data collection.

Facebook Home Link Round-up:

What the Analysts are Saying: A dozen analyst reactions at CNN.Money.
How Facebook Home Is (and Isn’t) an OS: Fast Company.
App Developers Are Scared Facebook Home Will Bury Their Stuff: Business Insider.
Facebook Home’s uneasy relationship with Google: Tim Carmody at The Verge.
I Like It, but I Don’t Like It Like It: Farhad Manjoo at
Facebook Home at First Glance: Web/App designer, Khoi Vinh.
The Soul of a New (Facebook) Machine: The Atlantic.
Mark Zuckerberg on Facebook Home, Money, and the Future of Communication: Steven Levy.


Interesting Cyberlaw and Other Academic Papers: Spring 2012

Do Not Track as Contract by Joshua Fairfield, Washington & Lee University, School of Law, Vanderbilt Journal of Entertainment and Technology Law, Vol. 14, No. 3, p. 101, 2012, arguing that as a matter of contract law, browser do-not-track options are enforceable against corporations.

The Anonymous Internet by Bryan H. Choi, Yale Law School, Information Society Project, Maryland Law Review (forthcoming).

From Lord Coke to Internet Privacy: The Past, Present, and Future of the Law of Electronic Contracting by Juliet M. Moringiello, Widener University School of Law, and William L. Reynolds II, University of Maryland Francis King Carey School of Law, Maryland Law Review (forthcoming).

Forcing Forgetfulness: Data Privacy, Free Speech, and the ‘Right to Be Forgotten’ by Robert Kirk Walker, UC Hastings College of Law.

Unwrapping Shrinkwraps, Clickwraps, and Browsewraps: How the Law Went Wrong from Horse Traders to the Law of the Horse by Cheryl B. Preston, Brigham Young University – J. Reuben Clark Law School, and Eli McCann, 26 BYU J. PUB. L. 1 (2011).

Tackling Twitter and Facebook Fakes: ID Theft in Social Media by Alexander Tsoutsanis, DLA Piper and Leiden Law School, World Communications Regulation Report, 2012/4 p. 1-3.

Reclaiming Copyright From the Outside In: What the Downfall Hitler Meme Means for Transformative Works, Fair Use, and Parody by Aaron Schwabach, Thomas Jefferson School of Law, Buffalo Intellectual Property Law Journal, 2012.

Copyright Conspiracy: How the New Copyright Alert System May Violate the Sherman Act by Sean M. Flaim, Catholic University of America, Columbus School of Law, NYU Journal of Intellectual Property and Entertainment Law (forthcoming).

Oversharing: Facebook Discovery and the Unbearable Sameness of Internet Law by Bruce E. Boyden, Marquette University Law School, Arkansas Law Review, Vol. 64, 2012.

A Due Process Right to Record the Police by Glenn Harlan Reynolds, University of Tennessee College of Law, and John A. Steakley, Washington University Law Review, Vol. 89, No. XXX, 2012.

The New Federal Crowdfunding Exemption: Promise Unfulfilled by C. Steven Bradford, University of Nebraska College of Law, Securities Regulation Law Journal, Vol. 40, No. 3, Fall 2012, arguing that the recent crowdfunding bill signed by President Obama into law is flawed because the regulatory cost of selling securities through crowdfunding might still be too high.

Developments in the Emerging Online “Right to be Forgotten”

Last month, the European Commission proposed a broad reform of the EU’s data protection rules, including the proposed creation of a new “right to be forgotten” that would allow people to demand that organizations that hold their data delete that data, provided there is no legitimate grounds to retain the information. At the European Commission website: the proposal and a host of related materials.

Europe proposes a ‘right to be forgotten’ at ArsTechnica‘s Law & Disorder.

Additional reaction: Data protection changes place disproportionate burdens on business, expert says by law firm Pinsent Masons.

The Right to be Forgotten by Jeffrey Rosen writing as part of the Stanford Law Review Online symposium issue: The Privacy Paradox.

Is The ‘Right To Be Forgotten’ The ‘Biggest Threat To Free Speech On The Internet’? at NPR

Link Round-Up: U.S. v. Jones (GPS tracking and the Constitution)

The U.S. Supreme Court for the first time pondered the constitutionality of location tracking technology in the case of U.S. v. Jones. The Court decided yesterday that the government’s attachment of a GPS device to a vehicle (followed by the government’s use of that device to monitor the vehicle’s movements on a long term basis) constitute a search under the 4th Amendment. The emphasis in the majority opinion on the physical placing of the monitoring device on the vehicle and the existence of separate concurring opinions raise questions as to how far this decision really extends – important questions given the increasing prevalence of geolocation tracking.

The Supreme Court decision in U.S. v. Jones:

”Supreme Court Holds Warrantless GPS Tracking Unconstitutional” at ArsTechnica’s Law & Disorder

”Fourth Amendment Lives? Supreme Court Says GPS Monitoring Is A Search That May Require Warrant” at

“Reactions to Jones v. United States: The government fared much better than everyone realizes” by Tom Goldstein at

”Why the Jones Supreme Court Ruling on GPS Tracking is Worse than it Sounds” by Rebecca J. Rosen at The Atlantic.

”U.S. Supreme Court Unanimously Rule that GPS Installation and Tracking of a Vehicle Constitutes a Search, But The Justices Disagree on Rationale – Are Lines Being Drawn on Privacy Rights and New Technology?” at Proskauer’s New Media & Technology Law Blog.

A series of posts at The Volokh Conspiracy by law professor, Orin Kerr, an expert on computer crime and related areas:

”The New Doctrine of What is A Fourth Amendment Search”

”What Jones Does Not Hold”

”What’s the Status of the Mosaic Theory After Jones?”

”Three Questions Raised By The Trespass Test in United States v. Jones”

”Why Did Justice Sotomayor Join Scalia’s Majority Opinion in Jones?”

More and more, privacy is being used to justify censorship. In a sense, privacy depends on keeping some things private, in other words, hidden, restricted, or deleted. And in a world where ever more content is coming online, and where ever more content is find-able and share-able, it’s also natural that the privacy counter-movement is gathering strength. Privacy is the new black in censorship fashions. It used to be that people would invoke libel or defamation to justify censorship about things that hurt their reputations. But invoking libel or defamation requires that the speech not be true. Privacy is far more elastic, because privacy claims can be made on speech that is true.
Google’s Global Privacy Counsel, Peter Fleischer, in a thoughtful personal (i.e., not official Google) blog post about the “right to be forgotten.”

Facebook, arguably the largest and most important website in the world has most of its content walled off from Google. In fact, the biggest loser in the Facebook privacy debate is not Facebook, it’s Google. Why? Because the more people that put all their status updates, information and pictures behind a wall of privacy, the fewer status updates available to Google (and other search engines as well). The net result is that Google’s mission to index all the world’s information has been irreparably damaged. 500mm Facebook users and most of what they all publish to their networks is unavailable.

Two interesting posts by Thomas Baekdal: (1) The first rule of privacy, and (2) Facebook is dying; social is not.

More on Facebook’s recent privacy changes:

Wired: Facebook’s Gone Rogue; It’s Time for an Open Alternative.