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Text of the page (random words):
s of the order as well but recall that the order specifies that the ftc and doj can request extensive data without further leave of court and when kelly in his opinion contemplates the parties returning to court it is because the united states alleges once again that facebook has reneged on its promises and continued to violate the law or the terms of the amended administrative order p 16 he does not seem to anticipate supervising the ftc and doj in their demand ing extensive information from facebook in order to ensure that such demands are consistent with facebook users fourth amendment rights what are clp s next steps and what can you do to help first you can help us spread the word that this order in which the ftc and doj will potentially have warrantless access to facebook user data for the next 20 years at least is now in effect please share this post facebook users may want to delete much or all of their data or adjust their use of facebook according to their personal preferences and hierarchy of values moreover facebook should be held accountable for consenting to this order instead of fighting it on behalf of its users privacy as to the next legal steps that might be taken make sure to subscribe to this blog so you can be notified of clp s activities soon i will consult with allies in the limited government public interest litigation space clp is to my knowledge the only limited government public interest litigation organization focused on privacy and if you can afford to support our efforts financially please contribute whatever you can to our efforts thank you how you can help legalize privacy 02 thursday apr 2020 posted by amyp in uncategorized 1 comment i ve recently started getting inquiries about how to set up regular monthly donations to clp if you are interested in doing this and i explained why you should be especially at this time on yesterday s show below here s an easy way to do so donate now thank you so much for your support facebook government responses to clp amicus brief reveal conflicting views of your privacy under imminent settlement 27 monday jan 2020 posted by amyp in uncategorized leave a comment those of you who have been following clp s involvement in united states v facebook know that in our amicus brief submitted in october i argued that the proposed settlement between the federal trade commission and facebook appeared to grant warrantless access to facebook user data to both the ftc and the department of justice and quoting the language of the settlement that it did so without further leave of court clp amicus at 8 then in december judge timothy j kelley took the i am told unusual step of ordering both parties to respond to all the arguments presented by amici well the responses came in last friday and the responses to clp s arguments were revealing the government and facebook apparently have conflicting views about what happens to your privacy under the terms of the proposed settlement order facebook for its part spent only two short paragraphs responding to clp in its view clp s concerns were unfounded because first any requests by the doj and ftc for user records or communications under the stipulated order would still be governed by the stored communications act the sca facebook response at 16 and second facebook does not need to produce personally identifiable information to satisfy the requirements of the order id read facebook s entire response brief both the terms of the settlement order and the government s response brief seem to contradict facebook s first contention again note that the proposed settlement order specifies that the ftc and the doj which is given the power to stand in the shoes of the ftc for purposes of enforcement is permitted to request more information from facebook without further leave of court stipulated order at 28 the sca by contrast even for communications stored over a longer period of time requires at least some leave of court even if only that required for a subpoena for those communications stored for a shorter period of time the sca requires a warrant the government s longer response to clp by contrast makes no reference to the sca or anything else that might prevent it from seeking warrantless access to facebook user data in fact the brief unapologetically claims the right to access such data after misconstruing clp s argument with respect to the applicable law we argued that even the majority holding in carpenter calls into question the status of facebook user data under the fourth amendment the government cites a 2018 d c circuit case holding that facebook users lack a reasonable expectation of privacy in the facebook content they voluntarily post on facebook government response at 14 the government also tries to assure us that the recordkeeping provisions are not some sort of trojan horse through which the government intends to acquire and use facebook user data for undisclosed purposes but are familiar part of agency enforcement actions and are intended to ensure ongoing compliance with the order id one can t help but be reminded of the nsa intending to monitor foreigners and yet collecting conversations of innocent americans further the government asserts there is nothing in the amended ftc order that requires facebook to provide any information about any specific user to the government id at 14 15 no of course not and clp never argued this what we argued is that the order seems to permit this especially when it allows the government to demand other requested information quite a broad catch all without further leave of court see clp amicus at 8 citing stipulated order at 28 and with respect to personally identifiable data such as your telephone number whereas facebook seems to think it can comply with the order without turning such data over to the government see above the government citing smith v maryland proudly asserts the legality of requesting and obtaining warrantless access to it a facebook user s telephone number is not protected by the fourth amendment government response at 15 note that it s unclear whether the holding in smith v maryland is even applicable to a situation in which someone provides his phone number to a service provider other than the telephone company more importantly clp argues that the supreme court s 2018 holding in carpenter v united states yes even the majority opinion calls into question the original holding in smith most troubling perhaps is what the government says in the second to last paragraph of its response to clp e ven if the amended ftc order could incorrectly be read to require production of fourth amendment protected information the supreme court and the d c circuit have for nearly three quarters of a century repeatedly rejected fourth amendment challenges to agency orders requiring document productions as long as the agency s requests are reasonable and related to the agency s investigatory and enforcement powers government response at 15 emphasis added so there you have it the government contends that it is entitled to obtain whatever facebook user data it wants so long as the request for such data is reasonable and related to its investigation of and enforcement against facebook with respect to facebook s privacy practices how often is any government request for any sort of data not held to be reasonable and related to some power of our ever expanding government as i wrote in our amicus brief if george orwell were to be reading this today he d think he was reading the onion the government goes on to criticize clp for not citing this standard but clp s position was made clear in our brief if the goal is to protect users from facebook s bad practices with respect to user privacy the answer is not to further encroach on user privacy by making their data accessible without a warrant to the ftc and the doj the standard quoted by the government above does not reference investigation of and enforcement against facebook users only against facebook itself read the government s entire response brief here while the government and facebook seem to have very different ideas about what happens to your privacy under the terms of the proposed settlement both agree that judge kelley should enter the proposed stipulated order without delay government response at 16 clp urges judge kelley to continue to take seriously his duty to ensure the proposed order s consistency with the public interest until a constitutional amendment such as the one currently being considered in new hampshire becomes effective nationally only judges can further clarify the scope of the third party doctrine post carpenter and thereby protect our rights and interests the government should not be handed warrantless access to facebook data simply because of facebook s alleged misconduct amy peikoff of clp is available for interviews media requests legalizeprivacy icloud com my testimony to the nh house judiciary committee on cacr15 limiting the scope of the third party doctrine 23 thursday jan 2020 posted by amyp in uncategorized 1 comment tags amy peikoff josh yokela privacy third party doctrine yesterday i had the opportunity to testify before the new hampshire house judiciary committee in favor of cacr15 a proposed constitutional amendment i wrote along with rep josh yokela the amendment would restore crucial constitutional protections for individuals while at the same time preserving government s ability to engage in legitimate criminal investigations it does this by precisely restricting the scope of the third party doctrine to that it originally enjoyed government obtaining information shared as part of a criminal scheme under cacr15 information shared for a limited purpose as part of a legally enforceable contract would once again enjoy the protection of a warrant requirement watch my full testimony about 20 minutes below thank you to rep josh yokela for having the vision to propose this amendment and for inviting me out to discuss it many people care about privacy but think nothing can be done about it we re trying to change that please support our work by making a donation an exciting month for clp 12 sunday jan 2020 posted by amyp in uncategorized 1 comment a couple irons i ve had in the fire for some time are heating up this month first on january 22 i will be speaking before the new hampshire house judiciary committee in support of a proposed constitutional amendment that i drafted with representative josh yokela you can read the full text here but in essence the amendment would ensure that the warrant requirement the requirement that law enforcement show probable cause and particularized suspicion before an impartial judge in advance of a search or seizure applies to data shared as part of a legally enforceable contract in so doing the amendment implements in concise language my solution to the problem created by the u s supreme court s unjustified expansion of the so called third party doctrine those of you who have followed my work are familiar with this doctrine and my critique of it but for the benefit of those who are new to me or my work the third party doctrine says once an individual shares information with a third party phone company bank social media platform etc the warrant requirement no longer applies to that information in other words government need not obtain a warrant before obtaining the information from the third party why does the doctrine allow this the primary rationale offered is that once an individual shares information with a third party he no longer retains a reasonable expectation of privacy in it even if you happen to think you re sharing information for only a limited purpose and you expect it to remain private otherwise the supreme court decided back in the 1970 s that your expectation is not reasonable my critique contrary to what some supreme court justices wrote in carpenter this doctrine did not originate in the 1970 s it grew out of a series of earlier cases called the secret agent cases you can imagine tony soprano in his basement noisy appliances running to defeat any attempts at bugging making plans with one of his colleagues confidants to carry out criminal conspiracies in those early cases the doctrine provided that were the colleague confidant later to rat on soprano this would not constitute a search for purposes of the fourth amendment no warrant was required this is the sort of context in which the doctrine was applied for decades until the 1970 s when the supreme court transported it into an ordinary i e non criminal business context suddenly with little explanation the doctrine was held to apply not only to the information shared by the tony sopranos of the world but also to you and me when we share information daily simply to obtain the goods and services that enrich our lives these holdings from the 1970 s were in my view unjustified to see why we need only apply common law doctrine explaining the difference between the lack of reasonable expectation of privacy that naturally exists in the criminal context and the reasonable legitimate expectation that you and i retain when we share information with a third party for a limited purpose that distinction lies in the sort of agreement that exists in each context and the enforceability of that agreement at common law in the tony soprano scenario he and his colleague are engaged in an illegal contract a contract the primary purpose of which is to achieve an illegal rights violating end such contracts are unenforceable at common law including any provisions of such contracts requiring secrecy in other words in the secret agent cases there was no legally enforceable agreement in place protecting the privacy of the information the same is not true however in the ordinary business context when you and i make agreements with banks telephone service providers internet service providers retailers etc etc the agreements often if not always include promises to use the information collected for only limited purposes and because these are overall valid enforceable contracts provisions like these should be enforced consequently any expectation of privacy we do retain when engaging in such contracts should be deemed reasonable in other words government if you want that information get a warrant don t treat us all like criminals now that i have explained the distinction let s look at the text of the proposed amendment it adds a mere 25 words to article 19 of the new hampshire constitution to include among the things in which e very subject hath a right to be secure from all unreasonable searches and seizures information provided as a part of a legally enforceable contract that is to be used only for a limited purpose and otherwise kept confidential the amendment if adopted would literally legalize privacy in the state of new hampshire by making it possible for citizens of new hampshire to make valid enforceable contracts in which they sha...
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