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Category Archives: Privacy

Pew Study Says Exactly What You’d Expect on Privacy

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Thursday, November 13, 2014 at 9:09 AM

The Pew Research Internet Project has released a new public opinion study that shows exactly what you would expect the public believes about privacy, surveillance, and related matters. The study seems to have involved a major effort, and I read it yesterday expecting to find some new insight into public opinion about privacy. Nope. Nothing. . . .
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PCLOB Hearing on “Defining Privacy”

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Wednesday, November 12, 2014 at 9:50 AM

It’s ongoing now.  Details are available here. and live streaming video is available over at C-SPAN.

Privacy as a Utilitarian Value

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Wednesday, November 12, 2014 at 9:30 AM

The Privacy and Civil Liberties Oversight Board is is an advisory body to assist the President and other senior Executive branch officials in ensuring that concerns with respect to privacy and civil liberties are appropriately considered in the implementation of all laws, regulations, and executive branch policies related to war against terrorism.    On November 12th . . .
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More on Pass Phrases and Fingerprints …. Gestures

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Saturday, November 8, 2014 at 9:36 AM

Yesterday I posted a short blog on an interesting VA decision regarding the application the Fifth Amendment privilege to the question of unlocking cell phones and other devices.  The short summary is that the court held that compelling disclosure of a pass phrase or code was protected and could not be compelled, but that the . . .
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Pass Phrases Protected; Fingerprints Not — Curiouser and Curiouser

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Friday, November 7, 2014 at 8:58 AM

One of the most engaging contemporary debates is about the efficacy and utility of encryption as a means of protecting privacy. I’ve written, in the past, about how encryption works and about the growing body of Fifth Amendment law protecting users against compelled disclosure of their passphrases. The developing doctrine and technology is sufficiently alarming . . .
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On Ryan Goodman’s “Interrogation” of the “Parity Principle”

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Monday, November 3, 2014 at 2:00 PM

Over at Just Security, Ryan Goodman analyzes UN Special Rapporteur Ben Emmerson’s claim that states owe the same privacy protections to non-nationals abroad as to their own citizens at home in conducting broad surveillance programs. Emmerson had written, “The Special Rapporteur thus considers that States are legally obliged to afford the same privacy protection for nationals and . . .
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On Journalists’ Claims for Immunity From Legal Accountability

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Monday, November 3, 2014 at 8:37 AM

I think I am unusual among former government officials in arguing that the publication of national security secrets can promote democracy and good government.  Such publications are often costly, sometimes very costly, to national security – more so than is generally realized.  But as I wrote in Power and Constraint, “it does not follow that . . .
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Sweeping Claims and Casual Legal Analysis in the Latest U.N. Mass Surveillance Report

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Monday, October 20, 2014 at 4:11 PM

U.N. Special Rapporteur Ben Emmerson’s report on “mass surveillance” may signal increasing conflict between the US and world bodies on surveillance issues.  The Emmerson report makes sweeping normative claims but fails to ground those claims in an accurate description of the US surveillance program.  The report claims, for example, that a state must impose the . . .
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U.N. Special Rapporteur Report on Mass Digital Surveillance and Article 17 of the ICCPR

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Wednesday, October 15, 2014 at 10:30 AM

Here it is, via First Look. The latest from the U.N. Special Rapporteur for the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Ben Emmerson QC, concludes as follows (note the language in paragraph 59): 58. States’ obligations under article 17 of the International Covenant on Civil and Political Rights include the . . .
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Whistleblowers, Leaks and the Media: The First Amendment and National Security

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Thursday, October 2, 2014 at 12:06 PM

Permit me a small amount of self-promotion, with apologies.  But ABA Publishing has, today, released a new book, Whistleblowers, Leaks and the Media: The First Amendment and National Security, of which I am a co-editor.  The book is a joint project of the American Bar Association Standing Committee on Law and National Security, and the . . .
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Securing Phones – and Securing US

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Monday, September 29, 2014 at 10:00 AM

Apple has encrypted its iPhone6 for real, that is, removing the backdoor for government warrants. The FBI is erupting, claiming that that this will create problems for law enforcement, raising the specter of not being able to investigate terrorist activities, solve murder cases, and arrest child pornographers. In fact, Apple’s decision to remove the backdoor on . . .
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Readings: An International Legal Framework for Surveillance, a New Article by Ashley Deeks

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Friday, September 26, 2014 at 7:44 AM

Lawfare’s own Ashley Deeks (University of Virginia School of Law) has released a new article, “An International Legal Framework for Surveillance,” available on SSRN and forthcoming in the Virginia Journal of International Law (Vol. 55, 2015).  The article unsurprisingly has been receiving considerable attention since its release on SSRN, and I wanted to be sure . . .
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The Encryption Wars Continue

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Saturday, September 20, 2014 at 12:31 PM

For quite a while it has been the case that properly implemented encryption will defeat efforts to crack it (at least using current technology). Yet it has been the case for an equally long time that very few people actually use encryption to protect their vital secrets – not journalists, not criminals, and most assuredly . . .
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Cyborgs! Law and Policy Implications

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Friday, September 5, 2014 at 10:27 AM

And now for something completely different: Cyborgs. No, this is not a joke. For years, certain technology enthusiasts have floated variations on the question of whether we are becoming cyborgs—or already are cyborgs. In our newly released paper, titled “Our Cyborg Future: Law and Policy Implications,” we take a different, more legal angle. The law remains embryonic on . . .
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NSA’s Anne Neuberger Speaks at Long Now Foundation

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Tuesday, September 2, 2014 at 3:43 PM

The National Security Agency’s Anne Neuberger, the director of the NSA’s Commercial Solutions Center, gave this seminar recently at the Long Now Foundation. Full video is available at the web site. Here’s the audio:

What The Court Didn’t Say in Riley May be the Most Important Thing of All

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Monday, June 30, 2014 at 9:43 AM

The Supreme Court’s unanimous decision in Riley v. California that searching a cell phone requires a warrant is groundbreaking—and is, as everyone says, a great step forward for privacy. The decision is notable for what it does say, including: The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” . . .
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SCOTUS: Without a Warrant, Police Generally Cannot Search Digital Information on Arrestees’ Cell Phones

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Wednesday, June 25, 2014 at 11:20 AM

You’ve likely heard the news, made earlier this morning by the opinion in Riley v. California.  

What Values Does “Privacy” Protect?

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Tuesday, June 10, 2014 at 4:00 PM

The question long has confronted policymakers, advocates, scholars, technologists, and consumers.  And it lies at the heart of a newly-minted Brookings paper by Ben and yours truly, which we presented yesterday at the quite fantastic 2014 Computers Freedom and Privacy Conference; and which addresses the obligations that data-ingesting companies should owe to their customers. The gist: “privacy,” for all its . . .
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Germany’s Prosecutor Rolls Up His Sleeves On NSA Surveillance

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Friday, June 6, 2014 at 10:34 AM

A few weeks ago, Ben posted some comments about a Der Spiegel article that suggested the tensions between the United States and Germany were likely to die down. Not so fast, it appears. Germany’s top prosecutor has announced that he is opening an investigation into the alleged tapping of Chancellor Angela Merkel’s cell phone. A statement . . .
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FTC’s Data Broker Report

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Tuesday, May 27, 2014 at 12:11 PM

The 110-page document was released today, and entitled “Data Brokers: A Call for Transparency and Accountability.”   If you care about Big Data, then you will want to read the report.