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September 2, 2016

Ignoring Duty to Provide Notice When Invading Users’ Privacy Is Unconstitutional

Seattle, Washington—The Electronic Frontier Foundation (EFF) told a federal court today that the government is violating the U.S. Constitution when it fails to notify people that it has accessed or examined their private communications stored by Internet providers in the cloud.

EFF is supporting Microsoft in its lawsuit challenging portions of the Electronic Communications Privacy Act (ECPA) that allow the Department of Justice (DOJ) to serve a warrant on the company to get access to customers’ emails and other information stored on remote servers—all without telling users their data is being searched or seized. In a brief filed in Microsoft v. Department of Justice in U.S. District Court in Seattle, EFF, joined by Access Now, New America’s Open Technology Institute, and legal scholar Jennifer Granick, said Fourth Amendment protections against unreasonable searches and seizures by the government apply to all of our information—no matter what the format or where it’s located.

“Whether the government has a warrant to rifle through our mail, safety deposit boxes, or emails stored in the cloud, it must notify people about the searches,” said EFF Senior Staff Attorney Lee Tien. “When electronic searches are done in secret, we lose our right to challenge the legality of law enforcement invasions of privacy. The Fourth Amendment doesn’t allow that, and it’s time for the government to step up and respect the Constitution.”

Microsoft sued DOJ earlier this year challenging ECPA provisions enacted 30 years ago, long before the emergence of ubiquitous cloud computing that now plays a vital role in the storage of private communications. The government has used the transition to cloud computing as an opening to conduct secret electronic investigations by serving search warrants on Internet service providers seeking users’ emails, the lawsuit says. The government, which wants the case thrown out, doesn’t let account holders know their data is being accessed because of the unconstitutional ECPA provision, while service providers like Microsoft are gagged from telling customers about the searches.

“When people kept personal letters in a desk drawer at home, they knew if that information was about to be searched because the police had to knock on their door and show a warrant,” said EFF Staff Attorney Sophia Cope. “The fact that today our private emails are kept on a server maintained by an Internet company doesn’t change the government’s obligations under the Fourth Amendment. The Constitution requires law enforcement to tell people they are the target of a search, which enables them to vindicate their rights and provides a free society with a crucial means of government accountability.”

EFF thanks Seattle attorney Venkat Balasubramani of FocalLaw P.C. for his assistance as local counsel.

For the brief:
https://www.eff.org/document/microsoft-v-justice-department-amicus-brief

About this case:
https://www.eff.org/cases/microsoft-v-department-justice

Related Issues:

Contact:

Lee
Tien
Senior Staff Attorney and Adams Chair for Internet Rights
This email address is being protected from spambots. You need JavaScript enabled to view it.

Sophia
Cope
Staff Attorney
This email address is being protected from spambots. You need JavaScript enabled to view it.
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What Facebook and WhatsApp’s Data Sharing Plans Really Mean for User Privacy

Full story here:   http://alturl.com/ykdcx

UPDATE (9/12/16): We have clarified that users have 30 days after they first see WhatsApp's privacy policy update to agree or not agree to its terms. We have also clarified that accounts created after August 25 join WhatsApp under the new privacy policy with no option to refuse the data sharing it entails.

WhatsApp is establishing data-sharing practices that signal a significant shift in its attitude toward privacy—though you wouldn’t know it from the privacy policy update that popped up on users’ screens last week. The new policy lays the groundwork for alarming data sharing between WhatsApp and its parent company Facebook. The update screen that users see, however, mentions only benign new features like WhatsApp calling, and requires a user to click a “Read more” link to see any mention of how the data sharing arrangement will work for users. Where WhatsApp could have offered users up-front information and choices, the UI as it stands buries critical details and options. If WhatsApp wants to merge user data with Facebook, it should give users opportunities to make choices about their privacy—starting with a clearer, more informative UI. Broader data sharing Permanent changes and bigger questions

From the first time they see the update screen on WhatsApp, existing users have 30 days to click through the privacy policy update, opt out of data sharing, and prevent Facebook from suggesting friends or serving ads based on WhatsApp data. After that, they have an additional 30 days to change their settings further. We offer a step-by-step guide here.

http://alturl.com/gy33p 

This will take you to guide on the Eff.ORG site

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