DEA rejects FOIA for 38 pages of docs related to Sprint's digital surveilance API

As some of my regular readers know, in October 2009, I attended an invitation-only surveillance industry conference in Washington DC. It was at that event where I recorded an executive from Sprint bragging about the 8 million GPS queries his company delivered via a special website to law enforcement agencies in a 13 month period.

At that same event, Paul W. Taylor, the manager of Sprint/Nextel’s Electronic Surveillance team revealed that the wireless carrier also provides a next-generation surveillance API to law enforcement agencies, allowing them to automate and digitally submit their requests for user data:

"We have actually our LSite [Application Programming Interface (API)] is, there is no agreement that you have to sign. We give it to every single law enforcement manufacturer, the vendors, the law enforcement collection system vendors, we also give it to our CALEA vendors, and we've given it to the FBI, we've given it to NYPD, to the Drug Enforcement Agency. We have a pilot program with them, where they have a subpoena generation system in-house where their agents actually sit down and enter case data, it gets approved by the head guy at the office, and then from there, it gets electronically sent to Sprint, and we get it ... So, the DEA is using this, they're sending a lot and the turn-around time is 12-24 hours. So we see a lot of uses there."

My PhD research is focused on the relationship between communications and applications service providers and the government, and the way that these companies voluntarily facilitate (or occasionally, resist) surveillance of their customers. As such, this sounded pretty interesting, and so on December 3, 2009, I filed a FOIA request with the DEA to get documents associated with the Sprint LSite API and the DEA's use of the system.

On March 8, 2011, I received a letter (pdf) from the DEA, telling me that although they found 38 pages of relevant material, they are withholding every single page.

I will of course be appealing this rejection, either by myself, or with any luck, someone experienced with FOIA appeals and litigation will contact me and offer to help.

It is bad enough that Sprint is bending over backwards to assist the government in its surveillance of Sprint customers, but what is even worse, is that the DEA is refusing to allow the public to learn anything about this program. If, as Mr Taylor suggested, there is a computer in every DEA office connected directly to Sprint's computer systems, the public has a right to know.

The negative impact of AT&T's purchase of T-Mobile on the market for privacy

Yesterday, AT&T announced that it will be purchasing T-Mobile, the fourth largest wireless carrier in the US. While there are many who have raised antitrust concerns about this deal due to the impact it will have on the price of wireless services and mobile device/application choice, I want to raise a slightly different concern: the impact this will have on privacy.

While it is little known to most consumers, T-Mobile is actually the most privacy preserving of the major wireless carriers. As I described in a blog post earlier this year, T-Mobile does not have or keep IP address logs for its mobile users. What this means is that if the FBI, police or a civil litigant wish to later learn which user was using a particular IP address at a given date and time, T-Mobile is unable to provide the information.

In comparison, Verizon, AT&T and Sprint all keep logs regarding the IP addresses they issue to their customers, and in some cases, even the individual URLs of the pages viewed from handsets.

While privacy advocates encourage companies to retain as little data about their customers as possible, the Department of Justice wants them to retain identifying IP data for long periods of time. Enough so that T-Mobile was called out (albeit not by name) by a senior DOJ official at a data retention hearing at the House Judiciary Committee back in January:

"One mid-size cell phone company does not retain any records, and others are moving in that direction."

If and when the Federal government approves this deal, T-Mobile's customers and infrastructure will likely be folded into the AT&T mothership. As a result, T-Mobile's customers will lose their privacy preserving ISP, and instead have their online activities tracked by AT&T.

After this deal goes through, there will be three major wireless carriers, all of whom have solid track records of being hostile to privacy:

AT&T, a company that voluntarily participated in the Bush-era warrantless wiretapping program in which it illegally disclosed its customers communications to the National Security Agency.

Verizon, a company that similarly voluntarily participated in the warrantless wiretapping program, and then when sued by the Electronic Frontier Foundation, argued in court that it had free speech right protected by the 1st Amendment to disclose that data to the NSA.

Sprint, a company that established a website so that law enforcement agencies would no longer have to go through the trouble of seeking the assistance of Sprint employees in order to locate individual Sprint customers. This website was then used to ping Sprint users more than 8 million times in a single year.

The market for privacy

Today, privacy is largely an issue risk mitigation for firms. Chief Privacy Officers are tasked with protecting against data breaches, and class action lawsuits related to the 3rd party cookies that litter companies' homepages. The privacy organizations within companies do not bring in new customers, or improve the bottom line, but protect the firm from regulators and class action lawyers.

Recently, there are signs that this may be changing. Microsoft and Mozilla are now visibly competing on privacy features such as "Do Not Track" built into their web browsers. Several venture capital firms have invested cash into firms like Reputation.com and Abine who are selling privacy enhancing products to consumers.

To be clear, the market for privacy is in its infancy. As such, the government should be doing everything possible to nurture and encourage such growth. It is for that reason that the FTC should not permit the one and only privacy protecting major wireless carrier to be swallowed up by AT&T, a company that has repeatedly violated the privacy of its customers.

The FTC should lead the government's investigation into this deal, and should reject it on privacy grounds

When the FTC approved Google's merger with Doubeclick in 2007, then Commissioner Pamela Jones Harbour raised the issue of privacy in her dissent (pages 9-12). As I think history now confirms, the FTC erred in ignoring Commissioner Harbour and not considering the issue of privacy in the Google deal. However, many of her comments similarly apply to the AT&T/T-Mobile deal.

While the FTC cannot turn back the clock on Google/Doubleclick, it can and should protect the privacy of the millions of T-Mobile subscribers. The FTC should block this merger. However, even if the deal is permitted to go through, the FTC should at least extract strict privacy guarantees from AT&T that include a policy of not retaining IP address allocation or other Internet browsing logs.

If the FTC, Commerce Department and Congress want the market to provide privacy to consumers, then they need to make sure that consumers have options in this area. Without options, informed consumers cannot vote with their wallets. Companies that choose to go the extra mile to protect privacy should be rewarded for doing so, and not, when the market for privacy is so young, be swallowed up by those that steamroll over their customers' desire to keep their data safe.

Federal judge in Twitter/Wikileaks case rules that consumers read privacy policies

Earlier this afternoon, a federal magistrate judge issued an order in the much-hyped Twitter/Wikileaks case. While I will leave it to others in the media to analyze the order and its impact, I do want to focus on one specific issue.

The three individuals who objected to having their Twitter account records obtained by the government (referred to in the order as the petitioners) raised an interesting 4th amendment claim regarding their IP address information. Building on recent developments in the area of location privacy (where the 3rd circuit ruled that consumers do not knowingly transmit their location information to phone companies, because they generally don't understand the technical details of how phones work), the individuals here claimed that they didn't realize that they were conveying their IP addresses to Twitter, and thus maintained a privacy interest in this information.

The judge didn't buy this argument at all -- but rather than focusing on the fact that two of the individuals are skilled security experts who obviously understand how IP addresses work, she instead based her decision on Twitter's privacy policy. From page 13 of her order:

In an attempt to distinguish the reasoning of Smith v. Maryland and Bynum, petitioners content that Twitter users do not directly, visibly, or knowingly convey their IP addresses to the website, and thus maintain a legitimate privacy interest. This is inaccurate. Before creating a Twitter account, readers are notified that IP addresses are among the kinds of "Log Data" that Twitter collects, transfers and manipulates. See Warshak, 2010 recognizing that internet service provider's notice of intent to monitor subscribers' emails diminishes expectation of privacy). Thus, because petitioners voluntarily conveyed their IP addresses to Twitter as a condition of use, they have no legitimate Fourth Amendment privacy interest.

A footnote below the paragraph states further that:

At the hearing, petitioners suggested that they did not read or understand Twitter's Privacy Policy, such that any conveyance of IP addresses to Twitter was involuntary. This is unpersuasive. Internet users are bound by the terms of click-through agreements made online. A.V. ex rel. Vanderhye v. iParadigms, LLC, 544 F.Supp.2d 473,480 (E.D. Va. 2008) (finding a valid "clickwrap" contract where users clicked "I Agree" to acknowledge their acceptance of the terms) (aff'd A.V. ex rel v. iParadigms, LLC, F.3d 630,645 n.8 (4th Cir. 2009). By clicking on "create my account", petitioners consented to Twitter's terms of use in a binding "clickwrap" agreement to turn over to Twitter their IP addresses and more.

Twitter's privacy policy

The facts here are quite a bit different than the Vanderhye v. iParadigms case that the judge cites. I will leave it to legal scholars to pick apart and analyze those differences. Instead, I want to highlight the Twitter sign up process, and then a few other facts which make it clear that it is absolutely insane to assume that consumers have read privacy policies, when all available evidence (and statements by several senior government officials) suggests the opposite.



When you sign up for a Twitter account, you are shown a copy of the 200-line Terms of Service, in a text-box which displays 5 lines of text at a time. Users are not required to scroll to the bottom, or click a checkbox acknowledging that they have read the terms. Instead, right above the clickable "Create My Account" button, there is the following line of text:

By clicking on "Create my account" below, you are agreeing to the Terms of Service above and the Privacy Policy.

The Twitter terms of service do not actually include any mention of IP addresses. Instead, it is Twitter's privacy policy that includes the following section of text in its sixth paragraph:

Log Data: Our servers automatically record information ("Log Data") created by your use of the Services. Log Data may include information such as your IP address, browser type, the referring domain, pages visited, and search terms. Other actions, such as interactions with advertisements, may also be included in Log Data.

Although the judge states in her order that "[b]efore creating a Twitter account, readers are notified that IP addresses are among the kinds of 'Log Data' that Twitter collects, transfers and manipulates," that isn't entirely true.

It would be far more accurate to say that before creating a Twitter account, users are presented a link to a privacy policy, which includes a statement six paragraphs down about IP address collection. Users are further told that by clicking on a button to create the account, that they acknowledge that they read the linked privacy policy, although Twitter does not actually take any steps to make sure that users clicked on the link or scrolled through the content on that page.

Of course, it wouldn't really matter if Twitter forced people to click on the privacy policy, or scroll through the page, because everyone knows that consumers won't actually read through the text.

The FTC and Supreme Court discuss privacy policies

In introductory remarks at a privacy roundtable in December 2009, Federal Trade Commission Chairman Leibowitz told those assembled in the room that:

We all agree that consumers don’t read privacy policies – or EULAs, for that matter.

Similarly, in a August 2009 interview, David Vladeck, the head of the FTC's Bureau of Consumer Protection told the New York Times that:

Disclosures are now written by lawyers, they’re 17 pages long. I don’t think they’re written principally to communicate information; they’re written defensively. I’m a lawyer, I’ve been practicing law for 33 years. I can’t figure out what the hell these consents mean anymore. And I don’t believe that most consumers either read them, or, if they read them, really understand it. Second of all, consent in the face of these kinds of quote disclosures, I’m not sure that consent really reflects a volitional, knowing act.

Even the Chief Justice of the US Supreme Court has weighed in the issue, albeit only in a speech before students in Buffalo, NY last year. Answering a student question, Roberts admitted he doesn’t usually read the terms of service or privacy polices, according to the Associated Press:

It has "the smallest type you can imagine and you unfold it like a map," he said. "It is a problem," he added, "because the legal system obviously is to blame for that." Providing too much information defeats the purpose of disclosure, since no one reads it, he said. "What the answer is," he said, "I don’t know."

Academic research on privacy policies

Among 222 study participants of the 2007 Golden Bear Omnibus Survey, the Samuelson Clinic found that only 1.4% reported reading EULAs often and thoroughly, 66.2% admit to rarely reading or browsing the contents of EULAs, and 7.7% indicated that they have not noticed these agreements in the past or have never read them.

Similarly, a survey of more than 2000 people by Harris Interactive in 2001 found that more than 60 percent of consumers said they had either "spent little or no time looking at websites' privacy policies" or "glanced through websites' privacy policies, but . . . rarely read them in depth." Of those individuals surveyed, only 3 percent said that "most of the time, I carefully read the privacy policies of the websites I visit."

However, while the vast majority of consumers don't read privacy policies, some do seem to notice the presence of a privacy policy on a company's website. Unfortunately, most Americans incorrectly believe that the phrase privacy policy signifies that their information will be kept private. A 2003 survey by Annenberg found that 57% of 1,200 adults who were using the internet at home agreed or agreed strongly with the statement "When a web site has a privacy policy, I know that the site will not share my information with other websites or companies." In the 2005 survey, questioners asked 1,200 people whether that same statement is true or false. 59% answered it is true.

Even if consumers were interested in reading privacy policies -- doing so would likely consume a significant amount of their time. A research team at Carnegie Mellon University calculated the time to read the privacy policies of the sites used by the average consumer, and determined that:

[R]eading privacy policies carry costs in time of approximately 201 hours a year, worth about $2,949 annually per American Internet user. Nationally, if Americans were to read online privacy policies word–for–word, we estimate the value of time lost as about $652 billion annually.

Finally, even if consumers took the time to try and read privacy policies, it is quite likely that many would not be capable of understanding them. In 2004, a team of researchers analyzed the content of 64 popular website's privacy policies, and calculated the reading comprehension skills that a reader would need to understand them. Their research revealed that:

Of the 64 policies examined, only four (6%) were accessible to the 28.3% of the Internet population with less than or equal to a high school education. Thirty-five policies (54%) were beyond the grasp of 56.6% of the Internet population, requiring the equivalent of more than fourteen years of education. Eight policies (13%) were beyond the grasp of 85.4% of the Internet population, requiring the equivalent of a postgraduate education. Overall, a large segment of the population can only reasonably be expected to understand a small fragment of the policies posted.

Conclusion

I don't know the caselaw well enough to say if the judge was correct in stating that clickwraps that link to privacy policies are binding. However, even if there is caselaw supporting this decision, it is in no way supported by evidence of actual consumer behavior, or common sense. If the Chief Justice of the Supreme Court doesn't read privacy policies, how can we expect this of regular consumers?