In a landmark ruling, the U.S. Supreme Court held that the Fourth Amendment protects location records generated by mobile phones. The government in Carpenter v. United States had obtained more than 6 months of location records without a warrant. EPIC filed a "friend-of-the-court" brief in Carpenter, signed by thirty-six technical experts and legal scholars, urging the Court to recognize that the "world has changed since Smith v. Maryland" was decided. EPIC argued that "Cell phones are now as necessary to the life of Americans as they are ubiquitous" and that users expect their location data will remain private. The Court agreed, in a decision by the Chief Justice, emphasizing the importance of protecting privacy as technology advances: "As technology has enhanced the Government's capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to 'assure[ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.'" The Court held that "an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through" a cell phone. Dissenting opinions were filed by Justices Kennedy, Thomas, Alito, and Gorsuch.
The FTC Chairman Joe Simmons announced today that the FTC will hold a series of public hearings this fall on how to safeguard consumer protection and competition in light of economic and technologic developments. "The hearings may identify areas for enforcement and policy guidance, including improvements to the agency's investigation and law enforcement processes, as well as areas that warrant additional study," said the FTC. The hearings will focus on several topics, including "the intersection between privacy, big data, and competition" and "the use of algorithmic decision tools, artificial intelligence, and predictive analytics." The FTC is requesting public comment in advance of the hearings. This will be the first time the FTC has reexamined its approach to consumer protection and competition since the FTC's 1995 hearings on "Global Competition and Innovation." EPIC participated in those hearings and helped the FTC develop authority to address emerging privacy issues. More recently, EPIC has put forward "10 Recommendations" for how the FTC can protect consumers, promote competition, and encourage innovation.
In a Senate Commerce Committee hearing today on Facebook and data privacy, former FTC CTO Ashkan Soltani stated that Facebook violated the 2011 FTC Consent Order by transferring personal data to Cambridge Analytica and device makers contrary to user privacy expectations. Soltani said that Facebook continued to misrepresent the extent to which users could control their privacy settings and allowed device makers to override users' privacy settings. Senator Blumenthal and other members of Congress had previously said the company violated the Consent Order, which was the result of complaints filed by EPIC in 2009 and 2010. In a statement to the Committee in advance of the hearing, EPIC urged the Senate to focus on the FTC's failure to enforce the Consent Order with Facebook.