Friday, April 19, 2013

Nude scanners, suspicionless travel surveillance, gene patents and other stories

I had plans this week to comment on US Supreme Court oral arguments in AMP v Myriad Genetics on the dispute over the BRCA1 & BRCA2 gene patents, the Court's refusal to hear the email privacy case, Jennings v. Broome, the Report of The Constitution Project’s Task Force on Detainee Treatment, Privacy International's OECD complaint against Gamma International for supplying surveillance technologies to Bahrain, the US Supreme Court decision last month, in Kirtsaeng v. John Wiley & Sons,  to allow the parallel importation of copyrighted works. I also intended to complete a long overdue analysis of the NLA v Meltwater appeal decision which is now so late that the UK Supreme Court has got round to referring it, this week, to the European Court of Justice. Sadly the day job left no space. 

So I'll refer you instead to KEI's and Scotusblog's analysis of AMP v Myriad, Ritika Singh's thoughts on the Constitution Project report, KEI's analysis of Kirtsaeng, IPKat's persective on the NLA v Meltwater ECJ referral, and PI themselves on the Gamma complaint. (Jennings v Broome I haven't got any detail on but thanks to Caspar Bowden for alerting me that it had happened).

I'd also recommend a CATO Institute event on travel surveillance with Edward Hasbrouck, (also and Ginger McCall Director, Open Government Program, Electronic Privacy Information Center. Video embedded below.

Hasbrouck focused on the suspicionless surveillance dragnet that now surrounds multiple modes of travel and the massive government coerced transfer of personal data to the travel industry; to which the US government has open unrestricted access. (His slides for the talk are available in full at  He provided multiple examples of permanent and growing files retained by the US government of personal travel throughout the US, Europe and Canada by air, train, bus, private car and even Shank's mare. He accused US companies doing business in Europe of "almost totally" ignoring data protection law and EU data protection authorities of completely failing to enforce the law. On what to do about all this he argued:
" We don't get rights by appealing for them...
We retain rights by exercising them.
The only way is to say no to illegal orders and demands, take the rap and fight it.  Unless people stand up and say no this is not going to move forward. "
Ginger McCall was there to talk about digital strip search machines at airports and EPIC's partial success in challenging the TSA on them. She believes the TSA's public comment process provides a unique opportunity to influence TSA policy on the scanners and that it's really important that ordinary people as well as experts with deep understanding and empirical data participate. She also spoke eloquently about the government and TSA attempts to control the language of the debate on the machines. Over the years "full body scanners" became "body scanners" and now "advanced imaging technology" which they define as "screening technology used to detect concealed anomalies without requiring physical contact with the individual being screened". So much more sanitised that latter terminology don't you think?

Both Hasbrouck and McCall agreed that conditions imposed on the exercise of a right - in this case to travel freely without undue interference from the government or its agencies, public, semi-private and private - must be subject to scrutiny and oversight. In particular, such conditions must be proven to be actually effective in achieving whatever public interest objective is being pursued but also be shown to be the least restrictive approach to achieving that objective. Not only has mass surveillance of travellers not proven effective but it is not clear what the objective of that surveillance is. Additionally, by definition, mass surveillance can never be the least restrictive approach.

In response to a question from the audience Hasbrouk insisted the only mechanism for interference with an individual citizen's right to travel should be a legitimate court issued injunction.

The video runs for 1 hour 18 minutes but the two talks take about 45 minutes, time that won't be wasted engaging with Hasbrouck's passion and McCall's clear analysis.