January 21, 2000

To: CLS Participants (Web only; e-mail alert)

From: Nicholas Johnson

Re: CLS/Reading Assignments for January 26, 2000


Note: (a) There will be a brief, short answer quiz at the beginning of the hour over this material. (b) All of the assigned readings are available as links off of the David Loundy "E-Law Locator" and "EPIC" (Electronic Privacy Information Center) pages. However, I have also provided direct links to each item from this memo as well (to save you looking for them). (c) I refer to "pages" to give you some sense of how long these reading assignments are. But because printing differs from one computer to another the assigned sections of documents are identified by their intra-document headings.

We will continue our discussion of "privacy" issues.

This means we will have additional discussion on one of the readings, and all of the cases, assigned for last week. Although next Wednesday's quiz will not cover, again, this material, if your memory is like mine it might be a good idea to at least give it a reminder scan before class.

1. What is "privacy" and what protections are already in place for information privacy? From last week: A useful overview of the implications and issues regarding electronic/Information Age privacy is contained in a government document. It is a "white paper" prepared for public comment by the National Information Infrastructure Task Force in 1997 called, "Options for Promoting Privacy on the National Information Infrastructure." (There is an earlier, 1995, publication called Privacy and the NII: Safeguarding Telecommunications-Related Personal Information. ("NII" is short for "National Information Infrastructure." "GII" refers to "global" information infrastructure.) If this is a subject of special interest to you, or you are writing a paper that involves privacy issues, you will want to look at it as well.) However, it is not assigned reading for Wednesday evening.

What is assigned are selected sections from the 1997 "Options" paper, see link above. (My copy of the entire paper prints out to 49 pages.) Read: (a) I (3) "The EU Privacy Directive" (half-page); (b) II "Privacy Defined" (one page); (c) III "Information Privacy in the Electronic Age" (one page-plus); (d) IV "Privacy Protection in Four Economic Sectors" (18 pages) -- an excellent overview of what protections are already in place. (You are, of course, not forbidden to read more; it's useful and insightful brainstorming about how to proceed with public policy. But "as a concession to the shortness of life," if not our class period, it's not required.)

Re-read, especially, the portion, above, "IV "Privacy Protection in Four Economic Sectors." That is, begin to develop some sense of what the major areas of focus, and major legislative protections, have been.

2. What cases have there been so far involving the privacy of, say, e-mail? These were assigned for last week. We talked about them then in only the most general sense. We'll get into the particulars next Wednesday.

(a) Andersen Consulting v. UOP (my copy is three pages)

(b) Bourke v. Nissan Motor Corp. (my copy is five pages)

(c) McVeigh v. Cohen (my copy is six pages)

(d) Quad/Graphics v. Southern Adirondack Library System  (my copy is three pages)

(e) State ex rel. Wilson-Simmons v. Lake Cty. Sheriff's Dept. (my copy is five pages)

(f) Stern v. Delphi Internet Services Corp. (my copy is six pages)

(g) Steve Jackson Games v. U.S. Secret Service (my copy is nine pages)

. . . and, new this week, the Supreme Court's decision January 12, 2000, in the case of . . .

(h) Reno v. Condon (available as a link from the EPIC site; this is the direct URL; my (PDF) copy is nine-plus pages)

3. EPIC.

(a) Explore this site generally. Know that organizations like this exist -- and employ young lawyers like you. What do we mean by a "public interest organization"? What does EPIC do? How is it organized? Who's on their Board? Would this be a place you'd like to work? Why? How would you describe the organization's mission or purpose? What strategies does it seem to use to accomplish that mission? What are examples of some of the issues in which EPIC has been involved?

(b) Read EPIC's "Critical Infrastructure Protection and the Endangerment of Civil Liberties"? up to the section headed "Bibliography." (On my copy that is 19 pages-plus.) You may also want to (but are not required to, and will not be quizzed on) "Appendix A: White Paper on PDD-63." (It runs from page 22 through 34 on my copy.) It's the Clinton Administration's official "Policy on Critical Infrastructure Protection" referred to in the EPIC document.

This document reads like a Tom Clancy novel, so it's not as daunting as the pages may suggest.

NOTE: Come prepared to represent some group's position on these issues, such as (1) the NSA/CIA/DIA/FBI needs/interests, (2) commercial database providers (e.g., Nexis/Lexis), (3) private sector employers, (4) union representative of employees, (5) ACLU, or (6) anything I've forgotten that you think should be represented. We will have a debate/discussion of the various positions and see if we can evolve a class policy. It should be fun.

(c) Read EPIC Executive Director Marc Rotenberg's "Preserving Privacy in the Information Society" (presented to UNESCO). My copy runs 11-plus pages.

(d) As an example of what you can uncover using the Freedom of Information Act, and a document relevant to Wednesday's discussion, check out the EPIC-uncovered Brent Scowcroft "Top Secret" White House memo of January 17, 1991. (It's less than one page.)

See you Wednesday evening.