My colleague Scott Michelman has obtained an excellent ruling from the Court of Appeals for the Fourth Circuit holding that a company could not sue the federal government over its maintaining files about a allegedly bad product while keeping both the name of the product, and the name of the company, confidential
Paul Alan Levy
Public Citizen Litigation Group
1600 – 20th Street, NW
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/Page.aspx?pid=396
Fourth Circuit: Injury to Corporate Reputation Not Enough to Justify Sealing Court Case
‘Company Doe’ Sued to Keep Complaint Out of Federal Database Designed to Warn Consumers of Faulty Products
April 16, 2014
Contact: Scott Michelman (202) 588-7739
Angela Bradbery (202) 588-7741
WASHINGTON, D.C. – Holding that injury to corporate reputation doesn’t justify sealing a court case, an appellate court today in Company Doe v. Public Citizen handed a key victory (PDF) to consumers. It also solidified the integrity of a federal database designed to warn consumers about faulty products and confirmed the importance of public access to courts, Public Citizen said today.
In the case, a company sued to keep a complaint about one of its products out of a database created by the Consumer Product Safety Commission (CPSC) and persuaded a district court judge to adjudicate the matter in secret, sealing most documents pertaining to the case and permitting the company to use the pseudonym “Company Doe.” Public Citizen, along with Consumer Federation of America and Consumers Union (the publisher of Consumer Reports), objected to the seal. The U.S. Circuit Court of Appeals for the Fourth Circuit ruled today that the record must be unsealed.
“The Fourth Circuit sent a strong message today that corporations that turn to the courts must accept that public access to the proceedings is part of going to court in an open and democratic society,” said Scott Michelman, the Public Citizen attorney handling the case.
The public will learn the name of the company as soon as the case is sent back to the district court, Michelman said.
The court ruled that:
• Injury to corporate reputation is not enough to justify sealing court records under the First Amendment;
• The right to exclude a report from the CPSC database doesn’t include the right to litigate the entire matter in secret;
• Judicial opinions, summary judgment materials and docket sheets are protected by First Amendment right of access to courts;
• Permitting a company to use a pseudonym to challenge the inclusion of a report in the CPSC database was an abuse of discretion in light of the public interest in the database; and
• District courts must act expeditiously on sealing requests.
The underlying case was the first legal challenge to the CPSC product safety database, which was set up in 2011 as required by the Consumer Product Safety Improvement Act of 2008. Allowing public access to the court record allows the public to assess both the functioning of the court and the effect of this case on the CPSC and its database going forward.
“The ruling is a complete victory for consumers and a strong vindication of the First Amendment imperative to conduct litigation in the open,” Michelman added. “This decision will stand as a bulwark against the conduct of secret litigation such as occurred in this case.”
Learn more about the case.
http://www.citizen.org/litigation/forms/cases/getlinkforcase.cfm?cID=783
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Tag: Privacy
U.S. States Investigating Breach at Experian
http://krebsonsecurity.com/2014/04/u-s-states-investigating-breach-at-experian/
By Brian Krebs
krebsonsecurity.com
April 3, 2014
An exclusive KrebsOnSecurity investigation detailing how a unit of credit
bureau Experian ended up selling consumer records to an identity theft service
in the cybercrime underground has prompted a multi-state investigation by
several attorneys general, according to wire reports.
Reuters moved a story this afternoon quoting Illinois Attorney General Lisa
Madigan saying that ”it’s part of a multistate investigation,” and that
Connecticut Attorney General George Jepsen said that Connecticut is looking
into the matter as well.
News of the breach first came to light on this blog in October 2013, when
KrebsOnSecurity published an exclusive story detailing how a Vietnamese man
running an online identity theft service bought personal and financial records
on Americans directly from a company owned by Experian, one of the three major
U.S. credit bureaus.
Hieu Minh Ngo, a 24-year-old Vietnamese national, pleaded guilty last month to
running an identity theft service out of his home in Vietnam. Ngo was arrested
last year in Guam by U.S. Secret Service agents after he was lured into
visiting the U.S. territory to consummate a business deal with a man he
believed could deliver huge volumes of consumers’ personal and financial data
for resale.
[…]
Opportunities, Threats, Internet Governance and the Future of Freedom
Opportunities, Threats, Internet Governance and the Future of Freedom
Robert M. McDowell
Last Friday, the U.S. Commerce Department’s National Telecommunications and Information Administration (NTIA) announced it intended to start the process of severing its last tether to the non-profit organization that manages Internet domain names and addresses, such as dot com and dot org. These technical functions, that help people’s computers and mobile devices find what they seek on the Net, are administered through the Internet Corporation for Assigned Names and Numbers (ICANN).
If all goes according to NTIA’s plan, the U.S. government will relinquish its contractual oversight of ICANN by September 2015. In its ideal form, this evolution could help reverse a growing tide of increased state interference into the Net’s affairs. If events don’t unfold as NTIAintends, however, Internet freedom, global prosperity and international political reform will be at risk.
Due to the complexities of the Internet ecosystem, and the manner in which it has thrived, before reacting impulsively, observers should pause and thoughtfully examine the nuances that abound in the wake of this development.
A best case scenario for the NTIA plan would have existing, non-profit, private sector Internet governance groups oversee ICANN’s management of these critical technical functions, just as they have other technical aspects of the Net for decades – with a perfect track record of success.
The worst case scenario would include foreign governments, either directly or through intergovernmental bodies, snatching the soon-to-be untethered technical functions for their own purposes. Keep in mind that Vladimir Putin plainly asserted in 2011 that his goal is to have “international control of the Internet” through the International Telecommunication Union (ITU), a treaty-based arm of the U.N. Given Mr. Putin’s proclivity for expansionism, especially lately, we should regard his statement as a promise he intends to keep.
This concern is more than theoretical. Countries such as China, Russia, Saudi Arabia, Iran, and their client states, have worked for years to absorb many aspects of Internet governance into multilateral organizations such as the ITU rather than the non-profit private sector. They succeeded in gaining a toehold in the Internet’s affairs during the 2012 World Conference on International Telecommunications, a treaty negotiation in Dubai. They will be back to expand the ITU’s authority further at its plenipotentiary meeting this fall, which is another treaty negotiation as well as a “constitutional convention” for the ITU.
Context is everything with this scenario. Internet freedom has been under siege for years. Authoritarian regimes resent the free flow of information an unfettered Net brings – even if increased Net-based commerce is catapulting developing world economies to new heights. The U.S. government’s role with the contract for the technical functions operated through ICANN has been used as Talking Point Number One by those who seek to expand intergovernmental organizations’ reach into the Net’s operations to counter what these regimes contend is, essentially, American domination of the Internet.
Add to the mix the recent revelations by Edward Snowden regarding the breadth of the U.S. National Security Agency’s data gathering, and pro-international regulation forces have something stronger than mere rhetoric to make their case for their proposed power grab. The timing of NTIA’s announcement, however, comes at a crucial time and has the potential to change the trajectory of the debate, with no cost to the U.S. – unless the Administration weakens its stance.
NTIA’s Friday announcement was not a complete surprise to those who follow these esoteric but important matters. Working toward removing NTIA’s formal role in this area is consistent with the arc of actions taken by the U.S. government since the 1990s when it formalized the privatization of the Internet and its governance. In short, the Net has migrated further away from government control over the past three decades. As a result, it has become the greatest deregulatory success story of all time.
For instance, in the late 1980s, only a paltry 88,000 people – mainly government users and academics – had access to the Internet. Today, due to the government taking its hands off of the Net, more than 3 billion people across the globe have Web access through mobile devices alone. Accordingly, the Net is fundamentally and rapidly improving the human condition by boosting living standards and raising political expectations as it strengthens the sovereignty of the individual. The evidence is irrefutable that both domestic and international government policies to leave the private sector alone to innovate and invest were the direct cause of this beautiful explosion of entrepreneurial brilliance.
With Friday’s announcement, NTIA is taking its last steps down a path that was paved over two decades ago: a path intended to get the government out of the Internet governance business. In that spirit,NTIA has put forth several conditions before it would allow its contract overseeing ICANN to expire in September 2015. The most important condition is that no governmental, intergovernmental or multilateral bodies would be allowed to have a role in overseeing any technical functions. Implicitly, if foreign governments or treaty-based organizations were to insert themselves into this realm, NTIA would renew its contract with ICANN in 2015, thus keeping the status quo and ending the argument for at least few more years.
To show that it is resolute, the Administration should vehemently underscore the conditionality of its plan. It cannot soften its stance on this crucial issue, event slightly. If it does, chaos will reign unlike any other time in the Internet’s history. Internet freedom and prosperity would get caught in an international regulatory death spiral.
The best case scenario would involve sticking with what has worked in the Internet space since its inception: allowing the non-profit, non-governmental, private sector, multi-stakeholder Internet governance structure to keep doing what it has been doing so well without the “help” of governments. Diverse, loosely-knit and “bottom up” run technical groups such as the Internet Architecture Board, the Internet Engineering Task Force, the Internet Society, and regional and local engineers, academics and user groups, are the best stewards of these technical functions – not anyone’s government. These private sector groups will keep the Internet governance structure dispersed and free from bottle necks to ensure that no entity can control the Net or shut it down.
Accomplishing the complex task of modernizing the multistakeholder model of Internet governance, including the administration of critical technical functions, will be difficult and risky. U.S. policy in this space should be to keep governments out of the Net’s technical affairs. But we can’t have it both ways. The Administration must not waver, even symbolically. Internet freedom and prosperity hang in the balance. To be continued …
Who Controls The Internet?
Seven people control the system at the heart of the web: the domain name system, or DNS.
The English stiff upper lip shows security cracks
David Hare: ‘The security services are running the country, aren’t they?’
“Well, they’re running the country, aren’t they? I mean, the reason I’m writing about the security services is that there is no democratic control of them whatsoever. And now it seems the judiciary is joining in.” The judgment certainly appears to support the central thesis of Hare’s latest trilogy of BBC films, about an MI5 agent disillusioned by his employer’s rampant abuse of power.
PO box justice: what secret Home Office court says about British openness
As the Guardian’s revelations show, this tribunal’s so-called scrutiny of the security services is a living shame to the UK
This revelation about the tribunal says a lot about the compulsive secrecy of the British establishment, which Nick Pickles, head of the excellent Big Brother Watch, likens to an addiction – a morbid condition of some sort. But it also, I am afraid, says something about British complacency. Our trust in these people to do the right thing behind closed doors on matters where the state’s interests are so aggressively defended is really alarming. That so few complaints against the intelligence agencies have ever been upheld at the tribunal, and just a few paltry sums in compensation have been paid, is all you need to know about the justice available there. We should see it for what it is: a secret operation, designed to stifle legitimate complaints against the authorities. In the past 15 years the legal system has embraced secret immigration tribunals, secret courts and the IPT, in which lawyers and claimants have little, if any, idea of the processes to which they are party and subject. This is a living shame to the United Kingdom. The idea that our politicians go about the world lecturing others on the rule of law or standards of justice is absolutely preposterous. But it is a hypocrisy that is permitted to exist because we do not hold their feet to the fire and demand to know why money is spent on ring-fencing their power.
Surveillance: Westminster faces up to the facts | Editorial
You may not like Edward Snowden. You may think him a villain rather than a hero. But few people – even within the closed worlds of intelligence – deny that he has brought into the open matters that demanded to be discussed. The more the revelations spilled into the open, the clearer it became that these were issues of the greatest importance – bearing on the private sector, the US and UK’s digital economy, international relations, individual privacy and the integrity of the web itself. There are huge implications for business, individuals and the courts, as well as the intelligence agencies themselves, in what has been disclosed. How could politicians really imagine they could sit this out – and what would that silence say about politics itself? In the space of 48 hours, the dam has broken. First came a thoughtful speech by the shadow home secretary, Yvette Cooper. Although characteristically cautious, in order to avoid criticising any of the agencies directly, she accepted that the UK’s creaking statutory protections need to be updated for the era of Big Data, and also damned the passivity of the three commissioners who were supposed to be keeping an eye on the surveillance undertaken by different arms of the state.