Metadata by TLF: Issue 15
Welcome to our fortnightly newsletter, where our reporters Kruttika Lokesh and Dhananjay Dhonchak put together handpicked stories from the world of tech law! You can find other issues here, and you can subscribe to Metadata by TLF here.
PIL filed seeking identities of content moderation officers
Former RSS ideologue K N Govindacharya filed a public-interest litigation in the High Court of Delhi to prompt Google, Twitter and Facebook to disclose identities of designated content moderation officers on the basis of the Information Technology Rules. In response, Google submitted that the officers worked with government authorities to remove illegal content. Govindacharya claimed that without disclosure of the officers’ identities, no mechanisms to enforce obligations could not be adequately instituted. However, Google responded by stating that revealing the identities of officers would jeopardize their capacity to work efficiently with the government, as they would be exposed to public scrutiny and criticism.
Press Trust of India, “Google to Delhi HC: Can’t publicly disclose details of designated officers in India”, Financial Express, (July 17, 2020).
Isaac Chotiner, “The Underworld of Online Content Moderation”, The New Yorker, (July 5, 2019).
ECJ strikes down EU-US data transfer mechanism
The top European court has struck down a data sharing protocol that allowed American companies to transfer personal information about EU citizens to the US for processing. The protocol known as Privacy Shield has been invalidated over concerns of its misuse by mass surveillance programs operated by US intelligence agencies like the NSA. The case was filed by a privacy advocate named Max Schrems against Facebook after shocking revelations about the NSA’s PRISM surveillance program. The program was used for anti-terrorism surveillance and collected user data from big tech companies like Google, Yahoo, Microsoft, Skype, Apple, Facebook and Youtube. The argument used by Schrems was that by sending user data to the US, companies were exposing user data to mass surveillance which contravenes the EU's Charter of Fundamental Rights.
Alex Hern, “Tech firms like Facebook must restrict data sent from EU to US, court rules”,The Guardian, (July 16, 2020).
Natasha Lomas, “Europe’s top court strikes down flagship EU-US data transfer mechanism”, Tech Crunch, (July 16, 2020).
Staff, “CJEU invalidates “Privacy Shield” in US Surveillance case. SCCs cannot be used by Facebook and similar companies.”, noyb, (July 16, 2020).
Staff, “Background information on the case”, noyb, (July 16, 2020).
Natasha Lomas, “Legal clouds gather over US cloud services, after CJEU ruling”, Tech Crunch, (July 17, 2020).
Tech Companies to stop processing data requests from Hong Kong Government
Facebook, Microsoft, Google and Twitter announced that they would deny law enforcement requests for user data in Hong Kong. The move comes after imposition of a new national security law by China. The new law empowers the police forces to take down internet posts and punish internet companies that do not comply with data requests. If a person is ordered to remove a post and he or she refuses, that person can face a jail sentence of one year. The law also allows for arrest of employees at internet companies for non-compliance. Companies in the Silicon Valley have announced that they would review the security law and in the interim, no requests for user data will be complied with. The Chinese based app Tiktok has pulled it's app from Hong Kong in response to the new law. Telegram and Zoom have also halted processing any data requests from Hong Kong due to concerns over privacy rights of users.
Newley Purnell, “Google, Facebook and Twitter Suspend Review of Hong Kong Requests for User Data”, The Wall Street Journal, (July 7, 2020).
Karishma Mehrotra, “Explained: What China security law means for Hong Kong and the global Internet”, The Indian Express, (July 12, 2020).
Rita Liao, “The tech industry comes to grips with Hong Kong’s national security law”, Tech Crunch, (July 8, 2020).
Rohan Seth & Manoj Kewalramani,“Understanding implications of Hong Kong’s tech ecosystem changes for India”, Deccan Herald, (July 17, 2020).
Paul Mozur, “In Hong Kong, a Proxy Battle Over Internet Freedom Begins”, The New York Times, (July 7, 2020).
Tech Companies sued under Illinois Law
Two Illinois residents sued Amazon, Google and Microsoft under the Biometric Information Privacy Act, passed by the Illinois legislature in 2008. The act makes it illegal to collect, store and use biometric information without the written consent of citizens. Steven Vance and Tim Janecyk alleged that their photos were used to train facial recognition technologies without their permission. The photos were used in an IBM program designed to advance the study of fairness and accuracy in facial recognition by looking at more than just skin tone, age and gender. The dataset used in the program included 1 million images of human faces. The lawsuit comes at a time where increased criticism of facial recognition technologies has forced major tech companies to withdraw or temporarily halt their facial recognition programs.
Kirsten Errick, “Parents Sue TikTok Over Biometrics-Based Targeting”, Law Street, (June 29, 2020).
Taylor Hatmaker, “Lawsuits allege Microsoft, Amazon and Google violated Illinois facial recognition privacy law”, Tech Crunch, (July 16, 2020).
Frank Nolan & Andrew Weiner, “Recent Decisions Clarify Scope of Illinois Biometric Privacy Law”, Law.com, (June 26, 2020).
BuzzFeed reporters fight to document and unseal US court records
Investigative reporters appealed a decision of the U.S. District Court in the U.S. Court of Appeals to gain access to electronic surveillance records. They asserted that the right of the public to access judicial records existed as a fundamental element of the rule of law. The records sought by reporters held information on how the government was using surveillance tools. Three specific instances were allowed by the courts wherein the government was allowed to collect electronic information, email content and metadata about a person through compilation of their calls and messages. The Court of Appeals held that the journalists were to be granted access to these judicial records.
Arundhati Katju, “Live streaming of court proceedings is part of the right to access justice”, Indian Express, (July 3, 2020).
Sabrina Conza, “DC Circuit reverses district court ruling on unsealing electronic surveillance records”, Reporters Committee for Freedom of the Press, (July 8, 2020).
Ann E. Marimow, “Should the public pay a dime for access to court records?”, The Washington Post, (February 4, 2020).
Reporters fight back against subpoena filed by the Seattle Police Department
Following the death of George Floyd in the United States, voices of dissent arose across the country in the form of physical gatherings and protests. Amidst the furore, weapons were stolen and police vehicles were set on fire on May 30, 2020. At the same time, news agencies were on the ground covering the story. The Seattle Police Department is currently carrying out an investigation to determine the perpetrators in this matter. To this end, they submitted a subpoena requiring 5 news channels to hand over footage that they acquired on May 30 to identify suspects. However, the journalists are fighting back by relying on their First Amendment rights and the Washington Shield law. The reporters claim that they are already in jeopardy when they cover stories; and are intent on fighting the public perception that journalists are an extended arm of law enforcement.
Sabrina Conza, “Seattle police should not be able to subpoena journalistic work product, RCFP brief argues”, Reporters Committee for Freedom of the Press, (June 30, 2020).
Hal Bernton, “Seattle Times, other media fight Seattle Police Department subpoena for raw footage, photos of protest”, The Seattle Times, (July 3, 2020).
“Freedom of Expression and Public Order”, UNESCO Communication and Information Sector.