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EPIC Alert 5.18 [1998] EPICAlert 18


Volume 5.18 December 3, 1998

Published by the Electronic Privacy Information Center (EPIC)
Washington, D.C.

Table of Contents

[1] ACTION: Oppose FBI Assault on Communications Privacy
[2] International Crypto Agreement Modified
[3] Library Internet Filters Held Unconstitutional
[4] Order Blocking Enforcement of Net Censorship Law Extended
[5] EU Finds Commerce Department Privacy Proposal Flawed
[6] New Privacy Survey Finds High Level of Concern for Privacy
[7] EPIC Bookstore Now Also Features Films
[8] Upcoming Conferences and Events

[1] ACTION: Oppose FBI Assault on Communications Privacy

The Federal Communications Commission (FCC) is soliciting publiccomments on an FBI proposal to re-design the nation's tele-
communications infrastructure to facilitate electronic surveillance.
In the pending proceeding under the Communications Assistance to LawEnforcement Act (CALEA), the FBI is seeking new surveillance powers,
including the use of cellular phones as tracking devices and themonitoring of "packet mode communications" like the protocol used onthe Internet.

When it enacted CALEA in 1994, Congress explicitly stated that the lawwas intended to give law enforcement "no more and no less access toinformation than it had in the past." Nonetheless, the FBI hasconsistently interpreted the law as authority for increased wiretappingand surveillance powers. The FCC is now seeking comments on whetherfederal law enforcement agencies should be able to use cell phones astracking devices and have easier access to the content of Internetcommunications. The deadline for the submission of comments isDecember 14.

EPIC, joined by the ACLU and EFF, previously filed formal comments withthe FCC urging the protection of communications privacy as theCommission considers the FBI's request under CALEA. We will again beopposing the Bureau's proposal in our forthcoming comments and urgeother organizations and individuals to express their views on thisimportant issue.

Information on filing comments with the FCC is available at the EPICWiretap Page:

[2] International Crypto Agreement Modified

The U.S. Commerce Department reported on December 3 that the WassenaarArrangement, a 33-country group that works on exports of militarygoods, has reached an agreement on setting limits on internationaltransfers of encryption.

The new agreement reportedly allows for exports of crypto products upto 56 bits for all crypto and 64 bits for mass market software orhardware. These changes reflect both a relaxation and an increase inrestrictions. Currently, cryptography items are strictly controlled.
However, mass market software is exempt. Only a few countriesincluding the U.S. currently restrict exports of mass market software.

The decision to implement these changes will remain with each countryand this agreement may not result in any changes in current practice.
As the Secretariat notes on its web page: "The decision to transfer ordeny transfer of any item will be the sole responsibility of eachParticipating State. All measures undertaken with respect to thearrangement will be in accordance with national legislation andpolicies and will be implemented on the basis of national discretion."
The U.S. has been lobbying the other members to adopt more restrictivelaws. However, many nations such as Finland, Canada and Ireland haveannounced domestic policies in the past year which allow for moreliberal exports.

Earlier this year, members of the Global Internet Liberty Campaign, aninternational organizations of civil liberties groups, wrote to theWassenaar Secretariat and urged the removal of controls oncryptography. The GILC Statement said that "failure to protect thefree use and distribution of cryptographic software will jeopardize thelife and freedom of human rights activists, journalists and politicalactivists all over the world."

The announcement from the Department of Commerce on the new Wassenaarcontrols came in the same week that the White House said that it wouldpursue a policy of "self-regulation" for Internet commerce.

More information on Wassenaar is available at:

The text of the GILC Statement is available at:

[3] Library Internet Filters Held Unconstitutional

In the second recent victory for online free speech advocates, afederal judge in Northern Virginia ruled on November 23 that the use ofInternet filtering software on public library computers violates theFirst Amendment. Judge Leonie Brinkema found in Mainstream Loudoun v.
Board of Trustees of the Loudoun County Library that a government body"cannot avoid its constitutional obligation by contracting out itsdecisionmaking to a private entity." The judge ordered the libraryboard to remove software (X-Stop Librarian) that was intended to filtercontent inappropriate for minors from the Internet, finding thatplacing such filters on all library computers violated the FirstAmendment rights of adult patrons. The ruling came several days aftera federal judge in Philadelphia issued a temporary restraining orderagainst enforcement of the recently enacted "Child Online ProtectionAct" (see next item and EPIC Alert 5.17).

The court found the library's Internet filtering policy to be anunconstitutional prior restraint on speech and concluded:

Although [the library] is under no obligation to provide Internet access to its patrons, it has chosen to do so and is therefore restricted by the First Amendment in the limitations it is allowed to place on patron access.
Defendant has asserted a broad right to censor the expressive activity of the receipt and communication of information through the Internet with a Policy that (1) is not necessary to further any compelling government interest; (2) is not narrowly tailored; (3) restricts the access of adult patrons to protected material just because the material is unfit for minors; (4) provides inadequate standards for restricting access; and (5) provides inadequate procedural safeguards to ensure prompt judicial review. Such a Policy offends the guarantee of free speech in the First Amendment and is,
therefore, unconstitutional.

In response to the court decision, the library board revised itsInternet policy on December 1. Under the new policy, adults arepermitted to use library computers with or without software filters.
Children will not be allowed to access the Internet unless theirparents sign a statement declaring whether they are allowed to usecomputers with or without filters.

The full text of the decision is available at:

[4] Order Blocking Enforcement of Net Censorship Law Extended

Enforcement of the "Child Online Protection Act" (COPA) is on hold atleast until early next year. The Justice Department has agreed to anextension of a temporary restraining order (TRO) against COPA issued byU.S. District Judge Lowell A. Reed on November 19. The government andthe plaintiffs challenging the law have signed a stipulation extendingthe TRO until February 1, 1999, to allow the parties additional time toprepare for trial on the constitutionality of the Internet censorshiplaw. That proceeding is now scheduled to be held in Philadelphia onJanuary 20 and 21.

The TRO was issued in a legal challenge to the statute filed by EPIC,
the American Civil Liberties Union and the Electronic FrontierFoundation on behalf of a broad coalition of Web publishers and users.
COPA imposes criminal penalties against any "commercial" website thatmakes material that is "harmful to minors" available to anyone under
17 years of age. After a full-day hearing on November 19, Judge Reedenjoined enforcement of the new law, finding that the plaintiffs arelikely to prevail on their claim that the law violates the FirstAmendment's guarantee of free speech.

A complete archive of relevant materials is available at:

[5] EU Finds Commerce Department Privacy Proposal Flawed

The European Union on November 23 expressed its view that the U.S.
Department of Commerce's proposal for addressing privacy is notsufficient. The Commerce "Safe Harbor" proposal entails voluntaryindustry self-regulation to protect privacy (see EPIC Alert 5.16).

A European Commission spokeswoman, Betty Olivi, said at a November 23briefing said that all 15 members of the EU found the U.S. proposal"unacceptable." The EU's two major concerns were individuals' accessto their records and ability to stop the sale and use of theirpersonal information.

The United States, led by Undersecretary of Commerce David Aaron, hasheavily lobbied the EU to relax its laws on privacy to allow Americanbusinesses to freely transfer personal information. Thus far, the EUhas rejected such efforts.

The EU rejection of the "Safe Harbor" proposal could lead to embargoeson personal information being sent to the U.S. Under the EU DataProtection Directive, which went into effect in October, othercountries must ensure equivalent privacy protection before informationcan be exported. A survey of 50 countries by Privacy Internationalreleased in October found that nearly all industrialized countrieshave either adopted or are in the process of adopting comprehensiveprivacy laws.

[6] New Privacy Survey Finds High Level of Concern for Privacy

A new survey by Lou Harris finds an increasing level of concern forprivacy among Americans. It also shows that people are reporting moreprivacy invasions and are increasingly reluctant to provide personalinformation to companies. The survey found that women are slightlymore concerned about privacy than men.

The report finds that 88 percent of respondents were concerned withthreats to their privacy. Fifty-five percent were "very concerned."
This level has remained near 90 percent for the last several years, upsharply from 64 percent in 1978.

Reports of privacy invasions were also up. In the most recent survey,
41 percent indicated that they had been the victim of a privacyinvasion by a business. Eighty-two percent believe that consumershave lost control over how their information is being used.

Respondents are more skeptical of companies collecting personalinformation and are becoming less willing to provide information.
Seventy-eight percent of those polled believe that businesses collecttoo much information. The same percentage of consumers refused toprovide requested information when they thought it was not necessary.
In 1990, when the question was asked, 42 percent responded that theyhad refused to provide information.

[7] EPIC Bookstore Now Also Features Films

Just in time for Holiday gift-giving, the EPIC Bookstore has addedsomething new and different to its lineup -- videos. We havecarefully selected some of our favorite flicks pertaining tocomputers, state surveillance and censorship. Get out the popcorn andcheck out the following films for yourself or someone you love:

- The Tin Drum -

This Oscar-winning film based on Gunter Grass' universally acclaimedbook made headlines in 1997 when it was seized from local videostores and a private home by Oklahoma City police without a courtorder or search warrant. Recently, a federal judge in Oklahoma Cityruled that the film does not violate Oklahoma's child pornographylaws.

- 1984 -

The movie version of George Orwell's modern classic captures thebook's oppressive atmosphere of hopelessness and paranoia whiledepicting one man's struggle against the Mother of all Big Brothers.
A visually stunning movie you won't want to miss. Stars John Hurtand Richard Burton in his last feature role.

- Blade Runner: The Director's Cut -

This movie's shadowy visual style, along with its classic privatedetective/murder mystery plot line (with Harrison Ford on the trailof a murderous android, or "replicant"), makes Blade Runner one ofthe few science fiction pictures to legitimately claim a place in thefilm noir tradition. And, as in the best noir, the sleuth discovers awhole lot more about himself and the people he encounters than heanticipates. Sean Young, Edward James Olmos, Daryl Hannah, RutgerHauer, and M. Emmet Walsh star along with Ford.

These films and other titles (and lots of books!) are available forpurchase online at the EPIC Bookstore:

[8] Upcoming Conferences and Events

From Aspiration to Activist Agenda: Achieving Economic, Social andCultural Rights in the U.S. December 4-6. New York, NY. Sponsored bythe Institute for Agriculture and Trade Policy. Contact:

Defending the National Critical Infrastructure. December 7-8.
Sponsored by Defense Week. Contact:

Computer Ethics. Philosophical Enquiry 98 (CEPE'98). December 14-15.
London, UK. Sponsored by ACMSIGCAS and London School of Economics.
1999 RSA Data Security Conference. January 18-21, 1999. San Jose, CA.
Sponsored by RSA. Contact:

FC '99 Third Annual Conference on Financial Cryptography. February22-25, 1999. Anguilla, B.W.I. Contact:

Electronic Commerce and Privacy Legislation -- Building Trust andConfidence. February 23, 1999. Ottawa, Canada. Sponsored by RileyInformation Services.

CYBERSPACE 1999: Crime, Criminal Justice and the Internet. 29 & 30March 1999. York, UK. Sponsored by the British and Irish LegalEducation Technology Association (BILETA).

Computers, Freedom and Privacy (CFP) '99. April 6-8, 1999. Washington,
DC. Sponsored by ACM. Contact:

1999 EPIC Cryptography and Privacy Conference. June 7, 1999.
Washington, DC. Sponsored by EPIC. Contact:

Cryptography & International Protection of Human Rights (CIPHR'99).
9-13 August 1999. Lake Balaton, Hungary. Contact:

Subscription Information

The EPIC Alert is a free biweekly publication of the ElectronicPrivacy Information Center. To subscribe or unsubscribe, send emailto with the subject: "subscribe" (no quotes) or"unsubscribe". A Web-based form is available at:
Back issues are available at:

About EPIC

The Electronic Privacy Information Center is a public interest researchcenter in Washington, DC. It was established in 1994 to focus publicattention on emerging privacy issues such as the Clipper Chip, theDigital Telephony proposal, national ID cards, medical record privacy,
and the collection and sale of personal information. EPIC is sponsoredby the Fund for Constitutional Government, a non-profit organizationestablished in 1974 to protect civil liberties and constitutionalrights. EPIC publishes the EPIC Alert, pursues Freedom of InformationAct litigation, and conducts policy research. For more information,
e-mail, or write EPIC, 666Pennsylvania Ave., SE, Suite 301, Washington, DC 20003. +1 202 544 9240(tel), +1 202 547 5482 (fax).

If you'd like to support the work of the Electronic Privacy InformationCenter, contributions are welcome and fully tax-deductible. Checksshould be made out to "The Fund for Constitutional Government" and sentto EPIC, 666 Pennsylvania Ave., SE, Suite 301, Washington DC 20003.

Your contributions will help support Freedom of Information Act andFirst Amendment litigation, strong and effective advocacy for the rightof privacy and efforts to oppose government regulation of encryptionand funding of the digital wiretap law.
Thank you for your support.

END EPIC Alert 5.18

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