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EPIC Alert 7.07 [2000] EPICAlert 7


Volume 7.07 April 20, 2000

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

Table of Contents

[1] House Committee on Intelligence Examines NSA Surveillance
[2] EU Fixes Agenda for Hearing on Global Surveillance
[3] Appeals Court Rules that Source Code Is Protected Free Speech
[4] Pentagon Requests New FOIA Exemption
[5] Children's Internet Privacy Law Goes Into Effect
[6] EPIC Moves - New Address and Phone Number!

[7] EPIC Bookstore -- The Mvr Book Motor Services Guide 2000
[8] Upcoming Conferences and Events

[1] House Committee on Intelligence Examines NSA Surveillance

On April 12, the House Permanent Select Committee on Intelligenceconducted a hearing to examine the surveillance capabilities of theNational Security Agency (NSA). The hearing follows increasingworldwide concern about international communications monitoring andthe "Echelon" satellite interception system in particular.

Committee Chairman Porter Goss (R-FL) stated that the Committeeitself was "well versed" in NSA intelligence gathering capabilitiesand was satisfied as to the legitimacy of its activities. Hecontinued, however, that an open hearing was necessary and importantin order to reassure the American public that the NSA operates withina strict legal framework.

Testifying before the Committee, the Director of the CentralIntelligence Agency (CIA), George J. Tenet, and Director of the NSA,
Lieutenant General Michael V. Hayden, explained that under FISA theNSA is authorized to collect information only for foreign intelligencepurposes. Both vehemently rejected the idea of unlawful snooping onU.S. citizens claiming that even the most junior of their officerswere "unequivocally committed" to acting within the law and protectingthe rights of Americans. As regards economic espionage, Hayden andTenet stressed that the U.S. intelligence community had neither theresources, legal authority nor interest in collecting information forthe benefit of U.S. businesses and corporations. Although, said Tenet,
signals intelligence can and does provide valuable economicinformation to certain U.S. government agencies, the NSA is"just not in the business of conducting industrial espionage."

One issue during the hearing was the sharing of information about U.S.
citizens between the NSA, CIA and domestic law enforcement agencies.
Lieutenant General Hayden acknowledged that this kind of cooperationdoes take place when the dual interests of national security and lawenforcement converge. However, he gave no clear indication of thefrequency of such occurrences. This issue will be examined in moredetail during further hearings into NSA activities, which the HouseGovernment Reform Committee, at the urging of Rep. Bob Barr (R-GA),
intends to hold later this spring.

EPIC is currently preparing a report on these issues to assist insetting the agenda for these hearings. The report is being written byEPIC Senior Research Fellow Duncan Campbell, whose recent report forthe European Parliament has led to ongoing debates in Europe.

CIA Director George Tenet's statement before the House PermanentSelect Committee on Intelligence:
Prepared remarks of Representative Bob Barr:
European Parliament report, "Interception Capabilities 2000" (PDF):

[2] EU Fixes Agenda for Hearing on Global Surveillance

The European Parliament will meet on May 4th and is expected toratify proposals to modify international law to deal withinternational telecommunications espionage, and to set up a temporaryspecial committee to further investigate the Echelon controversy.

The proposals, collectively known as the Echelon resolution, draftedby Graham Watson MEP, Chairman of the Committee on Citizens' Freedomsand Rights, Justice and Home Affairs, assert that internationalspying on communications should be identified as a breach offundamental human rights.

The motion for debate in May argues that all future interceptions must"have a legal basis, be in the public interest and be strictly limitedto the achievement of the intended objective . . . Any form ofsystematic interception cannot be regarded as consistent with thatprinciple, even if the intended aim is to fight against internationalcrime." It also bluntly asks that "any Member State operating such asystem should cease to use it" except for proper purposes ofinternationally agreed sharing of information to fight serious crimeor terrorism. If passed, only strictly military and defence matterswould be covered under the "national security" exemption to thetreaties joining Europe's nations.

The exact scope for the committee of enquiry will be settled at ameeting of high level parliamentarians shortly afterwards. Politicalgroupings within the Parliament have wrangled over what sort ofcommittee should be appointed, and the investigative powers it shouldbe granted.

For more on the European Parliament Committee on Citizens' Freedomsand Rights, Justice and Home Affairs:

[3] Appeals Court Rules that Source Code Is Protected Free Speech

On April 4, the Sixth Circuit Court of Appeals issued a landmarkruling in the case of Junger v. Daley, holding that encryption sourcecode is protected speech under the First Amendment. Peter Junger is alaw professor who four years ago was informed by the U.S. Departmentof Commerce that he would need an export license to post examples ofencryption source code on his website. He then filed suit in the Ohiofederal district court claiming that this restriction on his right topublish his encryption code constituted a prior restraint on speech inviolation of the First Amendment.

In July 1998, Judge Gwin of the U.S. District Court for the NorthernDistrict of Ohio dismissed Junger's claim, holding that as source codewas "inherently functional" rather than "inherently expressive" it wasnot protected speech under the First Amendment. The Sixth CircuitCourt of Appeals reversed this ruling stating that because "computersource code is an expressive means for the exchange of information andideas about computer programming . . . it is protected by the FirstAmendment." Having concluded thus, it referred the case back to thedistrict court to decide whether the current encryption exportregulations are unconstitutional.

This is the third constitutional challenge to the encryption exportregulations. It remains to be seen whether the current regulations,
which were significantly relaxed in January of this year, canwithstand such legal scrutiny.

The Sixth Circuit decision on Junger v. Daley:
EPIC's amicus brief in support of Junger:
Professor Junger's archive of legal materials related to his case:


[4] Pentagon Requests New FOIA Exemption

Proposed legislative language would introduce a new exemption for theFreedom of Information Act (FOIA). The proposal would be attached tothe National Defense Authorization Act for Fiscal Year 2001, H.R.
4205, currently being considered by the House Committee on ArmedServices.

The proposed exemption would create a new exemption to allow theDepartments of Defense and Energy to withhold unclassified informationreceived in confidence from foreign governments or internationalorganizations. The Pentagon believes the new exemption is necessaryto avoid the costs of securing such information as if it wereconfidential information, currently the lowest level of nationalsecurity information. Groups against the creation of a new level ofexempt information, including EPIC, have pointed out that thestorage of such information does not necessarily have to protected asif it were confidential but merely at a level equal to theprecautions used by the foreign entity that provided the data.

More information on the proposed new exemption is available from theFederation of American Scientists:

[5] Children's Internet Privacy Law Goes Into Effect

On April 21, the Children's Online Privacy Protection Act (COPPA) willgo into effect. The law requires website operators to obtain parentalconsent before the collection and use of personal information ofchildren up to the age of 13. The type of parental consent necessaryis governed by a sliding scale depending on the use of that data. Forexample, if personal information collected from children is not passedon to third parties, website operators will only have to receive anemail from parents allowing that use. If similar personal informationis passed on to a third party, more reliable means of verificationsuch as a letter or credit card number will need to be supplied.

In related Internet privacy news, a new survey conducted by Odyssey,
a market research firm, reveals wide public mistrust of the Internetcompanies with their personal information. Eighty-two percent ofhouseholds surveyed agreed with the statement "the government needs tostep in and regulate how companies use personal information." An evenmore convincing 92 percent agreed that "I don't trust companies tokeep personal information about me confidential, no matter what theypromise."

The final rules implementing COPPA are available from theFederal Trade Commission:
A more general guide to COPPA is online at:

[6] EPIC Moves - New Address and Phone Number!

EPIC has moved offices. Please note the change.

1718 Connecticut Avenue, NWSuite 200Washington, DC 20009
tel: 202 483 1140fax: 202 483 1248

[7] EPIC Bookstore -- The Mvr Book Motor Services Guide 2000

The Mvr Book Motor Services Guide 2000 : The National ReferenceDetailing, in Practical Terms, the Privacy Restrictions, Access,
Procedures, Regulations by Michael L. Sankey (Editor)

The national reference detailing - in practical terms - the privacyrestrictions, access procedures, regulations and systems of all stateheld driver and vehicle records.

EPIC Publications:

"Cryptography and Liberty 2000: An International Survey of EncryptionPolicy," Wayne Madsen and David Banisar, editors, (EPIC 2000).
Price: $20.

EPIC's third survey of encryption policies around the world. Theresults indicate that the efforts to reduce export controls on strongencryption products have largely succeeded, although severalgovernments are gaining new powers to combat the perceived threats ofencryption to law enforcement.

"The Privacy Law Sourcebook: United States Law, International Law, andRecent Developments," Marc Rotenberg, editor (EPIC 1999). Price: $50.

The "Physicians Desk Reference of the privacy world." An invaluableresource for students, attorneys, researchers and journalists who needan up-to-date collection of U.S. and International privacy law, as wellas a comprehensive listing of privacy resources.

"Filters and Freedom - Free Speech Perspectives on Internet ContentControls," David Sobel, editor (EPIC 1999). Price: $20.

A collection of essays, studies, and critiques of Internet contentfiltering. These papers are instrumental in explaining why filteringthreatens free expression.

"Privacy and Human Rights 1999: An International Survey of Privacy Lawsand Developments," David Banisar, Simon Davies, editors, (EPIC 1999).
Price: $15.

An international survey of the privacy and data protection laws foundin 50 countries around the globe. This report outlines theconstitutional and legal conditions of privacy protection, andsummarizes important issues and events relating to privacy andsurveillance.

Additional titles on privacy, open government, free expression,
computer security, and crypto, as well as films and DVDs can beordered through the EPIC Bookstore:

[8] Upcoming Conferences and Events

Regulating the Internet: EU & US Perspectives. April 27-29, 2000.
European Union Center, the School of Communications, and the Centerfor Law, Commerce & Technology at the University of Washington.
Seattle, WA. For more information:
Access Act Reform: The Destruction of Records and Proposed Access ActAmendments. Riley Information Services. May 1, 2000. Westin Hotel.
Ottawa, Canada. For more information:

Entrust SecureSummit 2000. May 1-4, 2000. Hyatt Regency Dallas atReunion. Dallas, TX. For more information:
Call for Papers -- 16th Annual Computer Security ApplicationsConference. Deadline May 12, 2000. Sheraton Hotel. New Orleans, LA.
December 11-15, 2000. For more information:

Electronic Government: New Challenges for Public Administration andLaw. May 18, 2000. Center for Law, Public Administration, andInformatization of Tilburg University, Netherlands. For moreinformation:

Shaping the Network: The Future of the Public Sphere in Cyberspace.
Computer Professionals for Social Responsibility (CPSR). May 20-23,
2000. Seattle, WA. For more information:
New Millennium, New Horizons: Marketing and Public Policy Conference2000. American Marketing Association. June 1-3, 2000. Marriott MetroCenter. Washington, DC. For more information:

First Annual Institute on Privacy Law: Strategies for Legal Compliancein a High Tech and Changing Regulatory Environment. Practicing LawInstitute. June 22-23, 2000. PLI Conference Center. New York, NY.
For more information:
Telecommunications: The Bridge to Globalization in the InformationSociety. Biennial Conference of the International TelecommunicationsSociety. July 2-5, 2000. For more information:
First International Hackers Forum. The Green Planet. August 18-20,
2000. Zaporozhye, Ukraine. For more information:
KnowRight 2000 - InfoEthics Europe. Austrian Computer Society andUNESCO. September 26-29, 2000. Vienna, Austria. For more information:
Privacy2000: Information and Security in the Digital Age. November 29,
2000. Adam's Mark Hotel. Columbus, Ohio. For more information:
Privacy: A Social Research Conference. New School University. October5-7, 2000. New York, NY. For more information:

Subscription Information

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

Back issues are available at:

About EPIC

The Electronic Privacy Information Center is a public interestresearch center in Washington, DC. It was established in 1994 tofocus public attention on emerging privacy issues such as the ClipperChip, the Digital Telephony proposal, national ID cards, medicalrecord privacy, and the collection and sale of personal information.
EPIC is sponsored by the Fund for Constitutional Government, anon-profit organization established in 1974 to protect civil libertiesand constitutional rights. EPIC publishes the EPIC Alert, pursuesFreedom of Information Act litigation, and conducts policy research.
For more information, e-mail, orwrite EPIC, 1718 Connecticut Ave., NW, Suite 200, Washington, DC20009. +1 202 483 1140 (tel), +1 202 483 1248 (fax).

If you'd like to support the work of the Electronic PrivacyInformation Center, contributions are welcome and fullytax-deductible. Checks should be made out to "The Fund forConstitutional Government" and sent to EPIC, 1718 ConnecticutAve., NW, Suite 200, Washington, DC 20009.

Your contributions will help support Freedom of Information Act andFirst Amendment litigation, strong and effective advocacy for theright of privacy and efforts to oppose government regulation ofencryption and expanding wiretapping powers.

Thank you for your support.

END EPIC Alert 7.07


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